Getting married in France, Getting divorced in Israel

Posted by on Jun 28, 2020 in Aliyah Israel, Blog, Divorce Israel-France

Getting married in France, Getting divorced in Israel 1Getting married in France, Getting divorced in Israel

Dr Debborah ABITBOL, lawyer

Me Jonathan KANIR, lawyer


Over the past two decades, a new legal world has been established so that Jewish couples who immigrated from France to Israel can establish a home in Israel.

However, a lack of clear knowledge and understanding of the applicable law to these couples is noticeable…

In this article, we will try to highlight, from our point of view, and strong of our professional experience, the application of family law in the case of a couple who came from France in order to benefit from some advice in times of crisis.

The financial agreement signed between spouses in France as part of the marriage

In 1999, Saul and Jacques got married civilly in France. Before their wedding, they signed a financial agreement before a notary in France and opted for a separation of property regime in accordance with French law and applicable to financial relations.

The “separation of property” regime under French law is a contractual regime characterized by the separation of property between the couple and administrative independence. Under this regime, each spouse retains ownership, management and free use of the property that belongs to him on the date of the signing of the agreement, including the property to be received throughout the marriage period, regardless of how they’ve got that very property and is exclusive to the spouse on whom the property is registered.

The couple had three children.

Saul, an interior designer by profession, did not work for most of the marriage at her husband’s request to raise their children, while Jacques made his fortune in his business and amassed a lot of capital during years of marriage, which was mainly registered in his name or under that of the companies he owns.

About 7 years ago, the couple immigrated to Israel and continued to run a common household under the same roof, Saul being totally dependent on her husband’s livelihood and raising their three children in an exemplary manner. During the years of the marriage, the couple accumulated assets in France (properties, companies, and investments) – registered in the name of Jacques only. And two properties in Israel – a residence listed equally in the name of the parties, James being the only one to have provided all the funds necessary for his purchase, and an investment apartment, which is rented to a third party, which Jacques bought with his own money and recorded according to his will and considerations in Saul’s name only.

After 20 years of marriage (made of 13 years in France and 7 years in Israel), their relationship went wrong, Saul filed financial applications with the family court and Jacques filed a divorce application with the rabbinical court in Israel, and has begun legal proceedings between the parties.


First step: the question of the applicability of the financial agreement signed in France

In the first instance, the court was asked to judge the applicability of the financial agreement signed between the couple and its impact on the dissolution of the division and distribution of the goods of James and Saul, both in France and in Israel.

Already at this stage, we are witnessing mistakes in the application of Israeli and French law.

Most Israeli lawyers incorrectly apply the Israeli gross law by choosing for their clients a strategy of “renouncement” to the execution of the financial agreement that was drafted, signed and approved in France, for a “simple” application of the Israeli law, without any reference to private international law.

In accordance with Israeli law, regarding the applicability of the Law on Financial Relations between Spouses, the applicable law will be the law of the place of residence of the spouses at the time of their marriage. The same is true in accordance with the provisions of the Haye Convention of 1978 on Property Regimes (‘The Haye Convention’).

In general, spouses who marry in France are free to adopt a property regime adapted to their point of view through the drafting of a financial agreement (before and during the marriage). In the event of the couple does not adopt a specific regime, the legal basis that would apply and govern the couple’s relationship would be the general scheme known in French as the Common Law Regime.

The Haye Convention also stipulates that spouses who married after 1992 cannot apply the law of the state in which the couple lives in a fixed manner only when no financial agreement has not been signed between the couple.

Thus, if a financial agreement is reached between married spouses in France, the law applicable to their matrimonial regime would be French law, regardless of the change in the couple’s nationality or residence during the marriage. In our case, it is French law that will apply to the regime of the couple, Saul and Jacques, that got married in France.

Step two: what law to enforce on property located in Israel according to French law?

Remember that James and Saul bought a residence in Israel, which was registered under their name in equal parts, that James, as mentioned, financed his money.

So, what right to apply to this property?

In Israel, the law states that the listing of a condominium property, regardless of the degree of investment of one of them in its acquisition and its sources of financing, testifies to their intention to share equal parts of the property among themselves. This determination means the division of ownership practices between the spouses and is even in accordance with the provisions of the land law, which stipulates that registration in the land registry will constitute conclusive proof of ownership. Therefore, under Israeli law, the property will be determined by land law, according to the list of the land registry.

French law distinguishes property ownership from real estate financing. According to French law, property and business ownership will be determined in accordance with registration – and so far there is no difference between the law in Israel and France in terms of ownership and registration. However, under the property separation scheme in France, if one of the spouses financed the purchase of the property beyond the part registered in the Land Registry, he can file a claim to recover the money from the financing. In other words, at the time of the distribution of the assets, it can be shown that, despite the share on the register, the property was financed by a single spouse, who can, therefore, claim financial compensation at the time of the dissolution of the plan.

Is Jacques entitled to 100% of the financing for the purchase of the residence?

A positive answer to this question would strip Saul of half the rights to the residence, leaving her homeless above her head. This is not the intention of the French legislator. French law considers the obligation of the married couple to contribute to the burdens of marriage and considers the education of the children and the custody of the household over the years as the contribution of the spouse who did not go to work.

Contributions to the burdens of marriage should not necessarily be in the form of income, but also through participation in various household tasks, including housekeeping, education, and childcare, etc.

That is, the husband who bought the family home with his own money and now wants to declare that he is the only one who financed the purchase of the property because his wife does not work, will not be able to claim the money from the finances.

Third step: the right to oblige the investment apartment

A separation agreement has been signed in France between the parties. It should be noted that no one forced Jacques to register the investment apartment in Saul’s name. Therefore, under Israeli law, the possibility for James to require the registration of the apartment as his full property is almost non-existent.

French law is a little more complex in this regard. On the one hand, according to French law, the inscription of the property indicates the intention of the couple and constitutes proof of ownership. On the other hand, as it is an asset for commercial purposes, the financing money can be requested and, in order to create a balance between the parties – in French jurisprudence, a mechanism called “compensatory benefit” has been put in place.

Indeed, according to French law, the question here does not arise about the property: the property remains the property of the person registered on the registered registers. This is a final decision: “The property belongs to the person whose title is registered in his name, regardless of his financing”

Court of Cassation, Civil Chamber 1 of January 23, 2007 Appeal No. 05-14311.

In Israel, the habits of the Israeli judge remain unchanged, because, under Israeli law, it is the registration that is considered the trademark of property, regardless of the question of the financing of the property, in accordance with Israeli land law, which stipulates that registration in the Israeli land registry constitutes proof of ownership of a property.

However, where the property is funded in full or in a majority by one of the two spouses and is registered on behalf of both, case law is sought to examine this defective case.

The question is the nature of the funding: Is it a gift between spouses or a loan?

If it is a gift made during the marriage, it is presumed that it was made in a free and irrevocable manner, in accordance with Article 1096 of the French Civil Code.

For a debt to be claimed, the financing must be a loan, and the burden of proof rests with the applicant in order to justify the existence of a debt through a loan. This is also the constant rule: the spouse who financed the property can obtain a settlement of his debt upon the dissolution of the plan if he proves that he financed the purchase or his share. Supreme Court, January 23, 2007 No. 05-14311.


Step four: the compensatory delivery mechanism


Saul stopped working about three years after their marriage, with their consent and joint decision, she gave up her professional career to devote herself to the keeping of her home and her children, while during 20 years of marriage, her husband devoted all his time to his business and continued to grow professionally.

Therefore, in accordance with French law, even if a separation of property agreement is signed, as in our case, when the marriage is dissolved, a gap is created between the woman’s standard of living and the standard of living of the husband, the part whose standard of living staff will be eligible to pay a compensatory benefit which will be calculated according to the criteria set out in French legislation and jurisprudence.

Like the balancing of resources under Israeli law, the compensatory benefit is part of the financial relationship between the parties and is judged in the context of the division of property, when the regime is dissolved, when the application for a compensatory benefit is submitted by the eligible party.

In the absence of agreement between the parties, the French court will judge the determination of the compensation and will take into account, among other things, the difference between the income and the capital of each spouse, the duration of the marriage, the age and state of health of the spouses, their training and professional status, the consequences of their professional choices of each spouse throughout their marriage, for the education of the children or to allow and facilitate the career of the other spouse at his expense, the capital of the couple valued and expected.

It is important to note that under French law, the compensatory benefit is a right and does not depend on the marital scheme chosen by the couple – as long as the parties have not expressly renounced that claim under a divorce agreement, the aggrieved party will be entitled to claim a compensatory benefit resulting from the creation of a gap between the standard of living of the parties as a result of the dissolution of the marriage.

How is the compensatory benefit mechanism applied in Israeli courts?

When a party wishes to enforce foreign law in a judicial proceeding, foreign law is a fact whose veracity remains to be proven as any other fact, and this by the filing of an expert in foreign law. The foreign law expertise will be drafted after a review of each case and will focus on the foreign law provisions that will apply to each subject.

In Israel, no explicit decision has yet been made on the compensatory benefit. However, Israeli judges began to seriously consider the issue of a debt between the couple when one of the spouses financed all or part of the property and registered it on behalf of both spouses or the other spouse.

At the time of writing, the Israeli court recognized the complexity of the issue of compensatory benefit and redirected it to a compromise between the Tribunal and the spouses claiming the compensatory benefit.

It is likely that in the years to come, the court will balance the justified requirement of the compensatory benefit with a new trend that will give the couple, in the context of the separation process of assets, the right to declare the existence of a debt and prove it in the conventional way that would be anchored in the ancillary legislation and/or detailed guidelines to allow a “simple” procedure when applying for the compensatory benefit.

To date, Israeli judges have been assisted by experts in French law so that he can examine the overall situation and interfere with the rights of spouses. In addition, accurate and up-to-date expertise is the only way to get family court judges to consider the claim for compensatory benefits.

Tips to avoid friction between laws

Above all, it is advisable to consult a law firm specializing in private international law and French law, including inheritance between spouses. It should also be remembered that, in accordance with French law, it is possible to amend and/or condition an existing financial agreement as well as to establish a new financial agreement at any time during the marriage, all in accordance with the provisions of French law. In addition, when the couple acquires property in Israel, it is important to ensure that the financial agreement in Israel is carried out as a foreign judgment before friction arises within the couple and/or a specific agreement is reached regarding the property. In all cases, a professional lawyer and expert in this area will be able to provide appropriate and specific advice on a case-by-case basis and comply with the requirements of two spouses in the financial agreement.

Getting married in France, Getting divorced in Israel 2

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