Getting married in France with a separation of property contract and Divorcing in Israel – The legal point

Getting married in France with a separation of property contract and Divorcing in Israel – The legal point

As part of the Firm’s areas of expertise, we would like to present below an update on international family law and more specifically on the legal issues related to spouses married in France and signing a financial agreement in France establishing a regime of separation of property in accordance with the provisions of French law so that each spouse retains the ownership, management and free use of the property that belongs to him or her at the time of the signing of the said agreement as well as the property that will be received by him or her during the course of the marriage[1].

How will the jurisdiction and the applicable law be structured when one of the spouses of a couple married in France and having signed a separation agreement in France, having immigrated to Israel, wishes to initiate divorce proceedings in Israel and to enforce the said agreement in Israel?

According to Israeli law, the law applicable to the financial relations between the spouses will be the law of the place of residence of the spouses at the time of the marriage[2]. Thus, for spouses who were married after 1992 and signed a separation of property agreement before a notary before their union in France, the French Law will be applied by the Israeli Courts [3].

Therefore, in the case of a couple married under the separatist regime and who signed a separation of property contract as previously stated, who immigrate to Israel and then file for divorce in Israel – French Law will be applied by the Israeli Courts[4]. It should be noted that the application of the latter by the FCJ  (Family Court Judge) will be done in its entirety and will even take into consideration the spirit that accompanies it, including doctrines and jurisprudential notions[5], in accordance with the position of the French Courts according to which the separatist regime must not prejudice any party in the application of the general principles specific to each spouse during a divorce.

This application will therefore require the opening of a contentious procedure before the Family Court in Israel, in the framework of which the Israeli FJC will in most cases call upon an Israeli expert in French law who will file before the competent FCJ a legal expertise explaining in Hebrew the provisions of French Law regarding the Israeli case before him[6].

The JAF will then study whether the financial agreement signed in France by the spouses establishing a regime of separation of property is legally applicable, taking into consideration on the one hand the possible willingness of the spouses to enforce the Israeli Law instead of the said agreement during their settlement in Israel, and on the other hand, the various remaining attachments to France for each of the spouses during the marriage and until the divorce proceedings (tax addresses, allowances, citizenship of the spouses, children’s schooling, commuting, etc. )[7].

What about the family residence registered in the name of both spouses in Israel under French law?

In Israel, the law requires that the registration of a property for joint ownership by the spouses indicates their intention to share the rights to the property equally between them. In France, on the other hand, the regime of separation of property distinguishes the registration of the property from its financing[8]. hat is, at the time of the division of the property, it can be shown that, despite the joint registration of the property, if the financing of the property was carried out by only one of the spouses, that spouse is entitled to demand financial compensation at the time of the dissolution of the matrimonial regime.

Would the latter be entitled to claim the entire financing of the marital residence?

As explained above, French law is applied by the Israeli courts in this case, and the latter has not ignored the crucial importance of the family residence for the divorcing couple. It was agreed that the estimation of a spouse’s participation in the financing of the said residence will not necessarily be done by studying the spouse’s income, but also by taking into consideration his or her participation in the management of the household, his or her contribution to the expenses of the marriage and to the education of the children over the years.

A spouse who is primarily responsible for the family’s income and who would like to claim that he or she is the only one who has financed the household, will therefore not be able to automatically claim reimbursement for the entire financing of the marital residence[9].

Compensatory allowances

In accordance with French law, the party whose personal standard of living is likely to decrease as a result of the marriage breakdown will be entitled to claim a compensatory allowance calculated according to criteria determining the difference in standard of living caused by the divorce, taking into account the length of the marriage, their age and state of health, their education and professional situation, their estimated and expected capital, their participation in the household, etc.[10].

Although there is no clear Israeli case law on this matter, the Israeli Courts recognize the complexity and importance of such compensatory allowances, opening the field for possible amicable settlements between the parties.

In conclusion

In light of the above, the Israeli courts order the submission of an expert opinion under French law, the role of which is, in addition to considering a fair distribution of property between the spouses, to give a precise and updated opinion on the rights of the latter in accordance with French law, which will be applied in its entirety regarding the property aspect.

Therefore, in order for these issues to be taken into account by the aforementioned courts, and for it to become possible to conduct a classic procedure of separation of property between spouses married in France and residing in Israel, the prior consultation of a law firm specializing in civil and family law in Israel according to French law will appear to be an imperative necessity.

[1] Articles 1536 to 1541 of the Civil Code

[2] Article 15 of the Israeli Spousal Financial Relations Law, 1973
Article 3 of the Hague Convention on the Law Applicable to Matrimonial Property Regimes

[3] Idem, Article 7

[4] 66/88 Tamar Decker v. Felix Decker, Mag (1) 122 (1989).

[5] 10621/05 M.I c. M.A, (FCJ Jerusalem) (2007)

[6] Article 88 of the Israeli Code of Civil Procedure (2018)

[7] 62045-06-16 B. c. D.S. (FCJ of Tel-Aviv Yafo) (2016)

[8] Article 1543 of the Civil Cod

[9] Court of Cassation on June 12, 2013 No. 11-26748

[10] Idem, Articles 270-271

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