Dear Clients and Colleagues,

We are writing to update you regarding recent developments in the conditions for recognition of common law spouses, as a result of the Supreme Court judgment, which was rendered on May 6, 2024 in ALA 3323/23 Shlomo Insurance Company Ltd. v. John Doe (Nevo 6 May 2024) (the “Judgment“) by the Honorable Judges Yael Willner, Yitzhak Amit and David Mintz.

The Supreme Court accepted an appeal brought by Shlomo Insurance Company Ltd. (the “Insurance Company“) regarding the recognition of a fiancé of a deceased as a common law spouse for the purpose of payment of compensation according to Section 78 of the Civil Wrongs Ordinance [New Version] (the “Ordinance“).

The case brought before the Court involved a couple (the “Couple“) who met while the fiancé was a student and the deceased finished her studies. After about six months, the Couple began living together in a rented apartment, and after a year and a half decided to marry in a civil marriage outside of Israel. However, two months before the wedding, the deceased died in a car accident.

The Magistrates Court accepted the claim of the fiancé for compensation from the Insurance Company as a dependent of the deceased by recognizing the fiancé as the “spouse” of the deceased according to Section 78 of the Ordinance and determined that the fact that the Couple was not able to marry in a religious marriage in Israel (as they were members of different religions) lessens the standard of proof for them being common law spouses.

The Magistrates Court’s recognition of the Couple as common law spouses, was based on the terms of “common household” and “joint lives”. In finding that these conditions were met, the Magistrates Court considered the following facts:

• The Couple lived together for a year and a half (however the formal address of the deceased remained at her parent’s house);
• For a certain period of time, the Couple divided the household expenses;
• The Couple intended to marry soon after they made the decision to get married;
• The fiancé signed an affidavit of renunciation from the estate of the deceased as an alleged spouse.

In addition, the Magistrates Court determined that the fact that the fiancé was not a beneficiary under the deceased’s insurance policy and that the Couple’s bank accounts were separate does not derogate from its conclusion that the Couple were common law spouses.

However, when the Supreme Court examined this issue, it emphasized the need to evaluate whether at the date of the accident, the Couple intended to have a relationship with multiple legal consequences and apply to their relationship the economic rights and obligations arising from the laws of marriage.

According to the Supreme Court’s Judgment, the status of common law spouses is not legally identical to the status of married couples. Rather, it creates a contractual agreement between the spouses which is the source of the various legal rights and obligations that will apply to the relationship of the common law spouses.

Furthermore, the Supreme Court emphasized the need to apply restraint before recognizing couples as common law spouses.

With regard to the low standard of proof that the Magistrates Court applies on the examination of the relations of couples who cannot marry in Israel or oppose to the institution of religious marriage in Israel, the Supreme Court stated that due to the extensive changes in the reality of life in Israel in recent years, which allows to formalize relationships through various civil solutions, the justification for the application of a low standard of proof is no longer strong. Therefore, each case shall be examined according to its specific circumstances and the causal connection between the fact that a couple cannot or don’t want to marry religiously in Israel and the fact that the couple was not married shall be examined accordingly.

With regard to the case of the Couple, the Supreme Court stated that the fact that the Couple could not marry under the religious law in Israel, does not justify lowering the standard of proof for them to be considered as common law spouses. That is, since this did not prevent them from marrying and they indeed planned to marry on a later date, through civil marriage outside of Israel.

In addition, the Supreme Court concluded that the fact that the Couple intended to marry in the near future cannot be interpreted as if they intended to apply the implications of marriage on their relations before the marriage date (i.e., at the date the accident occurred). Moreover, the Supreme Court clarified that being common law spouses is not a middle stage between being friends to being married but is an alternative to the institution of marriage.

The Supreme Court went on to state that even though from a social point of view, the decision to get married may indicate the intention to apply a legally binding relationship upon the marriage, from a legal point of view, it does not reflect a legal intention to be bonded by the rights and obligations arising from marriage from the moment the decision to get married is made. On the contrary, the existence of a specific date for the marriage of the parties may indicate the couple’s intention to apply the consequences of marriage to their relationship from that date on and not at an earlier date to the marriage date.

Finally, the Supreme Court ruled that it was not proved that at the date of the accident the Couple intended to apply to their relationship the civil-financial outcomes of married life and, therefore, accepted the appeal and ruled that the Couple were not common law spouses at the date of the demise of the deceased in the accident.

In order to reach this conclusion, the Supreme Court examined the terms of “joint household” and “family life” and stated that joint residence and the division of expenses for a year and a half alone are not sufficient for the couple to be recognized as common law spouses. The Court clarified that there may be cases where courts may recognize couples as common law spouses even after a short period of joint residence. However, it will have to be connected to other actual evidence that shows the couple’s intention to apply to their relationship the civil and financial obligations that arise from marriage relationship. According to the Supreme Court, this evidence may be the sharing of assets, formal registration of joint address, the existence of joint bank accounts, joint children, registration of the other spouse as a beneficiary under an insurance policy, a formal ceremony for the formalization of the couple’s relations etc.

This judgment goes against the agenda of previous court rulings that acknowledged couples as common law spouses on many occasions, even in short term relationships. This judgment may  be significant to many couples, where there is an issue of who will be recognized as a common law spouse, especially when it comes to payment from governmental entities, insurance companies and pension funds.

Feel free  to contact us for any questions or clarifications on the matter.

Sincerely yours,

Private Clients Department

Herzog Fox Neeman