Common-Law Marriage
"A man and a woman living life together in a common household"
Our society is dynamic and constantly in flux. Because of this common-law marriage has become a part of our lives.
In this article I will attempt to explain how a couple is defined as common-law and what rights each one will have in case of separation or death.
Unlike other aspects of family law, this specific subject is the fruit of many legal judgments, resolutions and per curium opinion. There is no actual law defining who is considered a common-law partner and their respective rights.
The legal definition of common-law marriage is that the “common-law partner is the same as a spouse”. This is the core of the problem, as the law has not defined what a “common-law partner” is. To understand this, one must understand that the Hebrew definition is “yedua b’tzibur c’ishto” (therefore we have to define who is a “yedua”, who is “tzibur” and then who is “ishto”).
It is possible that a married person, who also has a common-law partner (as will be defined in the following paragraphs), will be obligated to give the common-law partner some rights even though he is married.
Basic Conditions (without them there will be no recognition of Common-Law Marriage)
The main basic conditions (among others) are:
- A common household. This includes the dwelling, food, sleeping arrangements, clothing and any other aspect of living together. There is no need to own property together and like in any other married relationship, there is no need for symmetry in earnings and expenses.
- An intimate sexual relationship.
Main Definitions of a Common-Law Marriage
- The intimate aspect, meaning a sexual relationship.
- The emotional aspect, meaning each one views the relationship as a "couple". It doesn’t matter how they are seen by the public.
- The economic aspect, meaning a common household. This is not done solely for economic benefits but as a result of their real and sincere partnership in the household.
- The intention of permanence, meaning that both sides must have the intention of having a permanent relationship.
- The legal aspect, meaning that none of the partners are married to others (according to the Law of Inheritance).
The above definitions must all be fulfilled to be considered a common-law marriage. To be considered a common-law partner for the purpose of inheritance, these definitions must be present until the very day of the death of one of the partners. The weight of evidence is all on the one wishing to inherit.
Social laws and National Insurance
National Insurance recognizes common-law marriages for the purposes of: social security (“bituach zikna”) and pensions for immediate relatives in case of death (“bituach shea’rim”). Despite this, for tax purposes, the legal situation of common-law partners is more advantageous than married couples because their income will be seen as separate and not as one income as in an established marriage. This is one of the reasons people prefer not to be legally married.
The Right of Alimony
The common-law partner has the right to receive alimony from the deceased partner’s inheritance. But again, one must fulfill all of the above conditions, especially not being married to each other and each of them cannot be married to someone else.
Today by law a wife is entitled to alimony from the time of the separation until the actual “get”. This has nothing to do with child support. The tribunals today have recognized the right of each couple to receive alimony from each other in a common-law marriage, and even “adjustment alimony” after the separation.
This “adjustment alimony” is new and there is no more need of a common-law agreement, although, as I will state in the end, an agreement made before the beginning of the relationship can avoid lengthy and costly legal battles mostly in the case of inheritance.
Children’s Rights
A child born from a common-law marriage will have the same exact rights as a child born from a conventional marriage. They will have the right to have the same surname as the father, if they wish.
The common-law wife will also be entitled to change her name to her common-law husbands’, only after receiving permission from the Ministry of Interior, even against the will of the legal wife. This could happen in a case when the man is still legally married but does not live with his wife, but lives with his common-law wife.
The Right of Property (when there is no pre-agreement between them)
The question is will one of the partners have any rights to the other partner’s property? When there is a separation between the couple or one of them dies, the same rule used for married couples will be used here - “hilchat ha’shituf”. The property that was accumulated by the couple will be equally divided. This will not be an easy task and will certainly involve a legal disagreement.
This is important to note: debts will also be divided, even in a common-law marriage. There is no avoiding the debts, even if there is no property to divide.
Other Rights
Other rights will also be included in a common-law marriage, such as in contractual law, injuries, and others.
Miscellaneous
A non-Jewish common-law partner of a Jew will not be entitled to the Law of Return.
Conclusions and Recommendations
This situation is the only issue in family law that is not regulated by laws; therefore there are always unknown answers for many types of questions. It all depends on the specific judgment in your specific case. You cannot rely on precedents. Judgments have been changing in the last ten years so much that decisions from ten, or even five, years ago are completely irrelevant today. So what is the solution?
- If you are in a common-law relationship, write a will as soon as possible. Remember in this case you are not obligated to leave anything to your partner, in contrast to a legal marriage where you can will up to 50%. (Please refer to the documents in the Wills & Inheritance section of this site).
- The partner can transfer his property when he still alive to anyone he wishes. We are aware that in this case there is always a fear that your partner will leave you because in fact they will receive nothing from you. In these cases there are legal and practical solutions to be found.
- The best solution is an agreement made for common-law marriage in which both sides will stipulate what rights each one has in every situation, including: how long the remaining partner can stay in their house after one of the partners has died, who will have access to bank accounts after the death of one of the partners, how much will the partner receive and for how long in case of separation.
I hope this document has clarified some of the issues involved in common-law marriages.
Sincerely,
Tzvi Szajnbrum, Attorney at Law