Common Law Marriage & Wills

by Tzvi Szajnbrum on December 11, 2010

by Tzvi Szajnbrum, Attorney at Law

A True Story

Mrs. Becker, a holocaust survivor, never married. She died in November 2007. She left a will written in September 2007 and no children. In her will, nothing was left to Mr. Mensh.

In her last years, Mrs. Becker received a monthly pension as a retired public servant in addition to a monthly income from a special governmental fund for holocausts survivors.

Mr. Mensh, was the plaintiff in a court case in which he asked to be recognized as Mrs. Becker “husband” as a result of their common-law marriage. The defendants in the case were Mrs. Becker’s relatives – all beneficiaries in the will.

The plaintiff claimed knowing Mrs. Becker since 1989. Because they met in a late stage in their life they did not see any need to institutionalize their relationship although they lived as a “couple” in every sense. There is no doubt that they lived together and were a couple for 18 years.

The plaintiff also adds that they lived in the deceased’s apartment for years but later on they bought (he claimed they bought it together) another property to which they moved. He also claimed that for tax reasons the new property was never registered in his name but the property was a mutual property.

There is no doubt that all finances were separate, including all bank accounts, pension funds, etc. Nothing was mutual.

The plaintiff explained that all his earnings went to their common household but outwardly they both preferred not to be seen as a couple. He also claimed the National Insurance declared and recognized them as a common marriage couple.

The plaintiff complained that the defendant, the deceased’s family, was trying to remove him from the property and dispose from him his rights, such as half of the savings accounts.

On the other side, the defendants claimed that the plaintiff did not live in the apartment permanently, but only temporarily. Both properties were claimed to belong only to the deceased by the heirs of the will, and that is the reason they explained the properties were registered in her name only. As for the National Insurance they claimed the papers showed to court by the plaintiff were an authorization that he could drive her car (she was disabled) and not a proof of any common marriage.

It is well-known that the courts have repeatedly stated:

“Definition of common-law spouses is hard like crossing the Red Sea”

“Family Life” and “Common Household” are threshold requirements in a common-law marriage and must be tested subjectively.

“Even if recognized as a common-law marriage, it does not mean the property purchased by one of them will belong (partially or totally) to the other side” and one must prove the intention of the share in the property”.

In addition; “There must be a minimum of marital life between the parts; but not necessarily a continuous and permanent” one.

Finally “the burden of proof on one asking to be recognized as a side in a common-law marriage is very heavy”.

As a result of the rules above, it is possible that two people live as a couple in a common-law marriage but they will not share property.

In our case the Judge, the Honarable Mrs. Shifra Glik, preferred the defendant’s version; especially given that the plaintiff’s testimony was full of contradictions and his case was poorly presented in court by him and his lawyer.

The plaintiff was awarded nothing and had a very high sum for expenses imposed on him by the other side.

Conclusion: There is no clear definition of a common-law marriage. The easiest way to protect a partner is through a “regular marriage” and lacking that at least a clear and (without the slightest doubt) common household, marital life, property registered as shared common assets and as much documentation as possible.


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