The dissolution of the joint ownership of the family residence is an extremely charged issue, which, at times, can place an even greater burden on the legal proceedings and the end of the relationship between the parties. The reason is that the dissolution of the joint ownership contains conflicting interests, and it is necessary to strike a balance between them.
Thus, for example, a spouse seeking the dissolution of the joint ownership of the family residence in order to realize their interest inherent on their proprietary rights, may find themselves in conflict with the interest of formalizing residential arrangements for their minor children”.
The difficulty inherent in the sale of a residential property which, in most cases, constitutes for the children and for the other spouse, the center of their lives – is enormous. The reason is that alongside the need to find an alternative place of residence which is suitable, and to contend with the implications of the family crisis, the family members, and in particular, the children, have to deal with being removed from a familiar environment, from the neighbors and friends.
As part of this list, we shall bring to your attention a number of important issues which are related to the dissolution of the joint ownership of the family residential property, such as the duty of to provide alternate residential arrangements for the minor children; the connection between the dissolution of joint ownership and the balance of resources; the tension which exists between decisions ordering the dissolution of joint ownership and different decisions of the Rabbinical Court; the manner of the actual performance of the dissolution of joint ownership, etc.
The Right to Demand Dissolution of Joint Ownership – The Land Law, 5729 – 1969 determines, as a basic right, derived from a person’s basic right to their property, that each joint owner of the land will have the right, at any time, to demand the dissolution of the joint ownership of the land. This right is a substantive right, and it has been determined in the case law that the Court has no discretion whatsoever in a claim for the dissolution of joint ownership.
However, this rule has been limited, insofar as pertains to real-estate asset whose joint owners are a couple, and the Court does have broader discretion as to whether to allow or refuse the claim of the spouse seeking the dissolution of the joint ownership, because such a case does not concern partners who are strangers to one another, but rather, a couple, who are also subject to the family laws. This is even more valid when the case concerns the parties’ place of residence, because, in such a case, there are additional interests which the Court must take into consideration, before ordering the dissolution of the joint ownership, whilst taking an overall perspective of the entirety of matters pending for the specific couple before the Court, including the economic aspect; the needs of the couple and the needs of the children for a roof over their heads; and the aspect of dispute resolution between the parties.
When Does the Court Order the Dissolution of Joint Ownership with Regard to a Residential Apartment? – The Family Court has a certain degree of flexibility and discretion when it comes to making a determination regarding the best method to resolve the conflict between the parties before it. As part of the overall approach, when property claims are placed before the Court in addition to a claim for the dissolution of the joint ownership, the Family Court may, under the suitable circumstances, stay the order for the dissolution of the joint ownership of the couple’s residential property, with the intention of resolving the entire set of matters between the couple, in a general manner. The reason for this is the fear that the dissolution of the joint ownership of the couple’s residential property prior to the adjudication of the rest of the property matters could give rise to the discrimination of one of the spouses in their share in the rest of the joint property.
Nevertheless, at times, and in particular, when the litigation between the spouses is likely to become complex and protracted, it would be appropriate to order the dissolution of the joint ownership in a rapid manner, so as not to place an inordinate burden on one of the parties. The reason for this is that sometimes, the relatively rapid dissolution of the joint ownership of the couple’s residential property can remove a stumbling block from the parties’ path, thereby clearing their way to resolving the other matters in dispute between them.
In cases when couples are governed by the property sharing rule, a balance can some times be struck between the rights, so that the residential property is not sold, and will remain available for the use of one of the parties, as against the balancing thereof with other rights.
In case where couples are governed by the Property Relations Between Spouses Law and an arrangement balancing their resources, there is a lack of consistency, that could cause a miscarriage of justice. A situation, for example, in which one of the parties demands the dissolution of the joint ownership by virtue of the property laws, and claims the postponement of the balancing of the rest of the property at the time of the termination of the marriage, could give rise to a situation that would lead to the sale of the residential property, without any other possibility being examined, such as leaving the residential property with one of the parties by balancing the resources between the parties. For the purpose of dealing with such a situation and other similar situations, the Court has the discretion to decide upon each case based upon its merits.
Considerations Prior to the Issuance of an Order for the Dissolution of Joint Ownership – Prior to the issuance of an order for the dissolution of the joint ownership of the couple’s residential property, the Court takes into account a number of considerations, while relating in a detailed manner to the specific case placed before it.
The following are among the considerations weighed by the Courts:
What is the complexity of the dispute between the parties?
Is long litigation to be expected between the parties?
What are the arrangements for alternate residence for the minor children and the spouse with custody thereof?
Will each spouse’s share in the proceeds from the sale of the residential property be sufficient to buy a home or for the purpose of an alternative residential arrangement?
How will the dissolution of the joint ownership affect the conflict?
After the balancing of the property between the spouses, will one of the parties be able to purchase the rights of the other party in the residential property?
This list includes many other such considerations.
Guaranteeing the Residential Arrangements for the Minor Children – Section 40 (a) of the Land Law, 5729 – 1969, provides that the implementation of the dissolution of the joint ownership of the couple’s residential property shall be done subject to guaranteeing alternative residential arrangements for the minor children together with the spouse with the custody of the children. The section allows the Court to order the dissolution of the joint ownership of the couple’s residential property when, at the same time, residential arrangements are guaranteed for the minor children and for the spouse with the custody of the children, in other words, this section does not concern the stay of the decision with regard to the dissolution of the joint ownership, but solely the execution of the decision with regard to the sale of the property, subject to the finding of alternative residential arrangements.
What is “specific residence”? An order for a specific or unique residence is an order which is given by the Rabbinical Court, and which determines that the wife has a unique right of residence in the couple’s residential property. An application for specific residence may be requested as part of an alimony claim and also as part of a matrimonial reconciliation claim. (The Family Courts do not tend to grant orders for specific residence).
An order for specific residence is given based on the woman’s basic right, in the marriage, to reside in the couple’s home, given that the woman moves up to such residence and does not move down, and there are no grounds to transfer her from a good abode to a bad one.
The order for specific residence is registered with regard to the rights of the other party in the land, at the Land Registry Office.
The Conflict Between the Dissolution of the Joint Ownership and the Order for Specific Residence – As explained in the chapter dealing with the jurisdiction race, the Family Court and the Rabbinical Court have equivalent powers to adjudicate upon the matters entailed in the couple’s divorce. This race between the parties to initiate proceedings at the court most suitable for them creates tension in the event that a claim is filed for the dissolution of the joint ownership of the couple’s residential property by one of the spouses, while the other spouse has applied for an order for specific residence in the same residential property.
Case law has determined that due to the fact that the claim for the dissolution of the joint ownership and the application for the order for “specific residence” are not identical remedies, the filing of the motion to the Rabbinical Court in the matter of the residence does not invalidate the jurisdiction of the Family Court to adjudicate upon the dissolution of the joint ownership, and the same is true if the situation is the reverse. In such a situation, the two courts have jurisdiction of equal rank, one has the jurisdiction to adjudicate upon the matter of the residence, as a matter in its own right, and the other has the jurisdiction to adjudicate upon the matter of the residence, insofar as pertains to the dissolution of the joint ownership.
Nevertheless, the principle of mutual respect between judicial bodies creates a situation whereby once a decision has been given by the Rabbinical Court in the matter of “specific residence”, the Court adjudicating upon the matter of the dissolution of the joint ownership must take this decision into consideration. Therefore, the situation arises whereby the Family Court may hand down a decision for the dissolution of the joint ownership, that due to the principle of mutual respect between judicial bodies can not be implemented, as long as the Rabbinical Court has not cancelled the order for “specific residence”!!
Actual Implementation of the Dissolution of the Joint Ownership – The Family Court Law determines that the execution proceedings in an action for the dissolution of the joint ownership of the couple’s property shall be done by the Family Court, and under its supervision, unless the Court ordered the execution thereof by the Execution Office. The law also determines that the Court may order the execution of the proceedings in such manner as it shall deem to be more just and more effective, given the circumstances of the case.
For the purpose of the actual implementation of the dissolution of the joint ownership, in most cases, the Court appoints the parties’ attorneys to be the receivers for the sale of the property. The appointment is made, in most cases, after the parties are given a period of time to try and sell the property themselves. In most cases, when the parties do not succeed in cooperating between them in order to make the sale, the receivers assume their office and are responsible for the sale, as envoys of the court as well as for the implementation of all actions required for this purpose. These include, but are not limited to contracting a surveyor, publishing notices in the press, receiving offers, in writing, from prospective purchasers, ensuring the height possible price by auction or other appropriate means, and all other reasonable means to complete the transaction and have it approved by the Court. As receives, they are also responsible for the receipt and proper disbursal of the proceeds of such sale as well as the transfer of proprietary rights to the purchaser with the appropriate agencies.