The rule of sharing has been applied to the proprietary relationship between common law partners.The criteria for the application thereof are:A normal relationship and joint effort (seethe rule of sharing).The case law holds that common law partners, who have voluntarily refrained from getting married and not due to limitations under personal law (such as:being Cohen and a divorcee who are prohibited from getting married under Jewish law), an increased burden of proof rests with the party claiming a sharing of assets, than that applicable to a married person under similar circumstances.
The difference stems from the difference between the extent of the mutual commitment characterizing the bond of marriage and that characterizing the bond between common law partners.This is so, since the high commitment involved in marriage is inherent in the institution of marriage itself, and neither party can easily break free from it, while the extent of the commitment between common law partners stems from the circumstances of the relationship in the specific case.
Where the relationship at issue is longstanding, during which the parties have also had children, there is a higher chance that there will be economic dependency and mutual reliance between the partners.The case law attributes significant weight to the birth of children in consequence of the relationship, attempting to compensate the party who has fulfilled the domestic part, and in particular was responsible for the children upon the dissolution of the relationship.In such event, considerations of equity and equality support the application of the presumption of sharing, using the doctrine of “distributive justice”, to the effect that the purpose of the presumption of sharing is to satisfy social justice and equality between the genders, and it is based on the view that both spouses contribute, each in his/her own way, to the welfare of the domestic unit.
The application of the presumption of sharing – While in respect of couples married before January 1, 1974, in the absence of conflicting evidence, the fulfillment of the conditions for the presumption of sharing (namely: a normal relationship and joint effort) is sufficient to apply the rule of sharing in respect of all their assets of any nature whatsoever, in respect of common law partners, the existence of the presumption of sharing – against which no conflicting evidence has been presented – may only testify to the sharing of assets used by them in everyday life, or which were jointly accumulated by them.
The onus of proof rests with the party claiming sharing and he/she must provide the circumstances of their joint life to show an implied agreement, to the effect that they share the proprietary rights.For the application of the rule of sharing to other assets of either of the parties, even such that were accumulated by such party in the course of the joint life, some other evidence will be required, indicating (at least circumstantially) an intention to share the specific asset (or all assets) of the partner.
Contradiction of the presumption of sharing – As aforesaid, the conditions for the application of the presumption of sharing assets between spouses, are the existence of a normal way of life between them and a joint effort, or at least in respect of the management of the joint household and raising the children.It should be stated that the fact that partners live together without formalizing their relationship of their free will, can sometimes testify to the temporary nature of the relationship between the partners, or to its being a non-binding relationship, thereby denying the intention to share assets.Accordingly, the applicability of the presumption is limited to assets which were purchased in a joint effort and to such assets only, and the party denying the intention to share may present evidence to refute the applicability of the presumption.
Sharing Of Business Assets – Pursuant to the prevailing rule, as to the application of the property sharing rule between married spouses, there is no ground for the distinction between business assets and other assets.But when dealing with common law partners, for the purpose of applying the property sharing rule also to business assets of either of them, some other evidence is required, and the presumption alone is not sufficient.Accordingly, the presumption of sharing in the case of common law partners is “weak” relative to the presumption of sharing in the case of a married couple.
Cohabitation Agreement – A couple living within the framework of a quasi-married life wishing to formalize their relationship in an agreement in principle, can fulfill their wish through entering into a pertinent agreement and incorporating therein provisions both in terms of the manner of conducting the joint life and in terms of the arrangements as to the property and maintenance upon the termination of the relationship. A cohabitation agreement between common law partners does not have to be ratified by the court, and is valid in all respects upon the signing thereof.At the same time, the Family Court is authorized to ratify an agreement between common-law partners and to validate it as a judgment, by virtue of section 3(c) of the Family Court Law, 1995, even where no action is pending between the parties and no concrete legal dispute exists between them.