One of the most central and charged issues in any divorce is the division of property in divorce: splitting the couple’s joint property, alongside the questions of maintenance and child custody.
The longer the marriage lasted and the more property the couple accumulated during it, the more complicated the division of property in a divorce can become, and vice versa, though not always, since much depends on the spouses’ personalities, their values, and their willingness to end the relationship on the best possible terms.
Division of property in divorce – how does the process work?
Legally, property can be divided in a divorce either by an agreement made between the spouses, or through a property division claim decided by the court under the provisions of the law.
It hardly needs saying how much better it is for the division of property to be settled by mutual agreement, outside the courtroom, than fought out in a lawsuit, through difficult and unnecessary battles that are often waged at the expense of the couple’s children and that consume precious time, a great deal of money, and a great deal of emotional energy.
The more the parties manage to agree between themselves on the division of property in the divorce, the better. In the absence of such an agreement, the matter is decided by the court, as explained below.
Division of property in divorce by agreement
A property division agreement sets out how the joint property is divided between the parties, entirely at their free discretion and will. Such an agreement can provide, for example, for complete separation of property between the spouses with no sharing at all, or for sharing only certain assets, and so on.
The agreement can be drawn up as part of the divorce proceedings or before them.
When the agreement is made before the divorce, it is called a “financial agreement,” and when it is made before the marriage it is also called a “prenuptial agreement.” Such agreements are typically made where one spouse is considerably wealthier than the other, where the marriage is a second marriage for at least one of the parties, and in similar situations.
A property agreement made during the divorce
When the agreement is made during the divorce, it usually covers not only the division of property but also the other issues the divorce raises, such as maintenance, child custody and living arrangements, the children’s schooling, and so on. In such a case, the parties may also trade concessions across issues, waiving rights in the property division in exchange for rights elsewhere. For example, the husband may agree to waive his share of the family apartment in exchange for paying minimal child support.
Although a property division agreement is drawn up outside the courtroom, it must be validated and approved by the Family Court or the Rabbinical Court, under Section 2 of the Spouses (Property Relations) Law, 1973.
Please note: this is not a purely formal approval. It is given only after the judicial body has questioned the spouses and satisfied itself that they fully understand the agreement’s content, meaning, and consequences; that the agreement is fair and does not strip either spouse, or their children, of their rights; and that they signed it of their own free will and not under unfair pressure.
On the other hand, approval also gives the agreement the force of a judgment. If, heaven forbid, one spouse breaches it, the other party can enforce it just as a breached judgment is enforced, including through execution proceedings.
Division of property in divorce under the law
Where the parties have not reached an agreement on dividing their property, there is no choice but to file a property division claim under the provisions of the law, by one spouse against the other, in the Family Court or the Rabbinical Court.
For couples who married before January 1, 1974, the day the Property Relations Law came into force, and for common-law couples who never married at all, property is divided under the community property rule, a doctrine created by the case law.
For couples who married after January 1, 1974, property is divided under the resource balancing arrangement set out in the Spouses (Property Relations) Law.
Whether the division follows the community property rule or the resource balancing arrangement, the property is divided equally between the parties, subject to certain exceptions.
There is, however, a fundamental difference between the two: the community property rule does not depend on the marriage having ended, whether through a get received in divorce proceedings or through the death of a spouse, while the resource balancing arrangement, on its face, applies only once the marriage has ended.
When can the property actually be divided under each regime?
The practical result is that property can be divided under the community property rule at any time, even before the marriage has ended, while under the resource balancing arrangement it can be divided only once the marriage has ended through divorce or death.
This condition can tempt the spouse who is in less of a hurry to divorce to pressure the other party into giving up property rights under the resource balancing arrangement in exchange for agreeing to the divorce.
Section 5A of the Property Relations Law offers a solution: under certain conditions it allows the property to be divided even before the divorce is granted, provided at least one year has passed since the divorce proceedings or the property division claim were opened, or provided there is a deep rift between the parties that has lasted at least 9 months.
Division of property in divorce under the community property rule
The community property rule establishes a “presumption of community,” under which all property accumulated by either spouse during the marital relationship in fact belongs to both, and must therefore be divided equally between them, even property registered in the name of only one spouse, and even where only the husband worked and financed the household while the wife stayed home, ran the household, and raised the children.
The presumption of community is not conclusive; it can be rebutted. A spouse who does not want it applied to the division of property, especially one who accumulated assets registered in his name alone, such as a residential apartment or shares in companies, must rebut it by proving he had no intention of creating a partnership in those assets.
On the other hand, the community property rule does not extend to “external assets,” meaning assets each spouse accumulated before the marriage, or received by inheritance or as a gift during the marriage, except where the other spouse actually proves an intention to share them.
Take the common example of an apartment purchased in one spouse’s name before the marriage, or received as an inheritance during the marriage, or bought during the marriage with gift money from parents. The other spouse, who lived in that same apartment, must prove an intention to share the rights in it through “something more,” that is, something beyond the couple’s joint married life itself. Typically these are cases where the other spouse invested considerable sums of his own money in renovating or expanding the property, or shared in the mortgage payments on the apartment, and the like.
Division of property in divorce under the resource balancing arrangement
The resource balancing arrangement under the Spouses (Property Relations) Law likewise divides the property accumulated during the marriage equally between the parties, including assets registered in the name of one spouse only, and it too does not extend to external assets unless an intention to share them is proven. As noted, these are assets each spouse accumulated before the marriage, or received as a gift or inheritance during it.
In addition, the following are excluded from the joint property: a National Insurance benefit paid to one of the spouses, a benefit or compensation for bodily injury or death of one of the spouses, and assets the spouses agreed in writing would not be balanced between them, that is, under a financial agreement or divorce agreement as explained above.
* Updated for 2026
