Attorney Rachel Schahar: Property Division in Divorce After the Specific Sharing Doctrine Ruling
Family property law navigates between "the map", meaning written agreements and laws, and "the field", meaning actual conduct. The recent 2025 ruling indicates that in the struggle between them, "the field" tends to prevail. Attorney Rachel Shahar explains what is special about the new ruling
The specific sharing doctrine is one of the most influential, complex, and controversial doctrines in family law. It is a doctrine developed by case law, which is not explicitly enshrined in legislation that allows a spouse to acquire proprietary rights in assets that the Spouses' Property Relations Law explicitly excludes from property division, such as pre-marital assets, inheritances, and gifts.
"To circumvent the exclusion of assets stipulated by law, the general civil law is applied to the marital relationship – namely contract and property law – and issues such as trust, unjust enrichment, and the principle of good faith are taken into account", explains Attorney Rachel Schahar, a notary and a well known expert in divorce, family law, wills, and international prenuptial agreements.
"The idea is that it can be proven that despite the formal registration or the origin of the asset, the spouses formed a concrete intention to share regarding a specific asset", she says, "case law, starting with the Abu Romi ruling, established that to prove this, the mere existence of a marital life is not enough, rather, 'something more' must be proven – a tangible behavioral expression from which the conferral of rights can be inferred".
Over the years, attorney Shahar explains the doctrine has expanded, with its central focus being the residential apartment. "Due to its nature as a 'distinct family asset,' the courts significantly ease the evidentiary burden required to prove an intention to share in an apartment, even if it was acquired by one party before the marriage," she clarifies, "further expansion is evident in that the doctrine has also been adopted in the rulings of the rabbinical courts, which incorporate halakhic concepts of justice and estimation to prevent an inequitable outcome."
A dramatic turning point
A landmark ruling from 2025 (B.A.M. 5620/24) marked a dramatic turning point in accelerating the doctrine, with its expansion granted in June 2025, when the Supreme Court ruled for full sharing of land that was given to a woman before marriage, and on which apartments managed jointly were built.
"It is important to understand that the ruling established and expanded the specific sharing doctrine based on several ironclad principles", says Attorney Schahar, "it was determined that long-standing conduct, such as depositing rental income from an asset into a joint account and managing it, effectively creates an 'implied sharing agreement' that applies proprietary sharing, even without a written document.
"Concurrently, the 'partial sharing' model was rejected, as the court overturned the approach that only the increase in value ('appreciation') or the apartments without the land they sit on could be shared. Furthermore, relying on the Land Law, it was determined that the land and the structure cannot be separated, and therefore a standard of full 50/50 sharing of the entire asset was applied.
"Another principle established in that ruling is the 'cry of fairness.' The court determined that a spouse's long-term reliance on the sharing creates estoppel, and a retroactive denial of the agreement constitutes a clear lack of good faith that perpetuates inequality. It was further established that the specific sharing doctrine can apply even if a prenuptial agreement exists or when the law separates the asset, because there is no legal impediment for spouses to form new 'specific agreements' through their conduct during the marriage".
emphasizes that to examine whether an intention to share has been formed, case law relies on an open list of behavioral parameters, including the duration of the marriage, joint investments and renovations, mortgage payments, depositing income from the asset into a joint account, active involvement of the other party in managing the asset, and mutual representations of partnership. "The greater the equation of reliance and consistent conduct, the more the court will tend to rule for specific sharing", she says.
The criticism and the expanding application of the specific sharing doctrine in divorce create an inherent tension in the Israeli law between the need to achieve individual justice and protect the vulnerable spouse, and the need for systemic certainty.
"Critics argue that turning every shared conduct into a proprietary right erodes the spouses 'Property Relations Law and the principle of private ownership, blurring the line between separate and joint property", explains Attorney Shahar, "additionally, it is argued that the doctrine conveys a problematic educational message that 'the law will regulate retroactively', instead of encouraging spouses to take personal responsibility, demonstrate transparency, and explicitly regulate their rights in real time".
According to the Supreme Court ruling, which clauses should be included in a prenuptial agreement to establish property division in light of the specific sharing doctrine?
"To protect assets such as apartments, gifts, or inheritances from the 'specific sharing doctrine,' sources suggest including clauses in the prenuptial agreement that explicitly address future actions that could be interpreted as an intention to share. Therefore, it is important to include an explicit 'non-sharing' clause that neutralizes behavioral indications. That is, it is not enough to state that the asset belongs solely to one party, rather, it must be explicitly stipulated that certain behaviors, which usually indicate sharing in the eyes of the court, will not be considered an intention to share.
"Sources provide the following example wording: 'The parties hereby agree that land known as parcel ___ in block ___, including anything built or to be built upon it, shall remain the exclusive property of the receiving party — and for the purpose of this clause, rental deposits, mortgage payments, or development investments shall not be considered indicative of an intention to share'.
"Another clause addresses the exclusion of the asset's fruits, appreciation, and fixtures (Sections 12-13 of the Land Law). The new ruling prohibits 'proprietary splitting,' and stipulates that the land cannot be separated from the structure upon it. Therefore, the non-sharing clause in the agreement must explicitly state that the separation applies not only to the original land but also to its increase in value, and to any future construction or fruits derived from it. For example, in a combination deal.
"Concurrently, it is important to demand absolute accounting separation in asset management, and it is recommended to enshrine a clause in the agreement requiring 'strict separation' in asset management. The court views depositing profits such as rental fees into a joint account as a 'red flag,' indicating sharing. Furthermore, the agreement should stipulate that asset income be managed in a separate, dedicated bank account, and if businesspeople are involved, explicit 'non-sharing' clauses should be integrated into commercial conduct to reduce exposure to sharing claims.
"It is also necessary to ensure the registration of a cautionary note in the land Registry. That is, it is advisable to secure the property separation through a public act, and to register a cautionary note with the Land Registration Office stating that the asset has been excluded from sharing. It is also important to understand that a prenuptial agreement expires upon the death of one spouse.
"Therefore, even if you have drafted a robust prenuptial agreement that grants full property separation for an apartment in case of divorce, in case of death, the Inheritance Law will prevail – and the surviving spouse may automatically inherit 50% of the 'separate' asset. This is why, to ensure that the separation stipulated in the prenuptial agreement is implemented even in the event of death, it is mandatory to draw up a proper will that explicitly clarifies the wishes regarding the asset after death".
In collaboration with attorney Rachel Schahar
