Today we do not even think of divorce laws without an equal division. Thus for example, matters are expressed in the Supreme Court ruling predicate case limited 1398/11.
In our estimation at the end point of the marriage, it is up to us to take up, as rule, a mechanism for the equal division of the couple's overall assets except those assets that were excluded from the division by the power of law or agreement between the parties while our aim is to bring about an economic balance between the couple and to reduce the lack of equality contained in the financial relations between them, the reasons of which are for the most part external.
If we will mention in short the justifications for strictly keeping the principle of equality as part of the marriage institution and a balanced division of overall assets:
1. Equal division represses an endless review of each one of the parties investment in the relationship and dispenses with the need for settling every tiny matter.
2. Equal division encourages behavior of working together and dividing the burden.
3 .Equal division forestalls dividing gender roles between women and men.
4 .Equal division somewhat blurs the built-in advantages in the employment market for men compared with women.
5. Equal division strengthens the sense of partnership in destiny and endeavor.
6. Equal division strengthens the self-respect of both parties due to joint ownership of the overall assets.
7. Equal division provides proper and appropriate reward for the joint endeavor, efforts, sacrifices, and priorities specified by each of the couple during their years of marriage.
Due to the principle of equality that "hovers like a cloud" above the marriage assets both worldwide and in Israel, the overall assets of the marriage are divided up in an equal manner from the date on which the marriage relationship ends except those which the legislator excludes, particularly gifts and inheritances. Among those assets that are divided into equal parts on the date the marriage ends are: real estate assets, money and financial gains, social and financial gains earned from employment, a joint business, options and shares and more.
One of the questions that remain without an answer is whether to divide up an asset of another type, an intangible asset that is called "ability to earn." This deals with the future ability of a person to make and create things of objective value even after the date that the marriage ends due to his ability, his education or any other element that provides him with the possibility of developing his economic capabilities.
The legal tradition that has been formulated in Israel until today following one basic ruling by the Supreme Court in 2007 is often called the "accountants tradition" and which interprets the general earnings ability in marriage assets will be done only in certain circumstances and among them we can count, taking a 'bird's eye view' three fundamental components:
A. A housewife/househusband (who spent most of the years of marriage at home without developing a career and/or profession), on the other hand, and a partner who did develop a career on the other hand.
B. There is a substantial gap in earnings ability between the couple (a gap that can be quantified in actual earnings.
C. A long-term marriage.
This and more, since the aforementioned ruling of principle, most family court judges think that even if all three of these elements exist then still according to the outline set in Clause (2)8 of The Property Relations Between Spouses Law 1973, the legislator provided them the option of only considering the earning capability component as an "influencing" asset or "interference" in the same way as the remainder of the couple's assets. This means the ability to earn component of whoever of the couple allows the court, according to its discretion, to exclude from an equal division of the overall marriage assets, and according to its discretion to balance them in an unequal way in order to allow an objective equality in the opportunities of both of them to open a new page in their lives after the divorce.
From here, most judges think that the ability to earn is not a separate and independent asset and must be divided along with the other assets of the marriage.
With all due respect, I am not able to accept this aforementioned legal situation due to several considerations which I will briefly set out: Firstly, I will mention that I prefer to define the concept of ability to earn as "ability for future profits," instead and this is due to various considerations of which this is not the place to detail: Secondly, I think it must be proved whoever of the couple has become "homebound" and or sacrificed themselves for the benefit of the family unit or other partner in the couple in order to divide the ability to earn that has been gained. Otherwise, the matter will mock, among other things, the very essence of the institution of marriage and the family unit that is founded on the principle that "each person contributes according to their ability and receives what they need."
Thirdly, with all due respect, it seems to me that the ability for future profits that has been gained during the years of the marriage at the expense of the joint resources created in the family unit is an asset like any other asset and therefore we must move forward on this matter one more step forward and divide it like any other asset in an equal way between the couple. From here, the ability for future profits gained during the course of the couple's marriage is an asset like any other asset that can be divided, as mentioned to be divided when the relationship breaks up. This ability is comprised of the individual talents of the person, although there are also other components and in particular education, experience and reputation acquired during the period of the couple's relationship. It is therefore clear that these are all connected and that there might be some overlap between them take for example the reputation that the person acquired during the years of marriage or the education and experience gained during those years of marriage, which are part of the sources and reasons creating ability for profits. From here we must examine the differential created between the couple following the marriage, and balance it with money or the equivalent of money. We must stress that we are talking about a differential that was created only during the marriage, following the marriage.
From this differential we must deduct the contribution of the ability to earn that stems from the personal talent of each of the couple and the ability to earn that was created prior to the start of the couple's relationship or after it will break up. When we are dealing with the ability to earn we are dealing with a future asset but with a sustainable asset that can be valued and quantified in the present, and its produce will grow and ripen over the years.
The implementation of the ability to earn will occur in the future and in this sense it is no different from any other asset whose price reflects the possibility of producing from it future profits.
However, examination of the differential in the ability for profits created following the marriage is based many times on estimation and assessment, on basic data and determining facts, on relevant measurements and on strengths and assumptions. Clearly we are not talking about an exact science and matters are certainly difficult to quantify, and especially difficult is the task of isolating data about the ability for profits during the period before the marriage relationship and the human element of the couple being examined, and matters such as personal and hereditary characteristics that influence the creation of ability to profit, and those that must be taken out of the calculation and the balance between the couple.
The aforementioned outlook is part of the viewpoint presented by the ruling of Israel's Supreme Court and many and good rulings by other courts following the setting of principle by the Supreme Court. The aforementioned precedent is consistent with a range of economic perceptions that have developed this century and see "human capital" as an asset with value that must be taken into account in the employment market as well as various economic aspects.
More than this, all agree that taking into account the ability for future profit component gained during the marriage will allow the creation of a more proper balance between couples for whom their starting point at the time of divorce is unequal.
From all this, the necessary conclusion can be drawn that the challenge confronting us is how to calculate in an accurate manner as far as is possible the ability for future profits. What is the preferred model?