השימוש בנאמנות בהקשר יחסי הממון בין בני זוג: אתגרים ופתרונות

Trusts are an important tool for undermining the purpose of Israeli matrimonial property law: an equal division of spouses’ property following the end of their marriage. Trusts impede such division in two key ways. One way is by spouses holding their property not as owners, but as beneficiaries under trusts created by persons who are not parties to the marriage. The other way is by spouses creating trusts for various beneficiaries, including the settlor, and subjecting matrimonial property to those trusts. The possibility of the identities of trust beneficiaries and the extent of each beneficiary’s entitlement staying undetermined for long periods intensifies the potential of trusts to serve to undermine matrimonial property law. Israeli courts that have encountered such use of trusts have permitted it without sufficient discussion, despite its conflict with other legal obligations. The present article is the first in Israeli legal literature to address this issue comprehensively. We describe the problematic potential of trusts in this context, delineate the boundaries of the legitimate use of trusts for changing the results of property division between ex-spouses, and suggest legal solutions for blocking illegitimate use of trusts to undermine matrimonial property law. We believe that a spouse’s beneficial entitlement under a trust created by a non-partner should be subject to property division so long as it can be seen as consideration for acts and choices by the beneficiary during the relationship. When a spouse’s beneficial entitlement under a trust created by a non-partner is donative in nature, rather than consideration for some act or choice, it may be subject to specific sharing between the beneficiary and his/her spouse. We propose strategies for valuing spouses’ beneficial interests the extent of which remains undetermined when spouses’ property is divided, as well as for valuing the interests of spouses who are candidates for beneficiary status but have not yet been named beneficiaries. As for trusts that a spouse has created during the relationship, we propose rules for distinguishing trusts that cohere with matrimonial property law and thus trump the rights of the settlor’s spouse, from trusts that contradict matrimonial property law and are trumped by that law. We conclude with a series of remedies intended to correct the consequences of a trust created by a spouse, funded with matrimonial property, in order to re-establish the results that would have been obtained under matrimonial property law had the trust not been created.