4 This term no longer has the same connotations as the term “domicile” in English law. It is defined in a number of Israeli statutes as the place in which the person has the “centre of his/her life” (see, for example, sec. 135, Succession Law, 1965, 19 L.S.I. 58).
5 This rule is not uncommon. It exists, for example, in Germany, France and South Africa.
6 See Azugi v. Azugi (1977) 33(iii) P.D. 1, and Shava, M., The Personal Law in Israel (2nd ed., 1983) 386ff (in Hebrew).
7 For a discussion of this approach, see Fassberg, , “The Intertemporal Problem in Choice of Law Reconsidered: Israeli Matrimonial Property”, (1990) 39 I.C.L.Q. 856.
8 Nafisi v. Nafisi (1994) 48(ii) P.D. 89.
9 Nafisi v. Nafisi (1996) 50(iii) P.D. 573. An interesting procedural feature of this decision is that no reason was given for granting leave to have a further hearing.
10 The two judges who had sat in the appeal case regretfully reiterated their position that, in the absence of an agreement and without proof that the wife had a right under Persian law, her claim had to be dismissed. The individual judgments of the majority judges, while quite detailed, make virtually no reference to the pleadings and, it turns out, are hardly based on them at all.
11 Joined by S. Levin, J., Strassberg-Cohen, J., and Orr, J.
12 This approach does not regard the judicial presumption of community as an agreement sanctioned by sec. 15, valid under Israeli law as the domiciliary law at the time of the agreement, which can oust the default rule of the law of the original domicile. It rather suggests that any agreement is sufficient to oust the choice-of-law-rule itself. This is a very problematic position, since it undermines the authority of choice-of-law rules. It may, however, have helped President Barak to avoid explicit discussion of the question whether the judicial presumption can apply to couples subject to the statutory régime.
13 It is not at all clear how litigants who are not residents of Israel and who moved from their original foreign domicile to a second foreign domicile would be treated, nor for that matter, how people who were originally Israeli domiciliaries and moved to a foreign domicile would be treated.
14 See Rosen-Zvi, A., The Law of Matrimonial Property (1982) 249 (in Hebrew).
16 Ya'qobi v. Ya'qobi, Knobler v. Knobler (1995) 49(iii) P.D. 529 (hereinafter Ya'qobi-Knobler). Dorner J. points out that without accepting the minority position in the Ya'qobi decision, there is no way to grant Mrs. Nafisi the relief she claimed.
17 This interpretation has been urged among others by Weisman, J., Law of Property: Ownership and Concurrent Ownership (1997) 198ff. (in Hebrew); and Shifman, P., “Matrimonial Property”, (1975) Qovets Hartzaot Biyme Iyun leShoftim 126. For the view that the Statute rules out the possibility of applying the judicial presumption of community to couples subject to the Statute, see Rosen-Zvi, supra n. 14, at 286.
18 See Cheshire, and North, , Private International Law (12th ed., 1992) 588ff; Dicey, and Morris, , The Conflict of Laws (12th ed., 1993) 664ff.
19 For a detailed critique of the judgment see my forthcoming “Law and Justice in Choice-of-Law: Matrimonial Property after Nafisi v. Nafisi”, (1999) Mishpatim.
20 Shava, M., “The Nature and Manner of proving Foreign Law in Anglo-American Law and in Israeli Law”, (1973) 3 Iyunei Mishpat 725.
21 It is quite likely that, had the judges engaged in this exercise, they would have found that Jewish couples in Iran were and still are subject to their personal law — i.e., Jewish law, and that the substantive rule governing their property was in no way contrary to Israeli public policy.
22 This differs from Goldberg's view, which sees agreement in the change of domicile, and from Barak's, which relies on an agreement outside sec. 15.
23 Shava, M., “The Presumption of Similarity of Laws”, (1974) 4 Iyunei Mishpat 583. As pointed out above, it is arguable that this is in fact what Cheshin J. did.
24 Even Cheshin J. was unwilling to go so far as to say that substantive Israeli law applies to anyone who is an Israeli domiciliary at the time of litigation, since he would allow the defendant to escape from the presumption by proving foreign law.
25 Yet another way would be to hold that sec. 15 — or an interpretation which requires actual agreement to change the régime from that of their original domicile — is inconsistent with the Basic Law: Human Dignity and Freedom, on the ground that this law forbids discriminating between people who were local residents at the time of their marriage and those who were not, or on the ground that sec. 15 permits the court to apply a law which does not guarantee equality and community. This, however, would require the court to hold that community property is a general public policy which cannot be contracted out of at all. This argument was raised by the wife but was not addressed by the Court.
26 Shava, , The Personal Law in Israel, at 487.
27 Azugi v. Azugi, supra n. 6.