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 Shabbat Parashat Bo| 5765P’ninat MishpatOwnership of an Apartment Registered in the Name of Both Husband and Wife - Based on Piskei Din Rabbaniim- vol. XVI, pp.353-8
Case: A couple purchased an apartment after being married for some time. It was registered in the Tabu (Land Registry) in both of their names. The wife claims that she contributed from personal funds, which her husband was aware of, half the cost of the apartment, and that it is the reason that it was registered in her name as well. The husband says that he paid for the entire apartment, and that it was registered in the name of both because that is what is customary.
Ruling: At first glance, this appears to be a machloket between the Rosh and the Rashba. The Rosh (brought by the Tur, Even Haezer 86) says as follows. The case was of a woman who claimed that she owned half of the field that her late husband left, as she paid for half of it from money that she inherited from her father’s family, and for that reason the deed was in the name of both. The Rosh says that she is believed because “it is not the normal practice that a man should write the deed in his wife’s name, and that which it is written that way is a clear sign that half the money was hers.”
The Rashba in two responsa argues. One (III, 193) talks about a document of loan naming a married woman as the lender. The Rashba rules that since the woman used to deal with the money of the household (which was primarily her husband’s) we can assume that the money lent was the husband’s until proven otherwise. The Rashba cites several, technical reasons why they would have preferred the document to be written in her name. One of the major reasons the early sources bring is based on the gemara (Bava Batra 51) that he may have done so to uncover funds that he felt that she was concealing from him. The Shach (Choshen Mishpat 62:7) implies that only the claim of uncovering funds is valid, but otherwise we assume that the writing of a document in her name is a sign that the money came from her. However, it is not clear if this claim is consistent with the first responsum of the Rashba, which we cited.
In any case, even the Rosh would agree that in our situation, the registry in the Tabu is not a proof. The Rosh bases his ruling on the fact that it is uncommon for a husband to include his wife’s name in the deed. However, in our time and place, it is indeed customary to list the apartment in the name of both spouses, irrespective of who provided the money, and, therefore, there is no proof from the Tabu.
[ This p’sak din assumes that whoever provided the money is the owner of the apartment, or that there is proportional, joint ownership if both provided funds. However, there is significant discussion and differences of opinion on the question whether we can assume that the side who pays intends to give a present, so that the couple ends up with joint ownership. Often, the matter varies according to the specific case or the social norms of the couple’s social setting. Further discussion is beyond our present scope.]
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