Yes, if the statement of defence discloses no defence at all. The court must first hear the parties and make clear that immediate judgment is on the table.
Judgment at the pre-trial stage: when the court decides without evidence, and what it means for partition claims
In brief: The court may give judgment already at the pre-trial hearing, without affidavits or cross-examination, if the statement of defence "discloses no defence at all" (Regulation 63(b)(16) of the Civil Procedure Regulations). In Family Appeal 7367/22 the Supreme Court approved such a judgment in a partition claim and set the test: are the prospects of the defence truly nil. Since then courts have applied the rule mainly in partition claims, and occasionally in other cases. Appellate courts stress that this is an exceptional power, and that a genuine factual dispute requires evidence.
What does the regulation say?
Regulation 63(b)(16) of the Civil Procedure Regulations, 5779-2018 lists what the court may do at the pre-trial hearing, on its own initiative or at a party's request. Two powers are especially relevant:
- Sub-regulation (16): to strike out the statement of claim, dismiss the claim, or give judgment if it finds that the statement of defence discloses no defence at all.
- Sub-regulation (13): to grant interim relief.
The power is not new. Regulation 143(9) of the former 1984 Regulations also allowed judgment, including partial judgment, at the pre-trial stage if it emerged that the defendant had no defence. The Supreme Court held that the new wording does not depart from the former arrangement but refines it: the test focuses on the statement of defence itself, and the words "at all" call for extra caution.
What did the Supreme Court decide in Family Appeal 7367/22?
Two sisters inherited from their mother a residential apartment in Tel Aviv, where one of them lived, and rights in a commercial property in Tel Aviv held under a non-capitalized lease from the Development Authority. The other sister sued for partition in the Family Court. After a first pre-trial hearing the court gave a reasoned decision ordering partition of both properties, without affidavits and without witnesses being examined. The appeal to the District Court was dismissed.
The Supreme Court (Justices N. Sohlberg, Y. Amit and Y. Willner) dismissed the appeal on 26 January 2023 and ordered the appellant to pay costs of ₪20,000. The main holdings:
- The test is the "prospects of the defence" test: the court examines the defence's prospects in light of its legal arguments and the factual basis that can be established. If the prospects are truly nil, the statement of defence "discloses no defence at all" and the proceedings can be ended by judgment.
- A precondition: a hearing at which the parties are heard and know that immediate judgment is on the table, including an opportunity to argue whether judgment should be given at this stage.
- A purely legal dispute can be decided without evidence. A genuine factual dispute requires a factual inquiry.
- It is an exceptional power to be used in rare cases, but it should not be read narrowly. Justice Amit added that the court may also rely on the factual basis that emerged at the pre-trial stage, not only on the pleadings.
As to the arguments raised against partition: the lack of alternative housing does not make the sister a protected tenant; monetary claims between the sisters do not prevent partition and belong in a separate claim or counterclaim; and questions about the registration status of the commercial property are not grounds to prevent partition.
Why partition in particular?
Because under section 37(a) of the Land Law every co-owner is entitled to demand partition at any time, regardless of the size of their share and without having to give reasons. So in most claims there is no real dispute about the right to partition itself, and the dispute is usually about the method of partition.
Under section 37(a) of the Land Law, 5729-1969, every co-owner of jointly owned land is entitled to demand partition at any time, regardless of the size of their share and without having to give reasons. The Supreme Court emphasized this in Civil Leave to Appeal 1017/97 Riedlewitz v. Modai, PD 52(4) 625 (1998). So in most claims there is no real dispute about the right to partition itself, and a defence that opposes partition for reasons of convenience, emotion or monetary accounts discloses no defence.
The law also sets the methods of partition:
| Method of partition | When and how |
|---|---|
| Partition in kind (section 39) | Where the land can be divided, partition is by physical division, sometimes with balancing payments between the co-owners. Partition in kind by agreement requires the Superintendent's approval that it complies with planning and building law (section 38(a)). |
| Registration as a condominium (section 42) | Where the land is mainly a building fit to be registered as a condominium, the court may, after an opinion of the Superintendent, order its registration and the allocation of apartments to the co-owners according to their shares. |
| Sale and division of the proceeds (section 40) | Where the land cannot be divided, or division in kind would cause a significant loss. The sale is conducted like a sale of attached land in execution proceedings, unless the court orders another method it finds more efficient and fair. |
Two qualifications worth knowing: a clause in a co-ownership agreement restricting partition for more than three years does not prevent the court from ordering partition after three years if it is just (section 37(b)). And for a couple's residential apartment, section 40A delays the sale until a suitable housing arrangement is found for the minor children and the spouse who has custody of them. It does not prevent the decision to partition.
The real dispute in partition cases is usually about the method, not about partition itself: can the property be divided in kind, is the building fit to be registered as a condominium, and what is the property worth. Where that dispute is factual or planning-related, expert opinions and an inquiry may be needed, and immediate judgment is harder. For how a partition case ended in practice, see Partition of an apartment inherited by siblings.
Is this a trend?
In the case law after Family Appeal 7367/22, three directions can be identified:
In partition claims, early judgment is becoming common practice. The Rehovot Magistrates' Court (Civil Case 77635-01-25 Salhov v. Gabay, Judge Israel Pat, 25 August 2026) heard a claim by a receiver, appointed over a debtor's share of an apartment, against the debtor's wife. The main dispute was legal: whether someone whose rights are registered only by a caveat is protected under section 33 of the Tenant Protection Law. The court refused to hold an evidentiary hearing, relied on Family Appeal 7367/22, and ordered partition by sale and the appointment of the receiver over the wife's share as well.
Outside partition there are applications, but cautious ones. The Jerusalem District Court (Civil Case 34707-01-24 Zanti v. Mashkato, Deputy President A. Darel, 9 July 2025) gave a declaratory judgment at the pre-trial stage, prohibiting a debtor from disposing of a house he is due to inherit under his parents' mutual will. The judgment debt was not in dispute, and what remained was a legal question. The court stressed that it was not deciding the relationship between the wills, which should be determined in the proper forum.
Appellate courts set limits. The Tel Aviv District Court (Civil Appeal 45520-03-26 Sadikov v. Cohen, Deputy President Avigail Cohen, 1 July 2026) set aside a Magistrates' Court judgment that had dismissed a claim on cheques at the pre-trial stage. It held that where there is a factual dispute about the underlying transaction, the claim cannot be ended without a factual inquiry, and the case was returned for a hearing. And the Supreme Court (Civil Leave to Appeal 75127-09-24 Tel Aviv-Yafo Municipality v. Kirsch, Justice Ruth Ronen, 1 January 2025) held that there is no leave to appeal against a decision refusing a request for judgment at the pre-trial stage. The trial court may reconsider later in the proceedings.
The upshot: a request for judgment at the pre-trial stage is worth making when only a legal question remains. If it is refused, the case simply continues. A judgment given without a sufficient basis may be set aside on appeal.
What does this mean in practice?
For a co-owner suing for partition:
- Attach to the statement of claim the land registry extract, the inheritance or probate order if any, and the requested method of partition.
- If you seek partition in kind or registration as a condominium, bring planning data. If you seek a sale, explain why division is not possible.
- Ask explicitly, in the list of requests for the pre-trial hearing, for judgment under Regulation 63(b)(16), and show why all the defence arguments are purely legal.
For a co-owner defending:
- The court examines the statement of defence as filed. Every argument must appear in it, with the facts that support it.
- Monetary claims, such as investment in the property or use fees, will not stop partition. They belong in a counterclaim or a separate claim.
- A genuine dispute about the method of partition or the value must be presented concretely, for example in an appraisal or planning opinion, not as general opposition.
Sources
- Regulation 63(b)(16) of the Civil Procedure Regulations, 5779-2018, including sub-regulation (13).
- Land Law, 5729-1969: section 37, section 38, section 39, section 40, section 40A, section 42.
- Family Appeal 7367/22 Anonymous v. Anonymous (26.1.2023).
- Civil Leave to Appeal 1017/97 Riedlewitz v. Modai, PD 52(4) 625 (1998).
- Civil Case (Rehovot Magistrates) 77635-01-25 Salhov v. Gabay (25.8.2026).
- Civil Case (Jerusalem District) 34707-01-24 Zanti v. Mashkato (9.7.2025).
- Civil Appeal (Tel Aviv District) 45520-03-26 Sadikov v. Cohen (1.7.2026).
- Civil Leave to Appeal 75127-09-24 Tel Aviv-Yafo Municipality v. Kirsch (1.1.2025).
Checked on 24 October 2026.
When to contact a lawyer?
Co-owners of a property without agreement, or facing a partition claim? Send us the land registry extract and the pleadings, and we will assess whether the case can be ended at the pre-trial stage and which arguments will hold.
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About the author
Amos Ilan is an advocate (licence no. 35320) and notary (licence no. 214444). The office, at 17 Tzahal Street, Ness Ziona, handles real estate transactions, construction defects, condominium disputes and civil litigation.
Disclaimer. This article is for general information only and is not legal advice. Every case depends on its own facts and documents, and nothing in it guarantees any outcome.
Questions and answers
Can a partition judgment be given at the first pre-trial hearing?
What if the court refuses to give judgment at the pre-trial stage?
According to the Supreme Court, there is no leave to appeal against such a decision. The proceedings continue, and the court may reconsider later.
Does the power apply only to partition?
No. The regulation applies to every civil claim. Partition is the clearest case, because the right to partition is set by law and the dispute is usually legal.
One co-owner invested more in the property. Can that delay partition?
Usually not. Monetary claims between co-owners do not prevent partition and are decided in a counterclaim or a separate claim.
A couple with minor children: can the apartment be sold?
The court may order partition by sale, but under section 40A of the Land Law the sale is delayed until a suitable housing arrangement is found for the children and the spouse who has custody of them.
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