Divorce in Israel
When writing these words in the beginning of 2009, it is uncertain if the law may be changed and we will find ourselves in a new era, when Civil Marriage will be recognized in Israel and will be looked upon as a regular occurrence.
Today, we have four different religious courts: Jewish rabbinic courts (Beit Din Rabani); Shari Islamic courts; Christian religious courts; and also Druses courts.
Legally, all issues relating to domestic relations in Israel are in the jurisdiction of two separate court systems:
- The Civil Courts
- The Religious Courts (and for many, here begin a great deal of problems)
The jurisdiction of the Religious courts is still exclusive in some areas of domestic relations but concurrent with the civilian courts in others.
The jurisdictional rules applying to mixed marriages and members of no recognized religion are unique. As we wrote above there might be an enormous change soon and we will deal with this issue later.
We will deal now with the legal system in Israel from the Jewish aspect.
Jewish Rabbinic Courts (Beit Din)
These are the tribunals with exclusive jurisdiction in connection with marriage and divorce of Jews in Israel. If a party initiating a divorce action explicitly includes a related claim, such as a claim for maintenance or child support, and no other claim on that same related matter was previously submitted to the civil courts, the rabbinic courts obtain exclusive jurisdiction in connection with the related claim as well.
There is one matter that is always to be considered and included in a divorce action, whether mentioned explicitly or not, is the issue of: Child custody. Unless a claim on the issue of child custody was submitted to the civil courts prior to the filing of the divorce action, the rabbinic courts will automatically have exclusive jurisdiction on that issue when the divorce action is filed.
For this reason, litigating spouses often race to file first in the system that they believe favors their interests, and a party suing for divorce must be careful to open a child custody file in the civil courts before initiating the divorce action if he feels that the civil courts will benefit his interests.
The law in Israel was recently changed and there is no need for a “Get” to separate the property the couple had/has in common. This is certainly a blessing for the woman because now she does not depend on the husband’s consent for a separation and the courts will order a separation of the property common to both of them before the issues of the “Get” are resolved, i.e., before the couple is divorced.
This is a most important change because the husband cannot use the giving of the “Get” as a weapon to manipulate the woman and force her to compromise and give up on property and other material assets. Still, the husband can continue to refuse to grant his wife a “Get” but this is a halachic matter that is not related to the legal division of property by the civil court.
Besides divorce actions, Jewish rabbinic courts have jurisdiction concurrent with that of the civil courts in matters of spousal maintenance, child support, guardianship, inheritance and adoption, among others1.
These courts apply Jewish religious law in its adjudications. The Israeli High Court of Justice has carved out several exceptions to this rule obligating the rabbinic courts to follow general civil law in connection with the division of marital property (absent agreement of all parties to apply religious law) and to give proper weight to principles of basic human rights as defined and established in Israel’s Basic Laws.
Rabbinic courts have the authority to force compliance with its orders, including those requiring husbands to grant a divorce according to the Halachic Laws (Get), with tools ranging from revocation of drivers licenses to prison terms for recalcitrant parties, but please remember, we are a democracy and not a Theocracy therefore, the Beit Din, cannot enforce the full range of sanctions it had originally according to the Halacha and its power is restricted by the secular law.
The civil court possessing jurisdiction in matters of domestic relations is the Family Court. They can be found in different areas in the country and remember, here in Israel you will be asked to pay a fee to the court for filing your claim.
These courts have jurisdiction in matters of personal status, including child support, maintenance, guardianship, division of marital property and filiations’ proceedings. It also has jurisdiction in matters of inheritance, civil disputes between family members where the relationship is relevant to the dispute, adoption and a number of others.
If the religious courts have exclusive jurisdiction, the Family Court will retreat. When the religious courts have already exercised concurrent jurisdiction, the Family Court will also retreat. Otherwise, agreement of all parties is not required to bring an issue before Family Court.
In matters of child support and maintenance, Family Court will apply Jewish Law to Jewish couples. Relevant rules include a father’s duty, regardless of issues of legitimacy to pay for a child’s basic needs until that child’s achieving majority and in most cases (but not all) until the child reaches 21 years of age, although from 18 to 21years, the mother will receive for the child only a third of the amount (alimony).
The extent of this obligation (alimony) varies and we would like to let you know that lately, there is a changing trend in the courts.
In the past, the father would be the one paying alimony to the children, with no regard to his income but lately the courts strayed from this path and now, many judges are ruling according to how much the woman earns (her total income, which of course can be higher than the father`s). Please note, all the above is with the supposition that the children stay with the mother
The idea is to take into account the earnings of each parent. It could be that the father will pay minimal child support because his earnings are lower than the mother`s and she is capable of supporting her children herself. As was said previously, this is a trend that is only at its beginning and is not obligatory.
Concerning alimony and how it works in Israel refer to this article. Suffice it to say that the obligation of a Jewish father to pay child support is absolute, unaffected by issues of legitimacy, visitation and, as applied by some courts in Israel, to some extent unrelated even to the ability to pay.
If the father can’t pay or is not found to pay, The National Insurance Institute will pay child support up to a certain amount in place of a delinquent father, seeking collection from that father in turn.
The courts typically use these maximum statutory National Insurance amounts as baselines for support awards even in connection with the poorest and least employable of fathers. But please remember these procedures are a long process and at times frustrating. It is not at all guaranteed that the one suing will succeed against The National Insurance Institute.
The obligation to pay spousal maintenance exists only as long as there is a marriage and falls only upon the husband; there is no Jewish form of post- divorce alimony. This fact sometimes counteracts a husband’s unwillingness to grant his wife a Jewish divorce since he typically has to pay as long as the couple is married, and is sometimes abused by married women who prefer maintenance payments to a finalized divorce even when they have no intention to reconcile.
In this context let it be noted that stay of exit orders against defendant spouses and parents are not especially difficult to get in Israel, though more rigorous standards apply if the subject of the order is a foreign citizen. But the more serious problems are the ones concerning child relocation. We strongly recommend you read our article on this subject.
Divorce agreements require court approval in order to be enforceable. By statute, division of the marital estate is by and large equitable with exceptions for pre-marriage property, inheritances and gifts received by one spouse only, and several other types of assets2.
Navigating the Israeli court system in the context of domestic relations law requires expertise and it is absolutely essential to obtain legal advice in connection with any proceeding3.
Unlike the United States, we are just in the beginning of a process where cases may be decided not only in the courts, as the majority of the cases in Israel are today, but in mediation outside courtrooms. This process is much faster, fair and especially – less expensive.
Every case is a unique one and deserves special care; this document can not be a substitute to personal and specific legal advice4.
Sincerely,
Tzvi Szajnbrum, Attorney at Law
1 For most of these actions the agreement of all parties is required in order for the rabbinic court to obtain jurisdiction and this might not be an easy task!
2 Donatives intent can override the exception and create joint holder status where it otherwise would not have existed.
3 Whether adversarial or not, even in a mediation case.
4 It cannot be depended on as applicable in any specific situation or as a substitute for legal advice in relation to a specific case.