Divorce and Emigration
What are the legal and emotional complications in a "mixed1" marriage, when one of the parents wants to leave the country with the children?
What happens when one of the parents wants to stay in Israel with the children, but the other parent wants to move with the children to another country?
I may not be able to offer a clear or direct solution, but the intention here is to clarify issues you may not be aware of and prepare you for possible future complications.
- Coping with a divorce in Israel?
- Is there a problem at all?
- What is the problem?
- Are you a “mixed” couple (an Israeli married to a Brazilian, for example)?
- What are the problems a mixed couple faces if one of the partners is non-Jewish?
If you are a happily married couple or a new bride or groom with plenty of issues to deal with right now, do you need to think of other future problems? Yes, you do!
A bad marriage followed by a “bad” divorce (I say “bad” divorce because they MOSTLY are), can lead to years of legal procedures, ugly court battles and hurting the kids. Could it be worse? Unfortunately, for mixed couples it could be your worst nightmare.
What follows below is a short explanation about the differences between the legal processes in a Regular Legal Court vs. a case in a Rabbinical Court.
Fortunately for women, Israeli law has finally changed and all financial issues between the couple can be resolved before (!) the actual get is given to the wife by the husband.
The legal repercussions are very small compared to the practical ones. From now on, no woman will be held “hostage” waiting for a get. A husband can no longer use the get as a weapon against his wife.
Yes, he can still be a sarven get (refuse to give his wife a get, i.e., deny her the freedom to remarry) but in most such cases he will be held as a criminal and as increased pressure is put on him by the regular courts and the public on the Rabbinical Courts, the more flexible they will become.
Don’t forget, though, that the Rabbinical Court would like to increase its power against the sarvanei get but Israeli Law still puts many limitations on the Rabbinical Court`s powers.
The situation has changed for the better for those seeking a fair divorce. But, for those couples with children who wish to move abroad, the situation has actually worsened2.
If you are such a couple, you may find that you and your children have completely lost your freedom of movement—and this could be for most of your adult life! According to the view of the Hague Convention on the Civil Aspects of International Child Abduction3, this could be the bitter reality of a court case involving children of mixed parents.
The Emigration Issue in the Eyes of the Israeli Court
In family law, emigration (hagira) cases are the most complicated, complex and sad. These decisions are very painful for the judges involved. In addition, the Supreme Court itself has indicated this in its rulings on past cases.
There is no way for both parents and children to be accommodated in these cases or for the court to find a solution where all sides involved can be satisfied. There is always someone who will be hurt and made to suffer.
Israel is one of the most problematic countries in the world concerning emigration. This is because Israel has a high divorce rate; and, with almost 50% of the population made up of new immigrants, there are many “mixed marriages.” If we add to this mix the fact that we are dealing with dozens of different countries, laws and nationalities, this makes for a very chaotic situation.
The Legal Ban
This is a travel ban against your children or yourself or both! This means, that neither you nor your children can leave the country. If you wish to leave for a short period, this is contingent upon many legal requirements, including arranging for a security deposit, etc.
Implications –Yours and the Family Abroad
From the very beginning, after the first issue from the court, you and your children could be completely cut off from your family abroad for long periods of time. Imagine the pain of the grandparents if they can’t afford to come and visit you here in Israel? Or the opposite, if the other parent is abroad with your children and you are here with no means to go and visit them?
All this just because your marriage with a foreigner didn’t work out! Now, the battle begins.
This is what happens to many immigrants, both women and men.
The Non-Jewish Parent and the Problems Involved
“Love is in the air” and everything looks fine until something goes wrong. From the day a Jew and a non-Jew live together (they will never be considered married by Jewish law) and then separate, the “fight” will be much worse.
Although the parents in such a case do not really care about Halachic Law (Jewish Law), this can easily change—one day they may become religions or want their child to be Jewish after all.
If the mother is not Jewish, the children are not Jewish – period.
If the father is not Jewish and the mother is Jewish, the children are Jewish. Imagine now, that the father wants to go back to Brazil with the children. You know he will raise the children as non-Jewish! What do you do?
People tend to think that the Israeli courts will be more benevolent to the Jewish parent. Mistake! Israeli courts give no preference when it comes to religion and instead they rule in a case on what they "think” is best for the children. Here is where things start getting really out of control.
Why?
The Social Welfare System
Let me put into a few words what the social welfare services can do for you: Not much. If possible, avoid their involvement!
While the system has many good people--professionals and caretakers--there is one acute problem you should be aware of. Israel`s social welfare system is extremely paternalistic.
They think that they know best what is good for you and your children.
Once they become involved, your life will change dramatically. I can assure you that it will not be for the better because immediately your life will become an open book. Your motherhood or fatherhood will be contested, even though it wasn’t contested before the divorce and the present court case. From now on you have to prove you are not just a good parent but the "best parent!" And you will soon find out that this might be a "Mission Impossible."
Can One Avoid this Situation?
There is no guarantee but you can make things easier for yourself and the children. Please understand, you are the only one who knows the true situation. Be a wise and careful person. Our sages tell us, "Who is wise? The one who can predict what will come" (not necessarily the future).
Some Simple Advice
Make a prenuptial agreement. Stipulate in it what will happen to the children in case you divorce from your partner.
If you have doubts about the future while you are still pregnant, be wise and think where you want to deliver the baby. What country will be the best for you?
Don’t feel trapped. If you see the “end” coming, take all the legal measures before something happens. Be the one who makes the first move!
In a divorce agreement, and this is the most important issue in this case, try to find some future solutions in case one of you wants to move to another country. Find a way to receive monetary guarantees if the other side makes any “stupid move.”
The Best Solution
If you have decided a divorce is unavoidable, please consider (as the courts will try to make you consider anyway), M E D I A T I O N. This is not magic but it’s a system that works well in most cases, costs you much less (a quarter or less), hurts less and above all, leaves the children out of the dirt that eventually will come up in court.
Don’t breach the law in any case. Consult with a lawyer. Not just any lawyer but with one who has experience in the field. One who understands you and your language.
You are not alone. Find friends to talk to and keep your head above the water. The wave will pass, I guarantee you.
Sincerely,
Tzvi Szajnbrum, Attorney at Law
1 Mixed = For example: An Israeli with a foreigner or a Jew and a Non-Jew.
2 Not as a result of the new law.
3 The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken from one member nation to another. The Convention was drafted to “insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.” The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.