A divorce procedure is an important point in the lives of spouses who experience it. This is a complex process and a formative event in which a family unit is dismantled, with all that entails. Therefore, within the framework of the divorce process spouses must arrange a large number of issues, which during the joint life, were seemingly trivial.
Contrary to popular belief, a divorce procedure does not necessarily have to be settled by judicial decisions of the courts, such as the Rabbinic courts and the family courts. The process of divorce can be completed easily, and in a much more pleasant and simple way, especially through dialogue that will lead to compromise. The same compromise is referred to in legal terms is a “divorce agreement.”
In the article below, I’d like to present a different way in which spouses can divorce, through compromise, and agreement. In this article I will explain what a divorce agreement is, how to draw a divorce agreement, what issues and conditions should be included in a divorce agreement, and how to file a divorce agreement. I will also discuss in detail the advantages and disadvantages of a divorce agreement so spreading a broad sheet to anyone interested in learning about a divorce agreement. In the first part of the article I will explain what a divorce procedure is, and what it entails, in order to spread as wide a picture as possible.
The article below is general and is not in any way a substitute for specific legal advice that corresponds to individual circumstances. For this purpose, you are welcome to contact our office.
The divorce process from an “overview”
Couples wanting to divorce must have a total separation between them. In contrast to popular opinion, this separation is not only expressed in the divorce itself in the Rabbinic Court, but couples wanting to divorce will have to settle a large number of issues, from the issue of custody of the children to matters of alimony and the division of communal property. In addition, the couple must also divorce in the Rabbinic Court, which is the authorized court to deal with matters of marriage and divorce in the State of Israel. Let us review these topics in detail in the following section:
Matters of marriage and divorce
Marriages and divorces in Israel are conducted according to the personal-religious law of the couple. In other words, Israeli Jewish spouses will marry and divorce according to Jewish law. A Muslim couple – citizens of the State of Israel – will marry and divorce according to Islamic law. As for the Jews, the application of personal-religious law in personal matters is set forth in the Jurisdiction of the Rabbinic Courts (Marriage and Divorce) Law, 5713-1953. This law stipulates that marriage and divorce shall be governed by the law of the Torah.
As for the other members of the faiths in Israel, the King’s Order to the Council for the Land of Israel, enacted by the Mandatory legislature, states that the members of the religions in the Land of Israel shall retain the authority to deal with the issue of personal status. The provisions of the King’s Order to the Council have not been revoked even today, and hence the authority of the Muslim, Christian and Druze courts to deal with the matter of marriage and divorce. The Rabbinic Courts Jurisdiction Law, mentioned above, replaced the directives of the King to the Council with regard to the Jews.
Furthermore, spouses wanting to divorce will file a divorce claim with the Rabbinic Court. Like a regular civil claim, anyone wanting to divorce must prove that he/she has a cause of divorce. The grounds for divorce are defined in the Jewish law. Among the grounds for divorce, for example, are the grounds for adultery (i.e., a married woman who has sex with a man), the cause of an act of ugliness, the cause of a rebellious wife, a cause of defamation or a physical defect that was unknown before marriage etc.
The law stipulates that the Rabbinic Court holds hearings on divorce claims in a panel of three Dayanim. Above the regional courts – which constitute the first instance – there is the Great Rabbinic Court. When a divorce claim is filed, the plaintiff must pay the fee, file a statement of claim for all intents and purposes, and more. In addition, after the filing of the divorce claim, a hearing will be held in the Rabbinic Court, in which the parties will be able to prove their arguments. If the grounds for divorce are proven, then the court will order a Get.
Parallel to the regional courts, the main court in the field of family law in Israel is the Family Court. The latter has the authority to deal with any family matter, including inheritance and wills, adoption, financial disputes between family members, distribution of property between spouses, custody of children and more. However, the Family Court has no authority to deal with one subject – matters of divorce and marriage. By the way, the Rabbinic Court has the authority to deal with matters derived from divorce cases, such as a claim for child support, a claim for a woman’s alimony, a ketubah suit, and more.
Claim for child support
A major and important issue that couples should arrange in the divorce process is child support. The rule is that the father must bare his children’s needs absolutely. Child support alimony are a monthly payment designed to ensure the proper economic existence of the children of the father. As far as child support alimony is concerned, it is important to separate and distinguish between obligatory payments and charity payments. The rule is that a father owes his children obligatory child’s support completely and without dependence on his income, up to the age of 6. After that, until the age of 15, the father is obligated to pay compulsory child support expenses. However, beyond the basic expenses, the father to a 15-year-old has to pay child support according to charity. That is, according to his ability. After the age of 15, the father pays only according to charity laws.
As stated, a claim for child support can be submitted to the Rabbinic Court, if it is bound with a divorce claim. However, the Family court also has the authority to deal with the claim for child support alimony, since it is not a claim for divorce or marriage. Also, at the time of separation, a claim can be filed for temporary alimony, i.e., a temporary ruling until a final decision regarding their height.
Claims for child custody and for visitation rights
Another important issue that a couple should arrange in the framework of a divorce process is the issue of child custody and visitation rights. If the couple lives together, they both serve as custodial parents. At the time of divorce, the couple must decide which of them will serve as the parent with exclusive custody, i.e., the parent responsible for the regular and ongoing care of the children, and at the same time, which parent will have visitation rights. Visitation arrangements are regular days during the week when the non-custodial parent gets to spend time with his/her children and takes the responsibility to take care of his/her children on an ongoing basis. Another possibility available to parents who are in the process of divorce, in all matters relating to the arrangement of custody, is to have joint custody. Joint custody – as implied by its name – is custody in which both parents have the responsibility to raise their children. Not exclusive custody of one parent, but joint custody of both parents.
Child custody matters are dealt with at the Family Court. However, there are two situations in which the Rabbinic Court can also deal with custodial matters. The first and simplest situation is when there is agreement between the parents to conduct the procedure in the Rabbinic Court. The second and more complex situation is the case in which a person filing a divorce application binds the child custody claim with the divorce one. Please note: the rule is that the court will place custody in accordance with one “supreme principle”, which is the best interest of the child.
Matters of division of property between spouses
During married life, the couple usually accumulate joint property, whether it is a residential apartment (or more than one) or mobile property such as cars, jewelry, shares, savings and more. At the time of divorce, the question arises as to which property will be divided between the spouses, if at all. In the matter of the division of property between spouses, the Financial Relations between Spouses Law, 5733-1973 (hereinafter: “the Law of Financial Relations”) stipulates that at the time of separation or the expiration of a marriage an agreement named the balance of resources arrangement shall be arranged between the couple, meaning that the spouses will equally share the property. However, the Financial Relations Law also says that all property will be considered as “balanceable”, with the exception of the following types of property: disability pension, widow’s allowance, old-age pension and property received as a gift by one of the spouses and property belonging to one of the spouses prior to marriage.
Moreover, the legal default is, as stated, the equal distribution of property, but it is important to emphasize that there are two exceptions to the equal distribution. The first exception is defined in Section 8 (2) of the Financial Relations Law. This section provides that the court may deviate from the balance of resources arrangement, taking into account the couple’s earning ability and the assets in their possession. The second exception relates to the situation in which the couple made a financial agreement. A financial agreement is an agreement made by a couple, the purpose of which is to determine an arrangement for the distribution of property that will reflect the will of the couple and for their welfare. If there is a financial agreement approved by a court of law (as required by the Financial Relations Law), it will prevail over the balance of resources arrangement established in the Financial Relations Law.
Other matters related to divorce and marriage
There are several other procedures derived from the divorce process. Some have been mentioned above such as a claim in which the woman requests monetary compensation by virtue of the ketubah, a claim for domestic peace in which a spouse wants to freeze the divorce in order to attempt to save the marriage, wife alimony and more.
Divorce Agreement – What Is It?
As stated, the divorce claim can be held in two ways. One way is by conducting a long and complex legal process. The second way is through a divorce agreement. A divorce agreement is an agreement between spouses, which expresses their consent to divorce, without lengthy legal proceedings.
After a divorce agreement has been reached, the couple can apply to the Rabbinic Court and divorce by consent, without conducting legal proceedings from start to finish, in which one of them will have to prove the existence of the cause of the divorce. In addition, a divorce agreement does not necessarily have to deal only with the issue of divorce in the Rabbinic Court. A divorce agreement can also express overall consent in matters such as child support, custody and property division. Note that a divorce agreement may be the result of agreement and a direct dialogue between the spouses, but it can also be the result of litigation conducted by divorce lawyers representing the couple and may be the result of consent in a mediation process through a divorce mediator.
Submission of a divorce agreement – how?
As mentioned in the previous section, a divorce claim is a legal action for all intents and purposes. When there is a divorce agreement between the couple, they must apply to the Rabbinic Court and submit a claim called “Claim for approval of the divorce agreement”. The fee for filing this claim is 250 NIS (at the time of writing these lines), and is cheaper than the fee that must be paid when filing a regular claim for divorce. After filing a claim for approval of a divorce agreement, the couple will be summoned for a hearing before the Rabbinic Court. If there is agreement, the Rabbinic Court will immediately approve the divorce agreement and order a divorce.
Although the court will want to find out why the coupe have decided to divorce and sometimes try to reconcile the parties, but it is still a much shorter and effective process than a situation in which the couple are conducting a long and expensive divorce claim. However, it is important to note that the divorce agreement, as detailed above, can include a general agreement. That is, with regard to alimony, custody and the distribution of property. Even then, a comprehensive agreement can be submitted to the Rabbinic Court, or alternatively, to submit the divorce agreement relating only to the divorce – to the Rabbinic Court (since it is the exclusive authority to deal with the matter), and at the same time to submit agreements concerning custody, property and alimony to the family court. It is usually more efficient and easier to do so as one piece.
Is it possible to make a divorce agreement when married in a foreign country?
The answer to this question is Yes. Many Israeli couples choose to go to forging countries, to get married there and then come back to Israel and register as married in the Ministry of Interior. This being said, many couples are not aware of the fact that when divorcing (if the couple are of the same faith and are accepted as allowed to marry in Israel according to their personal-religious faith), they will have to go to the Rabbinic court, as the law is that all matters of marriage and divorce are heard there (or in the other faith’s courts). In such cases too, a divorce agreement can be drawn.
What topics should be included in a divorce agreement?
A divorce agreement is an important and sometimes complex agreement. So, the first suggestion is always to have an experienced divorce attorney. However, based on my experience as a family lawyer, I believe that there are a number of issues that are very important to include as part of a divorce agreement. Let’s review some of them:
Consensus regarding the divorce itself – it seems to be one of the most important issues to be settled in the divorce agreement. The purpose of the divorce agreement is to establish and establish the consent of the couple to divorce, thus saving both of them the financial costs of conducting a divorce proceeding.
Regulation of the issue of the residential apartment / house – Usually, when the divorce agreement also includes an agreement for the distribution of property, it is very important to arrange what will be done with the apartment. For most of us, the apartment is the most important asset the couple has. Therefore, it is very important to determine what will happen to it, whether it will be sold on the market, or it may be sold to one of the spouses exclusively, or that one spouse may remain in the apartment for the purpose of raising the children, etc.
Imposing sanctions – contracts are important, but life experience teaches that sometimes people break contracts. Therefore, I propose – within the framework of the divorce agreement – to include a sanction that will be expressed in case one spouse violates the divorce agreement. For example – suddenly refuses to meet the terms of the agreement and express his/her consent to the divorce. it is advisable to include a sanction in the form of permanent compensation or compensation without proof of any damage.
Arranging custody of children – Another issue that should be included in the divorce agreement is the issue of custody. Arranging the custody issue will make it easier for the couple down the road. Therefore, it is useful to determine who will serve as custodial parent, how to arrange the vision arrangements between the parents and other issues related to the issue, including arranging joint custody, if the parents so desire.
Please note that the above list is a partial one.
Pros and cons in divorce agreement
A divorce agreement has its advantages and disadvantages, so, towards the end of the article, I’d like to review some of them:
Waiver – Like any compromise agreement, a divorce agreement is a compromise between the couple. Compromise is welcome, but there are those who claim that a compromise is actually a product of concession and it is not always worth giving up, especially when your position is justified. The same applies to a divorce agreement. Sometimes a couple makes a divorce agreement and compromises, even though one of them is absolutely right in his/her claims. Of course, there are those who think otherwise, but it is necessary to note this fact as a shortcoming, for the sake of proper disclosure.
Exploitation of need – I often encounter cases in which a divorce agreement is made to satisfy the needs of another spouse who uses the force he/she has over the other party. For example, there are sometimes situations in which the husband imposes a divorce agreement while threatening to refuse giving a divorce to the woman. In such cases, the woman may find herself relinquishing her rights only to be able to divorce and continue with her life. Thus, sometimes, a divorce agreement has a significant disadvantage which is expressed in the very fact that it is a product of exploitation and coercion, even though there is no physical coercion.
Time saving – There is no doubt that a divorce agreement saves the couple much time. Among other things, divorce agreement saves discussions that take place during work hours and saves the couple the complicated engagement with the divorce process and thus enables them to continue their lives.
Effectiveness – A divorce agreement is effective – literally. It comes instead of conducting a divorce proceeding in a number of courts and as part of a number of different and separate proceedings. A comprehensive divorce agreement, willingly drawn by the couple, is much more effective. It is efficient in terms of time and is also financially efficient and is certainly emotionally effective, since it saves the couple very difficult legal proceedings.
Quick Divorce – A divorce agreement leads to a situation in which the divorce, which can sometimes spread over a long period, ends quickly and thus the couple becomes free to build their new lives. Therefore, there is no doubt that speed is one of the most important and essential benefits of a divorce agreement.
Emotional Value – The divorce process saves the couple the legal process, the cross-examination, the sometimes insulting requests, including the anger and sadness caused by conducting the divorce process from start to finish.
A divorce agreement is welcome agreement, which can save the couple from going through difficult and complex legal proceedings. There is no doubt that a divorce process is a complex procedure, both on the financially and certainly emotionally. Therefore, drawing a divorce agreement can ease the burden of emotional stress and mental overload. However, note that a divorce agreement is an agreement worth drawing and signing – with the assistance of an experienced family lawyer.