Divorce in Israel
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Divorce in Israel
Divorce in Israel is one of the most complex and sensitive issues, due to a number of reasons stemming from the complex legal situation prevailing in Israel and due to the inherent difficulty of divorce proceedings. However, divorce in Israel is comprised of a large number of sub-processes, each of which requires specific knowledge and experience, as well as the patience of the parties conducting these proceedings.
In the following article, I will try to draw as wide a picture as possible regarding divorce in Israel: I will explain divorce is, how to divorce in Israel, and what additional procedures should be followed during the divorce process. I will also explain the law regarding divorce between spouses who were not married in a religious wedding in Israel, but in foreign countries. But first, I will explain what law applies in Israel with regard to divorce and marriage.
Please note that the following article is a general article only and is not in any way a substitute for specific legal advice. For this purpose, you can contact our office to arrange a consultation meeting.
The courts in family law
Before I go into depth regarding matters of marriage and divorce, I will briefly review the relevant authorities and courts in the field of family law in Israel. As far as family matters in Israel are concerned, there are two jurisdictions. The first instance is the Family Court. The second instance is the Rabbinic Court (including other recognized religious courts).
The rule is that the Family Court has the authority to deal with all family matters in the State of Israel, with one exception – marriage and divorce. On the other hand, the Rabbinic Court has the authority to deal only with matters of marriage and divorce. The Law of Jurisdiction of the Rabbinic Courts (Marriage and Divorce), 5713-1953 (hereinafter: the “Jurisdiction Law of the Rabbinic Courts”) stipulates that marriages and divorces between Jews in Israel shall be conducted according to the law of the Torah. The law regarding marriage and divorce is the personal-religious law of the couple. In matters of child custody and the distribution of property in the context of a divorce proceeding, the Rabbinic Court has no jurisdiction to deal with the matter, except in one case – when a bound divorce claim is filed i.e., a divorce claim that includes both the divorce and the issues of custody and division of property.
On the other hand, the Family Court has the authority to deal with almost all matters relating to family law. The law regulating the powers of the Family Court is the Family Court Law, 5755 – 1995. This law provides, inter alia, that the Family Court is authorized to deal with the following matters – matters of wills and inheritances, adoption of children, family law agreements, Surrogacy, alimony, business disputes between relatives, matters of age, marriage, dissolution of marriage, etc.
In other words, when a couple go through a divorce process, they must apply to the Rabbinic Court or to a religious court – according to their religion (as I will explain below). At the same time, their property and custody matters can be managed in the Family Court. As for alimony, there is parallel authority to both the Rabbinic Court and the Family Court. Decisions of the Family Court can be appealed to the District Court and can be appealed to the Supreme Court. As for the Rabbinical Court, I will explain below.
Marriage and Divorce in Israel – the Existing Law
The legal situation in Israel, with regard to marriage and divorce, is especially complex, for a very simple reason. In Israel, unlike most countries in the modern world, matters of marriage and divorce are regulated according to the personal-religious law that applies to the couple. The State of Israel, as a Jewish and democratic state, in fact subordinates its Jewish citizens to ancient Hebrew law in all matters relating to marriage and divorce. The same is true for members of different religions in Israel, which I will elaborate on below.
In fact, a Jewish couple who want to divorce will have to apply to the Rabbinic Court for this purpose. The law that will apply at the time of the divorce is halachic-Jewish law, with its limitations. The fact that the religious law is the one that applies during marriage and divorce takes many couples in the country out of its implementation, whether they are couples of different religions (i.e. mixed couples) who cannot legally marry in Israel or same-sex couples, who are not recognized by the Jewish Halacha and Jewish couples who are forbidden to marry (for example, a marriage between a Cohen and a divorcee who are forbidden by Jewish law).
Below I will explain the structure of the rabbinic courts, how divorce proceedings are conducted, the grounds for divorce recognized in the Jewish religious law, and what refusal to divorce is.
Structure of the Rabbinical Court
As stated, a divorce claim must be submitted to the Rabbinic Court, which is authorized to do so. In Israel, there are rabbinic religious courts, which are regional courts. In fact, they are the first instance authorized to hear any divorce claim. Above the regional courts there is an appeal court, called the Grand Rabbinic Court. The decisions of the Grand Rabbinic Court, as well as the decisions of the Regional Rabbinic Court, may also be appealed to the Supreme Court, sitting as a High Court of Justice. A divorce claim at the Regional Rabbinic Court is held before a panel of three Dayanim who are Judges elected by the Committee for the Selection of Dayanim, headed by the Minister of Justice. Dayanim are not necessarily lawyers in their education, as opposed to judges, they are certified rabbis and are versed in halachic-legal-religious law.
Anyone who wants to divorce will submit his/her claim to the Rabbinic Court. A divorce claim is a legal action for all intents and purposes, which requires careful preparation, and must include the factual tract that establishes the cause of the divorce. There are a number of causes of divorce in Jewish religious law, which we will explain in the next section. In any lawsuit, the plaintiff must prove his/her claim. This is also the case in a divorce suit, when the divorce applicant must prove that he/she has grounds for divorce, in accordance with the relevant facts. When filing a divorce claim, a fee must be paid to the court. It should also be emphasized that at the time of filing the claim, it must also be submitted to the other party, i.e., the spouse from whom you wish to divorce.
After filing the claim and submission of the statement of defense, a date will be set for hearing before the Dayanim. Usually, the first session will be devoted to a short hearing of the parties and if necessary, if there is no agreement between the parties to the divorce, the Rabbinic Court will determine a number of additional meetings for the purpose of hearing evidence. In other words, in the framework of the divorce claim, the parties can testify and present evidence on their behalf, each according to his/her case.
Upon conclusion of the hearing of the divorce claim, the court will determine whether it is appropriate to order a divorce. If the answer is yes, then a date will be set for arranging a Get. In other words, a divorce verdict will be given.
Grounds for Divorce
In the religious-Hebrew law, there are a number of common causes for divorce. As stated, anyone who wishes to divorce must prove that he/she has a cause for divorce. Let me review some of the known divorce grounds in the religious-Hebrew law:
Betrayal – The cause of betrayal relates to the situation in which a woman has sexual relations with a man (she is not married to). According to Jewish religious law, a woman who has had sexual relations with another man is defined as a woman who has committed adultery under her husband. Therefore, she will not be entitled to the money written in her Ketuba and to her alimony (i.e., the woman’s alimony, not child support). If a woman has children from another man, then her children will be recognized as bastards, that is, they are forbidden to marry. It is not easy to prove adultery, there is need for two witnesses who have specifically seen the woman having sexual relations with another man. If adultery is proven, then the cause for divorce was established according to religious law.
An act of ugliness – an act of ugliness also constitutes the cause for divorce, which is less severe than adultery. This is an improper act by the woman, such as meeting with another man in public etc.
Physical disability – This is a cause for divorce for both men and women. This is a situation in which there is a physical defect that was not known to the spouse before marriage, which prevents them from having marital relations.
Violence – violent behavior of the husband towards the wife, is a cause for divorce for the wife. Jewish law forbids such behavior, and rightly so.
Breaking the Jewish law – A woman who prevents her husband from observing halachic commandments or, God forbid, treats him with rudeness in public, can be recognized as a woman who is breaking the Jewish law and in such cases, there is grounds for divorce.
Note that the reasons for the divorce described do not constitute a complete list.
Another way to divorce without having to have a divorce claim from start to finish, is to negotiate with your spouse and reach an agreed divorce agreement. If the couple have an acord and a written and signed divorce agreement, the couple may apply to the Rabbinic Court in a claim called “a claim for approval of a divorce agreement”. In such a case, the complex divorce procedure will be spared, since the Rabbinic Court will order that a judgment be given for divorce, and thus the process will end without too harsh disputes. On the other hand, the couple is always “given the option” to conduct a complex and expensive divorce process.
As described above briefly, after hearing the divorce file, or if the couple wish to approve a divorce agreement, the Rabbinic Court will order a divorce ruling. In fact, a date will be set for the ceremony of arranging a Get. This is an archaic ritual in which the husband “discards” the woman. This issue leads us to another point, in the next section –
Refusal to divorce
Refusal to divorce is a very difficult phenomenon, where husbands refuse to grant a Get and actually tie their wife to a marriage that may exist on paper, but in fact it is already over. The meaning of a divorce refusal to a woman is that she cannot marry another man and if she has intercourse with this other man and has children, her children will be recognized as bastards. As a rule, the Rabbinic Court has the authority to impose a Get and impose sanctions on a reluctant husband. For example – to revoke his driver’s license, to order imprisonment and more.
Marriage and divorce between members of different religions in Israel
Even before the establishment of the State of Israel, there was a law in Israel called “The King’s Word to Council for the Land of Israel.” This law stipulated that the religious communities in Israel (i.e. Judaism, Islam and Christianity) would have freedom of religion and that each of the religious communities would have religious courts that would be competent to adjudicate in the area of marital law.
In 1953, the Rabbinic Courts’ Judiciary Law replaced the King’s word with regard to the Jews. At the same time, the king’s word to Council still applies to the rest of the religious communities in Israel. That is, there are Sharia religious courts, which are responsible for adjudicating matters of marriage and divorce between Muslims. Accordingly, there are religious courts – Christians and Druze – which have jurisdiction over marriage and divorce in the communities. Each of the religious communities also has an appeal court, and each one may – like the rabbinical courts – petition the Supreme Court sitting as a High Court of Justice.
This means that in Israel, personal- religious law applies to all citizens, since every citizen has a personal religion and laws by which he/she can marry. Another meaning is that it is not possible to marry in certain cases, for example, in cases of couples who are not of the same religion, same-sex couples, and more. There are people in Israel who are defined as without religion, ie, non-Jews, non-Muslims, non-Christians, non-Druze, or any other recognized religion. These people can enter into a covenant of marriage, which is a parallel term for marriage and divorce, in accordance with the law called the Law of the Couple’s Covenant for people without religion, 5770-2010. I shall not elaborate further on this subject in this article.
Civil marriage in Israel
Let’s start from the end: In Israel, there is no possibility of conducting a civil marriage. There is a possibility (which is commonly used today) to marry in a foreign country. This option helps many couples who cannot marry in Israel because of the lack of legal possibility, as described above. This option also helps many couples who are not interested in marrying in Israel according to religious law – for ideological reasons, even though they can.
The rule regarding marriage in a foreign country is that this marriage is ostensibly recognized in Israel, since after the marriage and on returning to Israel, the couple can be registered at the Ministry of the Interior as married. This option is also given to same-sex couples. However, in order for the married couple to be registered as a married, the marriage must be recognized in accordance with the laws of the country in which they were made. In other words, if a same-sex couple is married in a country whose laws do not recognize same-sex marriages, then it will not be possible to register with the Ministry of the Interior. The countries in which many Israelis are married are Cyprus, the Czech Republic and Canada, which all recognizes same-sex marriages.
Although marriage in a foreign country is a worthy option, there is one fundamental flaw in it, which is – what is the law when a couple who is married abroad asks for a divorce?
The answer to the question is divided into two variations. One is in the case of a couple who could marry in Israel, for example – Jews who want to divorce. In such a case, the law is known, marriage and divorce will be conducted in Israel according to religious-personal law. Therefore, in such a case, the couple will have to apply to the relevant religious court in their case. On the other hand, if a couple were not able to marry in Israel, they would have to apply to the Family Court for a claim called a petition to annul a marriage.
To sum up this part: Civil marriage in Israel is actually a term for marriage in a foreign country. The main flaw is that the divorce in such a case will be conducted according to the personal- religious law that applies to the couple, even if they originally sought to circumvent the religious law.
Matters Associated with the Divorce Process:
A divorce claim is only part of an entire divorce process, which also includes arranging custody of the children, child support, as well as the distribution of the couple’s common property. Let’s review these topics:
Child custody matters
Couples who want to divorce should, naturally, settle the custody issue. In other words, to decide who will serve as a custodial parent and who will have visitation rights. The exclusive custody granted to a parent is in fact the right to be regularly responsible for raising the children. On the other hand, a parent who has a visionary arrangement enjoys staying with his children and caring for them on the days when the arrangement is determined (usually once or twice a week and every other weekend, but each case is examined on its merits). Another possibility of arranging custody is through joint custody. In this case, both parents are entitled to raise their children equally, with all that entails (except in matters of alimony, which is a very broad and complex issue and I will not elaborate on it in this article). As a rule, child custody matters are discussed in Family Court, except in cases where the lawsuit combines the divorce claim with the custody claim.
Matters of alimony
According to the personal- religious law, the father must absolutely bear the children’s alimony. In other words, a father who does not live with his children in the same house must pay a regular monthly amount to ensure that his children have adequate economic existence. Child support varies from age to age, depending on the needs of the child and, inter alia, according to the income of the father (if the alimony is not mandatory).
Note that matters of alimony are discussed in the Rabbinical Court, but also the Family Court is empowered to deal with these claims. Another issue that concerns alimony is wife alimony. A woman may be entitled to alimony under certain circumstances, depending on the amount of her income and the husband’s income, and also considering the reason for the divorce. However, unlike child alimony, wife alimony is paid only up to the stage at which a woman can get a divorce.
Matters of division of property
Another issue that spouses should arrange during the divorce process is the issue of sharing their common property. For the most part, the legal default in Israel, set forth in the Financial Relations Law, 5733-1973, is that in case of a divorce or the expiration of a marriage, the spouses’ joint property is divided equally between them.
However, in the event that the spouses have drawn up a financial agreement (i.e., arranged a different division of property between them), then the financial agreement will oblige them at the time of separation. In addition, the Family Court has the authority to deviate from the rule of equal distribution of the property, taking into account all of the spouses’ assets and the ability to earn, as well as in case where it is requested to do so by one of the spouses. However, the court will not easily rule for a different division of property from the arrangement established in the Law of Financial Relations. At the same time, spouses can of course reach an agreement regarding the division of property even at the stage of the divorce itself.
There is no doubt that divorce in Israel is a complex, tedious and certainly expensive business. In this article, I have sought to lay out as wide a review as possible about divorce in Israel. I explained what a divorce claim is and what it includes, and also reviewed the procedures accompanying the divorce process. I also explained the relationship between the religious courts and the family court.
I believe that the process of divorce can also be conducted efficiently and fairly, through negotiations. I also briefly explained this (in the section that discussed the question of what a divorce agreement is). However, if you are in the process of divorce or intend to divorce, it is very desirable to contact a divorce lawyer who has experience and will advise you in this difficult process.
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