You have made the critical decision – to dismantle your marriage. No doubt a decision such as this requires courage and an understanding that you are going to face a challenging period of time which includes emotional difficulties and, in some cases, difficult legal procedures. This brings me to the question: what is this complex legal procedure? The procedure is named: “divorce procedure”. In order to divorce, one must do it formally. So, what does this divorce procedure include? What do I need to know about the divorce procedure? And, how does one actually get a divorce?
I will answer all these questions in the article below. First, I’ll explain what the divorce procedure includes, what the divorce laws are in Israel and practically – how the divorce process is conducted in the Rabbinic court (I’ll explain, among other things, why the divorce is conducted in the Rabbinic court). I’ll also explain other procedures that are included in the divorce procedure, i.e. child support, custody and division of property between the couple.
The article below 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.
Divorce procedure – what does it include?
The term “divorce procedure” is actually a sort of “heading” to a number of procedures that the couple have to go through in order to divorce. These procedures are not optional but rather obligatory procedures that the couple have to go through or agree on their outcome so as to actually get a divorce.
A couple who want to divorce legally have to do so by filing a claim to the Rabbinic court. In the state of Israel, matters of marriage and divorce are dealt with solely by the Rabbinic court. This is stipulated by the Rabbinic law (marriage and divorce) 5713-1953. This law states that marriage and divorce between Jews will be conducted according to the law of the Torah, thus a couple who what to divorce have to file a claim (which is a legal claim for all intents and purposes) to the rabbinic court. The Rabbinic court will check to see that the reason for the divorce is one that is recognized in the Jewish law. If it is, the court will order the arrangement of a Get.
Within the framework of the divorce, the couple will have to settle the matter of common property they have accumulated during their marriage. According to the law, common property of the couple has to be divided equally between them, except for irregular cases which I’ll refer to later in the article. Moreover, during the divorce, the couple have to regulate the most important subject when divorcing which is the matter of child custody. The couple have to agree which one of them will be the custodian parent i.e. the one in charge of the day-to-day upbringing of the children and, respectively, what visitation rights will the other parent have, the one who is not custodian. Parents can agree on joint custody too. Another matter that has to be agreed on the child alimony (or child support). I’ll go in to all of these matters later in the article.
To sum this part let us say that the divorce procedure is a heading to a number of procedures that are obligatory in order to divorce. The divorce procedure is complex and is made of a number of separate procedures. It is not just one procedure that, after it is ended, the couple can get on with their lives.
Legal jurisdictions regarding divorce procedures
There are two legal jurisdiction one should get to know because they are both relevant to a person who wants to get a divorce. The first jurisdiction is, as mentioned, the Rabbinic court. To recap – the Rabbinic court has the sole authority to deal with matters of marriage and divorce. As a result, a claim for divorce can only be submitted to the Rabbinic court. At the same time, the Rabbinic court is also authorized to deal with claims that accompany matters of marriage and divorce such as claims for domestic peace, claims for receiving the sum of money written in the Ketubah etc. the Rabbinic court cam also deal with claims for child alimony and wife alimony. Regarding the subject of alimony, there is parallel jurisdiction to the family court which I’ll go in to later.
Please note that the Rabbinic court does not have jurisdiction to deal with claims of division of property between the couple or with claims for custody. However, the Rabbinic court can “obtain” the jurisdiction to deal with such matters in the following cases – if the couple agree then they can deal with the matter of custody in the Rabbinic court. Another option is when the claim for divorce “binds” the matter of custody within it. In such a case, the person who is first to file the bound divorce claim is the one to grant the Rabbinic court the authority to deal with subject that otherwise it could not deal with. Such bound claims create what is known as the “race of authorities” between the family court and the Rabbinic court. If the spouse filing for divorce is first and binds all the subjects, then all will be heard in the Rabbinic court. But if a custody claim was filed to the family court prior to the one filed at the Rabbinic court, then the authority to deal with the custody claim is reserved to the family court.
The above mentioned bring us to elaborate about the family court. This court is the second legal jurisdiction regarding family law. It was established in 1995 to address family files and create a legal jurisdiction dedicated specifically to family law. Hence, the family court has the authority to deal with any legal dispute between members of the family. Note that a “member of the family” for legal purposes is: parents and children, brother and sister, parents and adopted children, grand-parents as well as married couples and common-law spouses. The family court also has the authority to deal with a number of subjects connected to family law such as inheritance and wills, adoption of children, surrogacy, agreements within the family etc.
To sum this part: the field of family law has to judicial jurisdictions. One is the Rabbinic court authorized to judge in matters regarding marriage and divorce. The second is the family court authorized to judge in all family matters except for divorce between Jewish spouses.
Marriage and divorce in the State of Israel
As mentioned, matter of marriage and divorce are regulated according to the personal-religious status of the couple. The law regarding Jews stipulates that marriage and divorce will be conducted according to the Jewish law. As for the other faiths, the law from the British Mandate days called “The King’s Word to Council for the Land of Israel” stipulates that all the other recognized faiths will have the authority to rule in matters of matrimony. So, parallel to the Rabbinic court, each faith has its own court – Sharia for the Muslim, and Christian and Druze courts too. The meaning of this is that the religious law applies to all citizens of the state of Israel be they Jewish or of any other recognized faith. One of the consequences to this is that people from different faiths cannot legally marry in Israel. The same goes for same-sex couples but that is a different subject for a different article. I will now refer to the religious law applicable for Jews.
Divorce at the Rabbinic court
The divorce process at the Rabbinic court begins with filing a divorce claim. This claim is a legal claim for all intents and purposes. The person filing the claim has to submit a statement of claim detailing the relevant facts regarding the divorce and to prove that he/she has a reason for divorce, from the reasons determined in the Jewish-religious law, for example – adultery – where a married woman has sexual relations with a man who is not her husband, while still being married. Another cause is an act of ugliness which is inappropriate behavior of the woman but not actual adultery. One other cause for divorce according to the Jewish law is physical defect. If one of the coupe has a physical defect that as not known to the other party before the marriage, and it prevents the couple form having marital relations, then there is a cause for divorce. There are other causes which I will only mention and not elaborate. They are: rebelliousness, offending the Jewish religion, refusal to have sex and more.
After submitting the divorce claim the other party is permitted to respond to the claim and then, a date for hearing the divorce claim will be set before the Rabbinic court. Divorce claims are heard by three Dayanim in the Rabbinic court. In the first stage, the Dayanim will try to bring about a compromise between the couple and Shalom Beit (domestic peace). In the event that the trial does not succeed, usually another hearing will be scheduled and additional hearings will be held. As part of these discussions, the couple will conduct a divorce proceeding. Each party will attempt to prove its claims. The applicant for the divorce will want to prove that he/she has a cause for divorce. The other side may try to prove that a divorce should not be ordered. However, if the Rabbinic court finds that the cause of divorce has been proven, then it will order a divorce, that is, the arrangement of a Get.
How do you open a divorce file?
As mentioned, a divorce claim is a legal action for all intents and purposes. When a divorce claim is filed, a statement of claim will be filed with the Rabbinic court. In addition, as part of filing of the divorce claim, the applicant must pay a fee, which is 383 NIS. The divorce suit must then be handed over to the other side. After the filing of the statement of claim, a date will be set for the hearing, which will be sent to the parties by mail, including to the office of a divorce lawyer representing each of the parties.
Consent to divorce
The divorce procedure does not require conducting a procedure from start to finish. Couples can divorce in a short and easy way. The way to do so is by agreement. When the couple agrees on the divorce, they must draw up a divorce agreement. The divorce agreement can refer to the divorce on its own merits, but it can also refer to the whole range of divorce issues as described briefly above, including custody, visitation arrangements, and child support. If the couple has an agreement on the divorce, they must submit a claim for approval of the divorce agreement to the Rabbinic court.
A claim for approval of a divorce agreement is cheaper in regard to the rate of the fee, which is 274 NIS. Upon submission of the claim for the approval of the divorce agreement, the couple will be summoned for a hearing before the Rabbinic court. In agreed divorce cases, the court does not tend to create difficulties and, in the absence of special circumstances, it orders a Get. Note that a divorce agreement and a request to approve a divorce agreement are easier and more convenient than a divorce claim that is being investigated and clarified on its merits.
Other issues relating to the divorce process:
As described above, a divorce procedure is essentially a title to a number of procedures relating to a situation in which a couple want to separate and dismantle their shared family unit. The process of divorce is not limited to the actual divorce of the Rabbinic court, but also to other matters such as child support, the division of joint property, the issue of custody, and more. For all these, I will explain in the following section:
Arranging custody of children
Custody is the term for a right granted to one of the parents, to serve as a custodial parent for his/her children and to be responsible for the regular upbringing of the children. Usually, during divorce, one parent is left as an exclusively custodial parent and the other parent enjoys visitation rights. Visitation rights are a term for regular days during the week and every other weekend, when the non-custodial parent often stays with his/her children and takes care of their needs. Child custody matters can be arranged with the consent of the couple. However, if there is no agreement between them, a request for temporary custody may be submitted at the time of the separation (i.e., not the divorce), in which the court will order custody until a final decision in the custody claim. After a certain period, depending on the child’s welfare and, among other things, on the basis of an evaluation of a social worker, the court will decide on the final custody issue. Of course, the court has the ultimate authority and discretion to determine the issue of custody. Note that spouses can also have joint custody, i.e., custody in which both spouses will enjoy spending time with their children and share their time together. Joint custody is also a matter that can be decided by the consent of the parents or by the court’s decision.
According to Jewish law, the father has an absolute obligation to bear his children’s needs. Child support alimony are a fixed and monthly payment that the father carries to ensure that his children have adequate economic existence. Generally, this alimony is divided into two categories: compulsory alimony that include all the basic and regular expenses required for the raising of the children. The other category is charitable alimony, which include the additional (non-basic) payments required for raising the children.
Usually, up to the age of 6, all the alimony which the father pays is compulsory. After that, the obligatory alimony remains, but additional expenses are defined as charity alimony. The difference between these alimonies is that the father has to pay the obligatory alimony regardless of his income and ability to ern money. On the other hand, in regard to charity alimony, the father must pay according to his income and also according to the woman’s income. Already at the time of separation, a claim can be filed for alimony and a request for temporary alimony, until a decision is made in the final claim. When submitting a claim for alimony, a form of details must be attached, pay slips must be attached too as these are used by the court to determine the amount of the alimony. Please note that a claim for alimony can be submitted to the Family Court or to the Rabbinic court.
Division of property between spouses
The law relating to the division of property between spouses is called the “Financial Relations Relation between Spouses Law, 5733-1973” (hereinafter: “the Financial Relations Law”), which stipulates that at the time of separation or the expiration of a marriage, joint property shall be devided with respect to all the joint property of the spouses. The definition of the term “all common property” refers to all types of property, except for a disability pension, widow’s allowance, property received as a gift or inheritance by one of the spouses, and property belonging to one of the spouses prior to marriage.
Hence, property such as savings, residential apartments, shares, provident funds, etc. are defined as joint property, to be divided equally between the spouses, except for the exceptions noted above. Incidentally, in order to complete the picture, note that spouses have the option of changing the arrangement stipulated in the Financial Relations Law, by means of a financial agreement. A financial agreement is an agreement that anticipates the event of a divorce between spouses, and determines the division of property and assets between spouses at the time of the divorce. In the framework of a financial agreement, a couple may determine a different division of property and thus change the arrangement stipulated in the Financial Relations Law. Incidentally, in special cases, the court also has the power to deviate from the rule according to which the property must be divided equally, taking into consideration the couple’s income and property. But these cases are exceptional, and fixed in Article 8 (2) of the Financial Relations Law.
The divorce procedure is a very complex procedure, which involves a number of different legal proceedings. As I have described in this article, the term “divorce process” is actually a title to a number of procedures that are related to each other and together form the divorce. As part of the divorce process, spouses must arrange the divorce itself as well as child custody arrangements, child support, and the division of the couple’s common property. I strongly recommend that you approach a divorce lawyer if you are facing a divorce process or are in the midst of one.