Domestic Peace

The laws of divorce and marriage in Israel are unique because they include a few sub-procedures and are held in two judicial bodies. One is the Rabbinic court which is authorized to rule in matters of marriage and divorce according to The Rabbinic Courts Law (“Marriage and Divorce”) 5713- 1953. This law stipulated that marriage and divorce in Israel, between Jews, will be held according to the Jewish law of the Torah and the Rabbinic court will be solely authorized to deal with these matters. This being said, a divorce procedure is a title to a few sub-procedures that the couple have to go through so as to separate completely. For example, there is the issue of child custody, the division of property etc. in many cases, subjects which are connected to the divorce, as mentioned above, are heard in the second judicial body, which is the family court. This court is authorized to deal with any family matter excluding claims for divorce and marriage, as mentioned above.

If this complex situation is not enough, in some cases, the Rabbinic court may have jurisdiction to deal with claims that it usually does not deal with, for example: child custody claims or property division between the couple. The Rabbinic court gets its authority in two ways – if the couple both agree to handle all the procedures in the Rabbinic court or, in cases where a claim for divorce, filed to the Rabbinic court, binds the other claims with it.

To sum this part – the Rabbinic court has the authority to deal with claims for divorce and marriage. At the same time, the family court has authority to deal with any other family matter, except for marriage and divorce, which are regulated by power of the religious law of the couple. Let me explain shortly regarding the subjects dealt with in a divorce:

Claim for divorce

A divorce claim filed to the Rabbinic court is actually a claim to dismantle the marriage. A claim such as this is heard in the Rabbinic court, as mentioned, but note that this claim is in practice a legal action in all respects. The person filing for divorce has to submit a statement of claim for divorce which include factual details supporting the cause of divorce. In other words, one has to prove that he/she has a cause for divorce, one of the causes recognized by the Jewish law. For example, one such cause is betrayal – a woman was un-loyal to her husband and has intercourse with another man, while being married to her husband. Another cause is physical defect – if one of the couple has a physical defect that prevents them from having a sexual relation, and this defect was not known to the other spouse before the marriage, there is a cause for divorce.

After the claim for divorce has been filed, the other party can respond to the claim: he/she could disagree to the divorce or agree to it. If the other party disagrees to the divorce then the couple will go through a legal procedure where the requesting party will have to prove cause for divorce. If the Rabbinic court accepts the divorce claim and finds that there is in fact a cause for divorce, it will order the couple to have a Get – Jewish divorce. By the way, within the divorce claim the refusing party can state that he/she want domestic peace. On the repercussions of this action, I’ll elaborate below.

Child support claim

The obligation to pay child support is an absolute obligation the father has to fulfil. The reason for this is to provide his children an adequate economic existence, when he does not live under the same roof with them. Child support containing the current expenses required for raising the children, are obligatory by the law and the father has to pay them until the age of 16 years of the child. This being said, if the child is over 6 years old some of the expenses are by the law of Tzedaka – charity. This means that the father has to pay for the necessities of his children by law but expenses that are not basic are paid by the law of charity, i.e. in consideration with the father’s income.

At the time of divorce, when the father does not live with his children under the same roof, a claim can be filed for temporary child support, so there is no need for a final Get in order to charge the father with child support. At a later stage, the Family Court or the Rabbinic Court will decide (both courts have authority to deal with alimony) what will be the amount of the regular child support sum.

Custody claim

If the couple has common children, the question arises – within the framework of divorce – who will be responsible for the ongoing raising of the children. In other words, who will be the sole custodian of the children, and accordingly what proportion of the visitation arrangements will the other parent – the non-custodian one – have. However, the couple can also choose to have joint custody, that is – custody in which both spouses have one custody, equal in terms of times and ongoing care of children. For the avoidance of doubt, note that custody is the right to be responsible for the ongoing raising of children. The authority to deal with claims for child custody is given to the Family Court. Decisions regarding custody and its imposition are derived from a principle called “the principle of the best interest of the child.”

Claim for the division of property between spouses

At the time of separation or divorce, the couple must arrange the division of their common property, since it is natural that during the marriage the couple have accumulated a lot of common property, such as a house (or apartment), investments, savings, shares and physical property. In the matter of the division of property between spouses, the Financial Relations Between Spouses Law, 5733-1973, determines that upon the expiry of marriage, the spouses’ joint property shall be divided equally between them, except for a number of types of property that will not be included in the mass of the joint property (for example: old age pension, widow’s allowance, etc.) If spouses have signed a financial agreement between them, the terms of the agreement will be the ones counting, at the time of separation, and not the legal default that determines equal distribution.

On the edge of this part

A divorce process also includes a number of legal proceedings. For example, a Ketubah suit, in which a woman can claim the sum of the Ketubah signed by the husband at the time of the wedding. In addition, a divorce process may include other claims between spouses, such as tort claims for slander or violence. Also, a divorce procedure might include a claim for a domestic peace, as I will explain.

Claim for Domestic Peace – in theory and in practice

The purpose of a claim for domestic peace is to ask the Rabbinic Court to prevent divorce, at least for an interim period. This claim is filed at the Rabbinic Court, since it derived of the “laws of marriage and divorce”. In the interim period, which is asked for in the framework of a request for domestic peace, the Court will instruct the parties to live together in order to try to resolve the differences between them. As a rule, a claim for domestic peace is submitted to the Rabbinic Court by the party seeking to avoid divorce. However, reality teaches that claims for domestic peace are sometimes submitted so as to delay legal procedures and to enable on party to get organized before the divorce. In other words, although the claim for domestic peace has a good cause it is sometimes misused.