Many couples think that if there comes a time where they will want to get a divorce, they will be able to do so whenever they want. This thought might be correct for other countries but in Israel, since the laws of marriage and divorce are derived from the religious laws and not the civil laws, a couple that wants to get a divorce has to prove cause for divorce from the causes stipulated in the Jewish law.
In this article, I’d like to focus on a separate, separate procedure, which relates to marriage and divorce, but is completely different. This procedure is called Domestic Peace (or marital harmony). Domestic peace is a situation where one of the couple wants to get a divorce but the other partner wants to bridge the gaps and believes it is possible. Therefore, the partner who wants to avoid divorce can file a claim named: “claim for domestic peace” where he/she is ask the Rabbinic court to enforce an interim period, where the couple will try and work out the differences.
A claim for domestic peace is not always filed for “kosher” reasons. Sometimes it is filed so as to delay the divorce procedure, to tire out the other partner and to prevent leaving the common house for a time. Obviously, there are many claims for domestic peace that are filed for actual “clean” reasons. In this article, I’ll briefly explain the divorce procedure, so the reader has a full view. Then I’ll explain what a domestic peace claim is, when is it the right time to file it, if at all, what the actual agreement is etc.
Please note that the following article is general and does not serve as a substitute for specific legal advice.
Divorce and marriage in Israel – a brief review
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.
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.
Lawsuit for domestic peace – rules of procedure
A claim for domestic peace is a legal action for all intents and purposes: a statement of claim must be submitted, in which the arguments of the applicant must be submitted. In addition, a fee of 250 NIS should be paid at the time the claim is filed and the statement of claim must be submitted to the other party. After that, the parties will come together with the divorce lawyers representing them for a hearing before the Rabbinic Court.
The characteristics of a domestic peace suit
The domestic peace claim includes a number of characteristics that I’d like to address because they have a direct bearing on this special procedure, called the “Claim for Domestic Peace”. Let’s review these characteristics:
Claim without operative authority –
In practice, a claim for domestic peace is a claim “without teeth.” In other words, this is a claim that can be submitted to the Rabbinic Court. You can ask for a domestic peace and you can prove that you can restore the relationship. But in fact, it is never possible to compel a person to act against his conscience, not in a democratic state at least. So that when a claim for domestic peace is filed, it is not possible to force the other party to comply with the decision made on the matter. Indeed, a person who refuses to comply with an order of the court can be punished by sanctions, which I’ll mention below.
To sum up this point, let me say that a claim for domestic peace is a claim that cannot really be enforced. If the other party of the marriage is not interested in maintaining domestic peace, it is impossible to force people to live with a spouse who does not want to live with them. Incidentally, note that if a party does not comply with an order instructing the parties to try to maintain domestic peace, the main sanction that can be imposed is actually to order a divorce. So that this is not really a sanction in the case of the other spouse, who is also interested in getting divorced.
The application is often accompanied by a request for a specific housing order –
One of the main characteristics of claims for domestic peace, which is also often a catalyst for the very filing of claims for domestic peace, is the possibility of simultaneously petitioning for a specific housing order. An order for a specific housing is an order reserved for the couple not to change their living arrangements. In other words, this is an order that prevents removal from the common residence. Thus, for example, if the couple live together in a residential apartment that does not belong to the woman, but only to the husband by virtue of a financial agreement, a specific housing order allows the woman to continue living in the apartment, at least until a final decision on the divorce is made. So, often, claims for domestic peace are filed with a request for a specific housing, in order to prevent leaving the house. For the avoidance of doubt, it should be noted that the order for a specific housing is mutual, that is, both the man and the woman can request it.
The Court has the power to issue additional orders as part of a claim for domestic peace –
The right that the Rabbinic Court has to issue orders is a complex question, which stems from the gap between the civil law by virtue of which the Family Court operates, and the Rabbinic Court that operates under Jewish religious law. However, the difficulty of whether the court has the authority to issue specific and special orders, including interim orders, has also been raised in the framework of claims for domestic peace. For example, the question arises as to whether the Rabbinic court can impose a foreclosure on the other party in order to prevent the transfer or disappearance of funds. In addition, the question arises as to whether the Rabbinic court has the authority to give an order preventing a person from leaving the country in the framework of a demand for domestic peace. These questions have answers in the ruling of the Supreme Court.
For example, in one case (Goldberg v. Goldberg), it was determined that the Rabbinic Court has the power to impose a foreclosure order in the context of a demand for domestic peace, if it appears that there is a risk that money or assets may be hidden. In another case (Leah Lev v. The Regional Rabbinic Court in Tel Aviv-Yafo), it was determined that the Rabbinic Court may impose an order to prevent departure from Israel, but on the other hand, it was determined that the mere submission of such a request in the framework of a demand for domestic peace attests to the opposite of the desire to maintain a domestic peace, which indicates a lack of good faith. This approach of the Supreme Court is in line with the following stated in the Goldberg case, which was mentioned above: “The Rabbinic Court, within its jurisdiction to hear the main proceeding – a claim for domestic peace – has the power to issue interim injunctions, as is in any other claim and again, as in any other claim – that the interim order is relevant to the purpose of the main proceeding”.
Good faith – a fundamental principle in claims for domestic peace
As part of a claim for domestic peace, sincerity of the spouse, is most essential. If the other side proves that the demand for domestic peace is no more than a tactic to delay proceedings, or to make it difficult, then the court may reject the demand for domestic peace. Therefore, my proposal at this point is to examine carefully whether there is any justification in any case – to file a claim for domestic peace and to consult a family lawyer on the subject.
Domestic Peace Agreement
A domestic peace agreement is an agreement between the spouses, in which the spouses can agree to maintain domestic peace, or at least try to maintain it, for a certain period. Contrary to popular opinion, there is not necessarily a connection between a claim for domestic peace and a domestic peace agreement. This agreement does not have to be derived from a divorce proceeding or a claim for domestic peace, but rather it can be derived from consent between spouses, including consent made with the assistance of a third party, such as divorce mediator, Rabbi etc. If there is a domestic peace agreement between the spouses, then they can jointly apply to the Rabbinic Court to approve the agreement. Incidentally, in my experience as divorce lawyer, domestic peace agreements are sometimes the product of conducting a divorce process, which actually causes the couple a yearning and a desire to be together – to the joy of everyone, of course.
I would also like to point out that generally, domestic peace agreements signed between spouses as a product of a specific divorce proceeding approved by the Rabbinic Court include a condition that if the interim period does not help the couple improve the relationship, then the couple will divorce.
Is it worthwhile to file a claim for domestic peace?
As I have briefly noted, the question “Should we file a domestic peace suit?” varies from case to case. There are cases in which it is indeed desirable to examine the possibility of filing this claim, for example, in order to prevent leaving of a residential apartment. On the other hand, there are cases in which there seems to be no point in doing so. So that each case is examined on its merits and in any case, it is advisable to use a divorce lawyer for an informed and educated decision.
A claim for domestic peace is a claim in which one party files a claim against the spouse in order to allow the parties an interim period to settle the dispute. The Rabbinic Court has the authority to deal with these claims and even more so: it is also empowered to issue interim injunctions. However, a domestic peace claim is a claim that will not necessarily always be correct to be filed. Therefore, you should always be accompanied by an experienced family lawyer.