Family law is a unique field, because it includes a number of separate legal fields that may suddenly flow to a single point of contact. In another words, the field of family law also incorporates the commercial, constitutional and criminal fields. In some ways, family law also includes the psychological field, which is not a legal matter. All of these issues require a great deal of expertise, knowledge and experience, but no less important than all of these, a family lawyers also needs a great deal of sensitivity and the ability to contain and listen. What is the role of a family lawyer? In what areas do family lawyers deal? Read on to find out more.
At the beginning of this article, I mentioned that the field of family law relates to a number of legal areas, which have no connection, but when it comes to family law, an interesting point of contact is suddenly created. As I shall elaborate below, in Israel, divorce and marriage are subject to religious law. More than once, this subordination creates difficult and sometimes absurd situations, which substantially violate human rights. In such cases, the family attorney is required to petition the Supreme Court in a variety of constitutional petitions.
Family law deals with the property itself and the division of it between spouses who are in the process of divorce. In other words, in many cases it is financial matters. Therefore, a divorce attorney is also required to know and to be experienced in the commercial field, and in some cases, in the field of real estate, when the need arises to sell and register a house belonging to two spouses. Another example is all matters concerning child custody and visitation rights. There is no doubt that these issues, that are emotionally complex, require a family lawyer to have tolerance, high personal ability, and even a little knowledge in psychology and some understanding of the human psyche. A good family lawyer should have knowledge of all the above, even though some of the subjects mentioned are not legal.
Which courts deal with family law?
In the field of family law there are two judicial bodies. One is the Rabbinic Court (and the other religious courts), which I will elaborate on later in this article. The second instance is the Family Court, as detailed: The Family Court is a court of the same rank as the Magistrate’s Court. The judges of the Family Court are regular judges of the Magistrate’s Court, but with one change – their expertise are in the field of family law. Appeals to judgments or decisions of the Family Court are submitted to the District Court.
The Family Court was established in 1995 following the recommendations of a special committee, which was appointed to examine the possibility of improving the efficiency of family law in Israel. This committee was called the “Shinboim Committee”. Among other things, the committee recommended creating special procedures that would be adapted to family disputes, which are far different from ordinary civil conflicts. The committee also recommended that disputes between family members (usually personal and emotional) should be held behind closed doors and that they should be confidential to the public (the contents of the decisions and rulings will not be confidential to the parties themselves). The committee recommended the establishment of a special court, which will be entrusted with the unique jurisdiction of all family law. Therefore, the Family Court was established in a special law. This special law is called the “Family Courts Law, 5756-1995”.
The Family Courts Act authorizes these courts to deal with any dispute between family members. “Family members” are defined as parents and children, brothers and sisters, spouses including common-law couples, and of course married couples, grandparents, adoptive parents and adoptive children. In accordance with the Family Courts Act, this court is responsible for all rulings in all areas of the family, apart from matters of marriage and divorce. Only the religious courts, including the Rabbinic Court, have jurisdiction over matters of marriage and divorce, as I shall explain below. Among the issues that the Family
Court is charged with are the issues of adoption and surrogacy, matters of division of property between spouses, commercial disputes between family members, inheritances and wills, and more.
Note that family court hearings are held before a single judge, and part of the work of family lawyers is representation in family courts, which requires knowledge and familiarity with the proceedings in this court.
So far I have presented the background to his article and the skills required from a family lawyer. In addition, I presented in general the two relevant courts in the field of family law. In the next section, I will explain what the areas of family law are, the matters in which a family attorney deals with daily:
Matters of divorce and marriage:
There is no doubt that one of the fields that occupy the public, and certainly divorce attorneys, are matters of marriage and divorce. In Israel, divorce and marriage matters are regulated in accordance with the personal- religious law. During the British Mandate, a law was enacted in Israel called “The King’s Word in the Council for the Land of Israel.” This law granted all the religious communities in Israel exclusive authority to deal with the jurisdiction of the family, namely: in matters of marriage and divorce. These religious communities are members of the Jewish, Muslim, Christian and Druze religions. The State of Israel was later established and in 1953 the Rabbinic Courts (Marriage and Divorce) Law, 5713-1953, was enacted, which stipulates that in Israel, marriage and divorce (between Jews) shall be governed by the law of the Torah. In Israel, there are rabbinic courts, sharia courts (judges in the field of marriage and divorce law between Muslims), Christian courts and Druze courts.
The reality of marriage and divorce is not simple, since being able to marry only according to religious laws harms many citizens. For example, there are Jews who cannot marry because their Judaism is in doubt. Marriage between a Cohen and a divorcee are forbidden too. Marriage between people from different religions (i.e., a Muslim wanting to marry a Christian or a Jew) is not possible because neither religions recognizes the possibility of “intermarriage.” This is also the case with regard to marriage between same-sex couples. Therefore the enforcement of religious law on the laws of marriage and divorce, harm many people, who often need to find alternative ways to marry.
From now on, I will focus on the Jews: Marriage and divorce are subject to Jewish religious law and can only be fulfilled according to the religious law, so couples who want to divorce must do so by filing a divorce claim to the Rabbinic Court. The divorce claim is a legal claim as any other and requires a statement of claim, a factual breakdown, as well as proof of the cause of divorce from the grounds recognized by religious law. For example, some of the causes are: treason, rebellion, mutilation, ugliness etc. If the Rabbinic Court, after hearing the divorce case, finds that the cause of the divorce has indeed been proven, then a judgment will be given which will require the grant of a Get. Managing a divorce procedure in the Rabbinic Court is not a trivial matter and requires the legal representation of a divorce attorney.
As for the Rabbinic court, it has jurisdiction to rule in matters of marriage and divorce, but can also rule in matters connected to the divorce, such as: child support, wife alimony, claiming for the sum of money mentioned in the wife’s Ketuba and domestic peace. Usually the Rabbinic court does not have the jurisdiction to rule in matters of child custody and property but if the person claiming for divorce binds the claim for divorce with claims for property and custody, then the Rabbinic court “gets the authority” to rule in these matters, which, as mentioned, are usually in the jurisdiction of the family court.
The Rabbinic Court is composed of rabbinic judges, who are appointed by a special committee headed by the Minister of Justice. There is a Rabbinic Court of
Appeals over the rabbinic courts. One can appeal to the High court of Justice in cases of serious violation of human rights.
A divorce claim can be filed as a legal action for all intents and purposes, where a statement of claim must be filed and legal proceedings must be held. But another way to conduct a divorce procedure is by consent. If the couple reach an agreement, then they may file a claim for approval of a divorce agreement. In such a case the procedure is short and efficient and certainly also much cheaper.
As part of the divorce process, spouses have to settle several other areas besides the divorce claim itself, which I have reviewed above, extensively. Some of the areas that the couple must regulate: matters of alimony, child custody and visitation rights, as well as matters of distribution of property. I will now relate to alimony. There is no doubt that one of the subjects that most occupies family lawyers is the matter of alimony. Alimony is divided into two levels: child alimony and woman’s alimony. Let me explain:
Woman Alimony: According to the personal-religious law, a woman may be entitled to alimony until the divorce itself, i.e., until the Get is given. The purpose of the woman’s alimony is to enable the woman to have an appropriate existence, at least until the time when she is not defined as a “wife of a man.” This being said, in determining the height of the woman’s support paid by the man, the woman’s income is also takes into account as well as the cause of the divorce and a number of other elements. I will not elaborate further, but please note that a woman’s alimony claim can be submitted to the Rabbinic Court or to the Family Court, which holds parallel authority to deal with alimony (including child support).
Child Support: According to the personal-religious law, the father is obligated to fully support his children’s needs until they come of age and then at a lower level until their release from military service. The purpose of child support is to enable the father’s children to have an adequate economic existence. The duty imposed on the father is absolute and does not relate to the fact whether the father works and erns a living, or not. However, in determining the height of the child support sum, the income of the father, the income of the mother and the needs of the children and the standard of living to which they are accustomed are all taken into account. In any event, the father has an absolute obligation to bear the children’s alimony. Matters of alimony can be settled by filing a legal claim, or alternatively through an agreement between the parents. Whether it is necessary to conduct a legal proceeding with regard to child support or not, it is important to be represented by a divorce lawyer.
Claim for Child Custody:
One of the most important issues in the area of divorce concerns the situation in which parents who are divorcing have common children. In such a case, at the time of the divorce, the parents must decide and regulate which of them will be responsible for the children’s regular upbringing. Or in other words: who is the parent who will be entitled to be a custodial parent exclusively and, if so, what will be the vision arrangements that will be granted to the other parent.
With regard to the determination of custody, the court will take into account two main issues. One is the benefit of the child. The rule is that the court will grant custody of the children only to a parent who will serve the best interests of the child, and that parent will serve as custodian. This is the fundamental and main consideration in determining custody. Another consideration is the “Tender years” clause which states that children up to age 6 depend more on their mother. Therefore, in the absence of special circumstances, children up to this age will stay with their mother.
Visitation arrangements are the regular days when the non-custodial parent will have time to spend time with his children. This is usually a number of regular days on weekdays and every other weekend. But of course these arrangements are also subject to negotiations between the parents, or to a different decision of the court.
Note that the court charged with ruling matters regarding child custody and visitation rights is the family court. The Rabbinic court can have jurisdiction in these matters only if the claim is bound with the divorce claim itself. When separating, each of the parents can appeal to the court for temporary custody, until permanent custody is determined.
Another option to regulate the issue of custody is to have joint custody. This, as implied, is custody that both parents have equal responsibility for raising their children. It means that both parents get to spend an equal amount of time with the children and both bare the same burden of raising them. The court can rule for joint custody if it sees that this will be in the best interest of the child.
To sum, child custody is a very sensitive matter in the whole area of family law therefore, a lawyer dealing in this matter has to be very professional, have much experience and obviously, be very sensitive.
Claim for division of property:
One more area that divorce lawyers deal with is the issue of dividing the common property between the spouses, in the framework of the divorce. When a couple live together and maintain a common household, the question of the right to ownership of the property is not relevant because the property serves both spouses.
When the couple want to divorce the question of how the common property will be divided rises.
Legally speaking, the law in Israel determines that the common property will be divided equally between the couple. This is stated by the Financial Relations Law, 5733-1973, which establishes an arrangement called the “balance of resources arrangement”.
Within the framework of the arrangement, at the time of divorce, all of the spouses’ common property (with the exception of the old-age pension, property inherited by one of the spouses, property received by one of the spouses before marriage and a widows’ pension) is divided equally between the spouses.
However, there are two exceptions to the equal distribution rule in accordance with the Financial Relations Law. The first exception is the existence of a financial agreement. That is, an agreement between the spouses which was approved by a judge or a notary (in the case of an agreement signed by two spouses who have not yet married), which arranges a different division of property between the spouses. In other words, a couple may determine among themselves an arrangement different from the arrangement established in the Financial Relations Law.
The second exception is set forth in Section 8 (2) of the Financial Relations Law. In accordance with that section, the court may exceed the balance of resources arrangement set forth in the Financial Relations Law, under special circumstances and at the request of one of the spouses. In other words, the court can determine for itself the distribution of equal property. However, if the court finds fit to make a different division of property, it will also take into account the income of the couple and their earning ability.
Let us summarize: matters relating to the division of property are complex, requiring a lawyer with a great deal of knowledge, experience and understanding of the relevant law. Property matters are another area in which a family attorney is involved.
Other areas that family lawyers deal with:
So far, we have dealt with a small part of the fields in which family lawyers deal with, namely divorce matters. However, there are other areas in which family lawyers deal with, such as inheritance and wills, adoption and surrogacy, family law agreements (i.e., parenting agreement, joint life agreement, etc.), commercial disputes between relatives, representation of litigants in claims for change of name, claims to liquidate property-sharing among family members, and a wide range of other fields.
How do you choose a family lawyer?
To choose a family lawyer properly, it is advisable to examine a variety of elements, as follows:
Chemistry: The most important thing in choosing a family lawyer/divorce lawyer is that there is chemistry between you and your lawyer. You must choose a lawyer with whom you will feel comfortable and you can tell him/her the unpleasant facts. If you are uncomfortable with your lawyer, you should not choose his/her services. Remember that when you choose a lawyer, you make a long-term choice, so chemistry is one of the most important issues to consider.
Experience: It is important to remember that experience is also expressed in financial cost. Although you do not always have to choose the most experienced and expensive lawyer, it is important to make sure that your lawyer has enough experience and knowledge to represent you in the best way.
Family Law is a rich and fascinating field, which includes both legal and personal elements. When selecting a family lawyer, it is important to consider several factors, as detailed in the article. It is important to be represented by a family lawyer, whether you are going to get divorced or whether you want to conduct another legal process in the family area.