How does one get a divorce?
A divorce procedure is composed form a few sub-procedures, that all together constitute one legal procedure. The couple have to go through separate procedures such as: alimony, divorce in the rabbinic court and claim for child custody and property. Divorce procedures include sub-claims such as: claiming for the sum of money written in the Ktubah, claiming for housing, domestic peace etc.
What is a divorce procedure? What does it include? What do I need to know about it and how should I act in order to make the procedure efficient and end it quickly? In the article below I’ll focus on the divorce itself, i.e. the claim for divorce which is submitted to the Rabbinic court – from the moment you claim until the moment you get the divorce. I’ll also refer to other subjects that are dealt with in the divorce procedure and will end with a few tips for an efficient and quick divorce. Please note that this article is informative and cannot replace specific legal advice. In order to get specific legal advice you are welcome to call our office and schedule a meeting.
An overview on divorce
There are many aspects to claiming and handling a divorce claim, I’ll elaborate later. As described above, there are several procedures within the divorce procedure:
Filing for divorce: in Israel, matters of marriage and divorce are conducted according to the personal-religious law that applies to a person. The Rabbinic Courts Law (“Marriage and Divorce”) 5713- 1953 stipulates that marriage and divorce between Jews will be done according to the law of the Torah. This means that if a couple want to get a divorce they have to do so by filing a claim for divorce in the Rabbinic court. There are a number of Rabbinic courts in Israel and they have the sole jurisdiction to rule in matters of marriage and divorce. The great Rabbinic court is above the local Rabbinic courts and there you can appeal regarding rulings of the local Rabbinic courts.
A claim filed to the Rabbinic court is a legal claim for all intents and purposes. The person filing for divorce has to prove that he/she has a reason for divorce, from the reasons determined in the religious law (I’ll explain below). If the procedure ends in a manner where the person proved the cause for divorce the Rabbinic court will order the divorce to be given. Please note that the Rabbinic court is the only sole court with jurisdiction to rule in matters of marriage and divorce. This being said, there is another court – the family court that deals with family matters. This court has the jurisdiction to rule in family matters such as child support, alimony, property etc. but this jurisdiction does not include the actual marriage and divorce.
Filing for alimony: As mentioned, matters of marriage and divorce are conducted according to the personal-religious law that applies to the couple. Therefore, the duty to pay child support and wife alimony is also a duty anchored in the personal-religious law of the father (when it comes to child support). The payments are monthly payments that the father has to make in order to make sure that his children are sufficiently taken care of financially. The father is obliged to pay for his children until they come of age but the amount changes. Up to the age of 6 years the father has to pay the full amount. After the age of 6 years the father is obliged to pay necessary child support as a matter of law (basic payments for financial existence) and the rest of the expenses have to be paid as a matter of laws of charity (i.e. according to the amount the father erns).
At the same time, the mother might be entitled to her alimony – until she gets her divorce. There are irregular cases where the wife will not be entitled to her alimony, cases such as the wife being unfaithful to her husband. Wife alimony is derived from the amount the husband erns as well as the income of the wife.
Filing for alimony, including temporary alimony, can be done at the Rabbinic court but also at the family court that has jurisdiction in matters of alimony.
Filing for custody and visitation rights: If the coupe have children (together) they have to regulate the issue of child custody and visitation rights for the non-custodial parent. Usually, the mother has sole custody for children up to the age of 6 years, in accordance with Article 25 of the law of Legal Capacity and Guardianship. The reason for this is a sociologic and historic view where children p to that age are more attached to their mother. This is a matter that needs a separate article so I will not elaborate on it now. So when parents decide to get a divorce they have to decide who will get sole custody. The other parent will have visitation rights, i.e. regular days and weekends where the children spend time with him/her. There is another option which is joint custody.
Joint custody: as implied from its name, is a framework where both parents bring up their children. Both parent get to spend equal time with the children and both carry the burden of bringing them up. In the past years there has been a change and, as a family lawyer, I witness more and more divorced families choosing to bring up the children in joint custody.
Filing for child custody: can be done in the family court, which has jurisdiction to rule on this matter. The Rabbinic court can have jurisdiction too but only in case where the divorce claim binds the custody claim with it (more on this subject below).
Filing for division of property: another essential subject is the issue of division of property. The couple have to settle the division of common property, which they have accumulated during their life together. The rules regarding this matter are defined in the Financial Relations Law, 5733-1973. This law defines that when parting or divorcing, the common property of the couple will be divided between them equally. However, the following property is not included in the equal division: retirement pension, widow allowance, compensation due to an accident and property that was given to one of the spouses as a gift of as an inheritance. All the other property is taken in to consideration when dividing.
Although the property law stipulates a “default” for the division of the property, there are still cases where one can “deviate” from the default. One case is if the couple have a financial agreement, which orders a different division of the property. Another case is the court, according to article 8(2) of the financial relation law. This article give the court the authority to deviate from the rule of equal division, in cases where it is asked to do so by one of the spouses and in consideration with the income of the souses and their property. Note that this deviation is rare and will be done only in special circumstances. The court will not easily stray from the equal division rule.
Claims for the division of property between spouses, including a claim for the dissolution of partnership in real estate, are claims that the Family Court is authorized to hear. The Rabbinic Court has jurisdiction to deal with these claims only in cases where a binding divorce claim is filed involving the property, similar to custodial claims. I will elaborate on this later.
It should be noted that the process of divorce is a procedure that includes several sub-procedures, which must be held and managed as part of a separation or divorce. In other words, couples who are in the process of divorce must do so in the religious court. At the same time, they must arrange matters of joint property and also regulate matters of child custody. The couple should also regulate the issue of alimony. All of these legal proceedings can also be conducted through consent and the signing of a comprehensive divorce agreement. That is, an agreement that will regulate the matter of divorce and all the rights and disagreements that I have described, without resorting to lengthy, expensive and complex legal proceedings.
The Race of Powers between the Religious Court and the Family Court:
In the field of family law, and especially in the area of divorce, a prevalent and widespread term is “the race of authority.” Let me explain:
The Rabbinic Court has exclusive authority to deal only with matters of divorce and marriage, by virtue of the Jurisdiction of the Rabbinic Courts Law. Matters of marriage and divorce also include matters derived from marriage and divorce, such as alimony, housing, home peace, Ktubah, etc. In all these cases, the authority is a parallel authority. In other words, the Family Court has the jurisdiction to deal with derivative claims for divorce, but it is not empowered to deal with the actual divorce claims.
This being said, the Rabbinic Court dose has the authority to deal with property claims, child custody, etc., in two cases:
The first case is when there is agreement between the couple. Often couples have agreed to handle all the divorce proceedings by agreement, at the Rabbinic Court or any religious court according to the couple’s religion. The second option in which the Rabbinic Court “buys” the authority to hear claims that normally it does not have jurisdiction for, is when a clam for divorce is filed, which binds the divorce claim with the maters of custody, property and alimony.
In such a case, the Rabbinic Court will be granted jurisdiction if the person filing the claim precedes the other party and submits the claim – first. This is the race of authorities. In the event that it is worthwhile for one of the spouses to perform all the divorce proceedings in the Rabbinic Court, he/she will do so first and then “buy” the authority, at the expense of the other spouse. It is not always recommended to have a binding divorce process in the Rabbinic Court. In addition, contrary to popular belief, it is not always recommended for a woman to have the divorce process in the Family Court, as it is not always recommended for a man to file all the divorce claims in the Rabbinic Court. Each case should be examined in its own right, depending on the circumstances of the case, where it would be more worthwhile to conduct the divorce process. There are cases in which separate claims should be filed, i.e., a divorce claim to the Rabbinic court and other claims to the Family Court. For this, it is important to always consult with an experienced divorce lawyer.
What is the law regarding divorce between couples of other faith in Israel?
In the last part, above, I have talked about divorce between Jews, which are regulated by the Rabbinic Courts Law. To fill the picture, so to speak, regarding the divorce law in Israel I’d like to explain: before the state of Israel was established, there was a law known as “the king’s council” which was passed in the year 1922 during the British mandate, which states that the different religious sects will have the sole right to rule in wedlock matters. This means that each of the religious sects – Jews, Muslim, Christian and Druze – had special courts that were authorized to rule on the subject. After the state of Israel was established the king’s council’s rule is still valid for all religions in Israel apart from Jews. The Rabbinic court law replaced the king’s council’s instructions. Thus, in Israel, there are religious courts for each of the recognized religions. Muslims can marry and divorce them according to the Sharia, in the Muslim court. Same goes for Christians and Druze.
Managing a divorce claim in the Rabbinical Court, in practice:
In the previous section, I briefly referred to the manner in which a divorce claim is conducted in the Rabbinic Court. In the following, I’ll will explain this more broadly, as follows:
Filing a divorce claim:
A divorce claim is a law claim for all intents and purposes. The person applying for divorce must prepare and submit a detailed statement of claim, including all the facts that create the cause of the divorce. When filing the claim, a marriage certificate must be attached, an identity card with the appendix and the details of the spouses’ joint children, if any, should be included too. When filing a divorce claim, the applicant for the divorce must pay a fee to open the file. Upon submission of the claim, the applicant must submit the claim to the other spouse.
Later, after the other party in the proceeding submits a statement of defense for the divorce, a date will be set for a hearing before the court (it should be noted that a divorce claim is heard before a panel of three Dayanim in the Rabbinic Court).
Proof of cause of divorce:
It is not enough to submit a divorce claim to the Rabbinic Court, but the applicant must prove that he/she has a cause for divorce. The cause for divorce is not established in the laws of the Knesset, but rather from the grounds of divorce defined in Jewish law. Let me introduce some of them:
Betrayal: According to Jewish law, infidelity is a situation in which a woman has intercourse with another man while she is still married, i.e., a man’s wife. A woman who betrayed is recognized by Jewish law as a woman who has committed adultery. If that she gives birth to children outside her marriage, her children will be recognized as bastards (i.e., illegitimate for marriage for generations). Moreover, a woman who betrayed will not be entitled to her “Ketubah” and will not be entitled to a wife’s alimony. Also, a husband whose wife has betrayed him – is obliged to give a divorce to his wife. However, since the consequences of betrayal are grave, it is not simple to prove adultery, because it must be done by two witnesses who saw the betrayal with their eyes.
An act of ugliness: an act of ugliness is less serious than adultery. It is not about having intercourse with another man, but about inappropriate behavior of the woman, including other men. For example, a married woman who spends time with another man in public practices an act of ugliness according to Jewish law. An act of ugliness is not regarded severely as betrayal, with all that is implied.
Physical defect: When after the marriage one of the spouses discovers that the other has an ugly physical defect that prevents him/her from having sexual relations or creates a sense of disgust, then a cause for divorce is created. I emphasize that the cause of the physical defect is a cause that requires discovery after the divorce. This cause will not be recognized if the spouse before the marriage about the physical defect and chose to marry anyway.
Violence: Violent behavior by the husband toward his wife creates a cause for divorce. I’m referring to frequent and recurrent violence, including physical violence. Not every verbal quarrel or threat or slight push, would necessarily create grounds for divorce. Although threats and violence of any kind are prohibited by the laws of the State of Israel, Jewish law is archaic and outdated in many ways, with all that entails.
Refusal to Have Sex: In accordance with Jewish law, sexual satisfaction is a duty of both spouses towards each other. When one of the spouses refuses to have sex with the other spouse, then a cause of divorce is created, in accordance with Jewish law.
Managing the Divorce Claim:
The divorce claim is a legal action for all intents and purposes. The couple will be entitled to testify themselves and have witnesses on their behalf. They will have to submit evidence to the Rabbinic court for the purpose of proving their claims. The couple and their witnesses will be questioned in a cross-examination by the couple’s attorneys and even by the Dayanim. At the end of the hearing, the parties may summarize their arguments.
If the divorce applicant proves the existence of the cause of the divorce and after the couple testified, and if the court finds that the grounds for divorce have been proven, then a divorce ruling will be given. In other words, the husband will have to give a divorce to his wife.
Application for Divorce in Consent:
It is possible to conduct a long and complicated divorce process, as I have described so far. But there is another way. Couples can avoid having a lengthy, complex and expensive divorce process, by consent. That is, spouses can have a divorce agreement, which will include agreements regarding all matters of the divorce. If there is a divorce agreement between the spouses, then all that is left is to submit a request to the Rabbinic Court to approve the divorce agreement, pay a fee and to appear before the Dayanim. If this is an agreed-upon case, the Dayanim will not raise difficulties and will approve the divorce and thus it will be over.
Tips for getting divorced – how to get a right and effective divorced?
There is no doubt that the divorce procedure is a very complex procedure, which includes a large number of elements. However, I believe that it is possible to divorce nicely, quickly and efficiently. Here are some tips:
Respect the other side: If you really want to divorce effectively and quickly, it is very important to be respectful towards the other side. I have witnessed fierce divorce wars. I believe that this is not the right way. Do not forget that you are divorcing someone who was until recently your spouse.
Legal advice: Divorce is not a trivial matter. It requires knowledge, experience and understanding, which can be provided by a skilled family attorney. Therefore the way to a quick and efficient divorce is, first of all, by obtaining appropriate legal advice.
Do not forget the ultimate goal: the advice I’ll end with is not to forget the reason why you want to divorce. Often couples who are in the process of divorce forget it. In my opinion, you must not forget that the reason you wanted to divorce is to create a better future and relationship for yourself. If you remember this, the divorce process will be easier and faster.