Thursday, 15 November 2018

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Legal Separation - The Law in Israel

By Adv. Boaz Gork

 

Very often couples suffer a great deal in the course of a marriage.  These become painful and hard experiences.

In many cases women experience bad treatment at the hands of their husbands for a long time and want to dissolve the marriage but often the husband threatens that he’ll never give a divorce.

Because of this threat many wives stay locked in an unwanted partnership, thinking that there’s no possibility that the husband will give them a (Jewish) divorce ( “Get”.)

Frequently this situation also applies when the husband wants to separate from the marriage.

The reality in Israel is that a man cannot divorce his wife without her, otherwise he’ll be obliged to pay out the marriage contract ("Ketuba"). Also the woman can’t force her husband to accept a “Get”, unless she can prove that there is a suitable reason.

The proof of a reason for divorce is a difficult matter; in the Rabbinical Court the woman might find herself in a trap that leads to extortion on the part of the husband to free herself from the situation of not being able to remarry ("Aginut")

This is also true if the situation is reversed; the woman can set up unfair conditions so that the husband will agree to the divorce, so he will find himself in a situation he never intended to be in.

Frequently the man or the woman are required, according to the circumstances, to make painful concessions of maintenance payments, of possessions, on child custody, everything to obtain the long awaited divorce document ("Get"). Or in the case of the man confronted with extortionary monetary demands so that the woman will agree to accept a Get.

Is there a remedy to this dismal situation? The answer is “Yes”!! The couple can separate without a formal divorce ("Get")

It is possible to dissolve a marriage according to the initiative of only one of the spouses. To end the bond of marriage in fact even without a legal divorce ("Get") and in fact to dissolve the joint ownership of possessions that have accumulated in the course of the marriage, including the apartment and the social benefits, without a divorce document.

Together with the division of possessions, the court will determine which of the parents is suitable to have custody of the children, the amount of maintenance that will be paid for the children after the separation and the arrangements for keeping contact with the children.

All of this without a divorce document, but only by creating a complete separation between the couple.

The (Jewish) divorce ceremony conducted in the Rabbinical Court is only so that the woman can remarry and nothing more.

Both a man and a woman, according to the circumstances can establish a new set of relationships separately from the other spouse, can arrange the division of common property and arrange the custody and education of the children, their maintenance, separately from the other spouse, everything excepting marriage to another spouse, even without a “Get” and the reverse is also true.

It is to be emphasized that there is no limiting factor for a woman, living separately from her husband to establish a new relationship, even not being formally and the reverse is also true.

On the other hand there is significance in the matter of the divorce document if the woman chooses to have a child outside the marriage because in such a case the child will be considered illegitimate. The matter of the divorce is also important for religious couples who are strict about the observance of Jewish law which forbids a couple from living together outside the institution of marriage.

But it’s important to note that for a large majority of people, in Israel and overseas there is a growing opinion that there is no connection between a divorce document and conducting a new man/woman relationship. Many couples, and not necessarily people who underwent divorce or separation live in unauthorized relationships.

Today it’s accepted opinion in Jewish Law that couples living together out of marriage don’t impinge the rights of the spouse in the common property or any other legal aspect relating to divorce.

It’s important to know: Opening a second chapter in one’s life doesn’t require divorce in the Jewish legal sense, from the previous spouse, just as it doesn’t require marriage to a new spouse.

The matter of the complete separation between physical separation, i.e. living separately and the legal separation and the allowance of the separation in fact and the division of common property rights, even without divorce is set out in section 5 of the law of monetary relationships (amendment התשס"ח2008 ).

According to this amendment by reason of the fact that a claim has been registered (division of rights) the division of rights is permissible even without a divorce.

It is sufficient to allow the division of property and so, in fact to create a de facto separation even without a divorce.

From my experience, usually, after the court orders the division of property the spouse (husband or wife, according to the circumstances) doesn’t find an reason to continue to oppose a divorce and so it’s possible to dissolve the marriage connection without opposition or unfair extortionate conditions to acquiring a divorce.

 

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