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The divorce contract of agreement – The law in Israel.

The nature of the divorce agreement is that it regulates the separation of a couple in a legal way.

Is this similar to a monetary agreement?

No, while the purpose of a monetary agreement is to regulate monetary issues between a couple while they are living together, a divorce agreement regulates the legal relationship of a couple at the time of separation.

What should be included in a divorce agreement?

1. A basic agreement to divorce and to live separately.
2. The matter of custody of the children, namely, which of the parents will serve as custodian at the time of separation.
3. The matter of maintenance for the children, namely the monetary amount that the parent who is not custodian will pay the custodian parent for the maintenance of the children.
4. Visitation arrangements and the connection with the parent who is not custodian with the children.
5. The matter of property, namely, the way in which the property which the couple accumulated in the course of their married life will be divided. (The apartment, social benefits accumulated by one of the spouses, the savings, vehicles, etc.) Also how the debts which the couple accumulated will be divided.
   • At the same time it must be emphasized that contrary to the matter of custody and property, the visitations and moentary arrangements (items 2 – 5) on which there is agreement is binding on both spouses.
   • The matter of the Jewish divorce contract (known as the ‘get’), in component 1, is according to the sole authority of the Rabbinical Court and isn’t enforced by the regular court, despite the fact that it is mentioned in the agreement.
6. The matter of maintenance for the woman and her ‘Ketubah’ (religious marriage contract) after the divorce: Generally the couple agrees that the woman will forego her “Ketuba” and the maintenance specified in it.

What are the factors of litigation most often at issue in the regular court & the Rabbinical Court?

The disputes and the need for legal decision arise out of the difference of opinion between the couple on one or more components of the separation, for example: the amount of maintenance that will be paid for the children, the way the property is divided, the parent suitable to be custodian etc.

In these cases, when the couple and/or their legal representatives don’t reach agreement, the court will make the decision on the disputed issues.

Is a signature on the agreement enough for it to have the force of law?

No, the divorce agreement (and/or any monetary agreement does not take force until it is ratified by a judge of the family court or by a Rabbinical Judge of the religious court in the presence of the couple, without the presence of the representatives.

In Israel, can a couple compile a divorce agreement by themselves?

Yes, one can compile an agreement by oneself, but in the absence of wise and correct legal advice and without knowing the rights and the correct legal method to assure them in the agreement, the couple might compile a “disastrous” agreement for one of the spouses or for both of them, so it’s always advisable to be represented, especially in everything relating to the separation and to the divorce which is an extremely complex and sensitive matter.

Reading Time: 4 minutes

Legal Separation – The Law in Israel.

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.

Reading Time: 4 minutes

Child Abduction Law & Proceedings In Israel

Child abduction can be either a move from one country to another (“removal”) or if a child is kept in another country and is not returned (“wrongful retention”), for example at the end of a holiday or contact time.

For a removal of a child from one country to another or a retention to be “child abduction” under the Hague Convention the following conditions have to apply:

1. The child has to be habitually resident in the country from where he/she is taken. Therefore returning from holiday to the country of habitual residence is not abduction. Sometimes the issues on this are not clear.

2.  The move has to be in breach of someone-elses “rights of custody”.

The term is not the same as a similar term in national laws. In Israel that is generally “parental responsibility”, but some other orders made can also fall into this. If in doubt, you should get legal advice from an expert on your specific situation. Importantly, if there is a court case about the child that has started and not finished, the court is regarded as having “rights of custody” for the purposes of the Hague Convention.

Therefore if, for example, a father without parental responsibility is worried about a move abroad, making an urgent application for parental responsibility to the court and getting it issued, can mean that any move will then be in breach of the court’s rights of custody and count as child abduction under the Hague Convention. The “rights of custody” have to be exercised at the time of the move. This can, of course, be fairly low involvement.

“Defenses” – When a Court does not need to order a return?

The Hague Convention provides that the court has the power not to order a return in the following cases:

• If more than a year has passed since the removal or retention of the child and the child is settled in its new environment.
• If the person or body (e.g. the court) with “rights of custody” agreed to the removal or retention either beforehand or afterwards.
• If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This risk must arise out of the proposed return to the other country. So for example if there has been domestic violence by the father on the mother witnessed by the child and the mother took the child to her home country, the court may find that the laws of the other country will protect her and the child sufficiently so that no further violence is likely to take place. Generally in relation to other EU countries the courts in Israel are very likely to find that the laws of the other countries provide sufficient protection.
• If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

It is very rare that the court would find a child under the age of about 12 to be mature enough. These defenses are interpreted very narrowly, at least by the courts in ISRAEL, and you should not rely on the court finding in favor of them unless the case is very strong. No other defenses are possible. If you think a defense applies, you must obtain specialist legal advice on your particular circumstances.

Procedure

1. If you are the parent left behind and the child has already left the country, you must act fast.
2. You should immediately get in touch with the central authority in your country.
3. The central authority in your country should then check the details and immediately fax them to the central authority in the country where the child is.
4. What happens then depends on each country. The matter should come before a court to decide on the issue expeditiously. In Israel child abduction will only be dealt with by the Family Court, which means that the small number of judges who preside there have been able to build up a great deal of expertise in this area.It is our duty as lawyers in this case to start the proceedings immediately and we will usually see a duty judge the same day to get an order for some emergency measures, including obtaining an injunction that the child must not be taken to a third country, for the passport to be surrendered, etc.
5. The court would then also list a short hearing where the other parent can be represented and attend and where the court will consider which directions are necessary for a final hearing. Usually both parents must provide witness statements in writing. A final hearing will then be held a few weeks later. Since the proceedings are very fast, the solicitor and the client must be very vigilant and deal with matters expeditiously.
6. It helps if communication can be by email and/or fax. Usually, each parent will only be able to provide one witness statement, so you may need to anticipate what the other parent will say (for example as a defense). The detailed provisions are complicated and in any case of child abduction you should get specialist advice from an expert solicitor.