Family Law

Upon its establishment, Israel adopted the Palestine Order in Council of 1922 (namely the ancient Ottoman millet system) under which the law of marriage and divorce is an entirely religious affair, that is, the religious identity of the spouses controls the choice of applicable law and jurisdiction. This means that civil marriage and divorce is non-existent in Israel.

Israel accords official recognition to 14 religious communities including Jewish, Muslim, Druze, Baha’i and 10 different Christian denominations. Each recognized religious community has its own state funded tribunals and a separate set of religious codes and each is empowered by the government to exercise its authority over all the people who belong to it. Those who are not affiliated with any of the 14 religious communities are subject to civil law. In this matter, Israel maintains a system of concurrent jurisdiction between religious and civil courts.

The Family Law Act 1995 established a system of family courts with broad powers.

Family law matters are divided as follows:

1. Marriage and dissolution of marriage are within the exclusive jurisdiction of religious courts. The Rabbinical Courts Act (Marriage and Divorce) Act states that applications regarding matters of marriage between Jewish spouses is in the exclusive jurisdiction of the rabbinical courts.
2. Matters related to divorce are within the concurrent jurisdiction of both civil and religious courts. This means that matters relating to child maintenance, division of property, child custody, and spousal maintenance can be heard by the religious courts or by the family court. In such instances, the party who first files his/her application will determine which court will hear the matter. However, the Supreme Court recently ruled that that matters of child support can’t be determined by the rabbinical court without the express agreement of the mother.

The Supreme Court of the State of Israel sitting in its capacity as the High Court of Justice can void decisions made by a superior religious court when the court exceeds its jurisdiction, diverges from the rules of natural justice or fails to comply with legislation that specifically binds it.

MARRIAGE

Israel is the only Western country where civil marriage is non-existent. This means that a marriage between a Jewish couple in Israel can only be by means of an orthodox Jewish wedding ceremony where the ketuba (Jewish wedding contract) is witnessed by 2 witnesses with full legal capacity under Jewish law.  A Jewish couple must satisfy the rabbinate that they are Jewish in order to marry in Israel so if a person’s “Jewishness” is in doubt or can’t be proven to the satisfaction of the rabbinate, then the couple are unable to get married in Israel.

If the bride is below the age of 17, the Family Court is required to give permission. There are specific instances according to the Marriage Act 1950 where it will grant such permission.

RECOGNITION OF FOREIGN MARRIAGES IN ISRAEL

Whilst civil marriages are non-existent in Israel, civil marriages that took place outside the State of Israel are recognized by the Ministry of the Interior and can be registered in Israel. For example, a civil marriage that took place in Cyprus or in Australia will be recognized by the Ministry of the Interior and each party will be recorded as married in their Israeli Identity Card. It is important to note that the Supreme Court has ruled that the registration of a foreign marriage does not prove the legal validity of that marriage. Nevertheless, for all practical purposes, the fact that the marriage is recorded by the Ministry of the Interior is sufficient for various matters that the parties may need to arrange during their lifetime, such as a mortgage.

In recent years there have been numerous attempts to change the law and introduce civil marriage in Israel but to date this has been unsuccessful.

SAME SEX MARRIAGE

Lesbian or homosexual marriage don’t exist in Israel. However, since November 2006, it is possible for an Israeli lesbian or homosexual couple to get married overseas where the relevant foreign law permits such a marriage and upon the couple’s return to Israel this marriage will be registered by the Ministry of the Interior provided that the couple have documentary proof that the ceremony was conducted according to the where the marriage took place.

DIVORCE

(a) Divorce between a Jewish couple

Divorce between a Jewish couple in Israel is governed by the Rabbinical Court irrespective of what kind of wedding ceremony the couple had and where it took place. The party wanting to initiate the divorce can file an application. If the parties agree to the divorce then a joint application can be filed in the Rabbinical Court.

Grounds for divorce in the Rabbinical Courts is not extensive. Unless the parties agree to the divorce, the party applying for the divorce must prove one or more of the following:

• Continual acts of spousal abuse (physical or verbal).
• Inability to conceive children after 10 years of marriage.
• Adultery has been committed.
• Refusal to fulfill spousal sexual obligations.

A get must be granted willingly by the husband and accepted by the wife. If the husband refuses to grant a Get and the wife can’t prove one of the grounds of divorce as stated above, she may remain married indefinitely. A husband who wants a divorce but can’t prove one of the grounds of divorce, may seek special dispensation to remarry.

(b) Divorce between mixed couples

In the case of a couple that are of mixed religions, the dissolution of the marriage is granted by the Family Court in Israel according to the Jurisdiction in the Matter of Dissolution of Marriage (Special Cases & International Jurisdiction) Act, 1969.  An initial application is made to the Family Court. The Vice-President of the Family Court will then apply in writing to the appropriate religious court if necessary, in order to ascertain which court has jurisdiction over the divorce. An answer must be given by the religious court within three months, unless an extension is requested and granted. If jurisdiction lies with the religious court, the application for dissolution of marriage will be dealt with by the religious court. Otherwise the Family Court has jurisdiction.

(c) Divorce between a Muslim couple

A local Moslem (Sha’ari) court has exclusive jurisdiction over matters of marriage and divorce between a Muslim couple.

A Muslim husband can divorce his wife by declaring three times that she is divorced, whereas a wife must prove adultery or ongoing violence.

(d) Divorce between a Druze couple

According to the Druze Religious Courts’ Act of 1962, the Druze religious courts have exclusive jurisdiction over matters of marriage and divorce concerning Druze who are citizens or residents of Israel.

(e) Divorce between Christians

According to the law from the time of the British Mandate, only the following Christian churches/ faiths are recognized in Israel today:(Eastern) Orthodox; Latin (Roman Catholic); Gregorian – Armenian; Armenian (Catholic); Syrian (Catholic); Greek Catholic; Maronite and Syrian Orthodox.

Each of the abovementioned faiths has its own court system which has exclusive jurisdiction over marriage and divorce between couples where both sides are members of that particular faith.

RECOGNITION OF ISRAELI DIVORCE ORDERS OVERSEAS

Israeli divorce orders are recognized overseas in countries where there is a reciprocal arrangement for recognizing Israeli judgments in accordance with the Foreign Judgment Enforcement Act of 1958.

DIVISION OF PROPERTY, FINANCIAL RESOURCES AND ASSETS

In Israel, both civil and religious courts have concurrent jurisdiction in regard to property settlements allocating marital assets.

Both civil and religious courts apply the following rules to property settlements:

1. Assets bought during the marriage are considered joint marital property and are divided equally between the couple.
2. Assets bought before the marriage and which are separate assets from any marital assets remain the property of the party that owned the assets before the marriage.
3. Inheritance or gifts received during the marriage are not joint assets but belong to the party who inherited it or received the gift.

There are different principles of law that govern the division of property and assets, depending on whether the marriage that took place before 1 January 1974 or occurred after 1 January 1974.

The law states that in regard to marriages that took place prior to 1 January 1974, assets acquired during a marriage are joint property and should be evenly distributed irrespective of whose name is registered on the property. There is no need for a divorce in order to request a distribution of the assets.

For marriages after 1 January 1974, the Spouses (Property Relations) Law 1973 applies and accordingly there is a complete separation of the property of each party during the marriage. This means that at the time of divorce the assets of the parties are considered in total and divided equally between them with certain exceptions such as gifts and inheritance. Courts can order the distribution of assets even if the spouses are still married in the event that there has been one year that has passed since the filing for a divorce or a property distribution, or there are irreconcilable differences between the parties for a period of at least 9 months within a 12-month consecutive period.

The courts also take into account the reputation and future earnings of each spouse when considering a balancing of the assets.

The services of an experienced lawyer specializing in family law is essential in order to achieve the most favorable outcome in a property settlement. Adv. Lisa Segelov of Cohen Segelov & Co. Advocates and Notaries is an experienced lawyer in this field.

SPOUSAL MAINTENANCE

A person is liable for the maintenance of her spouse according to personal law, that is the law of the religious community to which the individual is affiliated as set out in Article 2 of the 1922 Palestine Order in Council. This means that individuals who aren’t affiliated with one of the recognized religious communities in Israel (for example the Protestant Church) are considered to have no personal status law in Israel and such individuals are subject to the Family Amendment (Maintenance) Law which is silent on the extent of spousal maintenance for a party with no personal law.

For a Jewish couple, the applicable law is Torah law and for a Muslim couple it is Sharia Law. Under Jewish law, spousal maintenance can be awarded where one spouse is economically disadvantaged and doesn’t work. In the event that both spouses are employed and the economically weaker spouse earns an average or above wage, spousal support is generally not awarded unless there is a significant difference in the income between the two spouses.

Once a rabbinical court rules that a wife has committed adultery then she loses her right to maintenance from her husband completely

Except in very rare instances, pursuant to Jewish law, spousal maintenance stops once a Get is granted.

CHILD MAINTENANCE

Child maintenance is Israel is governed by the Family Amendment (Maintenance) Law 1959. Section 3 of the said law states that a person must provide support to his minor children until they reach the age of 18 and in Section 4(2) the said law states that a person is for children between the age of 18-21 a parent is responsible for paying one third of the monthly support that was before the age of 18 provided that the child is completing his compulsory military service or studying full time at a tertiary institute.

However, Jewish religious law allocates maintenance in a different manner as follows: until the age of 6, the father has an exclusive obligation to pay maintenance irrespective of his financial ability to pay the maintenance. From the age of 15 the father is exclusively responsible to pay only for the necessities of the child and from the age of 15-18 the fathers obligation to pay child maintenance totally depends on his financial ability.

There are no child support guidelines under Israeli law and therefore the amounts awarded vary according to each case even in instances where income and needs are the same. The guiding principle under Israeli law is that the child is supposed to be able to continue the same standard of living to which he/she was accustomed to prior to the divorce.

It should be noted that where the parent filing for child maintenance has to find accommodation, then the amount of child maintenance awarded will be higher as it will include a proportion of the cost of the rental accommodation for the child. It is generally accepted that the non-custodial parent should pay 30% of the accommodation costs where there is one child living with the custodial parent in a rented apartment. If a father’s children live in rented accommodation with their mother, then part of his maintenance obligation towards them as minors will be connected with this. The share of the accommodation cost rises to 40% of the cost when there are two children, and to 50% for three children. It should be noted that even if the children live in the family home and not in a rented apartment the above proportions of the ‘running costs’ can be claimed as part of the accommodation element of their maintenance. A portion of the municipality tax, electricity, gas and telephone bills can be claimed for, as well as part of the television license, cable TV and repairs.

ENFORCEMENT OF A FOREIGN MAINTENANCE ORDER

Foreign financial orders in matrimonial matters can be enforced in Israel in accordance with the Enforcement of Foreign Judgement Law 1983 provided the criteria according to the law are met.

CHILD CUSTODY AND GUARDIANSHIP

The Legal Capacity and Guardianship Act 1962 governs the relationship between parents and children in Israel and provides that both parents have equal custodial rights in regards to matters such as education, health, welfare and place of residence. This Act applies to married and unmarried parents.

In instances where parents are unable to agree on custodial issues relating to their children the courts both religious and civil have jurisdiction to determine this mater. A court decision is usually given after receiving a report from a social worker or a psychologist appointed by the court. According to the said law, custody is awarded to mothers of children under 6 unless there are special reasons otherwise. Once a child is over 6 and the parents do not reach an agreement over which of them should have custody, the court has power under the above legislation to decide who would be the preferable custodian, and takes into consideration the parenting capability of each parent regardless of his/her gender. and who can is best suited to fulfil the physical and emotional needs of the child.

In 2011, a government appointed committee submitted a report to update the child custody law and replace the current presumption with the presumption of joint parental responsibility from birth. However, to date the law has not been changed.

ACCESS AND VISITATION RIGHTS/PARENTAL RESPONSIBILITY

Whist both parents remain the guardians of their children, the non-primary custodial parent will be granted visitation rights and access to the children. A usual arrangement is once or twice a week including overnights, and half the school holidays and vacation. In cases where the parents agree, joint custody has become quite popular.

RELOCATION OF CHILDREN OUTSIDE OF ISRAEL

In the event one of the parent’s wishes to relocate and reside outside of Israel taking the children with him/her, the parent wishing to relocate must obtain the other parent’s consent and failing this obtain the permission of the court to relocate with the child. Recent court cases have determined that the only relevant factor that the court should use to decide relocation cases is the best interest of the child. The impact of the child and the parent remaining in Israel will be considered as part of consideration as to what is best interest of the child.

The Israeli courts have determined these types of cases are so individual that using precedent from other cases is of little relevance.

The services of an experienced lawyer are essential in order to achieve the most favorable outcome in these cases. Adv. Lisa Segelov of Cohen Segelov & Co. Advocates and Notaries is an experienced lawyer in this field.

CHILD ABDUCTION

Israel has ratified the Civil Aspects of International Child Abduction 1980 according to the Hague Convention.

In Israel, legal proceedings for child abduction are within the exclusive jurisdiction of the Family Court. The general view of the Family Court is that the defenses under the said convention are to be narrowly interpreted.

ADOPTION

The Adoption of Children Law 1981 sets out the factors that need to be established for the adoption of a child where the biological parents have not given their consent. It is a 2-stage process:

• one of the 13 grounds detailed in the said Adoption Law need to be established; and
• it needs to be established that it is in the best interests of the child to be adopted.

SURROGACY

 In Israel, surrogacy is regulated by the Surrogacy Agreement (Ratification of Agreement and the Status of the Infant) Law 1996 which restricts surrogacy to the following conditions:

• The parents must be a man and a woman.
• The agreement between the birth mother and the adoptive parents must be in writing and approved by a committee established according to the said law.
• The surrogate mother can’t be a relative of one of the parents.
• The adoptive and surrogate mothers must be the same religion.
• The sperm must be the sperm of adoptive father
• The egg is not that of the surrogate mother.

The Committee can in certain circumstances be slightly flexible as to the above requirements.

COMMON LAW MARRIAGE AND CO-HABITATION

In Israel, common law marriages are recognized in Israel by legislation and also by case law. To qualify as a common law spouse, one must prove that the parties co-habit and maintain a common household.

Most legislation in Israel today provides social and economic benefits such as pensions, retirement funds and inheritance rights to common law spouses.

In any event, common law spouses (including same sex couples) can make a co-habitation agreement and have it ratified by the Family Court.

Cohen Segelov & Co. Advocates and Notaries specialize in legal advice and representation in divorce, maintenance, custody, guardianship and property settlements and litigation, pre-nuptial agreements, co-habitation and financial agreements, advice and representation for same sex couples, surrogacy agreements, adoption, child abduction, and relocation/immigration of children in the context of divorce settlements. We provide our clients with representation in both the Family Court and in the Rabbinical Courts.

Many of the English-speaking clients of Cohen Segelov & Co. Advocates and Notaries have chosen our services as we are able to provide excellent and quality service in the English language.

Please don’t hesitate to contact us for further information.

Cohen Segelov & Co. Advocates and Notaries

Telephone: 972 3 613 4244

Fax: 972 3 6134245

Email: info@cslaw.co.il

This article contains general information about legal matters.  The information is not advice, and should not be treated as such. You must not rely on the information contained in this article as an alternative to legal advice from us.  If you have any specific questions about any legal matter you should consult us directly. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information contained therein.

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