Divorce Agreement – Introduction

Question:

What issues should a divorce agreement cover ? How do I make it binding ?

Answer:

A divorce agreement should cover these issues (where applicable):

1. The divorce itself – undertaking of consent and co-operation with the process.
2. Property – declaration of property owned and agreement on how to divide it (including family home and other real estate, bank accounts, savings, other income, businesses, work/social and other rights)
3. Child Custody & Visitation Rights – who will have custody over the children and arrangements for the non-custodial parent to see the children.
4. Maintenance – for the children and, only very exceptionally, the wife .

The agreement must be in writing and be authorized by the appropriate court having jurisdiction over the particular issue, according to the relevant laws. The agreement is then incorporated into a judgment which gives it binding legal force . This is advantageous as it means it can be enforced. For example, if the mother has custody of the children and the father does not pay child maintenance as agreed she can take the judgment to the Bailiff’s Court and ask for legal steps to be taken to ensure payment without starting a separate legal action.

Note Regarding Jewish Parties:

Where the parties are Jews the parts of the agreement relating to the actual divorce (ending the marriage)  can only be authorized by the rabbinical court which has exclusive jurisdiction over marriage and divorce of Jews who are citizens or residents of Israel. It is often preferable to get all the sections of the divorce agreement apart from divorce authorized at the family court first before filing for divorce and then to go to the rabbinical court with an authorized agreement regarding all related matters. If both parties consent to divorce and there is an authorized agreement dealing with all the ancilliary matters, the rabbinical court can deal with the matter more speedily.

Jewish Divorce: Agreement, Authorisation and Enforcement Problems

Question:

If my spouse finally agrees to sign a divorce agreement how can this actually be enforced so that I will be divorced under Jewish law ?

Answer:

For Jews often the most problematic area of a divorce agreement concerns the divorce itself . Firstly, if they submit the signed divorce agreement covering issues such as child custody, maintenance and property, for authorisation at the family court all the other issues can be incorporated into a judgment , given them full legal validity, but the paragraph(s) relating to the divorce itself cannot be touched. Divorce between Jews is under the exclusive jurisdiction of the rabbinical court. Therefore, the part of the divorce agreement relating to divorce can only be authorised by a rabbinical court, where a divorce judgment can be given. Some parties authorise the whole agreement at the rabbinical court.

Secondly, although mutual consent is a ground for divorce under Jewish law the actual agreement to divorce (i.e. end the marriage ) cannot be enforced because this could interfere with the ‘get’ process. A ‘get’ (Jewish divorce deed) must be given and accepted with full consent and out of free choice to be valid.

In exceptional circumstances, use is made of sanctions like ‘punitive maintenance’ or imprisonment orders against a husband who refuses to give his wife a divorce where the rabbinical court has obliged him to do so (e.g. where he is physically violent etc) . It should be emphasised that these extreme measures are taken to result in the husband wanting to consent to grant a divorce. It should be stressed that only a ‘get’ given with full consent and out of free choice has legal validity.

Rabbinical Court – Authorisation of Divorce Agreement By Single Religious Judge

Question:

Can a hearing at the rabbinical court to authorize a divorce agreement still take place if only one religious judge attends , and not more ?

Answer:

Yes ! When the subject of the hearing does not involve any dispute between the parties – such as the authorization of a divorce agreement - a hearing can be heard at the rabbinical court in the presence of a single religious judge.

Agreement Re Local Rabbinical Court Jurisdiction Over Divorce

Case :

My husband and I lived together in the South. We split up, I moved back to the Galilee kibbutz where I grew up and he went to live with his family in the north. We want to divorce. When I enquired I was told that the divorce plea has to be filed at the rabbinical court where we last lived together. Is this so, or can it be made at a location more convenient to both of us ?

Answer:

In principle the Rabbinical Court Regulations states that pleas between spouses are to be made at the district rabbinical court in the area where they live or last lived together. However, the regulations also state that an agreement can be made regarding local jurisdiction . Thus a husband and wife who no longer live together and who have moved to a different part/s of the country can decide on a mutually- convenient geographical location . The rabbinical court at which they choose to file their plea reserves the right not to accept its jurisdiction even where the sides have made an agreement, but it must give reasons.

Enforcing A Divorce Agreement

Question:

How can a divorce agreement – or part of it – be enforced ?

Answer:

After the agreement has been authorised by a family court or a religious court having jurisdiction over the divorce (e.g. rabbinical court or Moslem religious court),and has been incorporated into a judgment, if one of the parties fails to fulfil his/her obligations under it) then the other side can take legal action to enforce the judgment. Enforcing means ensuring it is put into action, or carried out, as agreed upon in the agreement that has been authorized and incorporated into a judgment.

For example, if a father fails to pay child maintenance according to the conditions agreed upon in the couple’s court authorized divorce agreement, the mother can file for the enforcement of the judgment at the Bailiff’s Office. She can even take action against him to ensure payment (eg by apply for orders freezing his bank account, or preventing him from leaving the country, or to imprison him).

Wife Dissatisfied by Divorce Agreement – Legal Options

Question:

Can a woman who has divorced but, with time, is not satisfied with her ‘lot’ under the divorce agreement authorized at the family court, actually  do anything to rectify the situation ?

Answer:

A woman who is dissatisfied with her financial ‘lot’ under the divorce agreement authorized at the family court can file a plea to cancel it but the chances of success are very, very slim.

It may be possible , however, to take alternative legal action, depending on what part of the agreement is problematic . For example, if the woman has trouble making ends meet and under the agreement she has custody of the children and her ‘ex’ pays an agreed some of child maintenance but this is too low, the minors themselves can file for an increase. Judgments authorizing parental agreement on child maintenance are never final as the children are not parties to them and are not bound by them, and no discussion is held on the issue.

Courts Cautious Before Authorising Divorce Agreements Giving Up Property  

Question:

Do courts take care where divorce agreements presented to them for authorization seem one sided regarding property ?

Answer:

They should do – and in December 2006, the Supreme Court of Justice further strengthened the requirement for caution where divorce agreements come up for authorization and one party relinquishes his/her property rights. It held that the courts must exercise special caution in these causes in checking that the side relinquishing his/her rights really understood the situation, especially where the relinquishment was broad, and not specified. It even added that it is possible that the burden of proof concerning the finality of the decision to relinquish may shift from the relinquisher to the receiver.

N.B. - Regarding couples married on/after 1.1.74., there is specific legislation on this point –in the 1973 Spouses' Property Relations' Act. This requires the court to ask both parties whether they signed the agreement regarding property of their own free will, with a full understanding of its meaning and consequences, where authorization is required.

Catch Clause Re Maintenance in Divorce Agreement

Question:

To obtain a ‘get’ from my ‘ex’ I agreed in our divorce agreement to free him from paying maintenance for our son. The divorce agreement was authorised and incorporated into a judgment. Sometime after we divorced my husband and I signed another agreement in which he undertook to pay our son maintenance ‘ without infringing ‘ his compensation rights under the divorce agreement. My ‘ex’ paid our son maintenance until he reached 18 and now he has brought legal action against me claiming back a sum equivalent to all the maintenance money he had paid out for our son – plus linkage and interest ! Is he entitled to this from me ?

Answer:

No ! In a judgment made by the Jerusalem Family Court in August 1999 it was held that despite the principle deriving from contract law that a divorce agreement should be enforced as any other contract, there are exceptional situations . One such exceptional situation is where the agreement conditions the husband’s consent to granting of his wife a ‘get’ upon her agreeing to free him of his child maintenance obligation… and entitles him to compensation if this undertaking is broken. This condition infringes society’s is not in the public interest, the court held, cancelling the compensation clause.

Incidentally, nowadays it is very unlikely that a court would authorise an agreement which would deprive children of their maintenance, in the first place.

Divorce Agreement Depriving Father of Visitation – Authorisation Unlikely

Question:

Is it possible to have a divorce agreement authorised by court which would eradicate all links between the father and the couple’s child in relation to custody, guardianship or visitation rights and which would hold until he reached 18 ?

Answer:

This would be very unlikely. Firstly, even if the father agreed to give up all these rights such an arrangement would be both illegal and unreasonable , and it is extremely unlikely that a court would authorize such an agreement.

Living With 'Ex'- Effect on Divorce Agreement

Case:

I am beginning to regret that I got divorced. I am thinking of living with my “ex-again” without remarrying. If I do, and it doesn’t work out could it affect my divorce agreement. My friends warn me to be careful as I could lose out. Under my divorce agreement my husband has to pay me maintenance until I marry someone else. They say I could lose my maintenance.

Answer:

If you live with your “ex” and then split up you could be endangering your rights, depending on the exact circumstances. If the matter were tested in court it is likely that your behaviour would be construed as implied consent to the cancellation of your “ex’s” maintenance obligation towards you. This would mean that this part of your divorce agreement would not be valid, even if the agreement was authorised in court and incorporated into a judgment. As regards any maintenance for your children, this would remain unaffected.

Alternatively, a possibility exists that the court would hold that the agreement about the maintenance was effectively frozen during your reconciliation but that it would become effective again if you split up again and would cease only if you re-married.

Forged Conversion Documents - Implications Re Divorce Agreement

Question:

If, after she had actually divorced, it is discovered that a ‘Jewish’ wife’s conversion papers were forged, what implications would that have regarding a one-sided divorce settlement favouring the husband that was authorised at the rabbinical court ?

Answer:

In a situation like this the woman would probably be free to file for issues included in the divorce settlement at the family court. She would not be bound by the divorce agreement which was authorised at the rabbinical court because it lacked jurisdiction to authorise it as the wife was not Jewish. The doctrine of continuing jurisdiction at the rabbinical court regarding child custody and maintenance and property would not apply as the judgment had been void due to lack of jurisdiction.

These points emerged from the decision in a case concerning pleas brought at the Tel Aviv Family Court by an ‘ex-wife’ who had discovered that her conversion had been forged . In its decision in March 2002 the court said that although it lacked jurisdiction to decide on the validity of the conversion it could do so indirectly for the purposes of dealing with the pleas brought by the wife. It held that that the conversion had no validity according to Israeli civil law, and the woman was free to file for child custody, maintenance and property at the family court, as the rabbinical court had lacked jurisdiction to authorise the couple’s divorce agreement covering these points as the wife was not Jewish.

Divorce Agreements – Compensation Undertakings

Question:

I got divorced in the early nineties. The district court authorized my divorce agreement and passed judgment. The divorce agreement contained a paragraph about me being entitled to compensation if my wife (now my ‘ ex’) broke her undertaking not to file for any increase in child maintenance , directly or indirectly. A bill of guarantee signed by two relatives of hers was incorporated into the judgment. My children have now filed me for more child maintenance. What can I do ?

Answer:

The trend is for family courts not to enforce compensation undertakings by a mother which were part of a divorce agreement. This is because the Supreme Court has granted mothers legal protection in so far as it will only enforce a mother’s undertaking to compensate the father for breach of their divorce agreement if she is well-established financially.

However, the situation is different regarding the undertakings of a third party who may act as a guarantor. While family courts, which were established in the mid-nineties, have had a policy of not authorizing guarantees given by third parties to compensate one of the sides for breach of a divorce agreement, they will enforce existing guarantees which have already have been authorized by a court and which have already become part of a divorce judgment. Accordingly, a father against whom action has been brought for increased maintenance in breach of the divorce agreement authorized by a district court , can act against a guarantor. He can ask the court to order the guarantor to be responsible for paying the amount equivalent to the additional financial obligation which may be placed on the father’s shoulders as a result of the plea filed against him by his children.

Divorce Agreement – Previous Mutual Will

Question:

Is there need to make explicit reference in a divorce agreement to the cancellation of a mutual will made by the parties earlier on ?

Answer:

No ! It is possible and simpler to make a new will which expressly cancels the former will.