About Divorce - עמיהוד בורוכוב, משרד עורכי דין

Q: My ex-wife is claiming that our divorce agreement should be annulled, claiming that I violently forced her to sign it. I was never violent towards her. What are her chances of annulling the agreement in court?

Marriage and Divorce •Divorce Between Jews

A: If there is no basis for her claim, the agreement will not be canceled. In a judgement given by the Family Court in Rishon LeZion on 12.11.24, (Family File #58820-08-21) the wife’s claim that her husband tried to run her over, with his car, treated her violently, and forced her to sign their divorce agreement, which was approved by the court, was rejected. The court ruled that the woman did not provide evidence that she had ever filed a complaint against her husband for violence, with the police, and admitted that she did not seek medical treatment for violence. In addition, during her interrogation in court, the wife confirmed that during the marriage and up until the date of signing the agreement, no complaint of violence was ever filed, nor did she prove a connection between the alleged violence and the signing of the agreement. The Court rejected her plea, stating that, for the court to determine that an agreement should be annulled, due to violence, a direct connection must be proven between the violence and the signing of the agreement. The Family Court found that there is no doubt that at the time of signing the agreement, no violence was used against the wife.

Q: My ex-wife is claiming that our divorce agreement should be annulled, claiming that I violently forced her to sign it. I was never violent towards her. What are her chances of annulling the agreement in court?

Marriage and Divorce •Divorce Between Jews

A: If there is no basis for her claim, the agreement will not be canceled. In a judgement given by the Family Court in Rishon LeZion on 12.11.24, (Family File #58820-08-21) the wife’s claim that her husband tried to run her over, with his car, treated her violently, and forced her to sign their divorce agreement, which was approved by the court, was rejected. The court ruled that the woman did not provide evidence that she had ever filed a complaint against her husband for violence, with the police, and admitted that she did not seek medical treatment for violence. In addition, during her interrogation in court, the wife confirmed that during the marriage and up until the date of signing the agreement, no complaint of violence was ever filed, nor did she prove a connection between the alleged violence and the signing of the agreement. The Court rejected her plea, stating that, for the court to determine that an agreement should be annulled, due to violence, a direct connection must be proven between the violence and the signing of the agreement. The Family Court found that there is no doubt that at the time of signing the agreement, no violence was used against the wife.

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

Agreements •About Divorce

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

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 ?

Agreements •About Divorce

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.

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 ?

Agreements •About Divorce

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.

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.

Agreements •About Divorce

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.

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 ?

Agreements •About Divorce

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.

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 ?

Agreements •About Divorce

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.

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

Agreements •About Divorce

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.

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 ?

Agreements •About Divorce

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.