Agreements

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.

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.