GETTING DIVORCED: A GUIDE

01/09/2010 | Practice field: Family Law

THEQUESTION: WHERE DOES DIVORCE TAKE PLACE?

Many tend to think that in Israel the exclusive jurisdiction in matters of divorce and henceforth in matters of domestic bliss (Hebrew: 'Shlom Bayt') is held by the rabbinical court. They are right, but not entirely. As a counterpart to this exclusiveness resides a whole system of civil courts functioning as an instance of the magistrate's courts. These are the family courts, and they own a judicial authority in session to deal with matters accompanying the divorce and regarding the quarrel, such as child's and ex-wife's maintenance, custody, visits arrangements, claims for property and money, the abduction of children, etc.

To determine that the husband should conduct his procedures by the rabbinical court and that the wife should conduct hers by the family court is a common mistake. As a matter of fact, choosing the judicial instance serving each side's interests best varies according to the circumstances of every case. For instance, if a spouse's apartment is registered formally under wife's name only, the husband should basically claim for property and submit his sue by the family court and not by the rabbinical court, which usually shows no interest in acquisitions and if the property is registered on wife's name only.

The question where would matters of family disputes take place is a consequence of asking "who runs faster", meaning: which one of the spouses submitted his claim to the judicial instance that serves his interests best (i.e. the rabbinical court or the family court) prior to the submission made by his or her spouse to the other judicial instance? Who held first the authority (or power or competence) in such a way, that the case would be heard in that instance he or she submitted the claim to (and not the other instance)? This issue is known in the legal jargon as "the race for power".

It is important not to stay behind and take it as obvious that the now rival-spouse has not yet took any action. Many times the timing of submitting the claim is cardinal if not critical. One cannot be absolutely sure that the other side had not yet took a lawyer and began acting. That is why one should turn to a solicitor and conduct a plan for the time being. As the saying goes: "as you make your bed, so you must lie in it".

AGREEABLE DIVORCE

It is quite unnecessary to lead a cumbersome and almost everlasting procedure in the matters of divorce. If you prefer ending the matter as calmly and as maturely then you're quite lucky. It is possible to reach an agreement and deprive "total war". But the way to this kind of agreement could be full of obstacles and mischief. One must be careful!

1. The agreement should be composed by two lawyers, each represents one of the spouses, in order that the interests of both would come into realization within it. Don't be tempted to cut back on expenses by composing an agreement by one solicitor allegedly representing both spouses, for this "cutback" might bring expenditures that will exhaust you.

2. One should mind not to sign an agreement of "domestic bliss that is varying into divorce". In most cases this kind of agreement is only a trick made by the other side allegedly wishes for a pretence domestic bliss in order to ascertain some achievements regarding property and assets.

3. Before reaching any agreement one should inspect properly the properties, assets and rights owned by each one of the spouses (such as immovable property, vehicles, bank accounts, provident funds, professional study funds, insurances, etc.) for the day will come and the one might find himself or herself inferior to the achievements of possession of the other.

4. Attempts should be made at presenting both sides' agreement, for one should know the 'range of compromise' of the other side.

If all conflicts are settled and the spouses have reached a wholesome divorce agreement it is time for 'split-up ceremony'.

But what happens when one side refuses to go through the whole divorcing?

Is it even possible getting divorce when one side wishes not to?

Then again, it's not so simple… When the two sides disagree and one refuses getting divorce, the side that does wish the divorce to take place should prove a cause for divorce that enforces the husband to divorce his wife / the wife to divorce her husband.

Hereunder some advices that will lessen your headaches while divorcing

· Always be at one step before your spouse, and submit your claims to an instance which rule would serve your interests most likely. Do not inform any of your associates, not even your relatives, that you intend to take that step. The fewer who know your intentions the lesser the chances your spouse conceives your moves, act by them and forestall you.

· Always carry a tape-recorder. With this at hand one can use it to tape the spouse emitting statements and confessions that would come later in use.

· Do not try handling legal procedures alone and without being legally represented. Divorcing is a meandering and tangled procedure. A mistake being made will cost you.

· Careful not to listen to any consults of any 'persons of wisdom', such as "Go to the police and complain he beats you so you can make achievements while divorcing," or "Conceal all your assets and properties so your wife could not touch any of it," or "Take a photo of your wife with her lover." Note that these acts might bear consequences such as criminal claim for submitting false complaint, forcing the "concealer" return the properties concealed, and a claim regarding the Privacy Protection Act submitted by the one whose photo was taken.

Full List