Family law is concerned with marriage, divorce, parenting, birth, death, inheritance, family relationships and religion. It also determines the legal obligations and rights of each family member.
The difference in Israel between family law and other rights stems from the fact that some family rights depend on the religion of the family. As there are several religions in Israel, each has its own system of family law. The rabbinate (the rabbinical court) handles much of the law relating to Jewish families.
The rabbinate manages the bulk of family law relating to marriage, divorce, alimony, children and conversion. Other areas, such as inheritance, adoption, division of property between spouses, guardianship, cohabitation, single parents and also sometimes alimony and children, are handled by the Family Court according to secular law.
Most legal proceedings involving family law are lengthy, especially divorce cases and all the associated issues such as alimony, custody, property division, etc., and cases involving wills and inheritance.
Nowadays a “family” can be considerably different from the traditional family. These less traditional family structures, such as civil marriages, cohabitation, same-sex couples, single- parent families, require different agreements and laws from the traditional religious marriage.
Types of families and agreements
- 1. Marriage contract (religious)
The contract of marriage is a voluntary, public, registered and legal relationship between a man and a woman. In Israel, it happens after obtaining the approval of the rabbinate by an agreement signed by the couple in front of a rabbi and two witnesses, followed by the wedding ceremony itself, which is led by a Rabbi. There is no other type of legal marriage in Israel since, according to Jewish law, this is the only way to bring children into the world which fulfils the commandment “Be fruitful and multiply.”
- 2. Civil marriage
A civil marriage is a wedding without a rabbi, performed by a representative of a civil authority, such as a City Council. This kind of wedding does not yet exist in Israel.
- 3. Prenuptial contract / agreement
Increasingly, couples make a decision to sign a prenuptial contract or agreement prior to their wedding, in order to avoid difficulties in the event that the marriage fails. This is an extremely sensible thing to do. Today one sees far too many battles between couples in the process of divorce who did not sign a prenuptial agreement. The prenuptial contract or agreement establishes the rights and obligations of spouses, children, property, capital and other things in the event of separation or divorce.
- 4. Gay marriage
Currently, there is no provision for same-sex couples (gay and lesbian) to marry legally in Israel. They can make a contract or agreement witnessed and signed by a lawyer, and it is sometimes possible to get a court to stamp this contract, but not all courts are willing to acknowledge such an agreement. Gay couples can also register as common-law couples with the Population Registrar at the Ministry of Interior.
- 5. Cohabitation
Cohabitation is when a couple lives together as a family without being married. Cohabitants may be of the same sex, with no religion, forbidden to marry by the rabbinate (the rabbinical court can prohibit marriage for various reasons) or even mixed-religion. Recognised as a couple, the cohabitants most of the same rights and obligations as an officially married couple. If the cohabitants sign an agreement in front of a clerk of the Population Registrar, the Ministry of Interior will acknowledge it.
- 6. Single parent families
Single parent families may be caused by divorce, widowhood, separation, or abandonment of a parent, but it can also be a voluntary decision of a person wishing to have, raise or adopt a child whilst staying single. Single-parent families are eligible for certain types of assistance from the authorities, including subsidies for housing, education, health, and income support.
- 7. Wedding Banned
Under Jewish law, some people are considered “not acceptable” and therefore cannot marry a “kosher” Jew according to Halacha. This happens, for instance, in the case of a person born out of wedlock, a person who has been denied divorce, a person whose spouse has disappeared but not been proven dead, same-sex couples, couples of mixed religions, Cohen and divorcees.
- 8. Divorce
Divorce is the formal dissolution of marriage. The divorce usually leads to child custody, to alimony, child visitation, distribution of property and, if needed, division of debt between the spouses. This is where one can see the importance of a prenuptial contract or agreement, which makes it all a much easier, quicker process. In Israel, the rabbinate executes the divorce, with the husband handing his wife the document which will break the marriage bond. All other issues, such as distribution of property, child custody, alimony, etc., are dealt with either by the rabbinate or the Family Court.
- 9. Mediation for divorce
In many cases when spouses decide to divorce, they go through a mediation process before it in order to avoid difficulties since divorce is a very difficult time for both parties. The purpose of the divorce mediation is to reach an agreement between the parties with the help of a neutral factor, the mediator, accompanying the couple for interviews and helping them to communicate in a decent and relaxed way as to reach a compromise for each problem.
- 10. Childcare
Childcare is a right given to one parent for having the minors children living with them. When a couple divorces the family court decides which parent shall have custody of the children. The mother will usually get custody, except in extreme cases such as drug abuse, mental illness, violence or danger to the children. In this case, the father gets custody. The difference between custody and guardianship (see the next section), is that custody is determined by the court whereas guardianship refers to the automatic obligation of a child’s biological parents.
- 11. Guardianship
Guardianship is an automatic obligation for birth parents to take care the medical, educational, social and other needs of their children until they reach adulthood. Even after divorce, both parents remain the guardians of their children, and have an obligation to take responsibility for decisions concerning the welfare of those children. In extreme cases, the law may remove guardianship from one or both parents and transfer it to someone else, who may or may not be a family member.
- 12. Alimony
Child support or alimony is the obligation of a husband to pay his wife a financial contribution towards the maintenance of children who are in her custody. The alimony is a legal obligation and the amount payable is determined by the family court according to the father’s income. The father is required to support his children until the age of 15, even if the mother earns more than him and even if he has financial difficulties. When the child reaches the age of 15, the obligation of child support is shared equally between both parents. As in so many other situations, a prenuptial agreement which addresses the issue of alimony can be extremely useful.
- 13. Visitation Rights
Visitation rights is the term used to describe the dates and frequency of visits for the parent who has not received custody of his/her children, in order that he/she may spend time with those children and have a stable, consistent relationship with them, even after the divorce. This is another situation where a prenuptial agreement on the matter can be very helpful.
- 14. Division of assets
The division of assets is one of most important and complex aspects of divorce. If a prenuptial contract exists it makes things easier, since without such an agreement, finding an equitable way to share property between the two parties is often very difficult and has long-term economic implications for both sides. In most cases, both partners will have had assets, inheritances and other financial means prior to the marriage, and this must be taken into account in conjunction with all the assets which the couple acquired during the marriage. Usually, spouses split everything equally between them in a signed divorce agreement, but it depends on whether the couple created a prenuptial agreement and what it says. If the spouses fail to reach an agreement, the matter will go to the Family Court.
- 15. Paternity Test
The paternity test is a genetic test (DNA) which takes tissue samples from the father to prove that he is indeed the biological father of a child. A paternity test is only performed in exceptional cases where there is doubt about the identity of the father, for instance where the pregnancy was a result of a one-time liaison, or in cases of rape.
- 16. Shared Parenting
A Shared Parenting agreement is made when a couple chooses to have a child outside of marriage. The couple may be cohabiting and wishing a child without being married, a couple not living together but wishing to have a child together, a gay couple who want a child and so on. The agreement establishes the rights and obligations of each parent for the children and their growth. The agreement covers all areas, including medical care, finances and education.
- 17. Single parent families
Single parent families can be a result of many different difficult situations: a widow raising a child, a person with a child abandoned by their spouse, a woman with a child separated from her husband (e.g. for reasons of abuse), and others, but they can also be a matter of choice, where a person wishes to have, raise or adopt a child alone. Single parents may be entitled to receive various welfare benefits to help with housing, education, employment, food, vocational training and more.
- 18. Surrogacy
In Israel surrogacy is only permitted if the special surrogacy committee has approved it. Surrogacy is an in vitro fertilisation (IVF) process where a fertilised egg from one woman is inserted into the uterus of a second woman (the surrogate) so that the she can carry and give birth to a child for a couple or another person. People who use this process are couples with fertility problems where the woman cannot give birth, or same-sex couples. A woman willing to be a surrogate must undergo medical and psychological evaluation, which is performed by the same surrogacy committee which can grant legal permission to complete the process. Obtaining approval for having a child through surrogacy is long and complicated, with strict criteria which must be met by both the couple and the surrogate mother. Many gay couples choose to take advantage of overseas surrogacy in countries where it is permitted by law, but this does not prevent them encountering problems on their return to Israel, especially with regard to determining the religion (and thereby status) of the child.
- 19. Adoption of children
Adoption is a process which grants a person the legal status of “parent” to a child that is not his/her own. Most children available for adoption are orphans, or children whose parents are unable to raise them, or whose biological parents have had custody removed by the authorities due to violence, drugs, disease or criminal activity. There is a very high demand for adoption by couples who have fertility problems and same-sex couples, but the adoption process in Israel is long and complex. For same-sex couples, adoption is almost impossible, and causes endless legal battles. Another problem is that couples are often happy to adopt a baby but not an older child. Religion also plays a significant role because of the Jewish law. Many couples choose to go abroad to adopt a child, but they may still have problems on their return to Israel, especially if the parents are Jewish but the adopted child is not.
- 20. Domestic violence
“Domestic violence” covers neglect and damage resulting from verbal, physical, mental or sexual abuse from family members. This could be between spouses, between parents and children, between one parent and children or between siblings. There are many support centers for women and children who experience domestic violence and the authorities are supposed to help, but they are only able to do so if the victim files a complaint or if there exists concrete evidence of negligence or damage having been caused by the violence in question.
- 21. Refusal to Divorce
This is a situation where a married person refuses to formally end the marriage under Jewish law even though the couple no longer lives together. By refusing a divorce, one party is preventing the other from marrying again. Often the partner who is refusing to divorce does it to get better conditions in the divorce agreement, but it can also involve revenge or jealousy. Cases like this are handled by the rabbinate.
- 22. Wills
A will (or testament) is a document in which a person states what he wants to do with his property after his death. There are several types of wills: a simple document including the date and signature of the testator (the person making the will); a document witnessed before a lawyer; a document signed in front of a judge, a lawyer or a clerk; or an oral will with two witnesses, if the testator is at death’s door. In this last type, the witnesses must write a memorandum and deposit it after his death with the Inheritance Registrar. A testator may exclude anyone he wishes from his will, even his wife and children. He can also give everything to one child and exclude the others, or give it to an institution, company or any other organization. He may stipulate conditions in the will, although not all conditions are legal, for example, a requirement that someone becomes religious before they may receive an inheritance is not legally enforceable.
- 23. Succession
Succession refers to all assets, money, possessions, titles and other things which are transferred from one person to another, usually children or grandchildren, without it being connected to the death of the testator. It is possible to leave a title, as in the European aristocracy where the child inherits the title of his parents, or as in the monarchy in England, but one can also pass on an organization, company, business, land, money and other means. Succession planning is where a person organizes the succession of all his property in advance – money, houses, cars, bank accounts, titles, businesses and more. In the absence of a will, the property is divided amongst the heirs by the succession order determined by the family court. The testator’s estate includes both his rights and duties, so both are divided among the heirs. If there is no will the court will appoint an estate administrator, whose role is to organize and distribute the estate to the heirs.