Family law in Israel is governed by civil and religious law and adjudicated by both the civil court (Family Court) and the religious courts. Unfortunately, religious law (be it Jewish, Sharia or Druze law) is patriarchal and discriminates against women, as it is based on a perception of inequality of the sexes. Aside from being based on discriminatory laws, family law in Israel relates directly to the socioeconomic gaps between men and women. Therefore, beyond the legal inferiority women suffer during divorce, they tend to be the financially weaker party and are generally the primary caregivers of the children. This situation leads to severe infringement of their rights and the rights of their children.
The Rackman Center works to promote gender justice in marriage and divorce proceedings, to establish egalitarian civil law in all matters of personal status, including issues related to marriage and divorce: Property, division of the time the parents spend with the children, determining child support, establishment of law that enables women to leave a partnership without arbitrary delays by their partners, to creating a reality that strives to minimize the negative impact on the welfare of children during and after divorce.
The rabbinical courts are part of Israel’s official legal system. According to the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, the rabbinical courts in Israel have exclusive jurisdiction over matters of marriage and divorce for Jewish citizens or residents of Israel. There is no option for civil marriage in Israel, only for religious marriage. Jewish couples who seek to divorce legally, even if they had a civil wedding outside of Israel, are still required to obtain a Jewish divorce through the rabbinical court, as it has the exclusive jurisdiction in this matter. The rabbinical courts operate according to the law of the Torah which is Jewish law (halacha). Jewish law discriminates against women and is based on a perception of inequality of the sexes.
The Rackman Center works to advance freedom of choice in marriage, to change the situation where women face discrimination in the rabbinical courts, to change the reality in which women are forced to litigate in the rabbinical courts, and to increase the representation of women in the rabbinical court system in key positions, based on the belief that the inclusion of women in the system will lead to a change in how the law is applied to women.
For years, the fees in family courts were higher than those of the rabbinical courts. This had a negative impact on the right to access the courts and rights to equality, and promoted gender discrimination. In 2018, after a lengthy fight led by the Rackman Center and other organizations, the regulations that bring the fees in the family courts in line with those in the religious courts were finally published.
In 2018, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law (Amendment – International Jurisdiction in a Divorce Claim and Temporary Provision), 2018, was enacted. It significantly expands the authority of the rabbinical courts with respect to residents of foreign countries who are not Israeli citizens and have no affiliation with Israel in order to help women who are refused Jewish divorces throughout the Jewish world.
The Rackman Center maintains that despite the desire to help women who are unable to dissolve their marriages in the countries where they reside, the amendment to the law causes difficulties in the face of the principles of private international law and, at the end of the day, could lead to violation of the human rights of foreign residents and potential extortion of women. First of all, the rules of private international law do not grant a country the right to intervene in matters of personal status when there is no significant affiliation to it. Secondly, the law grants the religious courts far-reaching jurisdiction in matters associated with divorce such as custody, child support and property, in a manner could adversely affect women. Additionally, the law does not specify control mechanisms that are standard in the Israeli legal system such as the involvement of the Attorney General in the process and notice to the Supreme Court.
The Rackman Center acted to introduce changes to the wording of the initial bill, which was presented to the Knesset in order to reduce the harm the bill could cause. The most important of the changes that was accepted was reducing the expansion of jurisdiction solely to divorce claims made by women against men, given that the situation of women who are refused Jewish divorces is far more difficult than that of men who are refused.
One of our greatest successes in recent years has been the passage of legislation that mandates a quota for women on the Commission for Appointment of Rabbinical Judges. Following the law presented by MKs Shuli Mualem-Rafaeli, Aliza Lavie and Zehava Galon to change the composition of the Commission for Appointment of Rabbinical Judges and joint work with the Rackman Center, in 2013, the Knesset amended the Rabbinical Judges Act.
The amendment ensures that there is a quota for 4 women on the 11-member commission. Following this amendment, the Courts Law was amended such that four of the 9 members of the Commission for the Appointment of Judges are reserved for women.
In the 20th Knesset, an attempt was made to promote a bill that grants the rabbinical courts jurisdiction to serve as arbitrators in civil matters that are unrelated to divorce. Our position is that this legislation should not be advanced.
It is problematic in several respects. First and foremost, the very expansion of the jurisdiction of a legal instance that excludes women and does not allow them to serve as rabbinical judges violates the basic democratic principle of equality.
Furthermore, those who support this bill maintain inaccurately that parties enter into arbitration by consent, and therefore the implications are legitimate. First of all, full and true consent can only exist between two equal and balanced powers. However, the current reality demonstrates that in numerous cases, weak parties are forced to agree to litigation. Thus, for example, when one party is in a position of authority (employee and employer, for example) or parties with vastly different bargaining power and different resources available to them (a “small” customer versus a large company, for example, as well as a woman in divorce proceedings who can be pressured through a threat to refuse to grant her a Jewish divorce).
Secondly, the bill gives rise to concern about uninformed consent, given without full understanding of its significance. The average person and, specifically, the average secular person, does not understand the implications of consenting to arbitration by a religious court in a civil matter, as they are unfamiliar with the precepts of religious law in these matters.
The Rackman Center continues to oppose this bill and is working to prevent its legislation.
In Israel, by law, both parents are the natural guardians of a child, and are required to provide for all a child’s needs. The guardianship of both parents continues after divorce, but a decision must be made as to which parent will have physical custody of the child, and how time spent with each parent will be divided. This issue gives rise to bitter disputes between parents, which at times even involves financial interests, even though all agree that protracted legal disputes have a serious negative impact on children.
There is a deep public debate about the appropriate legal arrangement in matters concerning custody and parent-child relationships.
The Rackman Center is working to bring its positions on these matters, which are based on extensive experience from practice and comprehensive academic knowledge, to policymakers.
One of the most complex and sensitive issues in the field of family law today, both in Israel and around the world, is children’s resistance or refusal to spend time with a parent, sometimes referred to as “parental alienation”. This issue raises several serious questions and concerns which directly impact the mental, emotional and physical well-being of children who are caught in the crossfire of divorce and separation proceedings.
In some cases, the desire to renew contact and the priority given to a parent’s alleged right to a relationship with their child, leads to a mistaken diagnosis of manipulation and alienation on the part of the preferred parent as the reason for a child’s resistance or refusal of contact with the non-preferred parent. This can also result in obligating a child to renew unsupervised contact with an abusive parent, or the use of extreme reunification methods and treatments which are traumatic for children, including granting full custody to the non-preferred parent, removing children from their homes and transferring them to the care of the welfare system.
We believe that children’s resistance or refusal of contact with a parent, which in some cases can be the result of alienating behavior, is a challenge that must be dealt with both legally and through therapy. At the same time, it must be acknowledged that in many cases children’s resistance of contact stems from the non-preferred parent, and may be the result of that parent’s abusive or violent behavior, toward the child or the other parent. In any case, due to the potential risks and dangers posed to children by forced contact with an abusive parent or the use of extreme reunification methods, any attempt to resolve the issue must be carried out with great care and caution, all while ensuring the safety and well-being of children.
It is our opinion that once allegations of parental alienation are raised, and before any attempts to renew contact are made, a thorough diagnosis must be carried out in order to determine the reason for the child’s resistance or refusal of contact with a parent. The diagnosis process must include an emphasis on examining all types of violence or abuse against any of the family members. Furthermore, even in cases in which there is seemingly no evidence of violence or abuse, this should not lead to the conclusion that the preferred parent has manipulated the child and alienated them from the non-preferred parent. Such a determination must be based solely on independent and credible evidence.
In May 2020, we published a comprehensive position paper which addresses several fundamental issues concerning children’s resistance or refusal of contact with a parent, including the history and development of the term “parental alienation”; the importance of ensuring children’s best interests in conflicts concerning the re-establishment of child-parent relationships; extreme reunification methods and measures carried out today; the lack of a recognized expertise in parental alienation and the dangers of appointing therapists who claim to be parental alienation experts.
Click here to view the Rackman Center’s position paper (in Hebrew) titled “Children’s Resistance or Refusal to Spend Time with A Parent and Parental Alienation: Theoretical Background, Diagnosis and Treatment Methods in the Context of the Best Interests of the Child Principle”.
The tender years presumption is a legal presumption that maintains that in the absence of an agreement between the parents regarding the custody of their children, the court will order that physical custody of children under the age of 6 will be with the mother (unless the court is presented with circumstances that justify deviation from this rule).
In recent years, particularly since the publication of the conclusions of the Schnitt Committee (a public committee that examined the issue), the tender years presumption has been at the center of an extensive public debate on whether it should be canceled, changed or left as is. The public debate entered into the legal system and there are currently significant discrepancies between decisions and rulings of various judges citing the same law.
The public debate landed the issue in the Knesset. The Rackman Center opposed the legislation to abolish the tender years presumption, without determining a different legal presumption. We argued that this law would tangibly and adversely affect children and women. When there is no presumption, the result is uncertainty, which leads to chaos in the family. Legal uncertainty inevitably leads to an increase in litigation over child custody, exacerbates divorce disputes and extends the length of the proceedings. Moreover, our position is based on lessons learned from other countries, which show that even after changes in the adjudicative principles on the issue of custody, mothers remain the primary caretakers of children, meaning that the change only serves to make women poorer and weaker. In Israel, the situation can be significantly worse, given the inherent inequality in family law, which grants men greater negotiating power. Specifically, there is a concern that there will be an even greater negative financial impact due to the financial incentive the family courts give to claims for joint custody – a significant reduction in child support payments, without effective tools to obtain payment from fathers who maybe be granted a reduction, but fail fulfill their part in the planned parenting program. Thus, the adjudicative principles regarding physical custody should not be changed without revisiting the issue of child support in Israel.
We propose revising the current arrangement, while safeguarding the welfare and best interests of children. We recommend maintaining the tender years presumption through the age of 4 and changing the presumption for children over the age of 4 to alternative legal presumption , which approximately maintains the division of time between the parents prior to the separation to that after the separation. We believe that this would be in the best interests of the child and would maintain the stability in their lives. Furthermore, we believe that protecting minors from violence and exposure to violence must be given significant weight in the principles of adjudication. We believe that these guidelines will achieve the social objectives of increasing equality in parental responsibility and reducing the negative impact on children.
We will continue to defend our position in the next Knesset and fight against the abolishment of the tender years presumption without an alternative presumption and significant adjudicative principles, in order to prevent even greater violation of the rights of children and women.
Child support payments are one of the most important components in ensuring a stable life for children and preventing poverty following divorce. In Israel, child support is determined according to the couple’s personal law (religious law). Both the rabbinical courts and the family courts that rule on child support are subject to religious law in accordance with the interpretation of this law.
Much to our dismay, we frequently encounter child support rulings that do not reflect the actual division of the roles between the parents, which leads women to bear the financial burden of raising children or those that are not respected by the obligated party. Therefore, we focus our activity on attempting to regulate this issue and to ensure that the amount and continuity of child support payments continue optimally to protect the party that is financially weaker along with the best interests of the child.
According to the Bankruptcy Ordinance, if a party who has entered bankruptcy must pay child support, the custodial parent who is entitled to child support payments must file a motion with the court hearing the bankruptcy case to receive an allotment of money towards child support. The court is not bound by the amount of child support determined in the child support ruling when determining the allotment.
This violates the rights of the custodial parent and the children, who do not live with the party that must pay child support. The violation of their rights is seen in cases in which those entitled to the payments are unaware of the bankruptcy and only find out when child support payments stop. Additionally, the custodial parent is forced to cover the legal costs of initiating a proceeding for allocation of child support, including attorney fees, after they have already been gone through litigation to receive child support. Throughout the proceeding, which can take several months, child support is not paid. The financial burden imposed on the custodial parent when child support payments are not made is, at times, impossible and can lead them to bankruptcy, particularly in view of the fact that the delay in child support payments frequently begins with the deterioration of the paying party’s financial situation, even before a receivership order is issued.
As part of the legislation the Insolvency and Rehabilitation Law, 2018, which replaced the Bankruptcy Ordinance in order to implement a reform of the entire field, we were able to rectify the situation. In accordance with Section 179 of the new law, insolvency proceedings will not terminate child support payments, and the children of the paying party will not be adversely affected due to the insolvency of the parent. The law entered into effect in September 2019.
According to the child support laws under Jewish law, the key and central obligation for payment of child support is imposed on the father. Imposition of the full obligation of child support on the father when there is joint custody discriminates against the father and, therefore, the law needed to be amended to reflect such.
To resolve the matter and unify the child support laws, the Shiffman Committee was established in 2006. It determined that the link to religious personal law should be severed and, instead, the responsibility and duty for financial support of children must be imposed equally on both parents, based on the financial ability of each of them and considering how much care each parent provides the children (the amount of time the children spend with each of the parents). Despite the fact that the principles that guided the Committee are reasonable and acceptable, we believe that a material change is necessary in how they are implemented in order to achieve an appropriate solution to the issue of determining the amount of child support.
Notwithstanding the years that have passed since the Committee issued its recommendations, they have not been implemented through appropriate legislation. As a result, the discrepancies in the rulings of the courts in cases of joint custody have only grown.
In July 2017, in Family Court Petition for Leave to Appeal 919/15, the court handed down a precedential ruling regarding child support in cases of joint custody. At the heart of the ruling was what the appropriate interpretation of Jewish law is regarding children between the ages of 6 and 15. In the end, the court concluded that for children in that age group, the source of the obligation under Jewish law is based on the laws of charity and, therefore, the burden of child support when there is equal or almost equal joint custody applies equally to both parents, according to their disposable income. Additionally, the ruling suggests, as a default mechanism, that the main management of expenses that are unrelated to daily existence be done by the “coordinating parent.” The court actually proposes differentiating between expenses according to expenses dependent on the amount of time spent with a parent and those not dependent on that.
To read the Rackman Center’s full analysis of the ruling:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031326
Link to calculator that implements the ruling
The religious courts have parallel jurisdiction to those of the family courts in terms of ruling on matters of division of property between the couple. The party that seeks such can “attach” the issue of division of property to their divorce claim and force the other party into litigating the matter in the rabbinical court. Although the Supreme Court has determined that the rabbinical court is obligated to rule on division of property according to civil law, we have seen numerous rulings by the rabbinical court that are not in line with the substance of civil law.
The Rackman Center works to establish the jurisdiction and civil law in division of property and for an equal division of the couple’s property.
For the past 25 years, the rabbinical court has been required to rule on property disputes between couples according to civil law, which does not allow adultery to be taken into account. This was determined according to the Bavli rule – a ruling handed down by the High Court in 1994, which stated that religious law is applicable in matters of marriage and divorce, but in all questions concerning the division of property between a couple, it is civil law that is binding. Civil law determines that the sexual conduct of the parties is not relevant in property disputes, and that “an individual should not be punished for their role in breaking up the relationship through financial sanctions as part of the division of property between the couple.”
In 2018, the High Court handed down a ruling which upheld a previous ruling of the High Rabbinical Court, in which it was decided to withhold property rights from a woman due to the allegation that she had committed adultery, and this related to the end of a 30-year marriage.
We view this as granting full legitimacy to introducing religious-moral considerations into civil property matters. This ruling may serve to continue to harm women, who from the outset are the inferior party when it comes to ownership of property, funds and assets. The High Court scheduled another hearing in this case before an expanded panel. The Rackman Center is representing the women together with her attorney in this additional hearing.
