What are the legal and emotional complications in a "mixed" marriage, when one of the parents wants to leave the country with the children?
What happens when one of the parents
wants to stay in Israel with the children, but the other parent wants
to move with the children to another country?
I may not be able to offer a clear or
direct solution, but the intention here to is to clarify issues of
which you may not be aware of and prepare you for possible future
complications.
·Coping with a divorce in Israel?
·Is there a problem at all?
·What is the problem?
·Are you a “mixed” couple (an Israeli married to a Brazilian, for example)?
·What are the problems a mixed couple faces if one of the partners is non-Jewish?
As a
happily married couple or as a new bride or groom, you have plenty of
issues to deal with right now. Do you need to think of other future
problems? Yes, you do!
A bad marriage followed by a “bad” divorce
(let me say a “bad” divorce as they MOSTLY are), means years of legal
procedures, ugly court battles and hurting the kids. Could it be worse?
Unfortunately, for mixed couples it could be your worst nightmare.
What follows below is a short
explanation about the differences between the legal processes in a
Regular Legal Court vs. a case in a Rabbinical Court.
Fortunately for women, Israeli law
has finally changed and all financial issues between the couple can be
resolved before (!) the actual get is to the wife by the husband.
The legal repercussions are very
small compared to the practical ones. From now on, no woman will be
held “hostage” waiting for a get. A husband no longer use the get as a weapon against his wife.
Yes, he can still be a sarven get (refuse to give his wife a get,
i.e. deny her the freedom to remarry) but in most such cases he will be
held as a criminal and as increased pressure is put by the regular
courts and the public on the Rabbinical Courts, the more flexible they
will become.
Don’t forget, though, that the Rabbinical Court would like to increase its power against the sarvanei get but Israeli Law still puts many limitations on the Rabbinical Courts` powers.
The situation has changed for the
better for those seeking a fair divorce. But, for those couples with
children who wish to move abroad, the situation has actually worsened
[2].
If you
are such a couple, you may find that you and your children have
completely lost your freedom of movement—and this could be for most of
your adult life! According to the view of the Hague Convention on the Civil Aspects of International Child Abduction
[3],
this could be the bitter reality of a court case involving children of mixed parents.
The Emigration Issue in the Eyes of the Israeli Court
In family law, emigration (hagira)
cases are the most complicated, complex and sad. These decisions are
very painful for the judges involved. In addition, the Supreme Court
itself has indicated this in its rulings on past cases.
There is
no way for both parents and children to be accommodated in these cases
or for the court to find a solution where all sides involved can be
satisfied. There is always someone who will be hurt and have to suffer.
Israel is one of the most problematic countries in the world concerning emigration. This is because Israel
has a high divorce rate; and, with almost 50% of the population made up
of new immigrants, there are many “mixed marriages.” If we add to this
mix the fact that we are dealing with dozens of different countries,
laws and nationalities, this makes for a very chaotic situation.
The Legal Ban
This is a
travel ban against your children or yourself or both! This means, that
neither you nor your children can leave the country. If you wish to
leave for a short period, this is contingent upon many legal
requirements, including arranging for a security deposit, etc.
Implications –Yours and the Family Abroad
From the
very beginning, after the first issue from the court, you and your
children could be completely cut off from your family abroad for long
periods of time. Imagine the pain of the grandparents if they can’t
afford to come and visit you here in Israel? Or the opposite, if the
other parent is abroad with your children and you are here with no
means to go and visit them?
All this just because your marriage with a foreigner didn’t work out! Now, the battle begins.
This is what happens to many immigrants, both women and men.
The Non-Jewish Parent and the Problems Involved
“Love is
in the air” and everything looks fine until something goes wrong. From
the day a Jew and a non-Jew live together (they will never be
considered married by Jewish law) and then separate, the “fight” will
be much worse.
Although the parents in such a case do not really care about Halachik Law (Jewish Law), this can easily change—one day they may become religions or want their child to be Jewish after all.
If the mother is not Jewish, the children are not Jewish – period.
If the
father is not Jewish and the mother is Jewish, the children are Jewish.
Imagine now, that the father wants to go back to Brazil with the
children. You know he will raise the children as non Jewish! What do
you do?
People tend to think that the Israeli courts will be more benevolent to the Jewish parent. Mistake!
Israeli courts give no preference when it comes to religion and instead
they rule in a case on what they "think” is best for the children. Here is where things start getting really out of control.
Why?
The Social Welfare System
Let me put into a few words what the social welfare services can do for you: Not much. They usually make things worse. Avoid their involvement!
While the
system has many good people--professionals and caretakers--there is one
acute problem you should be aware of. Israel`s social welfare system is
extremely paternalistic.
They think that they know best what is good for you and your children.
Once they
become involved, your life will change dramatically. I can assure you
that it will not be for the better because immediately your life will
became an open book. Your motherhood or fatherhood will be contested,
even though it wasn’t contested before the divorce and the present
court case. From now on you have to prove you are not just a good
parent but the "best parent!" And you will soon find out that this
might be a "Mission Impossible."
Can One Avoid this Situation?
There is no guarantee but you can make things easier for yourself and the children.
Please
understand. You are the only one who knows the situation. Be a wise and
careful person. Our sages tell us, "Who is wise? The one who can
predict what will come" (not necessarily the future).
Some simple advice:
Make a prenuptial agreement. Stipulate in it what will happen to the children in case you divorce from your partner.
If you
have doubts about the future while you are still pregnant, be wise and
think where you want to deliver the baby. What country will be the best
for you!
Don’t
feel trapped. If you see the “end” coming, take all the legal measures
before something happens. Be the one who makes the first move!
In a
divorce agreement, and this is the most important issue in this case,
try to find some future solutions in case one of you wants to move to
another country. Find a way to receive monetary guarantees if the other
side makes any “stupid move.”
The Best Solution
If you have decided a divorce is unavoidable, please consider (as the courts will try to make you consider any way), M E D I A T I O N. This
is not magic but it’s a system that works well in most cases, cost you
much less (a quarter or less), hurts less and above all, leaves the
children out of the dirt that eventually will come up in court.
Don’t breach the law in any case.
Consult with a lawyer. Not just any lawyer but with one who has
experience in the field. One who understands you and your language.
You are not alone. Find friends to talk to and keep your head above the water. The wave will pass I guarantee you.
Sincerely,
Tzvi Szajnbrum, Attorney at Law
