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This article continues the analysis and discussion of the State of Israel’s “Law of Property Relations between Couples” initiated in Esra Magazine issue #145. Since its enactment in 1973, its provisions have generated an extraordinary body of litigation and Supreme Court precedents. Certain of these precedents have literally revolutionized the nature of the financial rights and obligations between couples, married or otherwise. Israel’s legislative branch, the “Knesset’, recently enacted a much heralded amendment to the law. Provided that the amendment survives the coalition politics that will necessarily follow the national election in February 2009, it will, in effect, ensure the continuation of this revolution in property rights. The amendment and its profound impact on the nature of property relations between couples is the focus of this article.

According to the civil law of the State of Israel, matters of marriage and divorce between Jewish couples are in principal governed by the tenets of religious law or halacha. One such tenet is that the actual division of property between divorcing couples occurs upon the actual divorce of the couple. The actual divorce involves the male giving and the female accepting the religious document of divorce known in Hebrew as the get. The get must be given of the male’s own free will and not be tainted by financial incentive. Otherwise, the divorce can be delayed or even nullified by the rabbinical court system which has exclusive jurisdiction in this area.

All too often, this legal fact of life has provided one spouse (almost invariably the male) with significant financial leverage over the other. Such leverage arises in cases of significant disparities in the amount of income earned by working spouses and in the control of the marital property. These disparities have often operated to allow one spouse to dictate such critical terms as the amount of monthly child support and/or an unequal division of property.

Similarly, in cases where one spouse wants or needs the divorce more than the other, serious financial concessions have usually been the price to be paid to obtain the divorce. Two of the more common instances involve the victims of spousal abuse or infidelity. All too often, the offending spouse refuses to cooperate until financial concessions are offered. As a result, escaping a destructive relationship often entails the victim being financially extorted by the perpetrator. In effect the victim is victimized twice over.

The financial concessions usually involve relinquishing a significant share of spousal property rights. Women who assume the custody of minor children are often forced to accept ludicrously low child support payments. Although entitled to an equal division of the marital property, a spousal victim has often been forced to accept less as the price of divorce. Those that refuse find themselves either tied up in a legal war of attrition or quite simply without a divorce. The law in effect, if not intention, has effectively rewarded the destructive conduct of one spouse at the other’s expense. A situation was created and tolerated whereby extortion was effectively legalized in the context of divorce. Oddly, rabbinical courts have had no difficulty in presiding over divorces where the male has benefited from significant financial concessions by his soon to be ex wife. In theory, such divorces are clearly tainted by the prospect of financial gain. Rabbinical court officials and judges have been largely unmoved by the fact that ever increasing numbers of Israelis now opt for civil marriage or shun marriage altogether as a result.

The amendment was legislated primarily to alter the above scenario. The amendment stipulates that under certain circumstances the division of spousal property will no longer be contingent upon an actual divorce. Rather, if any one of a series of conditions is satisfied, then the division can occur under judicial supervision prior to the actual divorce. These conditions are as follows:

(1) If the couple have been involved in certain types of property litigation for one year with no resolution;

(2) If the couple have separated or if still living under the same roof have ceased cohabitation for a total of nine of the last twelve months. Even this period can be reduced under special circumstances;

(3) If a court has issued a Physical Protection Order against one spouse or an Order restraining one spouse from entering the other spouse’s residence;

(4) If a spouse has been detained or conditionally released from detention by court order or indicted for an act of violence against the other spouse or his/her child.

Upon any one of the above conditions being satisfied, either of the spouses will be entitled to a court imposed division of the marital property. No less revolutionary is the inclusion of a wide range “future rights” (pensions, retirement packages, severance pay, savings programs, earning power) as marital property subject to division between spouses. This provision gives statutory standing certain judicial precedents of the Israel Supreme Court.

The amendment further stipulates that even in a case where the division of marital property is called for, the sale of the marital residence is contingent upon adequate provision having been made for the couple’s minor children. At first glance, this provision appears redundant as this has been the case for many years. In the view of this writer, the provision is intended to require more than short term rental accommodation for the minor children as has been the case up until now. Arguably, this provision allows the Family Court to delay the actual sale of the marital residence until the last of the minor children has reached the age of 18 and even beyond in cases of army or national service.

It should be noted that the amendment was actively supported by a number of religiously observant members of the Knesset including Professor Menachem Ben Shosan of Kadima, Rabbi Michael Malchior of Labor/Meimad and Zevulun Orlev of Mafdal/Ichud Leumi. Indeed, only the members of the ultra orthodox or so called haredi political parties actively opposed the amendment. This is important to be aware of for two reasons. First, as the primary beneficiaries of the amendment are women, it clearly demonstrates that significant elements in the modern orthodox or national-religious groups fall outside the stereotypical view that orthodoxy entails anti-women’s rights. Second, depending upon the outcome of the February national election, there is a real danger that this amendment could fall victim to coalition bargaining. Certain political parties regard a division of property prior to divorce as empowering their female constituency to the point of threatening the sociological structure of their communities.

Given that in recent elections, a large percentage of the Israeli electorate has failed to vote, it is my hope that the preservation of this amendment will motivate all of these people to vote in the coming election.

This article is for informational purposes only and is not a substitute for specific legal advice based on individual consultation. Attorney Kahn has practiced law in Israel for over 30 years.