Let me say this at the beginning, it would be harder to find a bigger fan of the State of Israel than me, and I’m fairly unequivocal on my stance that I feel that every Jew in the world should be living here. Having said that, I’d like to talk about an unfortunate phenomenon known to all of us – psychologists, lawyers and others – who work with families in crisis in Israel. That is, the “let’s make aliya so that we can make a bad marriage even worse” phenomenon.
This phenomenon takes a number of forms. It may be that one spouse has always dreamed of making aliya, the other has not. Thinking that the problems in the marriage might be assuaged by satisfying this dream, the spouse not so eager to make Israel their home, finally agrees to make aliya.
Or, both spouses may have had a dream of aliya, and in an effort to save the marriage, will make aliya, whether thinking that now both will really have fulfilled a lifelong dream and be happy, or those more eschatologically minded, will see that they will be rewarded from on high for fulfilling the Divine will and moving their family to Eretz Yisrael.
A bad marriage is not going to be magically fixed no matter how many people’s dreams are being fulfilled. That’s even truer when you throw in what can be the very toxic mix of financial pressures, cultural divides, separation from extended families and communities, loss of support, change of career paths and I could go on. I could go on even before I get into the quagmire of children – resentment at being taken away from their friends and extended family, out of a school they like and cast into a foreign environment. Have I mentioned navigating the Israeli school system?
Having said that the chances of a move to Israel fixing a bad marriage are practically nil, what are the legal pitfalls? Let’s say an optimistic spouse decides to give aliya a chance, and a last chance to fix the marriage, and after a year it’s clear that the plan has gone awry, and he/she wants to divorce. What happens then?
Let’s just mention first that the “sacrifice” made by a spouse in coming to Israel to enable his/her partner fulfill a lifelong dream, will not engender a sense of gratitude and non-acrimonious behavior from the spouse which he/she feels he/she deserves, given the sacrifice he/she just made. The divorce will be just as acrimonious as it would have been had it taken place abroad, and perhaps even more so.
Family Law in any country is a muddy swamp, and in Israel that is even more so, given the peculiarities of the Jewish State, and the powers given to the Rabbinic Court. Thus, one may find oneself not simply navigating a foreign court system, but a Rabbinic Court in which an unscrupulous lawyer for the other side, might, for example, claim that despite 22 years of marriage and sacrificing her career to dedicate herself entirely to husband and children, she should leave the marriage without a penny to her name. I’m not suggesting that such a claim is the law (far from it) or that every Rabbinic Court would deliver such a ruling, but principles and law are one thing, while what actually happens on the battlefield of a suit over marital property is another. Even if in theory parallel jurisdictions of Family and Rabbinic Court should yield similar substantive rulings, parallel jurisdictions create a gummed up system which some lawyers know how manipulate and milk to wage a war of attrition that one side, generally the one with more funds at his disposal, can use to wear down the other side.
There are also substantive differences between Israeli and the law in Canada and the US, so that, for example, there is no real alimony to speak of in Israel once you are divorced. Submitting to Israeli jurisdiction, whether in the Family Court or the Rabbinic Court, therefore generally means relinquishing the claim to alimony post-divorce.
But perhaps the most problematic issue has to do with children and place of residence. Just when the unhappy spouse announces to the other that he wants to return to their country of origin, and maybe has even enrolled the kids in their old school, he may find himself hit with an injunction preventing him with taking the kids out of the country. And, he may find that since they made aliya, became citizens of the State of Israel, Israel is now considered the children’s regular place of residence and they can’t be relocated back to the United States, Canada, or anywhere else on the planet without a long and expensive judicial proceeding. Or, at the end of those proceedings the judge will actually decide that staying in Israel is in the best interests of the children.
Put simply, a person who thought he was only agreeing to a trial period in Israel, or that there was a tacit agreement that the family could return to the country of origin if the move was not to everyone’s satisfaction, may find these informal understandings have flown out the window and that what he thought was a trial run in a new country, has in fact turned into a commitment which requires either separating physically from one’s children, or making a go of aliya, despite the fact that his heart is not in it.
As with property, so too with children there may be a distinction in how the Family Court and the Rabbinic Court deal with issues of custody, schools and even neighborhoods of residence. In cases in which there are discrepancies in the level of religious observance of the parents, the Rabbinic Court may tend to favor the more observant parent, and rule in his favor regarding schools and other related subjects.
All of the above – and more – are issues to take under serious consideration before undertaking aliya. For those of you who have hung in until the end and aliya is a move you still want to try despite a shaky marriage and despite the potential complications, then you must consult with legal counsel in your country of origin and make a binding agreement with your spouse regarding place of residence of the children in the event that aliya is not successful, and jurisdiction over property matters should the marriage not survive aliya. I am well aware that raising the issue of agreements can be a risky business in a shaky marriage, but the emotional costs of doing so prior to aliya are generally far less than waiting for an explosion post-aliya when financial resources are generally low, and one is without the support of family and community.