One of my earlier blogposts was entitled Aliya and Shaky Marriages, about the pitfalls of making aliya in the hope of saving a bad marriage. (Spoiler alert: it’s a bad idea).
A recent decision by Judge Rivka Makayes of the Family Court in Petach Tikva, emphasizes yet another, highly problematic aspect of the move to Israel; specifically, when one spouse cynically plans the move to exploit tactical advantages in a legal battle with the other spouse, a battle which he or she has planned, but (obviously) conceals from the other partner. It’s actually a really crass and cynical attempt at forum shopping.
The case before the court was brought by a woman who lived in the United States with her husband and family. The couple went through a crisis and the marriage was pretty much on the rocks. The husband suggested to the wife that they come to Israel for a six-month trial period, in order to engage in counseling, and get the wife away from her lover in the States.
They had return tickets, and there were clear objective indications that the wife understood they weren’t here to stay. Nonetheless, after about two or three months in the country, the wife and minor child applied for Israeli citizenship, which, according to the wife’s testimony, was a result of the husband having convinced her they needed to do this to be eligible for health insurance. At around the same time their citizenship came through, the mother was served with a divorce suit from the Rabbinical Court, attached to which were suits for property, spousal support, child support and child custody.
Obviously, anyone stuck in a country where they don’t want to be – in which they had no plans of living for more than six months – is in a lousy position when hit with a lawsuit like this. At the outset the playing field is not level, since she wants to leave and get back to her home. Consequently, regardless of where something like this happens, she is going to negotiate an end to the suit on conditions that are less than favorable to her.
When this happens specifically in Israel, a woman who has never worked or has little earning power is at a distinct disadvantage, since in Israel, there may be no spousal support before the divorce and certainly no alimony with the dissolution of the marriage. Often, there is no spousal support at all if the husband has serious grounds for divorce, which is the case where there is adultery. So, here is a case where the husband – apparently a successful lawyer with property, and knowledge and control of all the family finances – might be free of any obligation to pay spousal support or alimony, which in all likelihood would not have been the case had the divorce proceedings taken place in the United States.
The punch line here is that the wife never worked out of the house and was basically entirely dependent on the husband for money. In addition, the husband’s assets were primarily in the US.
The couple had a number of children over the age of 18 and only one minor child. After the woman had been served with divorce papers from the Rabbinic Court, she notified the court that she had to go to the States to see her elderly father. From the US, she filed in the Family Court in Petach Tivka, and petitioned under the Hague Convention of the Civil Aspects of International Child Abduction (which has been enacted into legislation in Israel) for the return of the child to her regular place of residence – meaning the United States – saying that the child had been unlawfully removed from the United States.
Judge Makayes’ decision focuses on the last point in time at which one can point to the common intention and agreement that existed between the parties. Based on a previous Family Court decision with somewhat different circumstances, she made the point that joint intent cannot mutate and change based on a unilateral action of one of the parties.
In this case, the last time this couple had a common intent was when they left the United States to travel for a period of six months to Israel, intending to return to the US on June 30, 2014. The judge found further, that the husband had deliberately misrepresented his intentions – including his alleged desire to enter into counseling to try and save the marriage – in order to ensure that he wouldn’t have to adjudicate the conflict in the United States, where the bulk of the assets are located.
The child was ordered returned to the United States, and in case anyone wasn’t sure how the judge really felt about the case, the husband ordered to pay 50,000 shekels in court costs, very high by local standards.
This decision shows, once again, that despite whatever chatter there is out there about Israeli courts being reluctant to return children to other countries, this is patently not the case from any reasonable review of Hague Convention cases before the Israeli Family Court system. This decision is particularly important – and very much in line with Judge Makayes’ work and thinking first as a lawyer and then as a judge – in understanding the power dynamics in a marriage, and the difficulty in ascertaining when one or another party actually gave full informed consent to a decision basically imposed on them.