International Divorce

 

International divorces are those that have at least one international element. This element may vary between the nationality of one of the parties, the country where one of the parties is, the country where the couple’s children live, and so on.

International divorces can be extremely complex. For example, in certain cases, even when the case is in Israel, in the Israeli justice system, Israeli courts must apply the law of another country. In other situations, the judicial process must be conducted by the courts of two different countries together. This is because each spouse tries to benefit from the legislation of their country of origin or the law of a country that according to international laws, has jurisdiction over the divorce process.

Israel’s family law is heavily influenced by many articles from private international law. It is good to keep in mind that when we are talking about family law, we are talking about the financial relationships between spouses, for example, rules on child support and custody of children, rules of jurisdiction, etc.

Due to the influence of international law, Israeli law regulating financial relations provides that in cases of sharing of assets between spouses, the law to be applied must be that of the couple’s country of residence at the time of marriage. Thus, even for Israelis who were residing in Israel and went to Cyprus to get married, the law to be applied in the divorce and property-sharing process will be Israeli law. In the case of a couple of immigrants who made aliyah to Israel and were married abroad before immigrating, if they decide to divorce while residing in Israel, the divorce proceedings will be subject to, and will be done in accordance with, the laws of the country in which the couple were joined in marriage.

In another relevant subject, the Israeli legislation on family law establishes a reverse rule regarding the determination of the value of a child support. In such cases, the law to be applied is the law of the country where the minor resides.

Is the Israeli court then composed of super judges who know the laws of all other countries? No. In order for the law of another country to be applied correctly, it is necessary for each international divorce proceeding to be accompanied by a lawyer specialized in the law of the country in question. This legal advice provided to the court, and required by it, is the responsibility of the parties in cases of divorces where there are international elements.

Two actions with identical subject-matter transiting in courts of two different countries is another variation and example of an international divorce. To illustrate the situation, imagine a French couple with children. At some point they decide to immigrate to Israel with their children. Months after arriving in Israel the couple unfortunately opts for divorce. The children’s father returns to France and the mother decides to continue in Israel with the children. Two divorce proceedings are then opened by the parties, one in France where the husband demands divorce and the child support is set, and the other in Israel where the wife asks for the same as well as the custody of the children. Which court has jurisdiction? The French where the family lived most of their lives or the Israeli court where the wife is with her children? And what if there is a divergence in the decision of these courts?

Still on the above case, we must make clear that the law is not rigid, it must be adapted to the reality of society both in a country and international society. With globalization, cases like this are frequent and the courts must decide.

In such cases, if there is no existing marriage agreement between the parties, the court will decide on the jurisdiction. And how to do it? After all a legal decision must be issued. International lis alibi pendens are the key to this impasse. This is a tool of private international law used to prevent the issuance of decisions by courts in different countries that may come up against them. This tool is also used to enforce a judgment of a court in another country. Through this tool, the judge decides on the jurisdiction of a case and, when necessary, relinquishes it to another court that believes it is more appropriate and also processes a case on the same matter.

And how to make a decision of a foreign court be enforced in Israel? A law for such cases exists in Israeli law, but one must file suit in a court of law to make it happen.

And in cases of a couple having a stable relationship? Some countries, such as Israel, recognize the stable union, others do not recognize, or the couple must undergo a civil process to guarantee their rights. What to do in such cases?

Divorce is already extremely delicate and usually comes with a complex and exhausting legal process. Now, add to all this the rules of international law, rules of jurisdiction, conflict of laws of two or more countries, conflict of court decisions, and execution of the same. Such a process requires knowledge and skill and must be accompanied by a qualified, competent professional.

If you are in a situation like this, we suggest that you seek counseling with a lawyer who is prepared to deal with cases of this nature, it is not just any lawyer who can assist you. Do not be satisfied with the help of an acquaintance or a friend, seek qualified help. Sometimes many problems can be avoided with a simple nuptial agreement, all you have to do is follow the advice of a competent legal professional.

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