Every minor child in Israel who is not yet able to earn a living independently has the basic right to receive child support, whether or not the child’s parents are living together, are separated, or are divorced. Violating this right may be considered a violation of the Basic Law: Human Dignity and Liberty.
Section 2 of the Family Law Amendment (Maintenance) Law, 5719-1959 states that maintenance of the wife is required based on the personal law: “A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him,” says the law. Therefore, a woman who is married according to the Jewish religious practices is liable for alimony.
Nonetheless, the case law in Israel has established the right of every woman to receive alimony, even according to the civil law, based on the contract that stems from the couple’s joint life, regardless of the personal law.
Section 12 (a) of the Family Law Amendment
(Maintenance) Law, 5719-1959 stipulates that an
agreement in which the maintenance of a minor child is waived does not bind the minor child unless it is approved by the court.
Problems with paying child support
may rise when the couple does not agree on the amount of child support, or when one of the spouses wishes to change the amount of child support that was agreed upon or to postpone a payment due to financial difficulties (such as payment of rent by the father who has left the home to the mother and children, or the closing of a business or a company owned by the father) or some other reason that justifies, in his or her opinion, a change in the amount of child support.
The jurisdictions regarding child support in Israel are the family
affairs courts.
The courts determine the amount of child support based on the income of
both parents, the parenting plan regarding custody, the standard of living to
which the children are accustomed, the needs of the children, and the general
benefit of the children as the courts see fit.
WAIVING CHILD SUPPORT
One of the reasons for agreeing to a lower amount of child support or
even completely waiving it is the wish to reach a divorce and to go on with
life and remarry. In some cases, the father uses this to further his own
interests in the divorce agreement. Sometimes the difficulties that the father
raises are meant as a punishment or revenge for his wife’s wish to divorce him
and the feelings that the divorce causes in him. Essentially, it is important
to understand that, like in every other issue in a divorce, if the parents
disagree regarding child support, the children are the ones who suffer.
There are many rulings that are intended to protect the wife from
waiving or agreeing to a ridiculously low amount of child support. In fact, the
courts view the mother as the one who is obliged to demand support for her
children.
Child support is the child’s right, not the parent’s, so any agreement
between the parents or even any judicial ruling on this issue must take the
child’s needs into consideration if it is to be valid and binding. The the
amount of child support may only be changed if circumstances have changed to such a degree that justifies taking this measure.
The case law in Israel does not tend to approve the waiving of child
support in divorce agreements. Even if it seems that the wife willingly agreed
to this, an agreement containing this decision is not considered lawful and
does not bind the children. This means that, if the mother waives child
support, the children have the right to file a lawsuit against her decision
later on. Waiving child support is illegal and, therefore, claiming that this
was agreed upon by both parties has no legal effect.
One of the main Supreme Court rulings on this issue states that failing
to pay child support is a violation of public policy and of the Basic Law:
Human Dignity and Liberty. This important ruling gives recognition to child
support as a constitutional right and states that abandonment of a child to
neglect and hunger is a violation of human dignity (in Civil Appeal no.7038/93).
This important ruling has enabled instituting the civil obligation to
provide child support. The chief justice of the Israeli Supreme Court at the
time, Meir Shamgar, wrote in his ruling that the plaintiff must bring evidence
of the personal law that applies to them and that, if this is not possible,
there is room to follow the provisions of the law mentioned above. Shamgar further states in the ruling that the court cannot be silent and refrain from a set system of rules when these rules were originally intended to be used in circumstances where there is no other proven criterion.
The civil obligation to provide child support is also evident from the
December 2003 Supreme Court ruling by the chief justice at the time, Aharon
Barak. In this ruling it was stated that a Jewish couple who was married via a
civil marriage ceremony in Paraguay and whose marriage was approved in Israel would be obligated to provide child support under civil law (Permission for Civil Appeal [PCA] no. 8256/99).
At first, the family affairs court dismissed the woman’s claim for child
support due to the invalidity of the marriage, which had not been conducted
according to the Jewish religious law, which was the personal law of the
spouses. Because the couple was Jewish, the law that applied to them regarding child support and marriage was the Jewish religious law.
An appeal to the regional court was dismissed, as well, due to the fact
that the couple was Jewish and, therefore, the law that applied to them
regarding child support was the personal law under the Family Law Amendment (Maintenance) Law.
The Supreme Court decided to accept the permission for appeal and
returned the case to the family affairs court for a decision on the amount of
child support that the woman should receive.
EACH CASE ON ITS OWN MERITS
Of course, there are always exceptions to the rule. The court may
approve a waiving of child support in very specific cases, such as if the woman
wishes to waive child support due to the father’s poor financial situation, or
if the woman is financially much better off than the father and the difference
in their salaries is significant. However, even in such cases, if the mother
decides later on to file a claim for child support through her children, the
court will tend to reverse its previous decision.
This was the case in an appeal that was filed to the Supreme Court
against a regional court ruling. In this case, the woman had signed a divorce
agreement at the court in Ashdod in which she waived child support due to the
father’s poor financial state. In the agreement it was stated that the court
was considerate of the father’s financial situation and therefore exempted him
from child support payment, and that, if the woman ever decided to file a claim
for child support with any court and received the court’s approval, she would
return the amount to the husband.
After the divorce, the woman filed a claim for child support on behalf
of her children. She claimed that she had signed the divorce agreement, despite the fact that it required her to waive child support for her two daughters of which she had custody, due to pressure from the father. At first, the Jewish
religious (Rabbinical) court dismissed her claim. She then filed an appeal to the family affairs court in Nazareth and her appeal was accepted. The court decided that the father was obligated to support his children. The divorce agreement in which the mother had waived child support for her children did not bind them and was not valid regarding the children. The court further decided that the mother’s obligation in the divorce agreement to return the amount of child support to the husband was invalid.
An appeal to the regional court against this decision was dismissed, as
was the father’s appeal to the Supreme Court.
The Supreme Court confirmed the decision of the Nazareth family affairs
court according to which the father was required to pay child support in the
amount of 2,000 ILS a month (Family Appeal Request no. 11444/03).
Justice Ayala Procaccia wrote in her ruling that the request had to be
dismissed; that the courts that had previously decided on this case applied
well-grounded laws to it, according to which minor children shall not be bound
to agreements between their parents to which the children were not a party if
this may go against their benefit. Procaccia further wrote that these courts
had applied the common attitude regarding compensation agreements between parents, according to which, if following the agreement goes against the benefit of the child, the agreement may be nullified due to public policy, and
that the court decision was that, not only did the daughters have nothing to do
with the divorce agreement waiving their right to receive child support from
their father, but the mother’s obligation that was included in the agreement to
compensate the father for the amount of child support was invalid, as well,
since it would nullify and empty the father’s obligation to provide child
support for his daughters.
CHILD SUPPORT WHEN THERE IS NO CONTACT BETWEEN THE FATHER AND HIS CHILDREN
There are cases in which fathers refuse to make child support payments
due to the refusal of their children to visit them in accordance with the
custody decisions. In any case, the father does not have the right to decide on
his own to stop making child support payments so long as this decision is not
backed by the court.
However, even if there is zero contact between the father and children,
and even if the mother willingly waives child support, the child may one day
decide to file a claim, and the child’s claim has a high likelihood of being
accepted.
This was what happened, for example, in a Supreme Court ruling in which
the father was ordered to pay child support to his 14.5-year-old daughter
although he lived in London and had no contact with her ever since she was
born, and although the parents were never married.
Over the years, rulings have been passed regarding cases in which the
father was obliged to provide child support but the mother did not insist on
realizing this obligation due to her wish to leave the option open for a
relationship between the father and daughter. At one point, the parents agreed
to meet regularly and deposit a certain amount of money in a savings plan for
the daughter; however, these meetings never took place, nor were any savings
deposited for the daughter.
In a ruling from October 2016, Elyakim Rubinstein, Vice President
of the Supreme Court, stated: It seems that, since the minor daughter was left
with neither child support nor meetings with her father, from a general
“strategic” viewpoint the situation is unjust and justifies a third involvement.
It seems that, in these unfortunate circumstances, waiving child support on
behalf of the minor daughter as part of the divorce agreement, with the purpose of achieving the desired goal, is not in best interests of the daughter.
Rather, she ends up losing both the child support and the meetings with her
father, and it is therefore necessary to consider the consequences of this
result, which, in my opinion, undermines the agreement.
However, much depends on the context of justice, which
is considered by the court. In cases where child support is claimed due to a
“defiant child” (a child who refuses visitation), especially if parental
alienation has been proved, the court ruling may be completely different.
Thus, for example, in March 2022, the family affairs court in Tel Aviv-Yafo canceled the obligation of a divorced husband to support his wife after a failure to renew the relationship with the daughter even through a court intervention (Case Following an Information, Acquaintanceship, Coordination Meeting no. 55069-12-20).
In this case, the spouses separated following the father’s having become religious. After giving up on trying to renew his relationship with his daughter, the father filed a claim to cancel his obligation to provide child support in the amount of 3,000 ILS a month due to a “lack of contact”.
In the ruling, judge Erez Shani states: “First of all, not only is the mother an estranging parent and all the attempts have failed and the decisions on this matter are conclusive. Secondly, there is no more hope or chance after
exhausting all the options to renew the relationship between the daughter and
father. For all practical purposes, the father serves as nothing more than a
source of money to the mother and children, and his role as a father has no
meaning (except a negative meaning) in the lives of the children, including the
minor daughter.
Shani further states: This bad behavior will put a heavier burden on the victim to take care of the needs of the minor child. The alternative, to lower the amount of child support, will not contribute to the chance of renewing the relationship, as far as I have understood from the minor daughter, even concerning the daughter. This is due to the fact that, when lowering the amount of child support for the children, this did not contribute to their matter, nor have I found any real fault in the behavior of the plaintiff as having contributed to the lack of a relationship. If there is any other fault in addition to the minor daughter’s firm wish, it is the influence of the defendant and of the daughter’s brother which reinforces the daughter’s lack of a relationship with her father. Neither can there be an appellant, since the plaintiff has initiated many procedures, therapies, and lawsuits in an attempt to renew the relationship. The relationship will not be renewed. If I may say so, the question that interests the children is whether the father’s obligation to provide child support will be canceled; whether his wallet will be opened or closed. The father is, to them, nothing more than a wallet with a debt and has no rights.
The mother chooses not to work, and there is no doubt that the divorce has earned her an asset that is worth approximately 5,000,000
ILS.
It turns out that, to protect her right to alienate and the right of her children to alienate, the money is found to hire representative after representative.
Shani concludes the ruling by saying: I have not found
any real fault in the behavior of the plaintiff as contributing to the lack of
a relationship. If there is any fault in addition to the firm wish of the minor
daughter, it is the influence of the defendant and of the brother of the minor
daughter. There can be no appellant since the plaintiff has initiated many
procedures, therapies, and lawsuits in an attempt to renew the relationship.
The father is, to the children, nothing more than a wallet with a debt and has
no rights. Let’s put this clearly: when a main parent does not contribute to
the continuation of the relationship but acts to stop it, this may lead to
financial consequences.
To summarize this article, it is possible to waive child support in very certain cases, but these cases are difficult to predict and apply, since the right to child support is the right of the child and, even if the divorce contract signed by the parents states otherwise, this agreement does not bind the child in the future, and the mother may later file a claim for child support on behalf of the child. It is highly recommended to consult with a lawyer who specializes in family law regarding any doubts that you may have on the matter, and it is definitely recommended to receive legal aid throughout the process.
With the goal of achieving the best possible results in your matter, we highly recommend contacting a lawyer who specializes in the field—together
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