Nature of the duty to pay wife’s alimony – Jewish law imposes on the husband the duty to pay the wife’s alimony, when they are married in accordance with Jewish law, as part of the overall system of mutual rights and obligations between them.The husband’s duty to pay his wife’s alimony arises from the fact that they are married to each other in accordance with Jewish law and this is expressly reflected in the wife’s marriage contract (ketubba).The duty to pay alimony to the wife terminates according to Jewish law, in circumstances where the wife is not entitled to her ketubba and, naturally, upon the dissolution of the marriage bond and the granting of the divorce by the husband to the wife.
The duty to pay alimony can also arise by agreement. Thus, for instance, an agreement between common law partners can incorporate a provision pursuant to which the man undertakes to provide for the woman’s maintenance, and a divorce agreement can also incorporate the duty of providing for the wife’s maintenance on the part of the husband to the wife after their divorce.These payments are sometimes referred to as “periodic payments” since the term “alimony” refers to maintenance paid under the personal law only.
In recent years the courts have recognized an obligation on the part of a common law partner to pay his partner’s maintenance and the obligation of a spouse to pay maintenance to his wife, to whom he is married in a civil marriage (not in accordance with Jewish law) but this issue will not be dealt here (see “alimony in common law relationships”).
The extent of the obligation to pay a wife’s maintenance – The extent of the obligation to pay a wife’s maintenance is comprehensive and is reflected in overall needs at the maximum rate in accordance with the standard of living to which the wife has been accustomed with her husband before the outbreak of the dispute between the spouses.
As opposed to the duty to pay child support, where there is a distinction between the minimum and enhanced maintenance (see “child support”), a wife’s alimony includes all the wife’s needs as she has been accustomed to in her husband’s home, including: Food, residence and residence maintenance costs, clothing and footwear, cosmetics, medical expenses, vehicle and/or travel expenses, vacations in Israel and overseas, recreation, culture, courses, mobile telephone, newspapers, books, gifts and the like.
Determining the standard of living – Case law prescribes several rules for determining the basis of the standard of living led by the couple on which the wife’s maintenance is to be based.The court examines how the specific couple lived beforehand; for instance, whether the couple went on vacations in Israel and overseas and how often.The type of the apartment in which the parties reside, taking account of its size relative to the number of people residing therein and the residential neighborhood whether or not the parties went out (restaurants and coffee shops, theater country club membership).How many cars do the parties have? What type?What are the couple’s buying habits ?
The husband’s income – Concurrently with examining the wife’s needs and the standard of living to which she was accustomed, the court also examines the husband’s income, earning power, resources and property of any nature.The Supreme Court held, that if the husband’s income does not allow him to pay the wife’s maintenance as she was accustomed, he must even sell his property in order to pay his wife’s maintenance.The examination of the husband’s earning power is made from a broad perspective, analyzing whether the husband utilizes his earning power to the fullest.
Thus, for instance, a husband who during the legal proceedings decreased the scope of his work and reduced his income, the court will examine his earning power from the perspective of his ability to utilize his skills and increase his income, and, accordingly, the maintenance will not be determined solely on the basis of his present position, and the total potential of his earning power will be taken into account.
Furthermore, in cases where the husband claims to earn a low income which is not compatible with his occupation, property, standard of living and the couple’s residence, and, in general, in cases where the husband’s income is not accepted by the court, the assessment of the husband’s economic capability, for the purpose of determining the amount of the maintenance, will be determined on the basis of the standard of living that was led by the parties.In such event, the burden of proof is transferred from the wife (the plaintiff) to the husband (the defendant) and he has to prove the amount of his income.
Therefor, when determining the amount of maintenance the court must strike a balance between the needs of the wife eligible for maintenance and the capability of the husband who has to pay the maintenance. The court has to also take account of the husband’s needs.
Cancellation of the maintenance – when? As stated above, Jewish law imposes upon to provide for his wife so long as they are married.However, there are situations where, under Jewish law, the husband will be exempt from the wife’s maintenance even before the termination of the marriage. Thus, for instance, in the case of a woman who was unfaithful , the husband is exempt from maintenance, since the wife loses her ketubba and ketubba supplement.In such eventes, the adultery constitutes exemption under Jewish law, and it also applies in the civil courts.
When the wife is declared “rebellious” (namely, a woman who refuses to have intimate relations with her husband) by the Rabbinical Court, the civil court can accept such a declaration as part of the husband’s defense and may exempty the husband from his obligation to provide for his wife.
Another example of exemption from maintenance is where the spouses do not live together, since the obligation to pay maintenance applies to the husband when the married life is conducted normally.When the wife leaves home without a justifiable reason, the husband should not be obligated to provide for his wife.However, if the wife is forced to leave home due to the husband’s behavior, and her claims are true, the wife’s right to receive maintenance from her husband is not adversely affected.
A working wife – Jewish law states that the wife is not obligated to work outside the home. In the event of a woman who works outside her household, her “own work” comes in lieu of her maintenance, namely, her income constitutes of her maintenance, and the husband is entitled to treat her “own work” as if it were her maintenance.However, in the event that the wife’s “own work” is not sufficient to finance her needs in accordance with the standard of living to which she has been accustomed, husband is obligated to supplement her maintenance.
Although the wife is not obligated to work outside the house, in cases where she stopped or reduced the scope of her work, the court will examine whether the reason stems from the legal proceedings, the motive being the wish to apply economic pressure on the husband, or that the termination of the work was caused by an outside event which is irrelevant to the legal proceedings.If the court is convinced that the wife terminated her work in bad faith, in order to put her hand deep into her husband’s pocket or just to spite him, the court would deviate from the rule to the effect that the wife is not forced to go out to work.
Temporary maintenance – The purpose of temporary maintenance is to preserve the status quo as it was on the eve of the initiation of the legal proceedings between the spouses.Accordingly, it is neccessary to present to the court a picture of the lifestyle, but there is not always sufficient external evidence to describe the actual standard of living. Sometimes genuine economic difficulties or changes in needs accur at the time of the matrimonial crisis or in consequence thereof – all of which make it very difficult to determine temporary maintenance.
The amount of temporary maintenance is often highly significant since it determines the “breathing space” for each of the parties during the legal proceedings.A wife can find herself in an inferior situation to the extent leading her within the framework of a divorce negotiation, or during a lengthy litigation, to waive the rights coming to her, in cases where she was awarded low temporary maintenance or non at all.On the other hand, it should be taken into account that the award of particularly high maintenance, which is likely to lead the husband into debt or inability to function economically, is also an inappropriate situation, which may lead the husband to make exaggerated concessions as a result of the economic pressure applied on him.
It should be noted that there is a flaw in the logic behind the maintenance of the status quo since expenses usually increase in view of costs of the legal proceedings, private investigators and, naturally, due to separate dwellings.
At the Law Offices of Nava Peres, we adopt an individualistic approach, raising creative ideas suited to the specific case (on the basis of the economic situation) while maintaining a broad perspective of all the circumstances, examining mutual implications among the various issues raised and offering focused solutions suitable for such parties.