Many times changing social reality also changes the law.
We see this trend today in rulings about child support.
In recent years, a number of major changes have taken place that has significantly influenced rulings on child support.
The First: Women are becoming more integrated into the work force generally and earning salaries that are not below those of men.
The Second: There have been developments on the matter of custody, when in the past, in the absolute majority of cases, children were in the custody of mothers, whereas today it can be said that the default option is joint custody by both parents, and in many instances there is an equal division of time that the children spend with each of their parents.
In a situation like this, we are faced with cases in which the children are in the joint custody of both parents, (where the significance is that the father supports the children when they are with him), the parents have similar salaries, and sometimes even the mother earns more than the father, but the father is still required to make child support payments to the mother.
When the reality changes, the rulings change with it, and in this article we will survey the changes in rulings on this subject. It is important to point out that the process is in full swing and has not yet ended, although the trend is already clear. The existing legal situation on the subject of child support, according to the amendment to the Family Law (Child Support), determines that child support will be undertaken according to Personal Law.
In the event that Personal Law does not apply to the parents both parents will be bound to provide support for their children at a rate in proportion to their incomes. Personal Law applies to Jews through Hebrew Law, and every child support ruling according to Torah law sets that the father is required to provide the essential support for his children and this requirement is absolute. Above and beyond the essential needs, the mother is also required through Charity Law to provide from her income.
The new trend began with an approach by which rulings deducted 25% of child support following joint custody (guided by Haifa ruling 318/05). The ruling set that by Hebrew Law the liability for child support for minors is equal, and the obligation for the child's basic needs is imposed solely on the father and this principle does not change even in cases of joint custody and as judge Assaf Zagouri said (Tiberias 12107-04-10) "Joint custody will bring the recognition that the level of the payments must be reduced and its scale but not in its essence." Thus the ruling determined a 25% reduction, "With the aim of behaving with equality in so far as the matter can be reconciled with the Personal Law that applies to Jews." This solution was the prevailing ruling until the social situation required additional changes. As previously stated, as time passed the circumstances in which there was shared custody became more and more common, and the cases mounted up in which there was injustice in obligating the father for child support.
The changes began with certain and specific cases heard by Family Court judges mainly in instances of extreme scenarios. Although these are not precedent-setting rulings, and are not binding, they do reflect a spreading trend. Thus for example on 5.8.2013 Judge Yehoram Shaked (Family Case 49165-10-10) handed down a ruling which exempted a father from child support payments for his three children who are in joint custody. In this case the monthly income of the father was NIS 13,000 and the income of the mother NIS 18,000. Judge Shaked did not revoke the obligation of the father according to Personal Law to fully bear the essential needs of the children but set that the father bears parts of these needs of the children while they reside with him, and in addition, as well as the essential needs, the mother is obligated to make some of the payments because she earns more than him. Thus in the overall calculation and balance, it was ruled that each of the parents would pay directly for the children's needs during times when the children were living with them.
Other judges solved the problem by analyzing Hebrew Law practice and reaching the conclusion that the liability of the mother must be enforced from Charity Law from age 6 and onwards (and not 15 onwards), and in this way reduced the harm to equality so that for example Judge Weizmann (Family Case 2805/04) said, "In exceptional cases, where presumably fully imposing the burden of child support would bring difficult and unfair results, it is proper to make use of an approach that sees the regulations of the Chief Rabbinate (1942) as a standard based on Charity Laws."
Judge Yaakov Cohen found another legal solution to the problem. He ruled that the liability under the provisions of the Child Support Law apply to a Jewish mother if Personal law exempts her from child support, if the law applies to her that rules that child support applies to both parents in proportion to their income. Thus the mother is liable under the Child Support Law to support her children for the period that she has been exempted from Personal Law. That is to say the instructions of the law are designed to add to the positive of child support applying according to Personal Law, and are also applicable to whoever is subject to Personal Law, however, according to Personal Law are exempt from payment.
This approach too by Judge Cohen is an attempt to adapt the law and its ruling to the changing reality and correct the injustice caused in certain cases due to Personal Law.
The District Court has not yet handed down its position on the matter and thus many judges still obligate the father to make child support payments to the mother even in cases of joint custody although the trend is clear; rulings are moving towards equality between the parents and Personal Law sets absolute liability in the essential support of the child on the father, in accordance with the reality that prevailed in the past, but is not necessarily suitable to the reality existing today, in which the burden of looking after the children is divided equally between the parents, and work outside the home, and the level of the parents' salaries is also equal, and sometimes even in favor of the mother. In cases like these, the principle of equality and principles of justice require a change in prevailing case law, in the form of this interpretation or another of Personal Law, whether in the form of child Support Law with the mother exempt according to Personal Law, or whether in any other way, which will bring equal and fair results.
The author is Founder and Manager of Divon & Co. Law Offices.