Divorce proceedings consist of the divorce itself and the granting of the get (which are within the exclusive jurisdiction of the rabbinical court) and the matters associated with the divorce, such as support payments, division of joint property, and child custody (which fall under the parallel jurisdiction of the rabbinical court and the Family Court).
Contrary to what many people assume, a divorce does not have to mean exhausting courtroom battles, shouting, quarrels, and endless skirmishes until a judgment is handed down, one that often fails to truly end the conflict between the parties.
In fact, it is possible, and of course far preferable, to conduct the process by agreement and in cooperation. To that end, the couple can negotiate through an attorney who practices family and divorce law, who will mediate between them and help them bridge their differences until they arrive at a divorce agreement, which will then be approved and given the force of a judgment.
What is a divorce by mutual consent?
Generally, a divorce can proceed in one of two ways: filing a divorce claim, or a divorce by mutual consent.
Filing a divorce claim means suing before the rabbinical court or the Family Court and conducting a legal battle between the spouses until a judgment decides their claims in favor of one side or the other. (Suggested reading: divorce proceedings at the rabbinate)
A divorce by mutual consent is the alternative to filing a claim and obtaining a judgment. It allows the spouses, working with an attorney, to reach agreements on all the matters related to the divorce and to anchor them in a divorce agreement, which is then approved and given the force of a judgment. That force matters: if the agreement is breached, it can be enforced through the Enforcement and Collection Authority, just like any judgment.
A consensual divorce therefore lets the spouses reach a divorce agreement on their own terms, with professional help, outside the courtroom, without handing a judge the power to decide their personal fate in a way they cannot control.
The negotiations over the divorce agreement can be conducted with each spouse represented by their own attorney who looks after their interests alone. It is also possible, and often preferable, to work with a single attorney who represents both spouses and looks after their joint interests, saving both fees and time.
This calls for an attorney who is not only knowledgeable and experienced in family and divorce law, but who also brings real emotional intelligence and proven ability to mediate between the couple, helping them resolve their disputes in practice and close the gaps between their positions.
That said, remember that whether the route is a divorce claim or a divorce by consent, the couple must still appear before the rabbinical court for the divorce ceremony and the granting of the get, which remain within its exclusive authority, as noted above.
What are the advantages of a divorce by mutual consent?
There is no real dispute that a divorce by mutual consent has many advantages and is far superior to litigating a divorce claim, chiefly the significant savings in time, money, and emotional energy.
It is a much faster process than a divorce claim, and it lets the spouses show flexibility toward each other and reach an outcome acceptable to both, instead of a judgment that must decide between their claims and rule for only one of them.
Reaching a divorce agreement also spares the couple countless clashes and quarrels, often accompanied by mutual incitement and slander, which damage not only the spouses but above all their children.
Who is a divorce by mutual consent suitable for?
Despite its clear advantages, a divorce by mutual consent is not automatically suitable for every couple.
For the process to genuinely succeed, the couple needs certain basic qualities that will allow them to cooperate and reach agreements, at least on the divorce issues, even after concluding that it is better for them to end their marriage and go their separate ways.
Those qualities include patience toward the other side, giving them the time they need to form their position without being pressured; tolerance, respecting the other side’s different views and their right to hold opinions you disagree with; listening to the other side out of a sincere effort to understand what they want and why it matters to them; and of course the ability to compromise and to give ground where possible, while telling apart the issues worth compromising on from the issues where one must stand firm and cannot give in, since giving in on those may later breed frustration and a sense of injustice that can torpedo the agreement over time. For this reason, a divorce by consent is not for everyone.
Divorce by mutual consent: what does the divorce agreement include?
The end point of a divorce by mutual consent is a divorce agreement, which covers the actual consent to divorce and to the granting of the get, along with the related matters that need to be addressed, especially when the couple has children together and/or significant joint property.
To secure the divorce and the granting of the get, divorce agreements customarily state that upon approval of the agreement the spouses will sign the documents for a joint get application and submit it to the rabbinical court within a few days, and that they will do everything required to complete the get as quickly as possible.
The matters related to the divorce mainly cover the following topics:
Division of joint property
Where the couple has accumulated joint property, above all a shared apartment, they must agree on how the joint assets will be divided between them.
Support payments
Here the parties must agree on the payment of child support (and sometimes spousal support as well), in a fair amount that will genuinely cover the children’s needs.
Child custody and parenting time
The couple must decide whether one of them will have sole custody (usually the mother) or whether they want joint custody (which has become increasingly common in recent years). The agreement should set out where the children will live on regular days as well as on holidays and vacations. Keep in mind that child custody has a decisive effect on the amount of child support.
Resolving future disputes
A divorce agreement cannot cover every issue that will arise in the parties’ lives after the divorce, and disputes may come up over its interpretation or its practical implementation. It is therefore important to decide in advance how such disputes will be resolved, for example by turning to a mediator acceptable to both parties, whose decision will bind them both.
Approval of the divorce agreement
For the divorce agreement to take effect, it must be approved by the Family Court or the rabbinical court, under Section 2 of the Property Relations Law, 5733-1973.
Approval also gives the agreement the force of a judgment, so that if it is breached it can be enforced through the Enforcement and Collection Authority, just like any judgment.
That approval, however, is not granted automatically or as a formality. The court or tribunal must first be satisfied that the spouses signed the agreement of their own free will, that they fully understand its content and consequences, and that it is a fair agreement that does not shortchange either of them or their children.
