The suspension injunction to exit territory during a divorce procedure
In most cases where spouses are facing a divorce, there is a doubt that one spouse can flee the country to put in danger the property’s division or avoiding payments, and even with the purpose of misappropriate property in his possession abroad.
When a doubt is existing that one of the spouses can flee the country, there is an obligation to file a request to the family court or the Rabbinical court (depending on how the claimant intends to conduct his divorce proceedings) for the purpose of obtaining an exit injunction from the territory against the second spouse. When there is a clear knowledge that one of the spouses is about to flee, it is possible to file this petition even before the filing of the petition for divorce.
Even under the new law, the Law on Dispute Resolution in Family Disputes (Temporary Provision), 5774 - 2014, provides for the period during which an attempt will be made to settle the dispute and during which it is not possible to file subpoenas, authorizes the filing of a request for an injunction suspending exit from the territory in view of the importance of preventing a situation where one of the parties escapes from Israel and against whom it would not be possible to execute and use a judgment against him in the judicial proceedings.
Frequent situations in which a request for suspension of exit is filed
The will of one of the parties to flee Israel in order not to give or receive the Guet : The suspension injunction to exit territory will be use to insure a correct execution of the divorce procedure. For example: Flee abroad and let a woman “stuck” with no peace attempt at home, to move away some common assets and conceal property, move children away and move them in another country
Ensuring alimony – The suspension injunction to exit territory has as purpose to prevent one of the spouses or one of the parents (most of the time the father) to run away from Israel to avoid being forced to execute the judgment ordering him to pay the alimony
In the event of non-fulfillment of the obligations regarding the property’s division and the resources’ balance: the injunction suspending departure from the territory to prevent one of the spouses from fleeing Israel and withdraws from the execution of payments as such or other payments for which he is a debtor or for the purpose of diverting assets in his possession abroad.
In the event of kidnapping minors – the injunction suspending departure from the territory will serve to prevent a situation where one of the spouses is kidnapping minors and move them abroad, which cause serious harm to children and parents in Israel who has to start expensive and complicated procedures to bring back their children.
The filing of the request is attached to the opening of a file with the Family Court where will be filed the request for suspension of exit from the territory and the payment of the tax, as well as the deposit of a personal guarantee, a caution and often, a guarantee for the purpose of covering the damage that would be caused to the person against whom the injunction is made, in case of there was no reason to made such a request against him from the beginning . After the filing of the request, a copy is sent to the second party to obtain a response.
In the past, the suspension injunction to exit territory was considered as a constraint way to help to use their material right. This vision changed in the last few years in the Israeli law, especially with the legislation of the Fundamental law. The fundamental law is: Respect of the person and his freedom states that every person is free to go out of Israel and for that a court cannot deliver that suspension injunction to exit territory easily.
The court will consider the following parameters
The existence of serious proofs which from their origins are a real motive for juridical action. The request for the suspension injunction to exit territory is filed as an interlocutory request in a main procedure. Moreover, if it is a futile action without cause, the Tribunal will not deliver an injunction suspending exit from the territory.
That there is a reasonable doubt that the party against whom the request has been lodged is about to leave the country definitively or for a durable period, and that this seriously affects the execution of the procedure or the execution judgment.
Consideration of integrity: did the plaintiff of the injunction behave in good faith in his attempt to prevent the defendant from leaving the territory, and, if there was reason to a less offensive temporary measure to preserve the plaintiff's rights to the injunction, such as a seizure and all that follows.
A man who has a suspension injunction to exit territory against him can file an annulation request and even propose a suitable caution for his commitments. The court will consider in this case, the nature of the danger to preserve this suspension injunction to exit territory and can set the required guaranties to remove the suspension injunction.
Considering that the Israeli courts seriously take the suspension injunction to exit territory in consideration since it’s undermines the freedom to go out of the country and considering that the condition to obtain such a restriction injunction are very strict, it’s better than the requester of this suspension injunction will be represented by a lawyer in front of the Family court and the Rabbinical court and this regularly in front of those courts.