Question:

What level of proof is needed to win a case in family law ?

Answer:

Family Law is a branch of civil law and accordingly the person bearing the burden of proving their case before the court has to do so on the balance of probabilities i.e. to a 51% degree of certainty. 

Question:

Can the family court decide in a party’s favour on the basis of the testimony of only one witness ?

Answer:

Yes. The sole evidence can be that of either the plaintiff or respondent/defendant but, according to the Evidence Ordinance, if the court bases its ruling on either of them it must give reasons for doing so in its decision/judgment and there is no supporting evidence.

Question:

How do courts view inconsistencies in testimony ?

Answer:

Where a party’s testimony at various stages is full of inconsistencies this will have a negative effect on his/ her credibility.

Question:

For what kind of legal acts must one have written evidence to prove one’s case ?

Answer:

According to the Ottoman Civil Procedure Act – one of the legal vestiges of Turkish rule - the following legal deeds must be proved by written evidence: obligations, agreements, partnerships, fixed prices for a job or loans. This is so where it is accepted practice for them to be set out in writing.

There are exceptions listed in the act. They are :

1. in proceedings between husband and wife, brothers and sisters, children and parents and family.
2. where exceptional circumstances beyond their control prevented a written agreement being made.
3. where a written agreement was made but lost – and the loss was not the debtor’s fault.
4. where the legal act was performed in a place where no-one knows how to read or write.

Case law has fleshed out the above provisions – and only a little  written evidence is needed to fulfil the conditions, with oral evidence filling in the gap.

Question:

My marriage is in pieces . I am seriously considering divorce and even filing for custody, maintenance and my financial rights without divorce. My husband is very cunning . He is self-employed and earns a lot of money ‘on the side’. His true income just would not show up on any official bank statements etc. I am afraid that I would get a bad financial deal because I couldn’t prove his true income and wealth. Am I right ?

Answer:

Firstly, as a rule the family court is much more flexible about accepting evidence than other courts. The 1995 Family Courts’ Act says that unless stated otherwise, the family court can digress from the 1984 Civil Procedure rules relating to evidence. It says that the family court can ‘ behave in the way it considers best’ to make the proceedings and result ‘ just’. Thus, if a wife is trying to prove her husband’s income as part of a maintenance claim she is filing, the family court can accept evidence that might be unacceptable in other proceedings .

Question:

If a person living outside of Israel is involved in legal proceedings inside the country can he/she give an affidavit abroad if needed ?

Answer:

Yes. Under the Civil Procedure Rules it is possible for a person involved in legal proceedings, either as a party or a witness for one side, to give written testimony abroad. It may be given before an Israeli diplomat or consul abroad or authorised by one of them after being given according to local law. 

Proving Loan Between Family Members

Question:

How can one prove a loan between family members ? 

Answer: 

A loan between family members, including spouses, can be proved by any acceptable means of evidence, and there is no legal requirement for written proof. So summarized the Kfar Saba Family Court in September 2003.

Question:

How can someone who is hearing – impaired and cannot speak normally give evidence in court ?

Answer:

A hearing-impaired person who is unable to speak, or who has difficulty in doing so, can give evidence via an ‘interpreter’ who understands the sign language of the deaf / hearing-impaired.

Question:

How can someone who does not understand or speak Hebrew give evidence in Israeli court proceedings ?

Answer:

Via a translator. The court can order one present, or the party bringing the witness can arrange it.

Question:

I think my husband is trying to destroy or hide documents relating to his property deals. This documentation is vital to property proceedings I have brought against him at the family court. What legal action can I take to get hold of these documents ?

Answer:

It is possible to apply for an ‘Anton Piller’ order . This is a special order which allows documents to be seized where there is a danger that the other side will destroy or hide vital evidence.

Question:

I am defending a plea filed in an Israeli family court for an increase in child maintenance. I live abroad. Due to a heart problem I had to give up work temporarily and can now only work part-time . I have documentation from the hospital and my doctor about this. Can this evidence be used in an Israeli court ?

Answer:

According to the Evidence Ordinance an Israeli court can accept as admissible medical documentation in the form of a medical certificate or opinion from an expert conducted abroad provided that it is accompanied by appropriate authorisation from an Israeli Diplomat or Consul abroad . The authorisation must attest to the genuinessness of the signature and state that the person providing the documentation is subject to criminal proceedings according to local law if he lies.

Question:

Can one call one’s own expert witness if the family court has already appointed its own ?

Answer:

Not without special permission.The Family Courts Act of 1995 specifically states that once the court has appointed a neutral expert (e,g. social worker or psychologist ) then the parties will not be entitled to bring additional evidence from an expert of their own unless they are specifically granted permission.

Question:

How can a child feel comfortable to give evidence in proceedings at the family court if his parents are present ? 

Answer: 

The Family Courts’ Act of 1995 specifically states that a minor can give evidence without anyone being present (e.g. privately in the judge’s chambers), or in the presence of a person/people the court specifically allows to be present . The court can stop hearing evidence or avoid asking the minor questions if it considers that this is likely to cause him harm. Often children are interviewed by court appointed professionals such as social workers or psychologists, and do not have to actually have any encounters with the court or judge. 

Question: 

Can a side to legal proceedings give evidence abroad rather than flying to Israel for a hearing ? 

Answer: 

In general someone giving testimony in a family law case held in Israel must be available for cross-examination in court over here. The idea is that this allows the court to get an impression about the witness and the credibility of his testimony. It has been accepted that sometimes there is a need for witnesses to give testimony abroad (e.g. if they are too old or sick to travel etc). The main factors influencing whether to a witness to give testimony abroad are:
a) the reasons given for not being able to attend proceedings in Israel
b)the genuineness of the request and
c) how central or important the testimony is to the case.

The family court has started to recognise the importance of exploiting modern technology and allowing testimony abroad by conference video, although this is still the exception rather than the rule. In one case it allowed a mother living abroad who had brought property proceedings in Israel to give testimony via video. She feared that if she set foot on Israeli soil she may be unable to return to the United States and she would be cut off from her young children. The court allowed a representative of each party to be present at the video testimony session.

Questions

Key witnesses in family law proceedings I have initiated are too frightened to travel to Israel for the hearing because of the security situation. Is there any way of using modern technology so that they give testimony abroad that will be acceptable here ? 

Answer: 

Yes ! The Supreme Court has held that modern technology , including conference video, now facilitates the recording of witnesses giving testimony abroad which can be heard in Israel, thereby giving a fairly clear picture of the credibility of a witness when his cross-examination is recorded. When the security situation is bad, a request can be made to hear evidence this way. 

In February 2003 , at the time of the 2^nd Intifada in Israel, and the anticipated American invasion of Iraq, when the security situation was bad, the Supreme Court backed up a decision made by the Tel Aviv District Court to allow an employee of a German bank to give evidence abroad via Video-Conference. The deceased's wife had asked to cross-examine the employee on his affidavit, but the bank claimed that he could not attend because of the security situation in Israel, and asked the court for the cross-examination to be carried out by video-conference, or at the Israeli Consulate in Berlin. She filed  the Supreme Court for leave of appeal against the decision allowing video-conference cross examination– but lost.

Question:

My children and I have been victims of my husband’s bullying for years, although I have never filed any complaints anywhere about his violence, which was mainly emotional, but sometimes physical. After finally going to therapy I realized what a negative effect he has been having on all of us. I am considering taking legal action regarding custody immediately – and possibly divorce. I am worried that if he denies his behaviour the court will believe him (he can put on an act). I do have one letter he wrote recently, apologizing for his behaviour over the years, in which he admits to bullying , threatening and even hitting us on a few occasions. Could I use this as evidence ?

Answer:

Yes. A letter written by a husband admitting to and apologizing for his abusive behaviour to his wife and children over the years will be an important piece of evidence in legal proceedings the wife may bring, especially relating to custody or divorce. It will increase the wife’s chances of gaining custody, and of proving physical or verbal violence which are grounds for divorce .

Question:

If a person hires a lawyer in a family law matter are their conversations confidential or can the lawyer be made to reveal these in a court hearing ?

Answer:

According to the Evidence Ordinance a lawyer is not obliged to give evidence in court concerning things said to him/her or documentation passed on to him/her by a client which are connected to the professional service he is providing. Although it is the lawyer who enjoys the protection or confidentiality, the client is the one who can decide to lift it and allow the lawyer to reveal things.

There are limitations to all protection ; for example technical details about the representation of a client are not covered. The lawyer can reveal the identity of a client, the type of service and fees agreed upon etc. Furthermore, where a client faces bankruptcy proceedings he may be ordered by the court to give up his protection and allow the lawyer to answer questions.

There are also exceptions where information told to the lawyer is not protected e.g. where a client gives information about his intention to commit a crime.  

Question:

I have been seeing a counsellor privately and have finally decided to file for divorce. My husband does not want to split up. I am worried that he will try and force my counsellor to give evidence that will prevent me proving grounds for divorce as he is not physically violent and has always supported me financially. Can my intimate conversations with my psychologist be revealed in the court room ?

Answer:

No. According to the Evidence Ordinance a psychologist is not obliged to give evidence in court concerning a ‘patient’ who sought his/her professional services where there was an understanding that things he/her were told would remain confidential. The ‘patient’ is the one holding the protected information and is the only one who can allow it to be released, although it is the psychologist who ‘enjoys’ the protection.

It should be noted, however, that where a court appoints a psychologist to make assessments about family members e.g. about the parental capability of each parent the information is not protected. The whole aim is for a suitably qualified professional to make assessments and recommendations on issues like custody and visitation rights. The relationship between the psychologist is different from the one described above , being between the court and a professional.

Question:

Are conversations with a social worker always confidential ?

Answer:

According to the Evidence Ordinance a social worker is not obliged to give evidence in court concerning a ‘patient’ who sought his/her professional services where there was an understanding that the kind of things he/her were told would remain confidential. The ‘patient’ is the one holding the protection and is the only one who can lift it, while the social worker ‘enjoys’ the protection. The social worker’s employees do not enjoy his/her protection.

Where ,however, a social worker is appointed by the court to access a particular family situation and report on it the situation is different . The social worker is specially appointed by the court to report on relationships between family members and to make recommendations about custody and visitation rights. Thus the relationship is not the one described above but between the court and a professional it appoints.

Question:

My husband and I are Roman Catholic. Although my faith discourages divorce I have had no choice but to try to cancel my marriage through our religious court system because of my husband’s violent and perverted behaviour. During confession I told my priest extremely intimate details about my marital life. My husband does not want to divorce and knows I go to confession regularly. In order to pressurize me into withdrawing my divorce plea he has threatened to call my priest as a witness and expose things about me. Would my priest have to answer if called as a witness ?

Answer:

No, according to the Evidence Ordinance a person holding a religious position e.g. priest or rabbi , who, according to his faith, is forbidden from divulging what is told to him in confidence, need not give evidence about something told him in confidence . He both holds and enjoys the protection, and he alone can decide whether to divulge what is told him, unlike lawyers, psychologists or social workers who can be instructed by their ‘clients’ or ‘patients’ to reveal information given to them in confidence. The protection is complete and a court cannot order a priest or rabbi to reveal information given to him in confidence.

Question:

I have seen my doctor several times over the last year because I have had trouble sleeping owing to marital problems. He prescribed me some sleeping tablets on one occasion and mild tranquilisers on another, although I only took them for a couple of days, realising the solution was to end my marriage. Meanwhile I have left my husband and I have filed for custody of the children and maintenance for all of us. To trick me into staying in the marriage my husband has threatened me saying that I will never get custody as I am ‘unfit’ to be a mother, am always ‘at the doctor’s’ and am dependent on sleeping pills and tranquilisers. He says he will call my doctor as a witness and prove I am unstable. Are my consultations with my doctor confidential ?

Answer:

In principle a doctor is protected from giving evidence in court about a patient where the information concerning the latter was given in confidence, according to the Evidence Ordinance. However, the fact that a person visited a doctor, and the cost of the consultation, if relevant, are not protected information. The person controlling the release of the information is the patient and in certain cases it may be preferable for him /her to instruct the doctor to actually reveal it, as in the above situation when the wife had not been prescribed medication regularly and hardly even took it when she did receive it.

The court can also order a doctor to reveal information when the need to discover the truth is preferred.

Question:

How confidential is a party’s bank account – can a bank be forced to reveal a client’s banking details if he/she is involved in legal proceedings ?

Answer:

According to binding Supreme Court precedent a bank is exempt from providing information about a client’s banking. However, a court can order the bank to reveal information.

A bank’s client himself is not exempt from providing information about his finances. Where he is a party to legal proceedings he will have to reveal information about them if called to give evidence for this purpose.

Question:

My wife managed to convince the family court to issue an order forbidding me to enter the family home, claiming I am physically violent towards her. She lied. Now I fear criminal proceedings. I want the court to order a polygraph test to show that I am telling the truth. Is this allowed ?

Answer:

While in principle parties to a civil dispute can agree to take a polygraph or ‘truth’ test regarding a matter and agree that the court will decide the case according to the results, this is not so in criminal proceedings.

The Supreme Court has held that the results of a polygraph test and the accused’s reaction to an offer of a polygraph test during police investigations cannot be used as evidence against him in criminal proceedings. However, refusal of an offer to take a polygraph test or the results of a polygraph test itself, can be used as evidence during proceedings about arrest and release on bail .

Question:

I filed my wife for divorce after catching her with another man. She refuses to divorce and I need evidence to help my case. I am sure that she would admit to having an affair if I phoned her and got her heated up. Would it be legal for me to record such a conversation ?

Answer:

Yes ! The Eavesdropping Act of 1979 allows a person to record a conversation he/she has with his/her spouse for the purposes of legal proceedings between them, even if the other party is unaware of the recording. However, he/she cannot record a conversation between his/her spouse and the latter’s lover.

Question:

My husband filed for divorce at the rabbinical court. At the hearing, which was held behind closed doors , he submitted evidence obtained by the police after my phone lines had been tapped because of my alleged involvement in criminal activities. In the recordings it appears as if I am having an affair. The rabbinical court was shocked by the evidence and ordered me to divorce. Can it act this way ?

Answer:

No! The Supreme Court has, while sitting as a court of justice, held that the Eavesdropping Act of 1967 binds the rabbinical court, too. It must apply the laws of evidence, whilst at the same time respecting basic rights, including the right to privacy. Before it gave its judgment it should have ruled on the admissibility of the evidence and the weight it should be given, according to the act.

Question:

Regarding claims of sexual abuse of a couple’s child , who bears the burden of proof, the parent alleging it, or the alleged perpetrator ?

Answer:

The parent alleging child abuse is the one who bears the burden of proving it before the police and the courts.

Question:

Can a relative be convicted of sexual offences against a minor purely on the basis of evidence given by the alleged child victim to a special social worker from the police ?

Answer:

No, according to the Evidence Amendment (Defence of Children) Act of 1955 a relative can only convicted of sexual offences against a minor if there is other “assisting evidence” to support that given by a minor under the age of 14 to the special police youth investigator . Case law has interpreted this to mean high-level evidence from an additional independent source that relates to a crucial material fact in dispute, and which incriminates the accused.

Question:

How will a court deal with evidence kept silent for years regarding a prosecution for sexual offences against a minor family member ?

Answer:

In principle, evidence which is “buried” or “hidden” for a long time has a low evidential value, unless a very reasonable and clear reason for it being hidden can be produced. Where the evidence concerns sexual offences within the family courts have a more lenient attitude and realize that evidence may be buried or hidden for years because of fear, shame, lack of awareness and other reasons. If a court is convinced that, given all the circumstances, a reasonable explanation is given for burying the evidence, it may be accepted by court at its full value.

In February 2004 the Supreme Court confirmed that Jerusalem District Court was correct to give full value to buried testimony given by a woman in her early twenties concerning sexual abuse she suffered at the hands of her uncle when she was a child.

Question: 

What documentation is given to someone who has converted to a particular religious faith ? 

Answer: 

According to the Religious Faith (Conversion) Ordinance ,once the person appointed for the particular district is satisfied that the conditions stated in the above legislation have been fulfilled , he can issue a conversion certificate regarding the person’s conversion. A copy will be sent to the head of both the old and new religious faiths involved. It is accepted as evidence of conversion.

Question: 

I am considering filing my husband for divorce at the rabbinate. I am a bit concerned about proving the grounds - violence - as the worst incidents took place when we were living abroad. I have neighbours and friends who witnessed his violent outbursts but I cannot afford to pay for them to cover over to Israel to give evidence . Does that mean that I can’t prove my case ? 

Answer: 

Testimony can be given abroad if the rabbinical court considers there is a need for this. The Rabbinical Court Regulations state that the court will decide how this should be done.

Question: 

I am having an expert opinion prepared abroad for me on an aspect of family law for proceedings here in Israel. Does it need any special authorization ? 

Answer: 

Yes, formally speaking an affidavit given overseas will need to receive authorization at an Israeli consulate for it to be submitted in proceedings in Israel. If the appropriate authorization is not obtained, the family court does have discretion to accept it as evidence because the Family Courts’ Act of 1995 states that it is not bound by the strict laws of evidence. 

If the expert who gave the opinion appears as a witness in court, he/she can confirm the contents of the affidavit in his/her cross-examination, as happened in proceedings regarding the recognition of a foreign divorce judgment decided by Jerusalem Family Court in September 2004.

Question: 

If a point of foreign law has to be proved in Israeli proceedings, is reference to the appropriate part sufficient ? 

Answer: 

No, as well as referring to the full text of the appropriate part of the law/regulations, it is preferable, if not essential, to provide a translation and interpretation by an expert in that particular field of foreign law. All this should be part of a legal opinion of an expert on foreign law to be submitted as evidence in court.

Question: 

I wish to have a foreign judgment recognized and enforced in Israel. Apart from having original and correctly authorized copies of the foreign judgment, will I need to provide any other evidence to support my application ? 

Answer: 

Yes, a supporting affidavit is required in the form of an expert legal opinion by a legal specialist in the appropriate field concerning the legislation, regulations and cases in that particular state. The aim of the supporting affidavit is to prove that the foreign law/legal procedure satisfied the conditions set out for the recognition of the judgment according to Israeli legislation. The 1958 Enforcement of Foreign Judgments Act stipulates that the foreign court must have jurisdiction to make the judgment, that it was no longer appealable and that it was enforceable abroad.