Order to delay departure from the country for a minor
Delays in leaving the country are given frequently when it comes to a couple in divorce proceedings or a divorced couple, certainly no less than in cases opened for civil debts such as bankruptcy proceedings or at the request of the winning party in the enforcement proceedings. Even during the divorce proceedings, if there is a situation where there is a risk that one of the spouses will flee the country and leave the other party in Halakha Aginut situation, there is the possibility of issuing a detention order.
All the more so when the spouses have actually divorced, and the goal is to prevent the spouse from leaving for the fear that the alimony will not be paid, or to prevent the children from leaving in light of a risk that they will not return.
The order is issued at the request of one of the parties in the divorce proceedings, and includes far more than depositing the passport and closing of the borders. It clearly infringes on the rights of the individual. A parent who does not live in the country permanently and requests that his children come to him, may not see them for a long time (months and years) when there is a restraining order which has been issued for the children, of course without the control of the children since they are minors,.
A restraining order for minors to leave the country is a common and explosive order. Some couples use children to collide with each other and preventing one of the parties from seeing his children causes significant distance – physical and emotional – from the children. A parent who tries to take his children out of the country without the consent of the other party even before the divorce agreement is signed, can be accused of deliberately sabotaging the agreements between both parties.
Orders to delay leaving the country are issued on the basis of disagreement between the spouses, and a judge may also issue an order on the basis of an argument only in which one of the parties said that he would not pay alimony for various reasons. A woman might claim in court that there is a petty debt of ten shekels, and until proven otherwise and even though she knows it is not true, standing and pending against her divorcee is a restraining order to leave the country, which may of course significantly harm his livelihood from which he deducts alimony, and leaves him without any income while he is committed to child support.
A restraining order to leave the country in the presence of one party
An order delaying departure from the country is valid for one year and can then be renewed. In the alimony case there is no limit on the period of the order. The spouse against whom the order was issued can present to the court why he thinks the determination against him is incorrect, and in restrictive conditions such as a high bail the court will allow his departure provided that his return is proven. The guarantee, which can easily reach tens of thousands of shekels, is deposited when he leaves the country and will be returned upon his return. In addition, the court will require a third-party guarantee that will be removed upon the debtor’s return to the state. During this period, when the debtor is abroad, the guarantee provider will be delayed departure in his place.
In a long line of court judgments, it has been determined that in the balance between the debtor’s right of travel freedom and the minors right to their alimony, the minors right surpasses and therefore a restraining order is issued against the father to ensure payment of alimony.
According to the Execution Law, there is no requirement for the existence of a debt in order to open an execution case for the purpose of collecting alimony and taking proceedings within the framework of the case. An execution case can be opened on the basis of future debt only. Even if the debtor pays the alimony on a regular basis, this does not lead to the closure of the execution case or to the automatic and complete cancellation of the proceedings.
In the Tel Aviv 11540/06 case, it was determined on June 28, 2006: “The fact that the appellant pays the alimony as necessary does not prevent the opening of the execution case and the granting of relief of delaying departure from the country against him for alimony charges.” In a decision given on December 30, 2013 by the Haifa Family Court in case No. 12608-12-13, it was stated: “At the same time, I believe that the Registrar of Execution has an inherent authority to order the issuance of a foreclosure order to secure future alimony and for this purpose he may exercise his discretion both by way of an equal decree from the laws regarding the matter of delaying departure from the country and for the purpose of securing alimony as expressed in other provisions of law. “
Order to delay departure from the country court
A divorced man, works for a high-tech company in Israel whose managers are based in the United States. Even before the divorce, he would travel once a month and a half for about a week. His family members also live in the United States while his wife is Israeli and he chose to do Ali’ya for his then wife’s sake.
His ex-wife decided that he had not paid half of the extra expenses, in this case it was 100 NIS – the amount he had to pay her for one of the children’s classes.
Quickly and easily, the woman filed an execution case, in which she went beyond what was necessary to do, demanded the NIS 100 he owed her, and in addition claimed that she was worried about her ex paying alimony a year ahead, which is possible under Israeli law.
It is important to understand that the execution procedure is exhausting and expensive. First, the ex-spouse must file an application for revocation of the order in execution, if his application is denied, then he appeals to the Family Court with a request to accept the application for revocation of the stay order. Sometimes he has to convince that he transferred the money when asked, that he had no problem with the transfer of the money and he did not try to avoid it. Second, he must obtain two guarantees, while his family members live abroad. In addition, he is forced to deposit a guarantee of NIS 50,000.
At such a point a person feels his freedom is taken away from him. He is imprisoned by his wife or ex-wife, even though he has not sinned and has always wanted the best for his children. The procedure requires him to run between the Family Court, the Execution and the Border Police. Eventually the same customer managed to skip over the obstacles and set out on the business trip, albeit much later than planned. When he returns, he must do the whole route – backwards.
I will not go into details, I will conclude and say that it is very easy to issue a restraining order to leave the country and ruin the lives of those who are in debt. Orders to delay leaving the country have a high moral logic – not for A’ginut, not for abandoning child support, but they have inequality of rights and quite a few times the debtor will be able to prove that it is a denial of his basic rights as a person. The best solution in my opinion is to significantly reduce the amount of the guarantee and reduce the number of guarantors and in some cases dismiss the need for another guarantor.
A little compassion in situations where human rights are trampled on, will lead to a more just result. Especially in cases where a father pays alimony properly and he finds himself in a tangled and threatening legal chaos, where his chances of successfully defending his basic rights are extremely slim. In any case it is best to consult a divorce lawyer.
