Rabbinical Courts vs Civil Courts
Israel has two coexisting legal systems: religious
courts (Jewish, Muslim, Christian, and Druze) and civil courts. When
a Jewish couple is about to divorce,
the husband tends to race to a rabbinical court, while the wife
rushes to a civil court. Although the divorce itself has to go
through the rabbinical court, the court in which the case is filed
first has jurisdiction concerning alimony, child custody, and
division of property (provided that these matters were included in
the first suit), and civil courts are known to be more generous to
women than rabbinical courts. The Family Courts Law, enacted in 1995,
established a new category of civil courts to adjudicate these
matters.
On Feb. 11, 1997, a man filed for divorce in the
Tel Aviv Regional Rabbinical Court and included the question of
alimony in his suit. His wife subsequently sued for alimony in family
court. The husband claimed that because the case was already being
adjudicated, Family Court had no competence to deal with the matter.
The latter rejected this argument; in July 1997 both courts held
hearings. Family Court judge Yehuda Granit ordered the husband to pay
alimony of NIS 4,000 a month, plus NIS 2,500
in child support. In January 1998, the rabbinical court issued its
own ruling, ordering the husband to pay only NIS 2,000
in alimony and child support, plus 60% of home-upkeep costs. In June,
Tel Aviv District Court declined to hear the husband’s appeal of
the Family Court’s decision, thus leaving two contradictory rulings
in force.
In his ruling, Granit wrote that the Family Courts
Law converted the rabbinical courts’ previous exclusive
jurisdiction in alimony and child-support matters already being heard
before it into concurrent jurisdiction with the family courts; which
court has jurisdiction in a particular case must be decided on
various grounds and not be determined merely by which court heard the
matter first. The Courts Law (Consolidated Version), 5744-1984,
states explicitly that whenever a district court has concurrent
jurisdiction with another type of court, the former is competent to
hear the case provided that a different court is not already hearing
it and that it does not fall under the jurisdiction of a magistrate’s
court. This provision was left out of the Family Courts Law. Granit
understood this to mean that the family court has jurisdiction even
if a suit has already been filed in a rabbinical court. He also
maintained that the provision in the Family Courts Law stating that
the law “does not derogate from the powers of the religious courts”
was irrelevant in this case because the religious courts also maintain
their jurisdiction, though no longer exclusively. Consequently, there
is no reason for the family court not to hear the case.
Jurists regarded Granit’s ruling as
revolutionary: Races to court would be a thing of the past. But it
left a messy situation of unclear jurisdiction. Moreover, jurists
were not entirely in agreement with Granit’s logic. In a 1985
decision (Umri v. Zu’abi), the Supreme
Court had ruled otherwise, holding that turning exclusive
jurisdiction into concurrent jurisdiction is a derogation of
powers. According to that precedent, rabbinical courts would maintain
their exclusive jurisdiction and family courts could not decide such
cases. Prof. Menashe Shava of Tel Aviv University pointed out that
Granit’s radical interpretation of the Family Courts Law would also
deprive the rabbinical courts of their exclusive jurisdiction over
actual divorces.1
Prompted by Granit’s decision—and instead of
waiting for the courts to resolve the matter—on June 15 the Knesset Constitution, Law, and Justice Committee endorsed an amendment to the
Family Courts Law to bar family courts from adjudicating cases
already being handled by a rabbinical court. MK Dedi Zucker (Meretz)
appealed the committee action to the House Committee on the grounds
that this was a new matter and therefore had to be introduced as a
new bill, not attached to one that had already passed on first
reading (the original bill involved transferring some of the
authority over wills and inheritances from the courts to the
Custodian General). The House Committee rejected Zucker’s appeal.
The amendment passed into law in late June. Na’amat, the Israel
Women’s Network, the Association for Civil Rights in Israel (ACRI),
and the Israel Religious Action Center petitioned the High Court
against the amendment, claiming, as Zucker had done, that the
committee had no right to add the stipulation. On Sept. 16, the Court
convened and told the petitioners that their petition was a waste of
time. “The Court does not sit here to repeal laws,” said Justice
Dalia Dorner. “The Knesset does that.” The petition was
withdrawn.
Sources: Israel
Yearbook and Almanac 1999
1 Menashe
Shava, “The Relationship between Jurisdiction of Family Court and
Rabbinical Court,“ Hapraklit 44(1): 44-71 (Hebrew). |