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גירושין דתיים בישראל

מאת אדווין פרידמן [2000] [אנגלית]
פורסם : פורסם בז'ורנל דיני משפחה בינ"ל, אפריל 2000


Israel’s legal system does not provide for civil divorce except in rare circumstances. Religious courts are granted jurisdiction over family law matters under Article 51(1) of the Order in Council legislated under the British Mandatory Rule and still in effect. The religious communities enumerated under Article 2 of the Order are not automatically granted autonomous jurisdiction. Specific enabling legislation is required to establish religious courts and to confer jurisdiction on them (e.g. Rabbinical Courts Jurisdiction Law, Marriage and Divorce- 1953 and the Druze Religious Courts Law-1962).

The various religious courts established by enabling legislation co-exist along with a civil court system invested with concurrent jurisdiction in certain matters of family law. Religious courts have exclusive jurisdiction over divorce between parties belonging to the same religious community. Where married parties are from different religious communities, there is no court with inherent jurisdiction. In such instances, the parties must apply to the President of the Supreme Court to make a determination as to the most appropriate court on which to confer jurisdiction (Dissolution of Marriage Law). The President of the Supreme Court must obtain the Attorney General’s opinion as well as the opinion of the Religious Courts to which the parties may have some connection. The President, after receiving the imput of these same sources, then makes his determination of jurisdiction. In the overwhelming majority of these cases, jurisdiction is granted to the civil courts (Family Court). The civil court judge is then free to make a determination on the divorce petition based on his/her own criteria. The Dissolution of Marriage Law is silent as to the grounds for divorce. The judges can therefore decide to grant or deny the divorce according to his/her determination of what is appropriate.

For parties of the same religious community, the religious courts of that community have exclusive jurisdiction to grant the divorce order. Matters that are ancillary to the divorce, such as child custody, maintenance and division of marital assets, may be in the concurrent jurisdiction of both the religious and civil courts, depending on the enabling statute. As 80% of the population is subject to the Rabbinical Courts and the areas of concurrent jurisdiction between them and the civil courts is by far the most extensive, this review will focus on divorce in the Rabbinical Courts.

Sharia courts have exclusive jurisdiction, for example, to determine the issue of child custody and maintenance between Moslems. On the other hand, Rabbinical Courts have concurrent jurisdiction along with the civil courts to determine child custody and support disputes between Jews, as well as all other issues related to the divorce. That begs the question as to how the issue of jurisdiction is resolved in a specific case.

The answer is that jurisdiction is reduced to a foot race. The first party to file and serve the complaint on the opposing spouse has established prima facie jurisdiction in that court. What may appear as a simple if not mechanical approach to resolving the jurisdictional issue has actually resulted in an extensive body of case law.

The Rabbinical Courts are authorized to adjudicate any issues which been connected to a divorce petition. The Rabbinical Courts thus cannot rule on an independent petition for custody or division of property. A divorce petition must be filed to which the related issues are “connected” or “bound” in the petition. No such requirement exists in the civil courts, as there is no jurisdiction to hear divorce cases. A party may file a petition in the civil courts exclusively for custody or support or division of assets or any combination of them.

While the religious and civil courts are autonomous systems, with their own independent appeals procedures, the religious courts rulings are subject to review on petition to the Supreme Court of Israel sitting as a court of equity (the term used in Hebrew is The High Court of Justice, as opposed to the appellate functions of the Supreme Court). The jurisdiction of the Rabbinical Courts to hear matters that are attached to a divorce petition is continuously narrowed by the High Court of Justice. The High Court of Justice is authorized to void judgments in which the religious court exceeded its authority.

By establishing standards needed to prove the legitimacy of the connection of ancillary matters, the High Court has voided decisions where those criteria weren’t met. Due to the differences in the applicable laws in both systems, there is an advantage to the husband to litigate before the Rabbinical Court. For example Rabbinical Courts do not make temporary maintenance orders and their final orders are generally more modest than the civil court’s awards. Rabbinical Courts determine the division of property according to registered title while civil courts apply the rule of community property.

In order to limit the use of Rabbinical Courts by husbands seeking to obtain a jurisdictional advantage over their wives, the High Court has given a very rigid interpretation to the meaning of a “connected” matter. A plethora of cases has developed a two step approach to this issue. The first question is whether the petition for divorce is an authentic desire for divorce or simply a tactical maneuver.

The second question is whether the connected matters were “connected” in good faith or in an attempt to deny the wife the opportunity to litigate in the civil courts. A recent decision by the Tel-Aviv District Court summarizes the court’s approach. The husband had filed a divorce petition in the Rabbinical Court to which he connected the issues of spousal support and division of property. The wife subsequently filed in the Family Court to litigate the same issues. The husband’s objections to the Family Court’s jurisdiction based on his prior Rabbinical Court suit were denied.

On appeal, the District Court upheld the decision of the Family Court. The appellate court held that the divorce petition was not genuine. The petition was filed while the parties were negotiating an agreement through their respective attorneys. While in the midst of the negotiations, the husband suddenly filed for divorce. The cause of action was based on an act of adultery committed seven years prior to the filing date. Furthermore, the husband admitted that one of his purposes in filing was to pre-empt his wife from filing before him. The District Court ruled that the divorce petition was filed in order to obtain a tactical advantage and thus failed to meet the test of genuiness (Appeal by Leave Docket No. 20461/99, Tel-Aviv District Court, September 9, 1999).

It should be pointed out that there was no dispute regarding the husband’s ultimate intention to divorce. The decision rather attacks the motives for the husband’s filing at that particular time. By broadening the test of the genuineness of the divorce petition, the civil courts minimize the opportunities for husbands to exploit their advantages derived from litigating in the Rabbinical Courts.

The High Court of Justice has also intervened where it believes that fundamental rights of the wife are being violated. One of the most far-reaching decisions to date requires the Rabbinical Courts to apply civil law rather than religious law in determining questions concerning the property rights of the wife (Bavli vs. Bavli, Bagatz 1000/92 P.D. 48(2) 221). While the decision narrows the husband’s advantages of litigating in the Rabbinical Courts, in reality there is little impact on their judgments. The Rabbinical Courts are reluctant to adopt civil law. Cases involving women’s property rights litigated before the Rabbinical Courts will most likely require a petition to the High Court of Justice in order to insure that the ruling in Bavli be implemented.

Similarly, the civil courts have also held that child support matters are not ancillary to divorce proceedings since the children’s needs are independent of the dispute between the parents. The husband, therefore, cannot establish jurisdiction in the Rabbinical Courts for child support even if he files there first and connects the issue in good faith to an authentic divorce petition. The Rabbinical Courts only determine Child support if the wife consents to its jurisdiction.

Division of marital assets under Israeli law only occurs upon the dissolution of the marriage. Thus the divorce decree has a great impact on the parties ability to re-establish their financial status and not just their personal status. Prior to the establishment of family courts in 1995, the jurisdiction over marital assets was also divided between two different civil courts. Division of real property, including the marital residence, was within the jurisdiction of the Magistrate Court. Distribution of all other assets, as well as the determination of support and custody, were within the jurisdiction of the District Court.

The Family Court Act of 1995 established a new court which united the jurisdiction of all matters relating to the dissolution of divorce in a single civil court. The granting of divorce decrees still remains within the sole jurisdiction of the religious courts.

The process of divorce in the Rabbinical Courts is determined by the law of Torah, the books that embody Jewish Law, as interpreted by the rabbinic authorities.

The grounds for a bill of divorce (Get) under Jewish Law are very narrow. There must be a proof of adultery or abandonment. The abandonment may be constructive (lack of sexual relations) or literal (moving out of the marital residence on a permanent basis). Where the parties consent, a divorce can be granted as quickly as the court’s calendar permits. There is no requirement to claim any particular grounds for a divorce by consent.

Where there is no consent, receiving a Get can be a very lengthy process. The first stage is for the Rabbinical Court to decree that the parties must divorce. The difficulty is that the marriage is not terminated by the judicial decree. The dissolution of the marriage only occurs with the granting of a Get. While either party may file for divorce, the husband is the spouse who issues the Get. The Get must be given freely and not conditionally. On the other hand, the wife must agree to accept the Get of her own free will. If she refuses, the marriage is not dissolved.

Thus if a divorce agreement states that the husband will grant a Get on condition that the wife transfer her interest in the marital residence to him, the Rabbinical Court will not give its approval. In practise, such transactions occur frequently. In order to circumvent the prohibition against conditional Get agreements, the wife will often deposit an irrevocable power of attorney with the husband’s lawyer in trust. The power of attorney authorizes the attorney to transfer the wife’s right in the property to the husband. The husband’s attorney then implements the power of attorney after he has granted the Get.

The Get must not only be granted freely, it must be accepted freely. If it is the husband who is anxious to divorce and the wife refuses, it is the man who usually makes some significant concession which is only implemented after the Get is accepted.

The Rabbinical Courts recognize a cause of action known as a petition for reconciliation. Such a petition is intended to force the allegedly errant spouse to come under the directives of the Rabbinical Court in an attempt to reconcile the party’s differences. Such actions are most frequently filed as a tactical maneuver during the divorce process rather than as a legitimate attempt to seek a resolution of the party’s problems. Filing such a petition enables the petitioner to seek various injunctive orders. One of the more effective ones is a Ne Exit order to prevent the spouse from exiting the country. This can be particularly detrimental to a spouse with business dealings abroad.

Either partly may claim that they seek reconciliation at any time during the divorce proceedings before the acceptance of the Get. Even where a divorce agreement has been signed and ratified by the Rabbinical Court, either party can subsequently declare that they now seek reconciliation. The Get will not be issued in such circumstances. The claim may be made orally and there is no need to file a petition for reconciliation.

In some cases the wife has a financial interest in remaining married. Under Jewish Law a husband is only obligated to pay spousal maintenance while the parties are married. Although some recent Family Court cases have awarded post divorce maintenance, it is only in unusual and particular circumstances. This results in situations where the wife may be asking for reconciliation in the Rabbinical Court and claiming that she wants a divorce in the civil courts. This way she can continue to receive maintenance while advancing her petition for the dissolution of marital property.

The Torah Law as applied by the Rabbinical Courts gives the husband a significant advantage regarding divorce. While both spouses can equally prevent the final dissolution of the marriage, the husband has another option.

In situations where the Rabbinical Court has ruled that the parties must divorce and the wife refuses to accept the Get, the husband may be granted special authorization to remarry. This results in the wife being legally unable to remarry while the husband is free to do so. Where the husband refuses to grant a Get, the wife has no such option. There is mounting pressure from women unable to obtain a Get (known as Agunot, “chained women”) on the Rabbinical Courts to find a solution to their problem.

In actuality, it is extremely rare for the Rabbinical Courts to grant such authorization to a married husband. The possibility of doing so, however, plays a factor in the divorce negotiations. Where the Rabbinical Court has not ordered the parties to divorce, both sides may be trapped in an unwanted marriage. In that situation, it is the wife with the advantage. A husband who wishes to divorce his wife cannot do so if she refuses the Get. At the same time, he must continue to pay maintenance to the wife.

In an attempt to minimize the advantage of the husband, the 1995 Rabbinical Court Act (Implementation of Divorce Judgments) was enacted. It grants the Rabbinical Court the right to impose severe sanctions on a husband who refuses to grant a Get where the court has so ordered. Such sanctions include cancellation of a passport, driver’s license or professional license (e.g. to practice law or medicine) and arrest. The law is not used liberally, but it has become a real threat to recalcitrant husbands.

The law also provides for these sanctions to be applied against a wife in similar circumstances. Implementation of sanctions against a wife is more complex than against a husband. First, the President of the Supreme Rabbinical Court must approve the sanction. Second, the President must hear arguments from both parties before ruling. Third, if such sanctions are imposed, the Rabbinical Court will not consider a request by the husband for authorization to remarry for a period of three years.

Israel’s system of divorce is archaic, burdensome, results in gross injustices, encourages duplicity and causes a duplication of proceedings. Due to the political composition of the country, it is unlikely that a system of civil divorces for the entire population will be instituted anytime in the foreseeable future. May of the problems would be resolved by eliminating the jurisdiction of the religious courts to rule on any matter ancillary to the divorce. The parties would litigate all of the issues of custody, support and division of marital assets solely in the civil courts. The religious courts would only be authorized to grant the divorce. Such a solution would not only be beneficial to the litigants, it would result in tremendous savings to the Ministry of Religion, which funds and oversees the overburdened religious courts.