A Step Forward for Women: Will Judges of Rabbinical Courts No Longer Have Free Rein?

A Step Forward for Women: Will Judges of Rabbinical Courts No Longer Have Free Rein?

Sharon Frieling
June 10, 2015

By Dr. Sharon Frieling, Adv., expert in family and estate law.

Website: http://lawadvice.co.il. (Original post in Hebrew)

Translated by Orly Rachmilovitz

A petition filed against the Rabbinical Court exposes difficulties and injustice—primarily for women—in proceedings to impose restrictions on future marriages due to adultery. The litigation led the Rabbinate to establish guidelines on the issue, which has previously never been regulated. Will this end the injustice? Time will tell.

Until now, if the judge in a divorce proceeding in a Rabbinical Court suspected one of the spouses to have committed adultery, he could have ruled on the matter without considering the parties’ wishes and without examining evidence. The Rabbinical Court has the authority to and often did bar a woman from re-marrying the husband and from marrying the man with whom she was found to have committed adultery. This prohibition would be written into the divorce decree and a registry kept by the Rabbinical Courts.

The petitioners in Doe v. Rabbinical Court, HCJ 5676/12 (decided April 12, 2015), raised several arguments. They challenged the Rabbinical Courts’ authority to look into suspicions of adultery when the spouses themselves did not raise them. They additionally challenged the Rabbinical Courts’ authority to impose restrictions on third parties who are not parties to the divorce proceedings. The petitioners maintained that looking into adultery independently and unnecessarily violates rights to privacy and the right to equality between the spouses, because the consequences for adultery in Jewish law are more severe for women than for men.

Even if Rabbinical Courts had the authority to impose marriage restrictions, claimed the petitioning organizations, the proceedings are not held according to the principles of natural justice, because not everyone who may be affected by a decision has an opportunity to be heard. The petitioners additionally argued that suspicions of adultery and restrictions on marriage should be adjudicated by a panel of three judges.

The Rabbinical Courts and the Attorney General claimed that the Rabbinical Courts’ exclusive jurisdiction over marriages and divorces of Jews in Israel allows them to decide a person’s eligibility to marry, or any limitations on rights to marry, under Jewish law.

Encouraged by the High Court of Justice, the parties held several meetings but could not reach an agreement. However, because of the petition and these meetings, the President of the High Rabbinical Court, Rabbi Yitzhak Yosef, published “Instructions for Proceedings to Impose Marriage Restrictions on Divorcing Couples.”

The Instructions establish guidelines for cases in which Rabbinical Courts are authorized to impose marriage restrictions on a husband and/or a man with whom a wife was found to have committed adultery. According to the Instructions, marriage restrictions will be registered only following a proceeding where arguments are presented, evidence is submitted, and spouses and third parties that may be affected by the outcome are given the right to be heard. The proceeding may be adjudicated by a panel of three judges upon request.

Based on the new Instructions, former President Grunis, Justice Hendel, and Justice Barak-Erez of the High Court of Justice decided that the petition had been resolved. President Grunis remarked that the Instructions are consistent with the petitioners’ position. As the petitioners requested, the Instructions mandate that an evidentiary hearing be conducted, with the option of a three-judge panel, before imposing marriage restrictions. Moreover, similar to the petitioners’ proposal, the language of the Instructions is gender-neutral (“spouse”), thus creating symmetry in how they apply to men and to women. President Grunis explained that the Instructions effectively changed the status of the law in that they established and defined standards and guidelines. Under the circumstances, there was no need to move forward with the petition.

Thus the petition was dismissed without prejudice, but the High Court of the Justice stated that the petitioners’ general claims stand should they decide to petition the Court once more in light of the Instructions’ implementation.