Divorce

CA 419/84

 

Appellant:       Shmuel Tuchmintz

                                    v.

Respondent:    Lorna Carmel (Tuchmintz)

 

In the Supreme Court sitting as Court of Civil Appeals

[Feb. 28, 1985]

Before Justices M. Bejski, S. Levin, A. Halima

 

[1]        MP 215/83, HCJ 247/81 A. Sefati v. P. Sefati, IsrSC 37(2) 181

[2]       CA 490/77 Natzia v. Natzia, IsrSC 32(2) 621

[3]        CA 4/80 Munk v. Munk, IsrSC 36(3) 421

 

Appeal of the judgment of the Tel Aviv-Jaffa District Court (Judge S. Aloni) of May 30, 1984 in OM 280/84. Appeal denied.

 

The Appellant pro se

M. Morgenstern on behalf of the Respondent

 

Justice M. Bejski

1.         The Respondent petitioned the Tel Aviv-Jaffa District Court by originating motion for the enforcement of the Appellant’s obligation to purchase a 3 room apartment for her, and for the appointment of a receiver to execute that obligation. The proceedings and hearing were very abridged, and not only were the parties not examined on their affidavits, but there was almost no recourse to summations. In its judgment, the trial court ordered the Appellant to fulfil the said obligation, and appointed Advocate Shloush as a receiver, granting him the necessary authorities for the sale of the apartment known as parcel 548/7 in section 6630. The appointment of the receiver would enter into force in six months, if by that time the Appellant had not purchased an apartment for the Respondent in accordance with the obligation.

            Thus, the appeal before us.

2.         The obligation concerned is found in paragraph 12 of a divorce agreement that the parties signed on Aug. 15, 1978, in which, in dozens of paragraphs and subparagraphs, they arranged the complex of their relations in contemplation of a divorce and the future of their two daughters. From among all the matters addressed by the agreement, we are concerned only with the arrangement concerning the apartments: the Appellant undertook to purchase for the Respondent, at his expense, and within one year of the divorce, an unfurnished, 3 room apartment in the area of Neve-Avivim in Tel Aviv, which would be registered in its entirety in the Respondent’s name. Upon the fulfillment and performance of this obligation, the Respondent is required to convey to the Appellant, without consideration, the rights registered in her name to a 5 room apartment in which the spouses resided with their daughters, and to transfer its exclusive possession to him. At the signing of the agreement, the Respondent signed a notarized irrevocable power of attorney that empowered a lawyer to act on her behalf to do everything that may be necessary for performing her obligation. A consent decree was granted to the divorce agreement in PS 2737/77, and the spouses were divorced by a get [Jewish bill of divorce – trans.]. In the meantime, also as agreed, the Respondent and the daughters continued to live in the spouses’ 5 room apartment, without any change in the registration, until the Appellant would purchase a 3 room apartment for the Respondent. The large apartment is registered in the name of both parties, in equal parts.

            However, the Appellant did not purchase a 3 room apartment for the Respondent – not within a year of the divorce, and not in the following years – and that is what led the Respondent to initiate the proceedings by originating motion, as stated above, and the judgment which the Appellant challenges.

3.         In his affidavit, which serves as defense pleadings, the Appellant raised only one defense claim, which is that after signing the divorce agreement, and before the passage of the year mentioned in paragraph 12, the Respondent gave notice that she wished to remain in the large 5 room apartment. In support of that, the Appellant appended a note in the Respondent’s handwriting, dated July 10, 1979, on which is written:

I have decided to stay in the apartment where I’m living at 9 Rav Ashi St. which is owned half by me and half by Sammy. I have decided to stay here indefinitely, and Sammy and I have to write up a contract regarding to that when I come back from the States.

            The Appellant adds in his affidavit that he and the Respondent reached an agreement that she would remain in that apartment until the younger daughter would reach majority (she is now 10 years old), and accordingly, the obligation under paragraph 12 above in regard to the purchase of a 3 room apartment would be postponed, in addition to other accompanying conditions. There is no written support for the version regarding the agreement to postpone the purchase of the apartment, and even the Appellant speaks only of a parol agreement. However, according to the wording of the Respondent’s note, quoted above, it is clear that she intended to draft a written agreement upon her return from the United States. And although some four years have elapsed since, no written agreement has been drafted.

            The honorable trial judge did not refer in any way to the Appellant’s version, and made no finding in that regard, stating:

Even if I were to accept the Respondent’s (the Appellant before us – M.B.) claim, that would not suffice to prevent granting the request before me.

            And the granting of the suit was briefly explained as follows:

It was not argued that a new agreement rescinded the Respondent’s obligation, and it was not argued that this new agreement is permanent, and that on its basis the Plaintiff could never demand the performance of the said obligation. Moreover, if an agreement was reached that contradicts a valid judgment, the Respondent could have submitted a request to amend the judgment on a claim of changed circumstances, for as long as the judgment stands and has not been amended, there is no reason not to execute it.

4.         The Appellant raises the objection that inasmuch as he was not examined on the version presented in his affidavit in regard to the postponement of the date for purchasing the 3 room apartment, he met his evidentiary burden in regard to the later parol agreement to change paragraph 12 of the divorce agreement, and nothing prevents proving the rescission or change of a written agreement by spoken statement and witnesses when the rescission or change is later, since such evidence does not contradict the written agreement (Y. Sussman, Civil Procedure (Boursi – Peretz & Tuvim, 4^th ed., 5734, 386 (Hebrew)), and a distinction should be drawn between a claim against a document and a claim against a lawsuit or a defense. While there is a presumption that the document represents all that was agreed at the time it was made, such a presumption does not exist in regard to what transpired thereafter. “Even a very detailed contract may be rescinded by an oral agreement of a few words, and why should this additional meeting of wills not be given force if there is reliable testimony to it?” (E. Harnon, Law of Evidence (Academic Press, vol. I, 5732) 167 (Hebrew)).

            However, in the present case we do not know if the Appellant’s version was found reliable, in the absence any reference to it in the judgment that is based on a finding, and even on such an assumption, the Appellant could overturn a final judgment issued in proper proceedings, only by means of a separate suit. The Respondent’s attorney agrees with this conclusion, adding that a duly rendered judgment is not normally overturned indirectly and incidentally, but requires a separate suit for that specific purpose (MP 215/83, HCJ 247/81 [1] at p. 185). The argument, as raised, is not so unambiguous from a purely procedural perspective, inasmuch as the Appellant does not at all argue for the overturning of the judgment or the rescission of the agreement given thereupon, nor does he does even argue for the rescission of paragraph 12 thereof, but rather argues as to the agreement in regard to the postponement of one of the obligations.

            Even before addressing the procedural question, how can the Appellant support his version in regard to postponing performance, if even under the most generous assumption in his favor that what he claimed in his affidavit was adequately proved and believed (which, as noted, was not held), the question would remain as to whether the Appellant can substantively prove what he seeks to prove, which is another argument made by the Respondent’s attorney.

5.         A divorce agreement given the force of a judgment is a property agreement in the sense of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Law), which establishes in sec. 2(d) that “An agreement between spouses confirmed by a judgment for divorce of a religious court shall be treated as a property agreement confirmed under this section.” According to sec. 1 of the Law, not only must the property agreement itself be in writing, but “any variation of such an agreement shall be in writing”. And in addition to the requirement that both the property agreement and any change in it specifically be in writing, there is the additional requirement under subsecs. (a) and (b), which establish:

2.         (a)        A property agreement and any variation thereof require confirmation by the District Court…or the religious court which has jurisdiction in matters of marriage and divorce of the spouses.

             (b)      Confirmation shall only be given after the civil or religious court has satisfied itself that the spouses have made the agreement or variation by free consent and in understanding of its meaning and effects.

            While the parties before us married before the Law entered into force, and sec. 14 states that sec. 3 and the other provisions of Chapter Two will not apply to spouses who married prior to the Law’s entry into force, it was already held in CA 490/77 [2] at p.  624, that “the significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2.” Section 1 of the Law speaks of a property agreement made between spouses, and indeed, when the agreement before us was made, the parties were spouses. The section does not require that they also be in the same status of spouses at the time of making a change in a property agreement. But as far as the writing requirement for a change in a property agreement is concerned, the requirement under secs. 1 and 2 and the writing requirement, both for the property agreement itself and for changes thereto, is not merely evidentiary but is primarily substantive, and the legislature did not suffice only with the writing requirement, but further added provisions as to the need for its confirmation by a judicial instance, as stated in CA 4/80  [3] at p. 428:

…a property agreement is not valid unless a judicial instance is satisfied that the agreement was made with free consent, without pressure, and that both parties understood exactly what was concerned and the possible effects of their signing the agreement.

            And Justice S. Levin added in that same matter, at p. 429:

The proceeding that is the subject of the appeal is similar to the proceeding for making a will before an authority under sec. 22 of the Succession Law, 5725-1965, and the purpose of reserving the confirmation authority specifically to a judicial instance is to make certain that it is irreproachable, that the parties to the agreement understood the meaning of the agreement and its effects, and signed of their own free consent.

6.         As we have seen, the Appellant does not even argue that postponing the date established in section 12 of the agreement in regard to purchasing the apartment, which undoubtedly constitutes a variation of a property agreement, was made in writing as required under section 1 of the Law. I any event, the requirements of section 2 in regard to the court’s confirmation of a variation, after being satisfied that the parties understood the meaning and effect of the variation, and that is was made with free consent, were not met. Reliance upon the note in which the Respondent expresses her desire to continue to stay in the 5 room apartment does not even meet the writing requirement, as it expressly states that she would have to write an agreement in that regard when she returns from the United States, and that was never done, let alone was any request made to the court in this regard. We find that the substantive conditions in regard to changing a property agreement were not met, and it is of no consequence in which proceeding this claim is raised, whether in a separate suit or as a defense in response to the Respondent’s suit, since the result would be the same, i.e., that the Appellant cannot rely upon a written document that would prove the change in regard to postponing the date regarding which he argues. Therefore, this argument must ultimately be denied in whatever proceedings.

7.         The Appellant raised another argument in regard to the Respondent’s lack of good faith in performing the agreement, in knowing that the sale the apartment at the present time is subject to land appreciation tax in a considerable amount that the Appellant claims he cannot afford. It would seem that this is the true reason why the Appellant needs to postpone the sale of the apartment until the sale will be tax exempt. He expressly stated this when he tried to negotiate a mutually agreed arrangement without success.

Not only was no groundwork laid that would show the fault of the Respondent, and whether at some earlier time the sale would have been free of land appreciation tax, but this argument is not relevant to the subject of this proceeding, and there is no need to address it.

In summary: this appeal should be denied, and the Appellant should be charged for the Respondent’s costs and legal fees in the amount of 500,000 shekels, with interest and linkage in accordance with the Adjudication of Interest and Linkage Law, 5721-1961.

 

Justice S. Levin

            I concur.

Justice A. Halima

            I concur.

 

Decided in accordance with the opinion of Justice Bejski.

Given this day, 7 Adar 5745 (Feb. 28, 1985).

           

 

CA 490/77

 

Appellant:       David Natzia

                                v.

Respondent:    Aliza Natzia

 

 

In the Supreme Court sitting as Court of Civil Appeals

[June 7, 1978]

Before: Justices A. Witkon, M. Etzioni, and D. Bechor

 

Appeal of the judgment of the Jerusalem District Court (Acting President A. Landa) of June 1, 1977, in Application File 39/76 (Application File 434/73, PS 171/72).

Y. Ben Melech for the Appellant

Y. Hovav for the Respondent

 

Abstract

The appeal focused upon the dismissal of the Appellant’s request to enforce a condition of a divorce agreement with the Respondent concerning the erection of a wall to divide their apartment.

The Supreme Court held:

A.        (1)        Section 2 of the Spouses (Property Relations) Law, 5733-1973, which requires the confirmation of a property agreement by a civil or rabbinical court, also applies to spouses married prior to the enactment of that law.

(2)        The Spouses (Property Relations) Law, 5733-1973, is very strict in regard to a property agreement between spouses that establishes the relationship between them and also obligates in regard to the future.

(3)        Approval of divorce agreement does not constitute confirmation of a property agreement unless it meets the requirements of sec. 2 of the Spouses (Property Relations) Law, 5733-1973.

(4)        The performance of an agreement duly executed between parties who agreed to divorce does not, itself, obligate the parties to divorce.

Judgment

 

Justice Bechor:

This is another step in a sad dispute in ongoing civil and criminal proceedings between spouses for years. The parties are a husband and wife who married many years ago and raised children, but who have been disputing for no few years, and who are unable to live together or divorce, or at least agree to live separately under agreed conditions.

            Among the children of the couple are the daughter Ronit, who is still a minor, born on Sept. 13, 1962. In 1973, the Appellant was ordered to pay maintenance for the Respondent and the daughter Ronit, who is with the mother. The Appellant has a house at 5 HaChish Street in Jerusalem that comprises a large apartment in part of which the Respondent and Ronit currently reside. This house appears to compose a not-insignificant part of the dispute between the parties. A few years ago, the Respondent lived in part of the apartment, and afterwards he rented it to tenants who have since left.

            On July 1, 1975, the Respondent and Ronit filed Motion 434/75 in the District Court, in which they asked to order the Appellant to bring about the removal of the tenants he had installed in part of the apartment after an order was granted prohibiting him from entering the apartment. The court refused to grant the order ex parte, and on July 6, 1975, a hearing was held in the presence of both parties. In the course of the hearing, they agreed to a temporary arrangement according to which the hearing would be adjourned until July 18, 1974, and if no other order would be granted that day, the Appellant would be permitted to rebuild the wall that had been in the apartment on June 25, 1975, and the wife would be prohibited from demolishing the wall. At the request of the attorneys for the parties, the court approved the said agreement “only as a temporary arrangement”, and gave it the force of a court order. What is concerned is a wall that divides the apartment in two, dividing between the part in which the Respondent and Ronit reside and the other part, which was erected by the Appellant and which the Respondent demolished on June 25, 1975. On July 18, 1975, no order was granted, and the next hearing was held on July 24, 1975, at which the attorneys for the parties appeared, along with the Appellant in person, and informed the court that the parties had arrived at a compromise in accordance with a written agreement, and submitted the document, personally signed by both parties and marked “A”, and requested that the court approve the compromise and issue a consent decree. The judge issued a decree in this language:

Upon the agreement of the parties and at their request, and being satisfied that the compromise arrived at by the parties is in the interest of the minor, I approve the compromise and grant it the force of a judgment. Given July 24, 1975.

            That agreement was a divorce agreement (as the parties referred to it in the heading), and its primary provisions were that the parties would divorce, Ronit would remain in the custody of the Respondent, and the Appellant would pay maintenance in the amount of IL 500 per month. The agreement also includes detailed instructions in regard to the apartment, of which the main point, in short, is that the apartment would be divided in two, the large part (Part A), the part in which the Respondent resides with Ronit, would be registered in the Respondent’s name as her property and would be in her possession, and the second part (Part B) would be registered in the name of the Appellant and the couple’s daughters in equal parts. It was also agreed that the Appellant would have the right to build on the roof, and that Part B would be rented as an unprotected tenancy by the Respondent, who would receive the income for 10 years from receiving the divorce, as long as she did not remarry, and that after 10 years, she would receive half the income, once again as long as she did not remarry. It was also agreed that “if the wife marries and/or allows another man to reside in the house permanently, the apartment would be divided in practice by the husband”, who would rent out Part B and receive the income therefrom. It was further stated in section 11: “The husband undertakes to demolish the walls that he built, and to restore the apartment to sound condition”.

            On the day of the issuance of the said judgment, the Respondent’s attorney and the Appellant himself jointly filed a request with the Rabbinical Court asking that it arrange the granting of the divorce. Thereafter, hearings were scheduled that were adjourned from time to time due to the non-appearance of the Respondent or her attorney, or due to a request for a postponement by them. It turns out that the Respondent had changed her mind in the meantime, and did not want to accept a divorce, and the matter has not been arranged to this day. In the eleventh hearing before the Rabbinical Court, at the beginning of 1976, the Respondent and her attorney informed the court that the agreement had been coerced and that she is not willing to accept the divorce under the terms of the agreement of July 24, 1975, while the Appellant and his attorney requested that the court obligate her to accept the divorce. The court adjourned the matter for consideration and decision, and it appears that a decision has not yet been rendered. On April 8, 1976, the Respondent  filed a request in the District Court, numbered 281/76, in which she asked for a declaration that the divorce agreement was void because it was obtained under pressure by the Appellant that she could not resist. That request has not yet been addressed.

            On January 15, 1976, the Appellant filed a motion (No. 29/76) in which he asked “to compel the Respondent by imprisonment and/or fine and/or both together to carry out the judgment given in Motion 434/75 on July 24, 1975”. The motion was scheduled for a hearing, and in the course of the hearing it became clear that the purpose of the Appellant’s request was, primarily, to rebuild the wall between the two parts of the apartment, inasmuch as the obligations of the parties could be carried out without arranging the divorce. In the first decision of Dec. 27, 1976, the learned President rejected the preliminary arguments of the Respondent’s attorney objecting to the request. In an additional hearing held thereafter, the Respondent’s attorney raised additional legal arguments. The learned President accepted them and denied the Appellant’s request in a quasi in limine decision, without hearing evidence, and thus the appeal.

            In his decision, the learned President stated that the agreement of July 24, 1975, as well as the temporary agreement of July 6, 1975, are property agreements in the sense of the Spouses (Property Relations) Law, 5733-1973, and therefore require confirmation in accordance with that law. Inasmuch as they were not so confirmed, they are not binding. Section 2(a) of the above law establishes that a property relations agreement requires confirmation by the District Court or by the religious court that has jurisdiction over the  marriage and divorce of the spouses. Section 2(b) of the Law establishes that the said confirmation shall not be granted unless the civil or the religious court has satisfied itself that the spouses made the agreement or the variation “by free consent and understanding of its meaning and effects”.

            The attorney for the Appellant argued that the said law does not apply to the agreements between the parties because they married prior to the Law’s entry into force on Jan. 1, 1974. There is nothing to that argument. Section 14 of the Law establishes that sec. 3 of the Law, as well as the provisions of Chapter Two of the Law, shall not apply to spouses who married prior to the Law’s entry into force. The significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2.

            As for the conditions that must be met before the court can confirm a property agreement under sec. 2 of the Law, it should be noted that subsec. (c) establishes that authentication by the marriage registrar can take the place of court confirmation in the case of a property agreement made before the marriage or at the time of its solemnization. Additionally, subsec. (d) establishes that an agreement between the parties that was confirmed by a judgment for divorce of a religious court shall be treated in accordance with the same rule as an agreement confirmed under sec. 2 of the law. Here we should note that in regard to authentication by the marriage registrar and confirmation in a divorce decree, it is not stated that the authenticator or confirmer must first be satisfied of those things upon which confirmation of a property agreement by a court is conditioned. It may be that the very occasion of the wedding or the divorce confers clear significance to the agreement, and therefore the condition to particularly ascertain whether the parties understand the meaning of the agreement and its effects was not stipulated. The situation is different in regard to the relations between the spouses during the period of the marriage, and there is no doubt that over the course of many years of marriage, spouses make all kinds of transactions and agreements between themselves in regard to some item of their property, and it is doubtful that every such matter should be granted the status of a property agreement in the sense of this law. The law is very strict in regard to a property agreement between spouses that establishes the relationship between them and also obligates in regard to the future. It also justifies the requirement that the court ascertain not only that the spouses freely made the agreement, but that they did so understanding its meaning and effects. The regulations promulgated pursuant to the law were also made in this spirit. Regulation 1 establishes that spouses who wish to obtain the confirmation of such an agreement will submit (in the plural form) it to the court. Regulation 2 establishes that the confirmation be given by the judge in his chambers, in the presence of the spouses, after the judge explained the meaning of the agreement in simple, clear language, and ascertained whether they made it of their free will. Regulation 3 establishes that the confirmation be made on a copy of the request, and that it record that the parties were given the appropriate, proper explanations, and that in the opinion of the court, the agreement was made with free consent.

            In this case, the agreement of July 24, 1975 was given the force of a judgment by a consent decree, and that force was given by the learned President himself, who, in his decision that is the subject of the appeal, established that when he did so, he did not consider the Spouses (Property Relations) Law, 5733-1973, and was not asked to do so. And who better than he can say whether or not that was given as confirmation in accordance with that law. It is also clear from the decision itself that what the learned President was asked to do, and what he did, was to consider the question whether the agreement was to the benefit of the minor who was a party thereto, and nothing more. Therefore, the learned President was correct in his decision that this was a property agreement that was not duly confirmed, and that is, therefore, not binding.

            It is doubtful that such a property agreement can be executed only in part, even if duly confirmed. It is, indeed, true that the Respondent is the one who refuses to accept the divorce, but as long as the religious court has not required her to accept the divorce, and she does not accept it, the Appellant is unwilling to convey the property that he undertook to convey to her under the agreement. As already stated above, the Appellant’s purpose at this stage is to erect a wall between the two parts of the apartment so that he can rent it or use Part B of the apartment as he wishes. Clearly, the District Court cannot compel the Respondent to accept the divorce, which is a matter for the Rabbinical Court, even if there is an enforceable agreement between the parties. Moreover, the performance of an agreement duly executed between parties who agreed to divorce cannot, itself, obligate the parties to divorce (see: Schereschewsky, Family Law, 2^nd ed., p. 277). And as for performing the rest of the agreement other than granting the divorce – the Appellant is unwilling to do this. Moreover, under the agreement, the Appellant undertook to demolish the walls that he built, and the Respondent has the right to receive the rent from Part B of the apartment for ten years, as long as she has not remarried, and under sec. 6(f) of the agreement, the apartment will be divided in practice only “if the wife marries and/or allows another man to reside in the house permanently”. Clearly, this section refers to marriage to another man and not, as the Appellant’s attorney argues, to a situation in which the Respondent is a married woman by reason of being married to the Appellant.

            The Appellant’s attorney argues that the agreement of July 24, 1975 was given the force of a judgment, and therefore it is a binding judgment that should be executed. This is not so, because the transaction in its entirety cannot be executed by the District Court, and inasmuch as the very existence of the agreement does not oblige the Respondent to accept a divorce, the court lacks authority to order the divorce even if there was a binding agreement between the parties, and the divorce is the grounds and basis of the agreement that was given the force of a judgment. In addition, and as already stated above, the learned President ruled that there was no judgment that constitutes confirmation of a property agreement between spouses.

            The Appellant’s attorney further argued that even if the agreement of July 24, 1975 is not binding, the agreement of July 6, 1975 should be executed inasmuch as no other order was granted on July 18, 1975. The learned President also deemed the agreement of July 6, 1975 as a property agreement that had not been duly confirmed. But even were it not a property agreement that requires confirmation by law, which I am not saying, it was only a temporary arrangement, as the attorneys of the parties declared, and as was expressly recorded in the decision. After that, the parties agreed to a different arrangement, and in any case, now – three years after that temporary agreement and that temporary decision – there is no longer reason to enforce the agreement and the decision in contempt-of-court proceedings under the circumstances and in light of the developments that have since taken place. While it is true that the Respondent refuses to divorce, it would appear that the dispute is about the conditions. As already stated, divorce proceedings remain pending in the Rabbinical Court, and the Respondent has also filed a request to rescind the agreement of July 24, 1975 on the grounds that her consent was given due to pressure that she could not resist. It should also be noted that the Respondent resides in the apartment with their minor daughter, and other daughters, including a handicapped daughter, live with her, as well.

            In light of this, it is decided to deny the appeal and to charge the Appellant with the Respondent’s costs of the appeal in the amount of IL 5,000.

            Given this 2^nd day of Sivan 5738 (June 7, 1978).

Civil Further Hearing 1558/94

 

 

 

Petitioner:       Victoria Nafisi

                                    v.

Respondent:    Simantov Nafisi

 

 

In the Supreme Court

[Aug. 25, 1996]

Before: President A. Barak, Deputy President S. Levin, and Justices E. Goldberg, T. Orr, E. Mazza, M. Cheshin, T. Strasberg-Cohen, Z. E. Tal, D. Dorner

 

Supreme Court cases cited:

[1]       CA 2/77 Z. Azugi v. M. Azugi, IsrSC 33 (3) 1

[2]       CA 6821/93, LCA 1908/94, LCA 3364/94 United Mizrachi Bank Ltd. v. Migdal Cooperative Village et al., IsrSC 49 (4) 221 [English: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

[3]       CA 602/82, CA 628/82 Estate of Omar Khalil Abdallah Abu-Nia et al. v. Mandelbaum et al. and cross-appeal, IsrSC 37 (3) 281

[4]       HCJ 243/88, HJCApp 168/88, HJCApp 170/88 Consuelos v. Tourjeman, IsrSC 45 (2) 626

[5]       LCA 3920/90 – unpublished

[6]       CA 65/88 Aderet Shomron Ltd. v. Hollingsworth GmbH, IsrSC 45 (2) 600

[7]       CA 778/77 T. Farkash v. M. Farkash, IsrSC 33 (2) 469

[8]       CA 126/80 Guardian Eastern Insurance Co. Ltd. v. Rossman & Co. Ltd. and cross appeal, IsrSC 36 (3) 296

[9]       CA 1915/91, 2084/91, 3208/91 A. Yaacobi v. N. Yaacobi et al.; E. Yaacobi v. A. Yaacobi; Moshe Knobler v. Mazal Knobler, IsrSC 49 (3) 529

[10]     CA 755/85 Estate of the Late Salem Shaman v. Estate of the Late Saada Shaman et al., IsrSC 42 (4) 103

[11]     CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz), IsrSC 39 (1) 287

[12]     CA 45/90 S. Abada v. T. Abada, IsrSC 48 (2) 77

[13]     CA 490/77 D. Natzia v. A. Natzia, IsrSC 32 (2) 621

[14]     CA 753/82 A v. B and cross appeal, IsrSC 37 (4) 626

[15]     CA 486/87 M. Avidor v. L. Avidor, minor et al., IsrSC 42 (3) 499

[16]     CA 370/87 Estate of Tinka Esther Madjar v. Estate of Victor Madjar et al., IsrSC 44 (1) 99

[17]     CA 291/85 A. Awalid v. Z. Awalid, IsrSC (1) 215

[18]     HCJ 1000/92 H. Bavli v. Great Rabbinical Court et al., IsrSC 48 (2) 221

[19]     CA 767/77 Ben Haim v. Cohen, IsrSC 34 (1) 564

[20]     CA 265/84 Mizrachi v. State of Israel, IsrSC 40 (3) 163

[21]     CA 598/85 Mastura Kahana v. Meir Kahana et al., IsrSC 44 (3) 473

[22]     CA 587/85 Stark v. Birenberg and cross appeal, IsrSC 41 (3) 227

[23]     CA 260/89 Levi v. Hepner, IsrSC 46 (4) 391

[24]     CA 657/76 The Authority under the Victims of Nazi Persecution Law, 5717 – 1957 v. Hisdai, IsrSC 32 (1) 778

[25]     HCJ 282/88 Awad v. Prime Minister & Minister of the Interior et al., IsrSC 42 (4) 424

[26]     CA 524/88, 525/88 “Pri Ha’emek” – Cooperative Agricultural Assoc. & 30 others v. Sedeh Yaakov – Moshav Ovdim of the Po’el Hamizrachi for Cooperative Agricultural Settlement et al., IsrSC 45 (4) 529

[27]     HCJ 98/69 Bergman v. Minister of Finance, IsrSC 23 (1) 693 [English trans: http://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance]

[28]     CA 253/65 Bricker v. Bricker and cross appeal, IsrSC 20 (1) 589

[29]     CA 595/69 M. Afta v. A. Afta et al., IsrSC 25 (1) 561

[30]     CA 718/89 Haifa Quarries Ltd. v. Chen-Ron Ltd. and cross appeal, IsrSC 46 (3) 305

[31]     CA 4638/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd., IsrSC 49 (2) 265 [English trans: http://versa.cardozo.yu.edu/opinions/state-israel-v-apropim]

[32]     HCJ 1601-1604/90, HCJApp 1890/90 Shalit v. Peres et al., IsrSC 44 (3) 353 [English trans : http://versa.cardozo.yu.edu/opinions/shalit-v-peres]

[33]     FH 29/84, FH 30/84 Kossoy v. Bank Y.L. Feuchtwanger Ltd. et al. ; Filco Finance and Investment Co. v. Bank Y.L. Feuchtwanger Ltd. et al., IsrSC 38 (4) 505

[34]     HCJ 1635/90 Schereschewsky v. Prime Minister, IsrSC 45 (1) 749

[35]     CA 630/79 Z.B. Lieberman v. E. (Mendel David) Lieberman, IsrSC 35 (4) 359

[36]     CA 6926/93 Israel Shipyards Ltd. V. Israel Electric Co. Ltd. et al., IsrSC 48 (3) 749

[37]     CA 806/93 Y. Hadari v. S. Hadari (Darchi), IsrSC 48 (3) 685

[38]     CA 300/64 M. Berger v. Estate Tax Director, IsrSC 19 (2) 240

[39]     CA 135/68 T. Bareli et al. v. Estate Tax Director, Jerusalem, IsrSC 23 (1) 393

[40]     CA 3095/91Emanuel Lidor v. Director for the Land Appreciation Tax, 5723-1963, IsrSC 47 (5) 816

[41]     CA 3666/90, CA 4012/90 Zukim Hotal Ltd. v. Netanya Municipality, Netanya Municipality v. Tzukim Hotal Ltd., IsrSC 46 (4) 45

[42]     HCJ 143/62 Funk-Schlesinger v. Minister of Interior, IsrSC 17 225

[43]     CrimA 4912/91, 5434/91, 5513/91 Talmi et al. V. State of Israel, IsrSC 48 (1) 581

 

English cases cited:

[44]     In re Egerton’s Will Trusts; Lloyds Bank Ltd. V. Egerton [1956] Ch. 593

[45]     Buchanan v, Rucker (1808) 103 E.R. 546 (K.B.)

[46]     In re Annesley Davidson v. Annesley [1926] Ch. 692

[47]     United Australia Ltd. V. Barclays Bank Ltd. [1941] A.C. 1 (P.C.)

 

Further Hearing in a matter decided by a three-member panel of the Supreme Court (Justices D. Levin, E. Mazza, Z.E. Tal) on March 3, 1994, in CA 2199/91. Petition granted by majority opinion, Justices E. Mazza and Z.E. Tal dissenting.

T. Pardo for the Appellant

M. Cohen for the Respondent

 

 

 

 

 

Judgment

 

Justice E. Goldberg:

1.         A judgment delivered in CA 2199/91[1] unanimously granted the appeal and reversed the judgment of the trial court that declared, on the basis of the community property presumption, that Victoria Nafisi (hereinafter: the Petitioner) and Simantov Nafisi (hereinafter: the Respondent)  jointly own a store in Tel Aviv registered in his name, and a sum of $320,000 deposited in two bank accounts opened in his name.

2.         The relevant facts in this matter are as follows:

            In 1944, the Petitioner and the Respondent married in Iran, which was their domicile. In 1979, at the time of Khomeini’s seizing power, the Respondent visited Israel. In the course of his visit, he purchased a store in Tel Aviv, which was registered in his name (hereinafter: the store). In 1983, the couple immigrated to Israel with their five children. They lived in an apartment in Holon, which was registered in both names. Soon after their immigration to Israel, the Respondent opened two bank accounts in his name – one in the Barclay’s Discount Bank and one in Bank HaPoalim – and deposited money that he had brought from Iran, in the amount of $320,000.

            In 1987, a rift developed in the marriage, following which the Petitioner sought a declaratory judgment stating that the store and the money deposited in the bank were jointly owned. We would further note that despite the souring of the relationship between the spouses, they did not dissolve the marriage, and they continue to live under the same roof.

3.         The primary provision addressed by the appeal was sec. 15 of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Law), which states:

Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement.

            In the appeal that is the subject of this further hearing, my colleague Justice Mazza held, on the basis of the majority opinion in CA 2/77 Z. Azugi v. M. Azugi (hereinafter: the Azugi case [1]), that nothing in principle prevents the application of sec. 15 of the Law to spouses who married in a foreign country prior to the enactment of the Law, as long as there is no infringement of vested rights. In the case before us:

While the spouses…indeed married prior to the Law’s entry into force, they immigrated to Israel, and the properties in dispute were acquired in Israel after the Law went into force…Under these circumstances, they do not hold vested rights that would be subject to the choice-of-law that preceded sec. 15…and in any case, the community property presumption cannot apply to their relationship (ibid., p. 96).

            Justice Mazza than proceeded to consider whether the Respondent had a clam to community property under sec. 15 of the Law. The possibility of a community-property claim by virtue of an agreement as stated at the end of sec. 15, was dismissed, inasmuch as:

The Respondent did not premise her suit on an agreement as defined in the final clause of sec. 15 of the Law. Had she done so, she would have had to explain the substance of the agreement, the manner of its drafting, and the place it was formed. She would also have had to show that the agreement (in terms of its content and the manner of its drafting) were “in accordance with the law of their domicile at the time of making the agreement”. I say this only to rule out the presumption (which, in the absence of such a claim, is only theoretical) that even an implied agreement may, under the circumstances, be deemed an agreement as defined at the end of sec. 15. To my mind, I am of the opinion that spouses (like the Appellant and the Respondent) who married abroad and immigrated after the Law’s entry into force, who ask to apply the Israeli community property presumption to their financial relations, cannot suffice with less than the forming of a property agreement as defined by the Law, as only such an agreement would be “in accordance with the law of their domicile at the time of making the agreement”.

…

As stated, it is my opinion that an essential condition for the validity of an agreement as defined in the section – however it may have been drafted – is that it be in accordance with the law of the domicile of the spouses at the time of the making of the agreement. As for an agreement made in Israel, the fulfilment of this condition is derived from the question whether the agreement was made prior to the Law’s entry into force or thereafter (ibid., pp. 96-97).

            Similarly, Justice Mazza rejected the possibility of viewing the assets the that are the subject of the proceedings as community property by virtue of Iranian law, which was the law of the domicile of the spouses at the time of the solemnization of their marriage, as stated at the beginning of sec. 15 of the Law. This, as the Petitioner did not prove that Iranian law granted her community-property rights in property acquired by the Respondent and registered in his name. Justice Mazza further held that the legal vacuum created by not meeting the evidentiary burden as to  Iranian law cannot be filled by the presumption of identity of foreign law[2] for two reasons:

The first reason concerns its severance from the legal source of the presumption: after all, the presumption is but one of the rules of English private international law. In the present matter, which is governed (in sec. 15 of the Law) by a special choice-of-law provision, the said rules do not apply, and the presumption of identity, as one of those rules, does not apply.

However, that reason is not sufficient. At least, so it would appear according to Prof. Shava in his aforementioned book (M. Shava, Personal Law in Israel (Massada, 3^rd ed., 5752 – E.G. (Hebrew)) p. 493. After summarizing the rules and conditions established by the case law for the application of the presumption of identity, the learned author notes the difficulty in relying upon the said presumption in matters of inheritance in view of the provision regarding the independence of the law under sec. 150 of the Succession Law, 5725-1965. But later, he further states “that this obstacle can be overcome if we say that the local court shall apply the provisions of domestic law (in our case, the provisions of the Succession Law) in a case in which the foreign law is not proved, not by virtue of the “presumption” derived from English law by means of art. 46 of the Palestine Order-in-Council, but rather by a creation of the domestic case law, according to which – in a case in which the foreign law is not פroved, and upon the fulfilment of the above cumulative conditions – the domestic law should be applied as written”. It appears to me (and this is an additional reason for my approach) that in spousal property relations subject to sec. 15 of the Law, even direct recourse to domestic law is not possible, inasmuch as sec. 15, itself (as part of the domestic law), directs us to the foreign law. In so doing, the legislature expressed its view that sharing (or non-sharing) of spousal property does not create (according to the well-known distinction of Prof. Levontin) “floating” rights in regard to which the presumption of the existence of an identical legal arrangement in all common law systems applies, but rather rights that by their very definition are anchored in the particular law in which they were created (for a detailed discussion of the distinction between “floating” rights and “anchored” rights in regard to recourse to the presumption of identity, see Shava, ibid., pp. 456-466). Under these circumstances, recourse cannot be made to the provisions of domestic law, inasmuch as such recourse to its provisions would be contrary to the express provisions of sec. 15 (ibid., pp. 98-99).

            All the above led to the conclusion that the Respondent did not meet the burden of proving that she had a community property right, although Justice Mazza went on to express his dissatisfaction with the conclusion he had reached, stating:

The result I have reached is required by law. However, it is not a desirable result. I, too, agree that in accordance with the criteria of Israeli law, were it not for the express instruction of sec. 15 of the Law, what was proven in regard to the “tenure and nature” of the Appellant’s and Respondent’s life together (the Azugi case, p. 30) would suffice for the application of the community property rule. The result is undesirable due to the difference derived by law in regard to the substance of the norm that will decide the existence of community property in regard to couples married in Israel, as opposed to couples who immigrated to Israel after marriage. The accepted, prevailing norm in Israel is that of community property. This norm applies to most couples married in Israel. In the absence of evidence to the contrary, it applies to couples married before the enactment of the Law by virtue of the community property presumption established by the case law. And in the absence of a property agreement, it applies to couples married after the enactment of the Law by the statutory arrangement for resource balancing. But this norm does not apply to spouses who married abroad, even if they immigrated to Israel immediately after their marriage, tied their future to it, and purchased all of their common property there (ibid., p. 100).

            Justices D. Levin and Tal concurred, with the latter noting:

…the question whether the end of sec. 15 of the Spouses (Property Relations) Law specifically requires an express agreement, or whether an “implied agreement” would suffice, can be left for the appropriate time, inasmuch as no argument in regard to an “implied agreement was raised in the present matter.

4.         I share the view that nothing prevents applying the provisions of sec. 15 of the Law to spouses who married before its enactment, as long as their vested rights are not infringed. A choice-of-law principle is categorized as a procedural rule, and this character permits its application to proceedings occurring after its enactment, even if the event itself occurred earlier, as long as vested rights are not infringed as a result, as noted. In the present case, our starting point is that the assets were acquired after the enactment of the Law, and there is no fear of infringing vested rights. Thus, the Petitioner’s community property right in regard to the assets will be examined in light of the legal system indicated by the choice-of-law principle established in sec. 15 of the Law.

 

A Claim of community property by virtue of the first clause of section 15 of the Law

5.         The initial clause of sec. 15 of the Law establishes that, as a rule, the law of the domicile of the spouses at the time of the solemnization of the marriage will apply to their property relations (in the present case, Iranian law). The Petitioner did not prove the content of Iranian law. Does that necessarily lead to the denial of her suit (to the extent that it is premised upon that initial clause of the section), or can she enjoy the presumption of identity? As we know, foreign law is perceived as a fact that must be proved, and a failure to meet the burden of proof works against the party bearing that burden. Thus, the first question regards the circumstances in which it is appropriate to place the burden of proving the foreign law upon a party that seeks to rely upon it, and under what circumstances is it proper to place that burden upon the opposing party. On the proper allocation of the burden, it has been said:

Several considerations apply to the division of this burden between the parties to a case. One consideration is that the existence of a fact or of a situation is more reasonable. In such a case, the tendency is to impose upon the person claiming the opposite of such a situation the burden of showing that the situation is different in the case under discussion. An additional consideration springs from the recognition that in conditions of uncertainty, the burden of proof will be imposed in a manner that will narrow the risk that the decision will be erroneous. Thus for example … in civil proceedings the burden of proof is placed on the person who is making a claim against another, as he is arguing for a change in the status quo… (CA 6821/93, LCA 1908/94, LCA 3363/94 United Mizrahi Bank Ltd., v. Migdal Cooperative Village et al., [2] pp. 576-577 [English trans: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village, para. 8 of the opinion of E. Goldberg, J.].

6.         In the present matter, we should ascertain under what circumstances – if any – the presumption that the provisions of the foreign law are identical to the provisions of domestic law is more likely. For if it is, then the presumption of identity arises, which transfers the burden of proving the foreign law from the party seeking to rely upon it to the shoulders of the opposing party.

            If the party seeking to rely upon the foreign law shows a “solid evidentiary basis” for the identity of the laws, for example, that the foreign law and the domestic law derive from the same system of laws, then it is possible to apply the presumption of identity (see: CA 602/82, 628/82 Estate of Omar Khalil Abdallah Abu-Nia v. Mandelbaum et al. and cross appeal [3] p. 288). However, it is possible that a petitioner who is unable to rely on the foreign law by establishing a solid basis in regard to the identity of the foreign law and the domestic law, may still enjoy the presumption of identity if he can prove that “the elementary concepts of justice in regard to the subject matter at hand are uniform and acknowledged throughout the world” (Shava, ibid., p. 487), as this uniformity serves to show that the provisions of the foreign law are consistent with the accepted arrangement in most states – including the state in which the dispute is adjudicated – and are not at variance with it. We should clarify by explaining that under such circumstances, applying the lex fori by virtue of the presumption of identity does not express recognition of the  special status of the lex fori, but rather derives from the presumption that the provisions of the lex fori reflect a “universal principle accepted in all civilized countries” (HCJ 243/88 Consuelos v. Tourjeman [4] IsrSC 45 (2) 626, 635), including the country whose law is indicated by the choice-of-law rule. We would further note that the burden of proving this preliminary assumption grounding the presumption of identity – i.e., that we are concerned with a general principle of law – falls to the party seeking to rely upon the provisions of the foreign law.

            I am not unaware of the approach that urges the general application of the presumption of identity as long as the content of the foreign law is not proven (see: LCA 3920/90 [5]; CA 65/88 Aderet Shomron Ltd. v. Hollingsworth GmbH [6] 606; CA 778/77 T. Farkash v. M. Farkash [7] 473; CA 126/80 Guardian Eastern Insurance Co. Ltd. v. Rossman & Co. Ltd. and cross appeal [8] 298). However, it is doubtful whether this approach has gained acceptance in the principles of private international law, which do not support a preference for domestic law, nor is it supported by the law of evidence. After all, if the presumption of identity is not more probable, what is the theoretical justification for shifting the burden of proof!? In his opinion that is the subject of this hearing, my colleague Justice Mazza points out our separation from the legal source of the presumption of identity. However, I am of the opinion that Foundations of Law, 5740-1980, does not present an obstacle before a party seeking to rely upon the presumption of identity in the sense we have discussed. Not only does sec. 2(b) of Foundations of Law instruct us that the repeal of art. 46 of the Palestine Order-in-Council, 1922, “shall not derogate from the law which was accepted in Israel before the coming into force of this Law”, but also – and this is the main point – the law indeed sought to unfasten the tether that bound the Israeli legal system to the Common Law, but not to prohibit adopting appropriate legal arrangements from the Common Law.

            Similarly, I do not think that the provision of sec. 15 of the Law that establishes the choice of law in property relations presents an obstacle to implementing the presumption of identity. To my mind, it is doubtful that the special provision in regard to the choice-of-law rules severs the Israeli law of property relations from the principles of private international law in general, inasmuch as such a separation would create a large vacuum in the domestic law. Even were we to understand sec. 15 of the Law as creating such a vacuum, nothing prevents us from filling it by the theoretical principles for the proper attribution of legal burdens of proof – which we addressed above – by creating a presumption of identity.

7.         What we have said thus far brings us to the second reason presented by Justice Mazza, according to which recourse to the provisions of domestic law contradicts the express provision of sec. 15 of the Law, which directs us to the foreign law. That view is justified, in my opinion, to the extent that is directed against the comprehensive adoption of the presumption of identity. However it is does not properly apply to implementing the presumption of identity when there is a basis for assuming that the provisions of the domestic law are identical to the provisions of the foreign law, inasmuch as we have already shown that the application of the provisions of the domestic law under such circumstances does not derive from recognizing the special status of domestic law, but rather results from the view, supported by the evidence, that its application is equivalent to applying the provisions of the foreign law.

8.         Having established that nothing in principle prevents employing the presumption of identity in a case in which the assumption that the laws are identical is more probable, we must now examine whether there are grounds for assuming that the provisions of Iranian law are similar to the provisions of domestic law in the field of property relations. The legal provisions that establish the character of the property arrangements between spouses reflect a society’s conception of distributive justice, and cultural conceptions regarding equality between the sexes. Therefore, there is no reason to assume that these represent a general legal principle. In CA 1915/91, 2084/91, 3208/91 A. Yaacobi v. N. Yaacobi; E. Yaacobi v. A. Yaacobi; Moshe Knobler v. Mazal Knobler (hereinafter: the Yaacobi-Knobler cases) [9] [1995] IsrSC 49(3) 529, the opinion was expressed (under the heading “Other Legal Systems”) that most western countries, among them Switzerland, West Germany, Scandinavia, the Common Law countries, including England, Scotland, Ireland, Canada, Australia, and forty-two states of the United States, as well as the District of Columbia, all chose the method of separation of assets and deferred distribution, in which the division of the couple’s total property is deferred until the dissolution of the marriage, while some apply variations by which the division is not automatically equal, but rather the court has discretion to divide property in some other proportion, and applying special rules for the residence … such that in choosing a system of deferred community property, the Israeli legislature finds itself in the good company of the overwhelming majority of western countries” (ibid., 585-586).

            In view of the above, it may be that no difficulty arises in regard to the identity of laws as far as the aforementioned western states are concerned. However, it is clear that the presumption cannot be applied when the choice-of-law rule points to the laws of a non-western state. Having rejected the basis for assuming that the social and cultural climate of this state is identical to that of western states, the presumption as to the identity of Iranian and Israeli law in regard to property relations lacks support. And once the assumption of similarity between Iranian and Israeli property-relations law is undermined, there is no justification for deviating from the rule that the burden of proving the foreign law falls upon the party that seeks to rely on it.

9.         I am aware that in CA 755/85 Estate of the Late Salem Shaman v. Estate of the Late Saada Shaman (hereinafter: the Shaman case) [10] 107, the presumption of identity was applied by virtue of a presumption of identity between Israeli and Yemenite law, even though Yemen is not counted among the western states. This is what was stated there:

Having been held that the foreign law was not proven, the Israeli law will apply by virtue of the presumption of identity. According to Israeli law, as stated, the community property presumption will also apply to the property acquired in Yemen.

            Justice Mazza was of the opinion that the present case should be distinguished from the Shaman case, as:

That case expressly held that sec. 15 cannot apply to the community-property dispute in regard to property of the late spouses. Under those circumstances, the burden of proof of the foreign law was upon the party that denied the presumption of community property and argued that there were vested rights on the basis of the foreign law. Indeed, in the present matter – as in the matter of Shaman – positive evidence was required for the content of the foreign law, but the situation was reversed: it was not the Appellant who had to prove that Iranian law (as it was at the time of the couple’s marriage) established a different arrangement than the presumption of community property in Israeli law, but rather the Respondent (if she wished to base her right on Iranian law) had to prove that Iranian law granted her a right of community property (ibid., p. 98).

            I do not believe that the “reversal” can serve to distinguish the Shaman case and the present case. The reversal of the burdens of proof is a direct result of the application of the community property presumption by means of the presumption of identity. In other words, the allocation of the burdens cannot serve as a criterion for the proper application of the presumption of identity, inasmuch as the allocation of burdens is a consequence of the application of the presumption. I am, therefore, of the opinion that it is possible to reconcile the willingness to apply the presumption of the identity of Yemenite and Israeli law in the property relations in the Shaman case, even though an adequate evidentiary basis was not laid for the identity of Yemenite law and domestic law, as the adoption of the approach that argues for universal application of the presumption of identity regarding which I expressed my doubts.

            The result of all of the above is that the Petitioner cannot rely upon the presumption of identity, and her action for community property must be denied to the extent that it is based upon the initial clause of sec. 15.

 

A cause for  community property on the basis of the end of sec. 15 of the Law – The validity of the form of the agreement

10.       Having found that the Petitioner did not succeed in proving a community-property right in the property registered in the Respondent’s name under Iranian law (the initial clause of sec. 15 of the Law), we will now consider whether she can claim community property by virtue of an agreement made in accordance with the law of their domicile at the time of its making (as stated at the end of sec. 15 of the Law). On the factual assumption, on which I take no stand at this point, that a community property agreement was made at the time of the couple’s immigration to Israel, there would be no doubt that their domicile would be Israel, and therefore the question of the validity of the agreement – including the validity of its form – would be decided in accordance with Israeli law.

            Section 23 of the Contracts (General Part) Law, 5733-1973, states: “A contract may be made orally, in writing or in some other form, unless a particular form is a condition of validity by virtue of law … ”. Section 23 thus establishes the principle of freedom as to form. However, that principle retreats before special enactments that establish a substantive requirement of form.

            Section 1 of the Law states:

An agreement between spouses regulating their property relations between them (hereinafter referred to as a “property agreement”) and any variation of such an agreement shall be in writing.

            Section 2 of the Law limits the freedom of contract of spouses by making the validity of a property agreement contingent upon confirmation by the institutions listed in the section. Section 3(a) of the law states:

Where the spouses have not made a property agreement … they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property arrangement conforming to the provisions of section 2.

            The writing requirement established under sec. 1 of the Law has been construed to be a substantive requirement (see: CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz) [11]).

            Therefore, there can be no doubt that the validity of an agreement that arranges the property relations between spouses who were Israeli domiciles at the time of their marriage, and who married after the enactment of the Law, is contingent upon the fulfilment of the provisions of the first chapter. Thus, the question we should focus upon is whether the validity of an agreement arranging the property relations between such spouses who married prior to the enactment of the Law is also contingent upon the provisions of Chapter One.

            Section 14 of the Law states that the provisions of Chapter Two shall not apply to spouses who married before the Law’s entry into force. Therefore, facially, it would seem that the provisions of Chapter One should apply to them. However, it would be unreasonable to make the validity of the form of an existing contract – i.e., one made before the enactment of the Law – contingent upon meeting the conditions of Chapter One. That is so because it would retroactively invalidate the community property presumption, while the possibility of filling the void by a resource balancing arrangement under sec. 3 would be prevented by the provision of sec. 14 of the Law. The legislature should not be understood as trying to correct the distortion involved in retroactive application of sec. 3 by the even more egregious distortion that would result from the community property presumption no longer applying under sec. 1 of the Law, while the balancing arrangement would not apply due to sec. 14 of the Law. In other words, there is a close relationship between the provision of sec. 3 and the provisions of Chapter One. Not retroactively applying sec. 3, which addresses the consequences of not fulfilling the provisions of Chapter One, significantly supports the conclusion that the provisions of Chapter One do not apply retroactively. In this spirit, this Court indeed held that the community property presumption, which was developed by the case law, would continue to apply to spouses who married before the enactment of the Law, and it does not require a written instrument or the confirmation of any authorized body, as would be required under Chapter One (and see in this regard: the Azugi case [1]; CA 45/90 S. Abada v. T. Abada [12]).

11.       The above refers to implied agreements made before the enactment of the Law. The Law preserves the property system that existed prior to its enactment, and does not retroactively annul agreements made before it was enacted. However, is an agreement made after its enactment, by spouses married before its enactment, subject to the provisions of Chapter One? In this matter, this Court held:

Section 14 of the Law establishes that sec. 3 of the Law, as well as the provisions of Chapter Two of the Law, shall not apply to spouses who married prior to the Law’s entry into force. The significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2 (CA 490/77 D. Natzia v. A. Natzia [13] 623-624).

Also see: CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz), supra.

            This conclusion is supported by examining the explanatory notes to the bill, which explain that the function of the transitional provision was that “the property relations between spouses who were wed before the entry into force of the new law would not change due to the enactment of the law, and the resource balancing arrangement will not apply to them unless they agreed to it in a marrital agreement made after the new law’s entry into force, in accordance with sec. 2(c) [i.e., sec. 2 of the Law – E.G.]” (from the Spouses (Property Relations) Bill, 5729-1969, p. 337).

            To summarize: the provision of sec. 14 of the Law subjugates an agreement arranging the property relations of spouses made after the enactment of the Law to the provisions of Chapter One. This is the case regardless of whether the spouses wed before the enactment of the Law, or whether they wed thereafter. In other words, the determining date for the application of the provisions of Chapter One to spouses who were Israeli domiciles at the time of the solemnization of their marriage is the date of the agreement, and not the date of the wedding.

12.       Having established that every agreement arranging property relations made between local spouses subsequent to the enactment of the Law must meet the requirements of Chapter One, we will now consider whether there are grounds for negating this requirement for a property agreement made after the enactment of the Law by spouses who were foreign domiciles at the time of their marriage, regardless of whether they married before or after its enactment.

            The traditional conception of the nature of choice-of-law rules is:

Actually, the traditional rules do not choose between specific laws, but rather between legal systems as such. They only point us to the right address, i.e., to the legal system whose laws will decide the fate of the dispute. This referral, at least in theory, is made without consideration of the content of the specific law that will apply, and without regard for the substance of the concrete result of the litigation. The traditional school of thought conceives choice of law as a purely mechanical process (A. Shapira, Comments on the Nature of Choice-of-Law Rules in Private International Law, 10 Iyunei Mishpat 275, 282 (5744-45) (Hebrew)).

            However, even if there is a different view, the sole purpose of the choice-of-law rule in the matter before us is to point us clearly to a specific legal system, without purporting to change the scope of application of the legal provisions to which it refers. Thus, the question of the scope of incidence of the provisions of Chapter One of the Law will be answered in the course of ascertaining the purpose of those provisions in every case in which the agreement is made by Israeli domiciled spouses.

13.       Is the application of the provisions of Chapter One to spouses who were foreign domiciles at the time of the solemnization of their marriage consistent with the purpose of restricting the freedom as to form and the freedom of contract of spouses who make an agreement arranging their property relations when they are Israeli domiciles? Our civil legislation comprises a number of provisions that restrict the principle of freedom of form. The form restriction is intended to ensure the resolve of the contracting parties when a fear of lack of resolve is inherent to the nature of the agreement (sec. 5(a) of the Gift Law, 5728-1968), or where the scope of the agreement and its consequences require that it be made without a looming  doubt as to the resolve of the parties. In such circumstances, writing serves to guarantee the seriousness of the parties (sec. 8 of the Land Law, 5729-1969). The Spouses (Property Relations) Law goes even further, and in addition to the limitation on form, it also restricts the spouses’ freedom of contract by requiring that the agreement be confirmed by a designated authority, as stated in sec. 2 of the Law.

            The scope of a property agreement between spouses is very broad when what is concerned is the entirety of the assets accrued in the course of a marriage as a result of their joint efforts. However, it would appear that this, alone, would not suffice to justify the restrictions upon the form and freedom of contract. After all, the Law does not require that spouses who married prior to its enactment, and who are caught in the net of the community property presumption, put the implied community property agreement in writing.  Additionally, the Law attributes agreement to its resource balancing arrangement to spouses who married after its enactment, as stated in sec. 3. The explanatory notes to the Law state in regard to this provision, which constitutes a statutory agreement (or if one prefers, a consensual fiction), that “the idea that spouses who did not make a prenuptial agreement agree to the resource balancing arrangement brings the law closer to the Jewish law view that permits spouses to arrange their property relations” (Spouses (Property Relations) Bill, p. 334). It is further explained, at p. 335, that the provisions of the arrangement “are intended to correspond to the likely intent of most spouses, and to normal cases of harmonious, long-term  married life”. As we see, not only is an agreement on community property by means of balancing not required, despite its scope,  to meet the provisions of Chapter One, but the law assumes the existence of such agreement as so natural that the “omission” of the spouses is viewed as agreement to share rights. They are required to draft an agreement, as defined in sec. 1 of the Law, only if they wish to change that agreement (on dispositive law as a means for saving the costs of contracting, see: U. Procaccia, A Contract? A Thing? A Law! The Constructive Contribution of Economics to Blurring Fundamental Legal Concepts, 18 Mishpatim 395, 401-406 (Hebrew)).

            As we see, the scope of the agreement itself does not justify imposing a general restriction upon the freedom of form and freedom of contract. Additionally, the justification for these restrictions should be derived from the nature and scope of the agreement, with emphasis on the former. Only when the agreement establishes an arrangement that deviates from the principle of community property through balancing, as expressed in the community property presumption and the resource balancing arrangement established in the Law, is there a fear of the oppression of the rights of one of the spouses that would, by means of the agreement, reduce his rights in property acquired by joint effort. It is the oppressive nature of such an agreement that raises the fear of a defect in the desire of the oppressed party that justifies “evidence” of resolve. In that spirit, Prof. Rosen-Zvi wrote:

The writing requirement, the confirmation and authorization, are not merely of a formal and form-related nature. These are substantive requirements that are vital to the validity of such an agreement, such that a property agreement must be in writing and must be confirmed by a civil or religious court … these requirements derive from the special relationship between spouses, which, prima facie, create a fear of undue influence, and from the significant influence of a property agreement upon a broad spectrum of family relations for most of the Israeli population (A. Rosen-Zvi, The Law of Matrimonial Property (Microsure, 1982) 302 (Hebrew)).

            A proper social policy required that the doubt as to the spouses’ real desire be removed before the law would recognize the power of an oppressive agreement to institute changes in the complex of the spouses’ rights. Limiting the form of the agreement – and primarily, limiting freedom of contract – acts to guarantee that the spouse whose rights are prima facie oppressed, understood the nature of the agreement and its consequences. Inasmuch as the justification for limiting the freedom of form and contract is derived from the combination of the nature and scope of the agreement, there is no theoretical justification for imposing those restrictions when what is concerned is an a priori agreement to community property by means of balancing.

            Deputy President Elon addressed this, obiter dicta, in stating:

This careful, strict approach to drawing conclusions on a spouse’s waiver of one of its property rights in favor of the other spouse can also be derived, by analogy, from the legislature’s policy in the Spousal (Property Relations) Law, 5733-1973 … As we know, the Law establishes a resource balancing arrangement  between spouses, the main thrust of which is that each of the spouses is entitled to half the value of the spouses’ property (as detailed in the Law). An agreement between spouses that is intended to change this sharing established by the Law, must be set out in writing and confirmed by a civil or religious court, after the meaning of the agreement between them and its effects have been explained to the spouses (secs. 1 & 2 of the Law) (CA 753/82 A v. B and cross appeal [14], pp. 633-634).

            In a similar spirit, a later judgment stated:

The uniqueness of a “property agreement” as compared to a regular agreement between spouses is that the existence of a “property agreement” between the spouses overrides the application of a resource balancing arrangement under Chapter Two of the Spouses (Property Relations) Law (CA 486/87 M. Avidor v. L. Avidor, minor et al. [15] p. 506).

            In conclusion, the content and nature of the agreement are closely tied to the scope of the provisions of the first chapter, such that the application of the provisions restricting the freedom of form and contract should be limited to cases in which the agreement is intended to deviate from the system of community property by means of balancing.

14.       When the spouses were foreign domiciles at the time of their wedding, the law of their  domicile at the time of the solemnization of their marriage applies, rather than the Israeli community property arrangement, in accordance with the initial clause of sec. 15.

            Similarly, the statutory agreement in regard to the application of resource balancing, under sec. 3 of the Law, does not constitute an agreement in accordance with sec. 15 of the Law, as the freedom to make an agreement, granted the spouses under sec. 15 of the Law, is inconsistent with the nature of the statutory agreement. President Shamgar addressed this in the Yaacobi and Knobler cases [9]:

While the legislature attributes to the parties, ex lege, agreement to resource balancing when they have not made an arrangement, it is difficult to accept that under such circumstances of automatic reliance on statutory provisions, as opposed to simply making an agreement, we are concerned with full, real consent in the contractual sense. The resolve and understanding of the nature of the matter by the parties to whom the initial clause of sec. 3 applies, cannot be compared to those of regular parties to an actual contract, and they certainly should not be compared to those spouses who choose to deviate from the resource balancing arrangement and make a “property agreement” that in addition to the regular contractual requirements, comprises a substantive writing requirement (ibid., 558).

            The resource balancing arrangement does not apply to spouses who were foreign domiciles at the time of their marriage. Therefore, when an agreement is made between spouses who were foreign domiciles at the time of the solemnization of their marriage, and who became Israeli domiciles at the time of the making of the agreement, the agreement assumes a different character that changes it from an instrument that removes the spouses from the community property arrangement through balancing to an instrument that creates that arrangement. That change in the purpose and nature of the agreement removes the suspicion as to the resolve of the spouses. Therefore, the justification for restricting the freedom of form and contract is undermined.

            In summary, the purpose for which limitations were placed upon the form of contracts and the freedom of contract does not justify extending those limitations to an agreement between spouses who married while they were foreign domiciles in order to create community property by means of balancing. The proper policy therefore supports limiting the scope of incidence of the provisions of Chapter One, such that they not apply to such spouses.

15.       The provisions of Chapter One do not support a distinction between an agreement creating a community property regime and one that stipulates thereon such that they not so apply to the spouses.

            Justice Mazza relied upon Justice Elon in the Azugi case [1], pp. 14-15, from which we learn:

…in regard to spouses who married abroad and immigrated to Israel before the first of January 1974, that is, prior to the entry into force of the Spouses (Property Relations) Law, 5733-1973, if and when the factual circumstances indicate that the spouses intended, by implied agreement, to establish that their property relations be in accordance with the community property rules that apply in Israel in the manner that they apply to all spouses who are Israeli domiciles, then that community property agreement, although only implied, is valid, inasmuch as it was made in accordance with the law of their domicile, which was, upon their immigration to Israel, the community property regime.

            This statement emphasized the possibility of creating an implied community property agreement between spouses who immigrated to Israel before the enactment of the Law. However, it should not be understood as saying that spouses who immigrate to Israel after the enactment of the Law must make a property agreement as defined under sec. 1 of the Law, inasmuch as that case concerned spouses who married in 1957, immigrated to Israel in 1967, and separated in 1969. In other words, all of the events that might possibly delineate the boundaries of Chapter One took place prior to the Law’s enactment. For a similar reason, I do not believe that the statement, “the law that applies to the community property arrangement of the couple before us – who married abroad, immigrated to Israel, and purchased real property in Israel prior to the enactment of the Spouses (Property Relations) Law, 5733-1973 – is the Israeli case-law community property rule” (CA 370/87 Estate of Tinka Esther Madjar v. Estate of Victor Madjar et al. [16], p. 101), requires the conclusion that spouses who immigrated to Israel after the enactment of the Law must make a property arrangement as defined under sec. 1 of the Law.

            In CAA 291/85 A. Awalid v. Z. Awalid [17], p. 218, it was argued that upon the couple’s immigration to Israel in 1981, they made a community property agreement. The argument was factually rejected on the merits, with the clarification that:

The “agreement” addressed [in sec. 15 of the Law – E.G.], includes an implied community property agreement.

            Thus, the case law did not preclude adopting the approach that spouses who were foreign domiciles at the time of the solemnization of the marriage need not make an agreement arranging their property relations as defined in sec. 1 of the Law. This is so if they made the agreement after the enactment of the Law, and all the more so if they made it prior to the enactment of the Law.

Community property by virtue of the end of Section 15 – An agreement made upon the spouses’ immigration to Israel          

16.       We now arrive at the factual question (that was, until now, an assumption) whether the spouses made an implied agreement in regard to community property when they immigrated to Israel. Spouses who married in Israel prior to the enactment of the Law are subject to the community property presumption under which spouses who purchase property through their joint effort and from a common purse intend that ownership will be in common. President Shamgar addressed the background of the creation of the community property presumption in HCJ 1000/92 H. Bavli v. Great Rabbinical Court et al. (hereinafter: the Bavli case) [18] p. 254:

The community property presumption became a legal principle by a combination of the value of equality as an expression of our general constitutional view, and particularly, the Equal Rights of Women Law, together with the principles of contract law – especially the rules concerning the creation of contractual relations and their conditions – and the Israeli approach to the laws of equity as seeking to give just, fair expression to the relationship between spouses and the property acquired by their joint effort, each in his own area.

The Court developed the principles of the community property presumption on the basis of a socio-economic reality in which the separate but simultaneous, coordinated effort of each of the spouses leads to the creation of ownership that should be viewed as common and equally divisible … In other words, the law gives its seal of approval to a complex of relations that sprouted from the ground of our conception of interpersonal, moral and social relationships.        

            In the Bavli case [18], Deputy President Barak noted that the legal tool of the community property rule:

… was intended to realize a social objective. It is intended to yield social justice. It is based upon the equality of the sexes. It is nourished by the idea that spouses contribute equally to the family’s welfare (ibid., p. 229).

17.       In these proceedings, we need not decide whether the theoretical basis of the community property presumption is the conjectured intention of the spouses (the Bavli case [18] p. 254), or perhaps, the imputed intention of the spouses (the Yaacobi and Knobler cases [9] pp. 579-580). It suffices that it is unanimously held to derive from our social and cultural conceptions, which hold up the standard of equality between the sexes. The right to equality, which led to the community property presumption, is what grounded the Law’s resource balancing arrangement. The difference between the property regime under the community property presumption and the property regime established by the Law, which is expressed in the timing and character of the partnership, does not express a lowering of the status of the principle of equality, but rather reflects the need to balance the principle of equality and the principle of the certainty of ownership (see in this regard, the 1966 Report of the Public Committee on Community Property of Spouses, chaired by Justice Sussman). The deep-rootedness of the right to equality in Israeli society, from which the right to shared ownership derives, is what requires that spouses who immigrate to Israel are presumed to seek integration rather than separation from Israeli society, and therefore, they, too, adopt the principle of equality between the sexes and its derivative of shared ownership of property acquired in the course of marriage, in the absence of evidence to the contrary.

18.       The assumption that the spouses intended to adopt the property regime prevalent in Israel, upon which the implied agreement is based, does not lead to an unambiguous conclusion as to the character of the partnership and its timing, inasmuch as we have two coexisting forms of partnership in rights through balancing: one is the resource balancing regime, which is of a deferred obligatory character, while the second is the community property presumption, which is characterized by immediate ownership of rights. Here, we must take an additional step, and say that the conclusion in regard to an implied agreement derives from the presumption that, at the time of their immigration to Israel, the spouses seek to adopt its lifestyle, and it may, therefore, be assumed, absent evidence to the contrary, that the content of the agreement is consistent with the character of the property model that applies to local spouses of similar character. Since we are concerned with an implied agreement between spouses who married before the enactment of the Law, the assumption is that they – like local spouses who married prior to the enactment of the Law – intended to establish an immediate community property regime.

19.       A separate question is that of the scope of the property included in the implied agreement. Inasmuch as the bank accounts were opened after the spouses immigrated to Israel, it can be said that the rights of the spouses to the money crystallized when the accounts were opened, at a time when they were already subject to the community property presumption, as explained above. While the agreement to sharing the monies is not reflected by the opening of the accounts solely in the husband’s name, it is clear from the doctrine of implied agreement that the rights are not established on the basis of their formal registration. This, inasmuch as the trial court was not prepared to find that the Respondent held exclusive rights to the money prior to the couple’s immigration to Israel.

20.       That is not the case in regard to the store that was purchased in 1979, prior to the couple’s immigration to Israel. In regard to this property, the question arises whether the above implied agreement also extends to property purchased prior to the couple’s immigration to Israel, when the rights to that property then belonged entirely to one of the spouses.

            The principle of joint effort, which is a necessary premise of the presumption in regard to the spouses’ agreement to sharing the rights through resource balancing, indeed exists here. But I do not believe that this principle suffices for the retroactive imposition of the community property presumption upon property purchased prior to the couple’s immigration to Israel.

            When the rights to property are entirely vested in one of the spouses, evidence of his waiver is required. The proper fundamental approach is “that in order to infer a waiver from a person’s conduct, that conduct must be clear, resolute, and unambiguous” (CA 767/77 Ben Haim v. Cohen [19] p. 570; and CA 265/84 Mizrachi v. State of Israel [20] p. 167). This strict fundamental approach is inconsistent with the application of a presumption, which is an evidentiary leniency, in order to infer the existence of an implied waiver. The strength of the presumption that spouses seeking to integrate into local society adopt a community property regime is adequate when the initial division of rights to a property is concerned, but that presumption is undermined when evidence of a waiver of rights to a property that have already vested in one of the spouses is required.

21.       The approach that recognizes the possibility of implied waiver of vested rights leads to an infringement of those rights. While it would seem that the consensual element blunts the sting of the possibility of unintentional infringement of vested rights, the doubt as to the resolve of the “implied waivor” – that we addressed above – raises the fear of allowing an infringement of vested rights without his consent. Thus, we find criticism of the retroactive application of the community property presumption:

In effect, by means of a legal construct, the community property presumption is indirectly applied retroactively to assets acquired by the spouses when  they were subject to the law of a foreign domicile … the fortress of vested rights is thus rendered theoretical and merely in  principle. In practice, it cannot protect them. They are exposed to harm because the community property presumption applies even to them (Rosen-Zvi, ibid., p. 240).

            We would further point out that Prof. Levontin’s draft choice-of-laws bill also refrained from recognizing an implied waiver of rights vested by virtue of the prior law that applied to the spouses, even though it recognized the validity of an implied agreement. Thus, for example, it was suggested that sec. 9(5) establish that a resource balancing arrangement apply – like the balancing arrangement under the Law – only to assets acquired as of the outset of the couple’s residency in Israel:

                        …

(4)       If a resource balancing arrangement applies … it will apply to assets in Israel and abroad that were acquired as of the beginning of its entry into force, and it will be immaterial whether or not the spouses were Israeli domiciles at the time of their marriage, whether or not, at that time, they had a shared residence, whether or not they married in Israel.

(5)       An implied community property agreement attributed under Israeli law to spouses maintaining a shared household will come into force as of the beginning of the residency of the spouses in Israel, and it will comprise assets in every place.

(A. Levontin, Choice of Law – A Draft Law with Brief Introduction and Explanatory Notes (Ministry of Justice, 5747) 45; emphasis added – E.G.).

            The Explanatory Notes to the draft (p. 46) explained:

A defendant whose domicile was never in Israel (that is, that Israeli law was not his personal law), is not generally made subject to the balancing requirement of Israeli law, except in regard to his assets that were acquired as of the beginning of his domicile in Israel, in order to prevent retroactivity…

Not only does the Israeli resource balancing arrangement, under the Spouses (Property Relations) Law, 5733-1973, begin in principle from the beginning of Israeli domicile, but that is also the case in regard to an “implied resource-balancing agreement imputed by Israeli law to spouses maintaining a shared household”.

22.       To this we should add that in the initial clause of sec. 15, the legislature revealed its intention that, as a rule, property relations between spouses should be governed by the provisions of the law of their domicile at the time of the solemnization of their marriage. An exception to this rule is was established at the end of the section, by which the spouses may make an agreement in accordance with the law of their domicile at the time of the solemnization of their marriage. Recognition of “implied waiver” of vested rights, when that waiver is inferred from the fact of the change of the couple’s domicile to that of a society in which the principle of equality prevails, deprives the initial clause of sec. 15 of any content, and in effect, turns the exception established in the second clause into the rule. Moreover, sweeping recognition that a change of domicile constitutes evidence of implied waiver of rights vested prior to the change of domicile effectively “rewrites” the connecting link established by sec. 15 of the Law, and turns it into the domicile of the spouses at the time of the proceedings. It is superfluous to say that such rewriting cannot be the result of judicial interpretation, but must result from express legislation. In this spirit, it has been stated:

This approach would result, in the majority of cases before Israeli courts, in the automatic application of Israeli law, and is difficult to reconcile with the choice of law rules of sec. 15. Moreover, had the legislator wished to provide that change of domicile includes a change of the law relating to matrimonial property,  surely he would have said so in so many words, and not left the matter to be inferred from a “notional agreement” between the parties. (C. Goldwater, Some Problems Relating to Choice of Law in Matrimonial Property, 16 Is.L.Rev.368, 374 (1981).

            Moreover, the problem with adopting this interpretation is obvious in view of the fact that the drafters of the The Individual and the Family Bill in which sec. 15 of the Law is sec. 192 of the Bill, knowingly rejected “imposing the ‘community property by law’ arrangement upon new immigrants”. The reason for rejecting that arrangement was a fear that “this automatic change in property affairs that applied not only in regard to a foreign ‘legal’ arrangement, but also to an arrangement that that couple would have established by agreement prior to immigrating to Israel (The Family and the Individual Bill [sic] (Ministry of Justice, 5716-1955) 216-217).

            The conclusion to be drawn from the above is that it would be improper to hold that an agreement of spouses to community property in regard to assets that belonged to one of the spouses is inherent in the very transfer of the couple’s domicile to Israel, just as it would be improper to hold that spouses who uproot from Israel to a country in which property separation prevails, thereby agree to the application of property separation even to property acquired in Israel. We should note that our refraining from comprehensively adopting that view does not necessarily lead to the conclusion that a claim of community property in regard to assets acquired under foreign law will never succeed, whether by proving the existence of an agreement to that effect, or by applying the community property or the resource balancing arrangement by virtue of the presumption of identity when the spouses were domiciles of a western country at the time of the solemnization of their marriage, as explained in para. 8, above.

23.       The Azugi case [1] gave expression to the view that the community property presumption comprises assets acquired under the law of the domicile of the spouses at the time of the solemnization of their marriage. As Justice Barak wrote there, at p. 30:

Inasmuch as the choice-of-law rules in the present case are premised upon the need to protect the vested rights of the spouses, there is no reason not to give full credit to an agreement – explicit or implied – between the spouses that might “infringe” these rights. The tenure and nature of the married life of the husband and wife, in the present case, can serve to lead to the inferring in Israel of an implied agreement between them to community property, not only in regard to new assets acquired in Israel after their immigration to Israel, but also to assets acquired in Morocco following their marriage, and prior to their immigration to Israel.

            A crack in this comprehensive approach, and recognition that the “presumption of implied waiver” of rights acquired under the law of the domicile of the spouses at the time of the solemnization of their marriage must be buttressed by evidence, can be discerned in the Shaman case [10]. In that case, President Shamgar found support for retroactively applying the presumption in the special nature of the disputed property, which was a residential apartment. He stated, at pp. 108-109:

In view of the facts of the present case, it can be said that even if, for the sake of argument, we were we to accept the Appellant’s claim that we are concerned with property that was completely owned by the late husband, from the circumstances of the case we can infer an intention of co-ownership thereof, which crystallized in the course of the marriage. We are concerned with a property that was the residence of the decedents. They lived in that apartment from the time of its purchase (1950) until their deaths (the husband in 1975, and the wife in 1983) …

Under the above circumstances, it is my opinion that we can conclude the existence of an implied agreement in regard to community property – an agreement that crystallized at some point in the course of thirty years of married life in Israel – in regard to the disputed property, i.e., the residential apartment, which served as the late couple’s residence that entire period.

            I agree with this approach, which recognizes the weakness of imposing the community property presumption when its application is required in regard to rights acquired by one of the spouses in their entirety in accordance with a former law, and the need to find additional support in the evidence, as in this manner we can overcome the difficulties we addressed above.

24.       In the absence of evidence as to the content of Iranian law in the area of property relations, we cannot decide that the rights to the store were acquired by the Respondent in their entirety by virtue of Iranian law, just as we cannot decide that they were community property by virtue of Iranian law. All that can be said is that the Plaintiff cannot rely upon the argument that the registration of the rights in the Respondent’s name, in 1979, does not reflect a change in the status of the rights upon the couple’s immigration to Israel in 1983, according to which the Respondent impliedly waived the exclusivity of his rights to the store, and agreed to their equal redivision. Thus, the examination must focus upon the spouses’ state of mind at the time of the acquisition of the property, i.e., the original division of the rights.

 

Cause of action by virtue of the second clause of sec. 15 – An agreement made at the time of acquisition of the assets

25.       Can the Respondent succeed in arguing that an equal division of the rights to the store was already agreed at the time of the purchase of the store (prior to the couple’s immigration to Israel)? As noted, the second clause of sec. 15 of the Law recognizes the ability of the parties to stipulate in regard to the law of their domicile at the time of the solemnization of their marriage, as long as the agreement is made “in accordance with the law of their domicile at the time of making the agreement”. However, no evidence was adduced to show that Iranian law recognizes the competence of spouses to regulate their property relations in a property agreement.

            A review of Israeli statutes that comprise special provisions on the subject of private international law indicates a tendency to grant primacy to the principle of domicile in matters of personal status (see: sec. 17 of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 135 of the Succession Law, 5725-1965; sec. 6 of the Jurisdiction in Matters of Dissolution of Marriage (Special Cases and International Jurisdiction) Law, 5729-1969; sec. 80 of the Capacity and Guardianship Law, 5722-1962; as well as sec. 15 of the Law). The preference for the domicile principle over the nationality principle was explained in the explanatory notes to the Succession Law Bill, in that this principle –

… is more just, and in the circumstances of Israel, more effective. The ties of a person who established his domicile outside the country of his nationality to the laws of his domicile are stronger and more concrete than his ties to the laws of the country that he abandoned, although remaining one of its nationals. This is all the more so in Israel, which is a country of immigrants (Succession Law Bill (Ministry of Justice, 5712-1952) 156).

            The flexibility of the domicile principle thus expresses the individual’s expectations inhering in the choice to dissociate from a particular social regime and adopt another in its place (see: CA 598/85 Mastura Kahana v. Meir Kahana et al. [21]).

26.       Having addressed the justification for preferring the domicile principle in legislation on matters of family status – including sec. 15 of the Law – we will now turn to an examination of the meaning of the term “domicile” in sec. 15 of the Law. In this regard, we must determine whether weight can be attributed to the couple’s intention to move their domicile to another country in the framework of “domicile”, before they have realized their intention. In other words, can we, in such a case, view them as domiciles of the country they intend to establish as their domicile? Indeed, the case-law of this Court exhibits a tendency to transfer the center of gravity in the definition of “domicile” in sec. 135 of the Succession Law from the subjective to the objective. In other words, it is “not the person’s intention or situations in the past that establish a person’s domicile at a given time, but rather that place to which the person is tied form a factual-practical perspective, i.e., the place to which he is tied by the most factual connections” (CA 587/85 Stark v. Birenberg and cross appeal [22] p. 230; CA 260/89 Levi v. Hepner [23] p. 393). However, I do not believe that the said objective perspective is exhaustive in the present matter, in which “the meaning of that term may vary when it appears in different laws, in accordance with the content of the law in its entirety, and its general purpose” (CA 657/76 The Authority under the Victims of Nazi Persecution Law, 5717 – 1957 v. Hisdai [24] p. 781). Justice Barak addressed this, stating:

It is superfluous to state that it is often difficult to locate a specific point in time upon which a person ceases permanent residence in a country, and there is surely a period of time when the center of a person’s life seems to float between his prior place and his future place (CA 282/88 Awad v. Prime Minister & Minister of the Interior et al. [25] p. 433).

            In a similar vein, see A. Vita, Private International Law: Nationality and Domicile, 8 Hapraklit 352, 358 (5712) (Hebrew), published before the enactment of the Succession Law.

27.       The advantages and disadvantages of the approach that suffices with the future intentions of the spouses to settle in a particular country was addressed by the learned Dicey and Morris in regard to whether, in establishing the domicile of a couple, weight should be attributed to the intention of spouses to tie their future to another country at the time of the solemnizing of their marriage, stating:

The second problem is whether one should have regard to the intention of the parties at the time of the marriage as to their future home. This concept is sometimes called the “intended matrimonial home” … Its advantage is that it looks to the future, to the country in which the marriage will be centred and which will have the greatest concern with the marriage and the property relations of the spouses. Its disadvantage is that it produces uncertainty. What happens if the parties change their minds or if they do not immediately move to the new country? What law governs their matrimonial property rights until they make the move? (A.V. Dicey and J.H.C. Morris, On the Conflict of Laws (London, 12^th ed., by L. Collins, 1993) 1069).

            The answer to the question whether consideration should be given to the spouses’ intention to settle in another country in the future should be derived, inter alia, from the weight that the statute attaches to their expectations and desires. If the statute respects those, why should it close its eyes to the expression of their real intention to leave one social regime and adopt another in its place? In this spirit, the learned Dicey and Morris suggest, ibid., pp. 1069-1070:

The weight to be given to the parties’ intentions depends to a large extent on the answer to a third question. If the law of the matrimonial domicile is applied by reason of a fixed and independent rule, there is little scope for the intended matrimonial home. If, on the other hand, the basic rule is that the parties can choose the governing law, and the matrimonial home is no more than a pointer to what their choice is likely to be, there is no reason why the intentions of the parties regarding their future home – and the carrying out of those intentions – should not be regarded as indications of their intentions regarding the governing law.

            The fundamental approach in the matter of personal status grants weight to the desires and expectations of the spouses, and this consideration underpinned the preference for the domicile principle. This approach deserves reinforcement where we are concerned with an agreement that arranges the property relations of spouses. Therefore, in establishing the definition of “domicile” of the spouses, weight should be given to their intention to tie their fates to another country, and adopt its lifestyle and social principles, as long as this intention is serious and clear.

28.       The conclusion to be drawn from the above is that the subjective element, that is, the serious, clear intention of the spouses to establish themselves in another country, can serve as a criterion for establishing the “domicile” of the spouses in the present matter. The seriousness of the intention and its decisiveness can be expressed, inter alia, in the period of time that passed until the spouses moved to their intended destination. Thus, to my mind, it can easily be said that during the period immediately preceding the spouses’ immigration to Israel, while preparing for immigration, Israel can be viewed as their domicile for our purposes, even though they did not yet physically live there (in this regard, see Dicey & Morris, ibid., p. 1070).

            This legal construct can serve to overcome not only the problem of form and validity of the agreement. Having found, on the basis of the spouses’ clear, serious intention to immigrate to Israel, that they should already be conceptually viewed as Israeli domiciles, the presumption follows that having formed that intention, they agreed to adopt the property regime prevailing in Israel in regard to assets acquired thereafter from joint effort – both those that “immigrated” to Israel with them, and those acquired in Israel in anticipation of their immigration.

29.       While, in the present case, some four years elapsed from the time of the purchase of the store and the date of the spouses’ immigration to Israel, that does not require the conclusion that they had not formed a  clear intention to immigrate to Israel at the time of the purchase of the store, and that Israel was not yet considered their “domicile”.

            It cannot be denied that four years is not a short time, and that English courts refused to declare the existence of serious intent to settle in another country when two years had passed prior to a couple’s immigration to that country (see: In re Egreton’s Will Trusts; Lloyds Bank Ltd. v. Egerton (1956) [44]). Nevertheless, in the present case, special weight should be given to the proximity of Khomeini’s rise to power and the couple’s decision to immigrate to Israel. We learn of the causal connection of those facts from the Respondent’s statement that their property “was transferred to Israel primarily after the Khomeini revolution there, such that in 1983 we also fled for our lives from Iran” (para. 4 of the Respondent’s affidavit), and that the spouses began to put their plan into motion with the purchase of the store. On the basis of this concrete intention to immigrate to Israel, there is no reason, in the present case, not to view Israel as their “domicile” at the time of the purchase of the property, and thus the provisions that recognize the spouses’ competence to stipulate as to property relations apply to the implied agreement to community property in regard to the asset.

30.       I would note that the Plaintiff explained her petition to the trial court in stating that “a clear intention to create full partnership in all the property was implied by the spouses’ lifestyle and their relationship” (sec, 3 of her petition), and there is no reason not to grant the Petitioner the requested remedy on the basis of the developing this cause.

31.       For the reasons stated above, I would grant the petition and declare that the Petitioner is entitled to half the ownership of the store, and to half of the sum deposited in the two bank accounts.

            The Respondent will pay the Respondent’s legal fees in the amount of NIS 10,000.

 

President A. Barak:

            I concur with the conclusion of my colleague Justice Goldberg. I arrived at this result by a different route than that of my colleague. I will briefly explain my thinking.

1.         The facts of the present case “activate” several legal systems and several property relations regimes. The parties married (in 1944) in Iran. At the time, they were subject to the Iranian property relations regime. The husband visited Israel (in 1979) and purchased a store, which was registered in his name. At that time, the Spouses (Property Relations) Law (hereinafter: the Property Relations Law) was in force. The question is whether that store is subject to Iranian law (as the law of the domicile at the time of the solemnization of the marriage), or the Israeli community property rule (as the law to which Iranian law points by renvoi, or as the law of the place where the store is located, or as the lex fori). The spouses immigrated to Israel (in 1983). Subsequent to their immigration to Israel, the husband opened two bank accounts in his name, in which he deposited money that he had brought with him from Iran. The question is whether that money is subject to Iranian law (as the law of the domicile at the time of the solemnization of the marriage), or whether it is subject to the Israeli community property rule (as the law to which Iranian law points by renvoi, or as the lex fori, or as the law of current domicile). Answering those conflictual questions, and others, raises the question of the scope of incidence of the Property Relations Law over the store and the bank accounts. In regard to the bank accounts, we can assume that they were opened with the husband’s money, which he brought from Iran, But the accounts were opened in Israel after the enactment of the Property Relations Law. A question also arises as to the scope of rights vested under the foreign law, which the Property Relations Law does not infringe (in accordance with the interpretation given in the Azugi case [1]).

2.         All these questions – some of which were addressed in the comprehensive opinion of my colleagues Justice Mazza (in his opinion in the judgment that is the subject of this Further Hearing)  and Justice Goldberg (in this further hearing) – can be left for consideration at another time. The reason for this is that whatever the choice-of-law rule may be in regard to property relations between spouses married abroad prior to the enactment of the Property Relations Law, it is a dispositive law. It applies in the absence of an agreement between the parties. The parties are at liberty to decide upon a different arrangement, and Israeli law will credit that arrangement – subject to Israeli public policy and other specific Israeli law (see: Levontin, supra, pp. 17-45, and see: Dicey & Morris, supra, at 1068). The content of the agreement between the parties can be conflictual, that is, it may refer to a legal system that differs from that indicated by the rules of private international law. Thus, for example, the spouses before us could have agreed, after immigrating to Israel, that their property relations be established in accordance with Israeli law or Jewish law or English law or Iranian law. Similarly, an agreement between spouses need not refer to a foreign legal system, but rather to some content of a property relationship between them. Therefore, the spouses could have agreed, after immigrating to Israel, that the property relationship between them would be one of equality or some other division acceptable to them. And as noted, all subject to Israeli public policy or some other provision of a specific Israeli law.

3.         The next step in my thinking is this: anything that the parties can agree to expressly, they can agree to impliedly. There is no requirement that the agreement be in written or any other form. All that is required is that it be an agreement between the parties (sec. 23 of the Contract (General Part) Law). Two arguments can be raised against this step. The first is that one might say that the agreement between the parties deprives one of them, or both of them, of rights that they had under the applicable law in the absence of the agreement. In view of the nature of the agreement, it is appropriate that it be made expressly and in writing. This argument fails. Every agreement comprises some change in the normative relationship between the parties, and in the absence of an express provision requiring a special form, the agreement of the parties suffices to achieve that normative change. The second argument is that the Property Relations Law requires that a property agreement be in writing (sec. 1), and must be confirmed by a judicial instance (sec. 2). This argument is incorrect. The requirements of writing and of confirmation by the court concern a “property agreement” as defined by the Property Relations Law, whereas we are not at all concerned with a “property agreement”. After all, cases in which the conflictual law is decided in accordance with the general conflictual principles, and not by the Property Relations Law, are not governed by the Property Relations Law and the provisions of secs. 1 and 2 thereof. That is the situation, inter alia, in all those cases in which the Property Relations Law infringes rights vested in one of the spouses prior to the enactment of the Law (in 1973) (see the Azugi case [1]). In those cases for which the conflictual law is decided in accordance with the provisions of sec. 15 of the Property Relations Law – that is, in regard to property acquired after the enactment of the Property Relations Law by spouses married before its enactment – that provision itself establishes that the parties may determine their own normative regime “by agreement”. Here I must take exception to the approach of my colleague Justice Mazza that an “agreement” for the purposes of sec. 15 of the Property Relations Law means a “property agreement”. In this matter, I agree with the approach of Justice Elon in the Azugi case [1], according to which:

… the term “agreement” in sec. 15 has its general meaning, and need not be in writing – as required under sec. 1 in regard to a property agreement – rather, any agreement whatsoever, whether in writing or parol, whether express or implied, can serve to establish the property relations between the spouses, as long as the agreement is in accordance with the law of their domicile at the time of its making (ibid., p. 14).

            Two reasons ground my position. First, from a linguistic perspective, the Property Relations Law clearly distinguishes between “agreement” (addressed by sec. 15) and “property agreement” (defined in sec. 1). Justice Elon correctly pointed out that “the second clause of sec. 15 states ‘agreement’, and not ‘property agreement’” (ibid.). Second, in terms of the legislative purpose,  this interpretation yields a just and proper result. Indeed, my colleague Justice Mazza himself noted that his conclusion “is not a desirable result”. It infringes the equality of women (cf. the Bavli case [18]). It is at odds with the autonomous will of the parties. As opposed to this, my interpretation realizes the fundamental conceptions of Israeli society in regard to the autonomy of personal will and the equality of the sexes. These views are presumed to underlie the purpose of the Property Relations Law (see: CA 524/88, 525/88 “Pri Ha’emek” – Cooperative Agricultural Assoc. & 30 others v. Sedeh Yaakov – Moshav Ovdim of the Po’el Hamizrachi for Cooperative Agricultural Settlement et al. [26] p. 561). Indeed, equality “is the soul of our entire constitutional regime”  (HCJ 98/69 Bergman v. Minister of Finance [27] per Landau, J.). We presume that it is the purpose of every law to advance and preserve this principle. In the judgment under review in this further hearing, my colleague Justice Mazza was of the opinion that this approach devoids sec. 15 of the Property Relations Law of all meaning. I am not of that opinion. It suffices to recall all those cases in which parties immigrated to Israel, and a dispute the arose in such a manner that the community property rule did not apply.

4.         The final part of my legal construction is this: the community property rule accepted in Israel is one of partnership based upon the idea of an agreement between the parties. It is not a statutory (obligatory or dispositive) rule imposed upon the parties regardless of their will. It is a case-law rule that is founded upon an agreement between the parties (see: CA 253/65 Bricker v. Bricker and cross appeal [28]; CA 595/69 M. Afta v. A. Afta et al.[29]). I addressed this in one of the cases, noting:

This partnership derives from the resolve attributed to the parties, as reflected by their marital relationship. That marital relationship itself creates a presumption of community property … the community property presumption … employs a contractual construction that concerns an (implied) agreement between the parties, according to which they are equal partners in rights … (the Bavli case [18] pp. 228-229).

            And note that the consensual view is not a fictional explanation of a statutory rule that draws its force from the legislature. It is a real explanation for a case-law rule that draws its force from the agreement. In the past, this view was founded upon the theory of implied condition. “The intention of co-ownership of the property can be inferred from the conduct of the spouses in accordance with the manner of their married life” (CA 253/65 [28] ibid., p. 599, per Agranat, P.).    We can now base this view upon the principle of good faith (established under sec. 39 of the Contracts (General Part) Law), which fills the gaps in an agreement between the parties (see: CA 718/89 Haifa Quarries Ltd. v. Chen-Ron Ltd. and cross appeal [30] p. 312; CA 4638/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd. [31). In accordance with this principle, we can give expression, first and foremost, to the subjective fundamental assumptions at the foundation of the relationship between the spouses, without need for recourse to a fiction concerning their real intentions. Where the fundamental assumptions of the parties are unproductive, we can employ objective criteria to fill in what the parties left out on the basis of the good-faith principle. Inter alia, these criteria draw upon the fundamental principles of Israeli law. One of those fundamental principles is that of equality. In this manner, we achieve a social objective that brings about social justice (see: the Bavli case [18] p. 229).

            I am aware of the problems associated with basing the community property rule on contract (see: Rosen-Zvi, supra, 249). I do not believe that those problems are relevant to the present matter. Indeed, if the contractual construct can deliver the community property rule across the raging sea of the provisions of the Land Law in particular, and civil codification in general, I see no reason why the it would lack the power to deliver the community property rule across the raging river of conflict law. We can revisit this matter in the future, and consider whether we might base the community property rule upon the general power of an Israeli judge to develop the law in conjunction with the statutory law, without need for the contract construct. “The history of broad areas of our law – characterized as a mixed system – is a history of judicial creativity … in which the Court developed the law” (HCJ 1601-1604/90, HCJApp 1890/90 Shalit v. Peres et al. [32] pp. 366-367).  “Just as a common law developed in England that did not consist merely of the interpretation of terms, we have also developed the independent possibility of developing  common law that is not necessarily the product of the simple interpretation of terms” (FH 29/84, FH 30/84 Kossoy v. Bank Y.L. Feuchtwanger Ltd. et al. ; Filco Finance and Investment Co. v. Bank Y.L. Feuchtwanger Ltd. et al. [33] p. 511, per Shamgar, P.). Indeed, “we recognize the power of the Court to create and develop an ‘Israeli Common Law’”  (HCJ 1635/90 Schereschewsky v. Prime Minister [34] p. 859). That is judicial power that draws upon our legal tradition. By that means, it is possible – should it be found appropriate – to grant a more comprehensive character to the community property rule, in addition to its contractual character. That would be the mature fruit of “judge-made law, delivered on the birthing stool of this Court” (CA 630/79 Z.B. Lieberman v. E. (Mendel David) Lieberman [35] p. 368).

5.         We can now proceed from the general to the specific. The spouses in the present case immigrated to Israel (in 1983). The trial court found that they met the conditions of the community property rule. They lived together, maintaining a regular lifestyle, in a joint effort. We infer that while in Israel, they (impliedly) agreed that their assets were community property. While it is true that part (perhaps most) of the property was brought from Iran, that is immaterial. The agreement between the parties does not distinguish between property acquired in Iran after the marriage, and property acquired in Israel after the marriage. Indeed, the spouses maintained a continuous, shared life for over forty years. Israeli law is ready to infer from that continuity – if based upon joint effort and a regular lifestyle – an agreement to community property. In the absence of special data, there is no reason to draw a distinction – a distinction that is particularly difficult in view of the difficulty in “trace” the property – between property acquired prior to immigration to Israel and property acquired thereafter. The very same agreement applies to the property in both cases. For my part, I ruled in the Azugi case [1] that the community property rule applies to property acquired before marriage. The present case is easier, as all of the property was acquired after marriage. I see no logic, in terms of the community property rule – and in terms of the consensual basis upon which it is founded – to distinguish between property that the parties brought with them from abroad, and property accumulated in Israel.

6.         In conclusion, upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel. This agreement takes precedence over the application of conflict-of-laws rules, and establishes the regime for the division of their property. That regime applies to property acquired after their marriage but before their arrival in Israel, as well as to property acquired in Israel after the marriage. For these reasons, I concur with the result arrived at by my colleague Justice Goldberg.

 

Justice T. Strasberg-Cohen:

            I accept the position of my colleague President Barak, according to which, in the circumstances of the present case, the spouses should be deemed as agreeing to maintaining, in Israel, a community property relationship, and that agreement – and not the choice-of-laws rules – decides the regime for the division of their property, including property acquired before their arrival in Israel.

            I therefore concur with the result arrived at by my colleagues the President and Justice Goldberg.

 

Justice D. Dorner:

1.  Section 15 of the Spouses (Property Relations) Law (hereafter – the Law) states:

Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations such relations in accordance with the law of their domicile at the time of making the agreement.

The question that arises in this petition is whether an agreement pursuant to the aforementioned section 15 can also be an implied agreement, the existence of which is inferred on the basis of the community property presumption in regard to the couple’s assets.

2.         Like my colleague Justice Goldberg, and for the same reasons, I am also of the opinion that as far as this question is concerned, the date upon which the couple married – whether before or after the Law came into force – is of no relevance.

3.         In the Yaacobi and Knobler cases [9], I expressed my opinion that the community property presumption applies to all couples that are residents of Israel.  In the instant case, I am of the opinion that an agreement under sec. 15 of the Law – which allows spouses to establish and change their property relationship – can be an implied agreement, and it can be proven with the aid of the community property presumption. This is a desirable result. It can prevent the imposition of foreign law that does not recognize the community property presumption in upon a couple residing in Israel for many years, simply because they immigrated to Israel after the Law came into force.

It seems to me very doubtful that this result can be achieved on the basis of the approach that rejects the application of the community property presumption to spouses whose property relations are regulated by the Law, inasmuch as if the Law annulled the community property presumption in regard to spouses to which the Law applies, how can spouses who immigrated to Israel after the Law came into force continue to acquire rights on the basis of the presumption?

4.         For these reasons, I concur in granting the petition, as stated in the opinion of my colleague Justice Goldberg.

 

Justice M. Cheshin:

 I concur with the opinion of my colleagues Justice Goldberg and President Barak, and Justice Strassburg-Cohen and Justice Dorner. Their decision is my decision, and their conclusion my conclusion. But inasmuch as my way is my way, I will say some things about the tortuous path that I followed in reaching my destination. I will begin with the basic relevant facts.

 

The basic facts and the relevant law

2.         The basic facts of the matter are as follows: The Petitioner and the Respondent married in 1944 in Iran, where they resided. They lived in Iran for nearly forty years, and they bore five children. In 1979, while visiting Israel, the husband purchased a store in Tel Aviv, and registered it in his name. In 1983, the family members immigrated to Israel, and purchased an apartment that was registered in the names of both spouses. About four years after immigrating to Israel, and after the rift in their relationship, the wife filed suit against her husband for co-ownership of the assets that the husband had registered exclusively in his name: the store, and two bank accounts in which over 300,000 dollars that the husband had brought with him from Iran were deposited.

3.         Even those who have not been favoured with a vivid imagination will sense that we are dealing with a simmering cauldron of hard questions in the fields of family law and private international law, Israeli law and Iranian law, all stirred together. Bearing in mind that the Spouses (Property Relations) Law (hereafter – the Law) came into force in 1974 – against the background of the community property presumption that preceded it – we further realize that contract law and the provisions of case law and the Law are added to the stew. It is a complex maze, there are many traps, and who can find the way out? My colleagues Justices D. Levin, Mazza and Tal, sitting in the appeal, walked through the labyrinth and arrived at an exit on the south side. And now, my colleagues Justice Goldberg, President Barak, Justice Dorner and Justice Strasberg-Cohen, who also found their way through the tangle, exited in the north.  I, too, stumbled about in the dark, and bumped my head against the walls. At the end of this examination, I will suggest what appears to be an appropriate path for resolving the issues that arise in this matter, but before charting a course for exiting the intertwining trails of the maze, I would like to make some preliminary observations, which set the groundwork for all the issues examined in my opinion, and in the opinions of my colleagues, as well.

 

The interim application of the Law and its application to couples married abroad

4.         The Law is as its name states: It is intended to arrange the property relations between spouses, and its core is in its second chapter, which treats of the balancing of spousal resources. The resource balancing arrangement under the Law is different from the community property presumption created by the case law before the commencement of the Law (see the Yaacobi and Knobler cases [9]), and a transition provision was inherently required to separate the past from the future. The transition provision is to be found in section 14 of the Law, which states:

Transitional provision

14. Section 3 and the other provisions of Chapter Two shall not apply to spouses who married before the coming into force of this Law.

In other words: the balancing of resources established in the Law will apply only from the day that the Law enters into force. The date of entry into force was established as Jan. 1, 1974 (in accordance with section 19 therein). We thus know that spouses who married prior to the Law will be subject to the rule that existed prior to the Law (whether as a rule unto itself or whether as “vested rights”) – at least insofar as assets that were acquired until the commencement of the Law – and the balancing of resources provisions of the Law will not apply to them. The rule prior to the Law was – and is – as we know, the community property presumption as created and developed by the case law: case law that predated the Law, and case law that developed, and that even gained force and intensity, after the Law.

5.         Spouses in Israel are thus divided into two classes: those who married prior to the Law (i.e., prior to Jan. 1, 1974) – who are subject to the community property presumption that held before the Law, and those married following the Law (i.e., after Jan. 1, 1974) – who are subject to the provisions of the Law (and we will not here enter into the bitter debate conducted in the Yaacobi and Knobler cases [9] in regard to the parallel application of the community property presumption even after the entry of the Law into force). So much for the situation of Israeli residents.

And what of the case of couples who resided outside of Israel at the time of their marriage, and who became Israeli residents after their marriage? Are they subject to the rule that predated the Law or to the rule established by the Law? Some, it would appear, take the view that the rule that applies to “Israeli” couples also applies to couples who resided abroad at the time of their marriage and immigrated to Israel. In other words: the question of the application of the rule predating the Law (including the principle of vested rights) or the rule established by the Law will depend upon the question of whether they married prior to Jan. 1, 1974 or after that date. If they married (in Israel or abroad) before Jan., 1 1974, their rights will be mutually governed by the rule that applied before the Law (at least in regard to assets acquired up until that date), whereas if they married after Jan. 1, 1974, they will be subject to the rule under the Law.

I reject this opinion from the outset. In my opinion, as regards spouses who married abroad and are not Israeli domiciles, the Law was never intended to apply to them, and indeed will not apply to them. Let us recall the words of Lord Ellenborough in the famous case of Buchanan v. Rucker (1808) [45] at 547:

Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction?

With slight adjustments, and stated in the negative and not merely as a (rhetorical) question, the same can be stated in our case as well. Indeed, the substantive provisions of the Law were intended to apply only to those domiciled in Israel at the time of the solemnization of their marriage, and not to the residents of the entire world. This is clear from the provisions of section 15 of the Law (which we shall consider hereinafter) - which makes the application of the Law contingent upon “the law of their domicile” of the couple – and so is it clear from other laws that treat of the same material (for example, the Capacity and Guardianship Law), which also are contingent upon the place of a person’s domicile (in the absence of any need, we will not now consider the distinction – if there is one – between a person’s “place of residence” and “domicile”). And see also M. Shava, Choice of Law in Property Relations between Spouses, 6 Iyyunei Mishpat (1978-79) 247, 268ff (hereinafter – Shava, Property Relations); M. Shava, Personal Status Law in Israel, 3^rd ed., (Massada, 1992) 355ff (hereinafter – Shava, Personal Status).

6.         What we have said leads to an ineluctable conclusion: the substantive provisions of the Law will apply only to spouses whose domicile at the time of the solemnization of their marriage is in Israel, whereas the provisions of the Law will not apply ab initio to spouses whose domicile at the time of the solemnisation of their marriage is not in Israel. In regard to the latter, it makes no difference whether they were married before or after Jan.1, 1974, inasmuch as their property relations are governed – ab initio – by a legal system that is not in force in Israel (s.v. Tobago, Island of). As for spouses whose domicile was outside of Israel at the time of their marriage, and who later became Israeli domiciles, these fall into two categories. One category comprises those who became Israeli domiciles before the commencement of the Law: These are governed, in principle, by the Israeli law in force prior to the Law, including the principle protecting vested rights (and we will not now consider the dispute surrounding this issue in the Azugi case [1]). In other words: spouses who, at the time of their marriage, were domiciled outside of Israel, who subsequently – prior to the Law – became Israeli domiciles, litigating before an Israeli court after the Law, will be subject, in principle, to that law that would have applied to them had they litigated prior to the Law. The Law was not intended to change the mutual rights of such spouses, and the rights and obligations that existed prior to the Law will continue to exist as they were even in the period following that Law.

The second category comprises spouses who were domiciled outside of Israel at the time of their marriage (whether the marriage took place before the commencement of the Law, and certainly where the marriage took place after the commencement of the Law), and who became Israeli domiciles after the Law. As far as these are concerned, we must address ourselves to the provisions of the Law, and firstly, to the provisions of section 15 therein, which treats of private international law. Inasmuch as the property relations of these spouses involve a substantive foreign element, they and we must – first and foremost – pass through the gate of private international law established in section 15 of the Law, and this gate will direct our continued course.

7.         And what of our case? True to our approach, we say that the decisive date is the day upon which the Nafisis became Israeli domiciles. That date was in 1983, that is, significantly later than the commencement of the Law (as noted, the law entered into force on Jan. 1, 1974). That being the case, we can conclude that in seeking the normative framework applicable to the property relations between the spouses, we will first encounter the Law, and first and foremost, the provisions of section 15 therein, which treats of private international law. Thus, the point of departure of my journey, and that of my colleagues, is to be found in section 15 of the Law. However, as we shall see further on, what we have said in regard to spouses married outside of Israel will be of particular importance.

Thus far, introductory remarks on the interim application of the Law.

 

The international application of the Law to spouses domiciled outside of Israel at the time of their marriage

8.         The Nafisis were married in Iran, became Israeli domiciles after the Law came into force, and thus two legal systems can be involved in their matter: Iranian and Israeli. On the subject of the international application of the Law, that is, on the subject of the involvement of several legal systems claiming or that might claim primacy over the others, section 15 of the Law, which treats of “private international law”, establishes:

Private International Law

15. Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations such relations in accordance with the law of their domicile at the time of making the agreement.

Thus, according to the Law, in regard to the legal norms that will apply to property relations between spouses, we put before us two alternatives, respectively, in accordance with the precedence established by the Law: First and foremost, the “law of their domicile at the time of the solemnization of the marriage” will apply to the property relations between the spouses, however – and this is the second alternative – the spouses are free to determine or vary the regime established under the Law of their domicile at the time of their marriage, as long as the agreement is in accordance with the law of their domicile at the time of its making.

9.         The source and legal nature of the alternative arrangements established by section 15 of the Law are different: whereas the first alternative is one that is imposed upon the spouses by virtue of the law (ex lege), that is: the property relations between them will be regulated by legal system A, over the contents of which they have no control, while the second alternative is one that derives from two sources. This alternative is primarily founded upon the agreement of the parties (ex contractu), but this agreement must be valid under the law of the parties’ domicile at the time of its making. On the methodology of the two alternatives we will note that it first elaborates the alternative deriving from law, and afterwards elaborates the alternative of agreement, but this chronological arrangement does not testify to the legal priority of the first over the last. On the contrary, the legal preference is rather for the second alternative – the agreement alternative – while the first alternative - that of the law - will only hold subject to the second alternative.

10.       Inasmuch as the provisions of section 15 of the Law instruct us that one of the two said alternatives will apply to the Nafisis, we must examine these two alternatives one at a time, and attempt to find the way to answer the questions that have been put before us.

 

“Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage”

11.       This is the first alternative established in section 15 of the Law in regard to private international law: The property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage. This requires the conclusion that the property relations between spouses will continue to be determined by the laws of that state even if their place of domicile changes (and until they make another agreement between them as stated in the final clause of section 15). This is the immutability doctrine, the doctrine that establishes a hard, rigid choice of laws, a doctrine that plants itself in the rules of one, single legal system. See, for example, Dicey and Morris, supra, at 1066, 1081-1087; Shava, Property Relations, at 269-272. The Nafisis domicile was Iran at the time of the solemnization of their marriage. Section 15 of the Law therefore instructs that Iranian law governs their property relations. In other words: The property relations between the Nafisis will be decided according to this alternative - from now and forever – in accordance with the rules of Iranian law, unless they agree otherwise, as stated in the final clause of section 15.

12.       If we are in agreement that the law of domicile of the Nafisis at the time of the solemnization of their marriage shall govern their property relations – and in the case of the Nafisis, this means the Iranian system of law – we still have not decided and do not know whether this referral to a foreign legal system is one of these three: one, to the substantive domestic part of that law, i.e., to the rules in force in Iranian domestic law in regard to the property relations regimen that applies to Iranian spouses; two, the reference is not just to  Iranian domestic law but to that legal system, including its rules of private international law; three, the reference may be to the Iranian legal system – including its rules of private international law – but with various restrictions upon referring from the Iranian system to a third system (if we should encounter such a referral). The legislature did not enlighten us as to which of these it chose, and we must find our own way. As is well known, different legal systems take different routes – and for different matters – and a variety of considerations can dictate whether we go straight, or to the right or left. We also know that, in principle, the following three doctrines are accepted in the world’s legal systems: the doctrine that states that referral to a foreign legal system means referral to the domestic law of that system (the doctrine that rejects renvoi); the doctrine of partial renvoi (single renvoi); and the “The Foreign Court Theory”, see, e.g., Dicey and Morris, supra, at p. 70 ff; M. Shava, The Position of Domestic Law in the matter of Renvoi in the area of Personal Status, 5 Iyyunei Mishpat (1976-77) 268, 268-271 (hereinafter – Shava, Renvoi) (Hebrew); Shava, Personal Status, p. 90 ff.

13.       Some of my colleagues seem to assume that the provisions of sec. 15 of the Law are intended to refer us to foreign domestic law – in our case: Iranian law – which is to say that we are required to apply to the property relations between spouses those substantive rules that the foreign legal system applies to the people of that state, while rejecting possible renvoi. This would seem to be the view of our colleagues Justices Mazza and Goldberg, and it would seem that this was also the view of our colleague Justice Elon in the Azugi case [1]. This also appears to be the view of Prof. Shava (Shava, Renvoi, p. 279; Shava, Personal Status, p. 396).

14.       I am not comfortable with that conclusion, and unlike my colleagues, I do not view it as a royal decree. As for myself, I do not know why we should construe the referral (in sec. 15 of the Law) to “the law of their domicile” of the spouses at the time of the solemnization of the marriage as necessarily referring to the domestic law of that legal system. If we are ordained to anchor ourselves to a “historical” legal system, let us soften the blow somewhat. To my way of thinking, the foreign court theory, also known as “double renvoi” doctrine, or the “total renvoi” doctrine, is immeasurably preferable, and it is the doctrine established in English law in the famous case of In re Annesley, Davidson v. Annesley (1926) [46]. As we know, this doctrine establishes that the referral to the foreign legal system is to the legal system as a whole – including its rules of private international law – and the Israeli court will sit as if it were sitting in the state whose legal system we have turned, and in the very matter currently before the court. See, e.g., A.V. Levontin, Choice of Law and Conflict of Laws (Leyden, 1976) (hereinafter – Levontin, Conflict of Laws). This doctrine does not plant us, as if for eternity, in the domestic rules of the foreign legal system – the legal system that was the legal system of the spouses at the time of their marriage, but which has since become foreign to them (and perhaps even repugnant) – it permits flexibility in establishing the property relations between the spouses, and is suitably adaptable to the changes that have taken place in the lives of the spouses since they married (although it is not as flexible as the full-mutability method or the partial mutability method).

For example, at the time of their marriage the couple were domiciled is Ruritania, but it was their intention, at the time of their marriage, to leave Ruritania and settle in Utopia. That is what they intended, and that is what they did. Now they are litigating a matter of spousal property relations in Israel. Under Ruritanian law – including its rules of private international law – the property relations between the spouses are supposed to be decided in accordance with Utopian law, as the law of their intended matrimonial domicile. On the assumption that the property relations law under Ruritanian domestic law differs from the property relations law in Utopia, which law shall we apply? Under the doctrine that rejects renvoi – that is, if we construe the opening clause of section 15 as referring to the domestic law of Ruritania – we will have to apply the domestic law of Ruritania to the property relations of the spouses, whereas under “the foreign court theory” we will apply Utopian law. What shall we do? To my thinking, there is no good or proper reason to construe section 15 of the Law as if the legislature had commanded us to apply the domestic law of Ruritania, particularly when Ruritania itself instructs me to apply the law of Utopia. This is but an example of why we should prefer the “the foreign court theory” – and even the doctrine of single renvoi – over the doctrine that utterly rejects renvoi, a doctrine that construes the referral to foreign law as a referral to the rules of its domestic law.

It is not my intention to say – and I have not said – that the foreign court theory is flawless. All that I have said is that I find this doctrine to be preferable to the alternative doctrine of referring – as if “now and forever” – to the substantive rules of a foreign legal system: foreign to the forum, and at the time of litigation, foreign to the litigants, as well.

15.       Having said all that, we are left where we started. The reason is that neither what the legal system in Iran established at the time the Nafisis married, nor what the legal system in Iran established when the couple left Iran and settled in Israel, was adequately proved to the trial court. That being the case, we cannot address the provisions of the opening clause of section 15, whether we construe it as referring to the domestic law of Iran, or whether we construe it as adopting the foreign court theory. Mrs. Nafisi cannot, therefore, rely upon the provisions of the opening clause of section 15 of the Law. The assets under discussion are registered in the husband’s name, and in order to acquire half of them, she must point to some legal source that grants her a right. Not having proved the Iranian law – as required by the opening clause of section 15 – Mrs. Nafisi cannot anchor her right in that rule. What remains, then, is for her to try to set anchor in the provisions of the concluding clause of section 15 of the Law – the one that treats of an agreement made between the spouses themselves, in the hope that therein she may find grounds for the right she is claiming.

 

“They (the spouses – M.C.) may by agreement determine and vary (property relations – M.C.) in accordance with the law of their domicile at the time of making the agreement”

16.       The opening clause of section 15 of the Law provides that property relations between spouses shall be subject to the law of their domicile at the time of the solemnization of their marriage. However, the concluding clause of section 15 instructs us:

…they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement.

This provision of the Law is the legal provision that is hotly disputed by my colleagues, and I shall now add to the dispute – for a noble purpose, of course. But before I shoot arrows from my quiver in every direction, I will say a few words about the construction of the term “agreement” in the concluding clause of section 15 of the Law.

17.       My colleague Justice Mazza is of the opinion that in regard to those whose domicile is Israel, the meaning of this “agreement” (if made after the commencement of the Law) is a “property agreement” as provided by the Law, inasmuch as only thus will it be an agreement “in accordance with the law of their (the spouses – M.C.) domicile at the time of making the agreement”. As opposed to this, my colleagues President Barak and Justice Goldberg are of the opinion that this “agreement” includes an “agreement” in accordance with the provisions and the meaning of contract law – including an implied agreement – and without all the “pomp and circumstance” associated with a “property agreement” as provided by the Law. We should further note that Justice Elon was the first to express his opinion – in the Azugi case [1], at p. 14 – that an “agreement” in the context before us means any “agreement”, including an implied agreement. I concur with the latter view, and with the reasons expressed by my colleagues in its support, and I would like to add a note of my own to their sage words.

Here are two spouses born where they were born, and married where they were married, and one day they made their way to the land of Israel “to build and be built”.[3] The couple immigrated to Israel prior to the commencement of the Law, established their domicile, and lived in Israel in peace and tranquillity for twenty years, until Satan came to their home. And once Satan came to dwell with them, discord grew and increased until it reached the courthouse doors. The couple had not made a property agreement, neither when they married nor in their previous domicile. It never occurred to them. They lived in peace and tranquillity, and why would such a couple make a property agreement? So it was in their domicile abroad, and so it was in Israel. Twenty years, and no property agreement. Needless to say, over time the couple became part of Israeli society: the husband pursued his pursuits, and the wife pursued her pursuits, and they became an inseparable part of their surroundings at work, in society, in joy and in sorrow. An ordinary Israeli couple. Until the dispute that began and the separation that followed. Had these spouses been Israelis from the outset, there would be no problem establishing that they had created an “implied agreement” to co-ownership of the assets that they had acquired in the course of their marriage. While they had not made a “property agreement” between them, they had indeed made an agreement – an “implied agreement”. Now, in coming to construe the legislative act, in order to give substance to the “agreement” in the final clause of sec. 15 of the Law, the question arises: What reason is there to limit this “agreement” specifically to a “property agreement”? What justification can there be for such a restriction of the language of the Law? We have searched tirelessly and found none.

Such is the case in regard to spouses who immigrated to Israel before the Law, and so in regard to spouses who immigrated to Israel after the Law. Imagine, for example, that a certain asset was registered in the husband’s name alone, and one day the couple went and registered it in both their names. There can be no doubt that such registration would be valid, and their co-ownership of that asset would be realized. What difference is there between this example and an “implied contract” based upon the circumstances of the case, by which the couple deemed the asset to be co-owned and so treated it? And if that be the case, why should we not say that the law should follow life, after all, was the law not given that we might live by it? If this is how life flows, should we not assume that the law is meant to go with the flow, down the river, and not against the current and up the mountain? The Law - at least in the case before us - was not intended to educate the country’s residents, but rather to adapt itself to the prevailing views of Israeli society: to prefer the principle of equality and reject views that were common in past centuries – views still common today in certain societies – as to the inferior status of women in married life. All of this together must, in my opinion, lead us to interpret the law in the manner adopted by my colleagues Justices Elon, Barak and Goldberg, as saying that the term “agreement” in the concluding clause of sec. 15 of the Law comprises a plain agreement. And an implied agreement falls within that meaning.

Thus far I have walked arm in arm with my colleagues President Barak and Justice Goldberg, with whom I agree as to the construction of the term “agreement” in sec. 15 of the Law. At this juncture our paths diverge: If my colleagues’ path is to the left, then I shall go to the right, and if they will take the right, then I will go to the left.

18.       I agreed that the term “agreement” in the final clause of sec. 15 of the Law means an agreement in accordance with the general law of contract – a plain agreement – and an agreement, as we all know, also means an implied agreement. However, what is an “implied agreement” - particularly within the context of the final clause of sec. 15 of the Law? To my mind, I have no doubt that an agreement in the context before us - an agreement, including an implied agreement – means a real agreement, an agreement that can be understood from the circumstances of the case at hand. An implied agreement is like an express agreement – although it is created by conduct and actions rather than by speech and words. When Reuben gets on the bus, he no doubt impliedly agrees to pay the fare, and should he claim at the end of the ride: “I didn’t know” that I was supposed to pay for the ride, we will dismiss his claim as false. If Simon fills a bag with vegetables laid out on a stand in the market, he no doubt impliedly agrees to pay for the vegetables, and a claim that “I didn’t know” that I was supposed to pay for the vegetables, because I thought they had been put there as a gift for passers-by, will be dismissed as empty words. And the same will hold true for a person who calls a plumber to his home and refuses to pay when the work is done, claiming that there had been no advance agreement that he had to pay. These are all – all of these and others like them – examples of true agreements, agreements that meticulously and carefully fulfil the conditions required for forming agreements in accordance with the law of agreements. They are called “implied agreements” – to distinguish them from express agreements – but this distinction between agreements of one type and agreements of another type is nothing but a distinction that describes the methods for creating the agreement. The distinction is of no legal consequence in regard to the very existence of the agreement, except insofar as the manner of proof is concerned. The agreement is implied in fact by the circumstances of each and every case.

19.       Alongside the “real” implied contract – that contract that is implied in fact – we find the implied contract that is not “real”, the one that is called an implied contract but is not an implied contract: it is neither a contract nor is it implied. It is a commonly known phenomenon that in developing the law, the courts made use of the method of implied contract in order to advance the creation of norms and in order to do justice to the parties. Thus, for example, English law developed the legal field of unjust enrichment, a field of law that for many years was based upon the technique of implied contracts that were called quasi-contracts. The nature of “quasi-contract” was hotly debated for many years, but on one thing all were agreed: whatever the scope of “quasi-contract” may be, a contract it is not (cf. CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Company Ltd. et al. [36] at p. 768).  That “quasi-contract” was a “contract” implied in law. In other words, it was a formal legal device that the courts employed to give (new) meaning to the law. It was not a “real” contract, a contract like all contracts, that is, a norm or a set of norms that Reuben and Simon sought to create for themselves – of their own will – in order to regulate their relationship. It was not a contract at all. It was a formal legal pretext for a system of facts that required an appropriate substantive solution.

Indeed, in those cases the courts did not examine the factual picture presented to them in an attempt to infer an agreement between Reuben and Simon, as courts do when they seek to examine and discover whether or not an implied agreement was formed between Reuben and Simon. The facts were clear, and all knew that no contract had been formed between the parties, not express and not implied. The question that the courts addressed was whether, on the basis of the agreed assumption that there was no contract between the parties, it would be proper to grant Reuben relief against Simon. Would it be proper to create a new legal entity, a right, that will wrap itself in a robe called contract (or “quasi-contract)?  Here the court does not infer an intention to form a contract from the circumstances. However, since the form is that of contract (or quasi-contract), the court imputes to the parties an intention to form a contract, an intention that all are aware did not exist and was created solely for the purpose of the formal legal pattern. A real implied contract derives from the circumstances of the case, whereas an implied contract that is not real is one that we apply to the circumstances of the case “for the glory of the law”.

The unreal implied contract – or if you prefer: the fiction of the implied contract – served as a valuable tool in the development of the law, like every other fiction intended to improve and advance the legal system. However, every fiction – as good, beautiful and noble as it may be – is just what it is called: it is a fiction, it is not the truth. The day comes when every fiction must depart the legal stage. Legal wisdom is knowing when the appropriate time has come to ask a particular fiction to relinquish its place. And a fiction that walks among us after it has fulfilled its role will not only bring no benefit, it may even do harm.

20.       My colleagues President Barak and Justice Goldberg are of the opinion – each in his own way – that the provision of the concluding clause of sec. 15 of the Law may be decisive in our matter, that is: the Nafisis agreed between them – impliedly, of course – upon co-ownership of their property, and therefore Mrs. Nafisi is entitled to what is hers. I strongly disagree with this. In my opinion, the provision of sec. 15 is concerned with a real agreement between the spouses, and in the matter of the Nafisis, there is no evidence of the forming of a real implied contract between them for the co-ownership of their property – a contract that is implied in fact – but the opposite.

 

The community property presumption and the spouses – the meaning of “agreement” in sec. 15

21.       The question whether the Nafisis “agreed” to co-ownership of their property is strongly tied to the community property presumption created by the case law in regard to property relations between spouses, and we must therefore say a few words regarding the case law. Reading the case law will show us that a fine distinction must be drawn between the substantive elements that created the community property rule in regard to spousal property, and the formal legal frameworks into which the case law cast the substantive elements. Indeed, we find that, not infrequently, contract law provided the formal legal framework for advancing the law, however we do not find that contract law was – in truth – properly employed. We discussed this in CA 806/93 Y. Hadari v. S. Hadari (Darhi) [37], as we stated there, at p. 699:

3 … it is appropriate that we distinguish between the substantive grounds that give life to the community property rule – that give it life and nourish it – and the formal legal frameworks that serve us: between the contents of the bottle and the bottle itself, between the level of principle and the level of legal technique. Truth be told, it may be said that the areas nourish each other, and the distinction between them is neither sharp nor easy. Moreover, some principles are easily categorized both on the one level and on the other (like the element of intent), and at times employ the very same term (“intent”) on one level or another without distinguishing between the two. It would nevertheless appear appropriate to distinguish between the principles that serve the system, and to add and locate the various levels of abstraction.

4. As for the substantive elements – those elements that create the law and steady it in place, these elements were not born under one roof, but came from different places. It would appear that the main principle is to be found in the need to act decently, fairly and justly with the wife who is, as a rule, the one who may end up disadvantaged in the absence of the community property rule. These three, each in it own right, gave birth to the principle of equality (equity is equality), and to this group the element of intent was added. Along with all of these resides the pledge of a life together that the spouses made (whether by marriage or not by marriage), which has existed from time immemorial, since God created man - male and female He created them: “Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh” (Genesis 2:24).

Thus it was in living together – under the warm sun and in the cold, in joy and in sorrow – and certainly thus in property. In our opinion, the substantive elements are not all to be found at the same level of abstraction, and there may be differences of opinion on the question of whether one element or another is to be located here or somewhere else.

As for the formal legal framework, it would seem that it lies somewhere between contract and property law (and with them the laws of trust in the broad sense), and through them all the main support is the element of intent, primarily the intention of the spouse who is the owner of the property (but not only his intention).

And also see what I stated there, at pp. 700-704.

22.       However, a careful historical examination of the case law shows that since the emergence of the community property rule, the element of “implied contract” did not play a central role, but served as a formal legal refuge, and the substantive elements – the elements of equality, decency, fairness, justice and equity – crowded together, one beside the other, under its roof.  The element of intent also came under that roof, but the element of intent did not play a primary role except in the negative, that is, when the circumstances showed that a spouse did not intend to join his spouse in his property. In the words of President Shamgar in the Bavli case [18], at p. 252:

The law of Israel, as construed by this court, is that in regard to spouses who live together and maintain a common household, the property accrued in the course of their lives together is their joint property that divides equally between them, even if it is registered only in the name of one of them – as long there is no evidence that they formed some other intent. That is the community property presumption.

Indeed, unlike “real” implied agreements – regarding which we learn about the intention of the parties from the circumstances of each and every matter – in the case of community property, the courts attributed to the spouses the intention to share their property. Needless to say, attributing intention reflects a fiction. Thus, for example, in CA 300/64 M. Berger v. Estate Tax Director [38] – which is one of the early stages of the rule – Justice Berenson stated as follows, at p. 245 (emphases in this quotation and the following quotations are all mine – M.C.):

In the absence of an agreement, or when it is not clear what the intention of the parties was at the time of purchase, the court will impute to them the intention that the property belong to both of them in equal parts…of course, if it is proven that at the time of purchase the intention was that the property belong to one of spouses, or held jointly but not in equal parts, then that intention should be realized. But in the absence of such evidence, it is presumed that when they live together and do not maintain a clear distinction between the property of each of them, their intention was to an equal partnership.

The fiction is clear. In CA 253/65 [25] President Agranat cites Justice Berenson’s statement with approval at p. 598, and adds the following of his own, at p. 597:

Indeed, in most cases – it may be assumed – the properties are purchased without any express agreement between the spouses that addresses the question of their ownership of those properties, and without even giving consideration to the question at the time of purchase. When the facts in such cases point to married life over a significant period, during the course of which the spouses did not distinguish income that each received from different sources but pooled it – if only conceptually – into a single fund from which the monies were drawn to purchase the properties, such that we can say that there was a kind of “aggregation of resources” and an absence of a “clear dividing line between the property of each of them”, then it is proper to impute to them the intention to share in equal parts.

President Agranat adds, at p. 599:

…in the absence of clear proof regarding the parties’ intention on the said question of ownership, and the facts surrounding the marriage are like those described above, it is justified to turn to the principle found in the laws of equity, that is the principle that supports equality.  In other words, the property should be divided equally between the spouses…

And also see CA 135/68 T. Bareli et al. v. Estate Tax Director, Jerusalem [39]. In CA 595/69 [29], the Court reiterates the rule, and Justice Y. Kahan says, at p. 568, that “the law in regard to community property of spouses is, at base, a creation of the decisions of this Court”. In other words: not an implied agreement but rather a creation of the case law.

23.       We intentionally brought early cases in order to show that from the very outset implied contract served only as a cover, a façade and a technique for expressing substantive principles. Those principles were: justice, equity, decency, fairness and equality for the wife. As for the later case law, we will suffice with two quotes from the Bavli case [18]. This, for example, is what Deputy President Barak said, ibid., at p. 229:

The community property rule is a creation of the Court. It is an “outstanding example of judge-made law, delivered on the birthing stool of this Court”… it employs a contractual construction that treats of an (inferred) agreement between the parties, by which they are equal partners in rights…the legal tool is intended to realize a social goal. It is intended to bring about social justice. It is based upon equality between the sexes. It is nourished by the conception that spouses contribute equally to the family’s welfare.

President Shamgar spoke in the same spirit. We saw what he said in paragraph 22 above, and he continued to say, there [18], at p. 254:

The Court fashioned the principles of the community property presumption on the basis of the social and economic reality in which the separate but simultaneous and coordinated endeavour of each of the spouses creates property that should be viewed as common and as dividing between them equally. The partnership is not created in the court but in the day-to-day lives of the spouses, and what is put before the court is in the realm of a result that the law recognizes and to which it grants legal force. Therefore, the court must view the right deriving from the community property presumption accordingly, that is, as a valid, existing right. In other words, the law grants its seal of approval to a relationship grounded in our interpersonal, moral and social conceptions.

We could cite many other examples from the case law, and whoever cares to take the trouble will find plenty of evidence for what we have said.

Professor Ariel Rosen-Zvi – who left us only recently, before his time, and his shoes will be hard to fill – considers the fiction of implied contract in his abovementioned book. He explains in clear, convincing language why and wherefore the phantom “implied contract” lacks the strength to bear the presumption of equality upon its shoulders. See his remarks, supra, at pp. 249-252. Thus, for example, he writes at pp. 250-251:

The arrangement concerning the joint property of spouses is not predetermined; the conditions of the arrangement have not been decided by the parties, nor, for the most part, have they been determined by the Court. The arrangement is so vague and unclear that it is hard to see how one can infer the existence of any implied contract in such a case, and how one can infer a meeting of minds in all that concerns the sharing of property or an obligatory partnership between spouses…

…

It therefore appears to us, from every aspect that we have examined, that the rules and conditions have not been met for the making of an implied contract between the spouses by reason of their conduct in their married life and their shared lifestyle, alone. The intention of the parties, even if it be inferred from conduct, must find expression in a manifest, unequivocal declaration of desire in order for us to infer an implied contract based upon that joint intention that creates the certainty and meeting of minds between the spouses. Thus, although in principle the court is meant to weigh the facts of each case on an individual basis, it does so against a background and in accordance with a test that Justice Berenson created, and in reliance upon an a priori presumption, while deviating from an independent examination of the facts in accordance with contract law.

A word fitly spoken is like apples of gold in a setting of silver! And further see the great dispute among the justices in the Yaacobi and Knobler cases [9].

We thus find that the community property rule between spouses does not actually find support in the law of contracts and agreements. It draws its nourishment from the principles of justice, equality and fairness, while contract law was primarily intended only to serve as a legal framework and form for expressing those principles that create rights.

24.       It would appear that the legislature itself did not manage to escape old idioms and mindsets, and so we find that it too speaks in fictional terms, and unnecessarily so. For example, the Law sets out the necessary conditions for the existence of a “property agreement” in sec. 2, adding in section 3(a):

Application of an arrangement

3(a) Where the spouses have not made a property agreement or where they have made such an agreement, in so far as it does not otherwise provide, they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property agreement conforming to the provisions of section 2 (emphasis mine – M.C.).

To what purpose does the legislature establish that spouses that have not made a property agreement “shall be regarded as having agreed to a resource-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property agreement…” (emphasis mine – M.C.)? What need does the Law have in adopting a fiction by which the spouses shall be deemed as having agreed to a resource balancing arrangement? (“the collocation ‘shall be deemed as…’ is the creation of a fiction”: CA 3095/91 Emmanuel Lidor et al. v. Director for the purpose of the Land Appreciation Tax Law, 5723-1963 [40], at p. 823). And why did the Law not explicitly establish that in the absence of a property agreement the spouses will be subject to the resource balancing arrangement stated in the Law? You may say: the legislature has not yet freed itself of old thought patterns – whereas the courts needed to make recourse to fictions in order to maintain the law – thus resulting in the use of language that was once appropriate but has since become outmoded. And see: Rosen-Zvi, supra, pp. 339-340; G. Tedeschi, On Dispositive Law, 15 Iyyunei Mishpat 5, 6 (1990); E. Zamir, Interpretation and Gap Filling in Contracts, (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1996) 17. In contract law, for example, the legislature freed itself of the mindset of implied contract – a thought pattern that was so characteristic of the development of contract law in English law – in establishing dispositive provisions, that is, provisions that apply to contracts in the absence of an alternative agreed to by the parties. Why should we not follow the same approach here? In CA 3666,4012/90 Zukim Hotel Ltd. v. Netanya Municipality; Netanya Municipality v. Zukim Hotel Ltd. [41] the provision of sec. 9 of the Contracts (General Part) Law [sic][4] is examined. Section 9 treats of restitution after the rescission of a contract, and the question arose as to the legal character of this provision. Some were of the opinion that the provision should be viewed as an “implied condition” between the parties, about which I said as follows, ibid., at p. 68:

The statement that sec. 9 of the law is an “implied condition” between the parties to the contract – as long as not otherwise stated in the contract – is nothing but a fiction. It does not reflect a factual truth. Indeed, parties may think about sec. 9, and ponder what it says, but we all know that, as a rule, the parties to a contract do not consider the provision of sec. 9 as such. Fiction plays a decisive role in the development of the law, but why should we make use of a fiction when there is no real need? Indeed, the concept of “implied condition” – like the concept of “implied contract” – has caused us no insignificant suffering in the development of the law of unjust enrichment (and more precisely: in the development of the rules of quasi-contracts), and after having banished it from our presence in shame, shall we conjure it up it from the dead to learn the law from its ghost?

And form there to here.

25.       It is, therefore, our opinion that the community property rule between spouses does not – in truth – rest upon an implied agreement between the spouses. That implied agreement of which the case law speaks is but the cover, the formal legal façade intended to hold social content. The core of the social content is the desire to treat the wife with equality, justice and fairness.

            All of this regards the community property presumption, a presumption that was created and existed prior to the Law, and even after it. As for the “agreement” in sec. 15 of the Law, in our opinion the legislature is addressing a real agreement – even if an implied agreement – and not a fictitious agreement like that which served in the creation of the community property presumption. Indeed, the very fact that the legislature expressly speaks of a fiction-agreement in sec. 3 shows us that the agreement in sec. 15 is a real agreement, an agreement that is “palpable”.

26.       What we have said in regard to the community property rule in general, applies to the Nafisis, and even a fortiori. The basic assumption is that, prior to immigrating to Israel, part of the property belonged exclusively to the husband, and the question that arises is: After their immigration – or pending their immigration – did the spouses agree, if only impliedly, upon co-ownership of that property, half and half. I perused the material and did not find the slightest evidence of such an agreement, or of the husband’s (unilateral) consent to grant his wife co-ownership of the property that was registered exclusively in his name. Indeed, I am of the opinion that no agreement was made between the spouses in accordance with the provisions and meaning of the law of contracts and agreements. I will permit myself to add that even in the opinion of my colleagues, no real implied agreement was made by the spouses for the co-ownership of all their property. Indeed, the terms my colleagues use when speaking unguardedly speak for themselves. They speak of fictions. Thus, in construing sec. 15 of the Law, and in applying the said “agreement” to the Nafisis, my colleague President Barak says the following (in sec. 6 of his opinion):

…upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel (emphasis added – M.C.).

What is meant by “are deemed as agreeing”?  Rather say: the spouses did not agree in the simple, true sense of agreement; we hereby “impose” an agreement upon them, by means of a fiction. And thus said my colleague Justice Strasberg-Cohen:

… in the circumstances of the present case, the spouses should be deemed as agreeing to maintaining, in Israel, a community property relationship (emphasis added – M.C.).

And so even my colleague Justice Dorner, who speaks of an “agreement” in accordance with sec. 15 of the Law, about which she says (in para. 1 of her opinion):

…the existence of which is inferred on the basis of the community property presumption in regard to the couple’s assets (emphasis addes – M.C.).

Further on in her opinion, my colleague states (in para. 3 of her opinion) that an “agreement” under sec. 15 includes even an implied agreement, “…and it can be proven with the aid of the community property presumption”.

            Our colleague Justice Goldberg was the first among us to speak of the existence of an implied contract, so to speak, between the spouses as a fiction. And so, for example, he says (in para. 28 of his opinion):

Having found, on the basis of the spouses’ clear, serious intention to immigrate to Israel, that they should already be conceptually viewed as Israeli domiciles, the presumption follows that having formed that intention, they agreed to adopt the property regime prevailing in Israel in regard to assets acquired thereafter from joint effort – both those that “immigrated” to Israel with them, and those acquired in Israel in anticipation of their immigration (emphasis added – M.C.).

The element of fiction in the so-called “agreement” of the parties is clear to all. Did the spouses truly and honestly agree “to adopt the property regime prevailing in Israel”? What evidence was brought for this? Had the spouses been asked what their intention was – or what they had agreed to upon immigrating to Israel – I have no doubt that the husband, at the very least, would have replied that all that was is what will be. It is also possible that the wife would have said the same. Indeed, the spouses did not make any agreement between themselves in regard to the subject of property. It is, therefore, no wonder that my colleague does not speak about a real agreement between the spouses, but rather about “the presumption that…they agreed to adopt the property regime prevailing in Israel” (emphasis mine – M.C.). Had an agreement been proven, my colleague would not have made recourse to the presumption, and recourse to the presumption is a sign that no agreement was proven. The truth is, of course, that we are subjecting the spouses to a property relations arrangement that we deem to be appropriate. And if that is what we are doing – the good and proper – let us not attribute our acts to some “agreement” between the spouses, since we all know that they did not agree to what we are attributing to them. Indeed, my colleague is well aware that we are simply concerned with a rule that serves to “reflect a society’s conceptions of distributive justice and cultural conceptions regarding equality between the sexes…” (section 8 of his opinion). And further see what my colleague writes in sections 14, 16 and 17 of his opinion.

            Here is the fiction. And who is he, and where is he, who would presume to say that it is not a fiction? And so, as we follow the path of justice, and meet the worn out fiction standing in the way, we should follow the advice of Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. (1941) [47] at 29:

These fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared should not in these days be allowed to affect actual rights. When these ghosts of the past stand in the path of justice clanking their mediæval chains the proper course for the judge is to pass through them undeterred.

27.       We thus find as follows: No express agreement for co-ownership of property was made between the Nafisis. Nor was any implied agreement – in its real contractual sense – made between the spouses. Knowing that the provision of the concluding clause of sec. 15 treats of a “real” agreement, whether an express agreement or an implied agreement – a real agreement as opposed to an agreement born of a fiction – we can conclude that the provision of the concluding clause of sec. 15 does not apply in the case before us.

28.       To summarize thus far, certain property was registered in the husband’s name alone, and the wife did not succeed in proving that she has a right to co-ownership. In order to prove a claim of community property, she had to pass through the portal of sec, 15 of the Law, and having found that she does not posses the appropriate keys – neither for unlocking the opening clause of sec. 15, nor for unlocking its concluding clause – the unavoidable conclusion is that matters remain as they were, and the wife is not entitled to take part of the property registered in her husband’s name alone.

 

On equality and community property: foundational principle and public policy

29.       Mrs. Nafisi claims a right to property that her husband purchased and registered in his name, and we have concluded, thus far, that she has not succeeded in grounding her claim of right in any legal source. The couple were married in Iran, and thus the relationship is governed, first and foremost, by the provisions of sec. 15 of the Law. We examined and determined that the wife cannot pass through either of the portals established in the walls of sec. 15: neither through the portal of the opening clause – inasmuch as it was not proved that Iranian law grants her the right that she claims, nor through the portal of the concluding clause – inasmuch as the existence of a real agreement between the spouses – an express agreement or an implied agreement – for co-ownership was not proved. The required conclusion is, therefore, that the wife’s claim should be denied. This was, in fact, the conclusion reached by our colleague Justice Mazza, with whom our colleagues Justices D. Levin and Tal concurred.

30.       This conclusion that Mrs. Nafisi will be left bereft of properties acquired by her husband – while she saw to their common household and raised their five children over the course of 40 years of their marriage, troubled all of my colleagues, and it troubles me very much, as well. This difficult result was also clear to the Court in the Azugi case [1]. All of my colleagues gave expression to this grave difficulty, each in his own way and style: Justices Elon, Barak and Y. Kahan – each of them – in the Azugi case [1]; our colleagues Justices Mazza, in his opinion that is the subject of the Further Hearing, and my colleagues on the present bench, Justices Goldberg, President Barak, and Justices Strasberg-Cohen and Dorner. Section 15 of the Law stands at the centre of the ring, and we are all circling it and criticizing it. So we the judges, and so jurists in their publications. See, e.g., Shava, Property Relations, at pp. 268-288; Shava. Personal Status, at pp. 385-405.

            It is not common that a provision of a particular law garners so much criticism from all who cross its path, without exception. The question that must be asked is – why? Moreover, in the Azugi case [1] the judges took different paths – Justice Elon followed his path, and Justices Barak and Y. Kahan followed theirs – and it seems to me that there was not a single legal question upon which the judges did not disagree. Yet amazingly, at the end of the day, all the judges were united and rendered their decision unanimously in favour of the community property presumption and in favour of the wife. All three – each one of them – expressed open and concealed criticism of the provisions of sec. 15 of the Law, and did their utmost to find ways around it. We would add that this tendency in regard to sec. 15 can also be seen in the following cases: CA 291/85 [17]; the Shaman case [10]; CA 370/87 [16], each in its own way and style. The drama repeats itself yet again in the present case: we are divided in our opinions, but we are all critical of sec. 15 of the Law.

31.       And so I ask: what has caused my colleagues to go out of their way, each one of them, in order to express severe criticism of this legislative provision in sec. 15 of the Law? Why are the learned uncomfortable with an order, so to speak, given us by the legislature, directing us to the law of the domicile of spouses at the time of their marriage? I do not think that we need look very far, as the answer is laid out at our doorstep. The criticism is directed in all its fury at the message conveyed – or that may be conveyed – by sec. 15 of the Law, according to which it is possible that the husband will prevail, and the wife will be deprived inappropriately. This possible gain and loss – at the expense of one another – bare a sensitive nerve and wound our sense of justice. In legal parlance, we would say that sec. 15 of the Law may infringe an accepted basic principle of Israeli law, the principle of equality between male and female, between man and woman, between spouses. It may infringe – and indeed it does infringe. Note: we are not concerned merely with some law that may, in the opinion of the Court, cause injustice in certain circumstances. We are speaking of a law that undermines a central pillar of the Israeli legal system. Only thus can we understand and explain the great distress that weighs so heavily upon us all, and our outcry against the provisions of sec. 15 of the Law.

32.       Having arrived at this point, we can correctly understand the attempts of the judges – each in his own way – to expand the scope of the concluding clause of sec. 15 of the Law, while at the same time adapting the scope of the opening clause of sec. 15 of the law to our accepted basic principles. That is what my colleagues are doing. Thus my colleagues Justice Goldberg and President Barak hold that the Nafisis should be deemed as if they made an agreement for the co- ownership of all their property, even though we all know that the Nafisis never made such an agreement between them at all – in the real sense of the concept of agreement – not expressly and not impliedly. In this regard, my colleague president Barak states (in para. 4 of his opinion):

Indeed, if the contractual construct can deliver the community property rule across the raging sea of the provisions of the Land Law in particular, and civil codification in general, I see no reason why the it would lack the power to deliver the community property rule across the raging river of conflict law. We can revisit this matter in the future, and consider whether we might base the community property rule upon the general power of an Israeli judge to develop the law in conjunction with the statutory law, without need for the contract construct … That is judicial power that draws upon our legal tradition. By that means, it is possible – should it be found appropriate – to grant a more comprehensive character to the community property rule, in addition to its contractual character. That would be the mature fruit of “judge-made law, delivered on the birthing stool of this Court” (CA 630/79 Z.B.Liberman v. A. (Mendel David) Liberman [35], per Elon, J., at p. 368).

So indeed. My colleague the President admits, in fact, that we have created a fiction of an agreement, and by the bridge of this fiction he seeks to cross the Sambation.[5] For my part, I do not wish to walk on the bridge of fiction. I take a different path.

33.       The point of departure of my journey is to be found in the principle of women’s equality, a principle that has been accepted and taken root in Israeli law – in statute and in case law. We shall not expand upon this principle, so as not to appear to be carrying coal to Newcastle.  Indeed, the declaration of the founding of the state proclaimed what it proclaimed; the Women’s Equal Rights Law, 5711-1951, stated what it stated, and we will put primary emphasis upon the decisive contribution of the case law in grounding, deepening and bolstering the principle. Any attempt to challenge this principle of women’s equality would be the equivalent of heresy in our society. The community property presumption between spouses – a presumption created by the courts – is like a branch that sprouted from the tree of equality, and it is from equality that it draws its strength. This is also true of the provisions of the Law and its resource balancing agreement, which were also derived from the principle of equality. In the Bavli case [18] - as we are all aware – the Court gave strong support to the community property rule between spouses as an outgrowth of the principle of equality, whether as a derivation of the Women’s Equal Rights Law, or whether as an independent rule in its own right. And see, e.g., Y. Mendelson, Property Rights between Spouses, in F. Raday, C. Shalev & M. Liban-Kooby, eds., Women’s Status in Law and Society in Israel (Schocken, 1995) 437.

            Moreover, the principle of equality between men and women and between spouses has assumed the status of overarching principle in Israeli law – or, if you prefer, a fundamental principle – and within its prescribed boundaries all other normal provisions and rules will kneel and bow. That same overarching principle gave birth – truth be told – to the implied contract that is not an implied contract at all. It breathed life into the dry bones of the implied contract formula; it raised the bridge fiction; and those of my colleagues who make recourse to the implied contract construction are speaking of the same overarching principle even if they do not say so. The implied-contract mask is the thinnest of all, and now we shall remove it. And when we remove the mask, our eyes will see the overarching principle of equality in all its grandeur.

34.       The community property presumption in property relations between spouses derives from the same overarching principle of equality between spouses, and it had two spiritual fathers: one, Israeli society’s views on the appropriate norms that should – and do – apply to property relations between spouses, and the other, the courts, as those meant to express society’s views. These two created the community property presumption, and the give and take between the law and reality continues to this very day.

35.       What is the scope of incidence of the principle of equality in property relations between spouses? The answer is almost self-evident. Inasmuch as the principle is Israeli – it is a principle that arose from the reality of Israeli society – it is straightforwardly clear that, in principle, it was intended to apply only to those who are domiciles of Israel. Of course, we are all aware that the principle of the equality between spouses is not exclusively ours and we did not create it. However, once the principle was naturalized in our country, it became ours: we are dealing with one of our own and we apply it to our own.

36.       How strong is the community property presumption between spouses, and where is it located in the Israeli normative hierarchy? In the Azugi case [1], at p. 9, Justice Elon placed the community property rule between spouses in the realm of public policy in Israel. Justice Barak disagreed with that view, being of the opinion that it would be incorrect to categorize the community property rule as one of public policy. In his own words, at p. 28:

In my opinion, the rules of community property developed by this court should not be viewed as part of Israeli public policy. If that were our approach, then we would not recognize an agreement between spouses that rejected co-ownership. It seems to me that my distinguished colleague (Justice Elon – M.C.) extends the concept of “public policy” beyond its natural borders. I agree that the provision of secs. 1 and 2 of the Women’s Equal Rights Law, 5711-1951, reflects Israeli public policy, and therefore we would not give effect to a foreign law that contradicts those rules. However, this does not mean that the community property rules developed by this court are themselves part of Israeli public policy.

In the decision that is the subject of this appeal, our colleague Justice Mazza agrees with Justice Barak’s statement.[6] 

Initially, I was of the opinion that the community property presumption was located in public policy, but I then changed my view for two reasons. First, we are speaking of external public policy (ordre public externe), and the nature of such public policy is that it can mercilessly crush any inconsistent norms. See, e.g., A. Levontin, Choice of Law – Draft Bill with Brief Explanatory Notes (Ministry of Justice, 1987) (hereinafter – Levontin, Choice of Law), sec. 67 at p. 118 and sec. 4 at pp. 33-34; Dicey and Morris, supra, at p. 88ff; Levontin, Conflict of Laws, at pp. 122-124. As for the presumption of equality in property relations between spouses, it is not to be located in this framework. Indeed, by its nature, this presumption is unlike those grand principles that are part of public policy: first, being merely a presumption, it can be rebutted. Thus, for example, a basic assumption in this regard is that spouses can contract out of the community property presumption. We would have to agree that it is difficult to categorize such a dispositive provision as being one of public policy. Second, the community property presumption limits itself, from the outset, exclusively to Israeli domiciles. It does not presume to apply to foreign residents, even if they litigate before an Israeli court. In so limiting itself, it removes itself from the realm of (external) public policy, inasmuch as external public policy obliterates any norm that stands in its way.

            Therefore, in my opinion, while the community property presumption between spouses is an overarching principle in our law in its application to Israeli domiciles, it does not reach the level of (external) public policy. This overarching principle is a sort of internal public policy (ordre public interne) according to the classification of the great jurist Friedrich Carl von Savigny, as opposed to external public policy. See, for example, HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [42], at p. 256.

            We are dealing with a quasi-internal public policy, inasmuch as the overarching principle applies only to Israeli domiciles, but that overarching principle holds Israeli domiciles in its grasp with full force and will not relent.

Having reached that conclusion, we can proceed on our course.

37.       The community property rule between spouses applies, so it would seem, to all spouses domiciled in Israel. That will be the basic assumption in every case treating of property relations between spouses. Whoever seeks to deviate from that rule – a rule that derives from an overarching principle of the Israeli legal system – will bear the heavy burden of explaining and persuading that his case should be treated differently. This would be the case, for example, if a different agreement is made by the spouses – a real agreement – as stated in sec. 15 of the Law. And such would be the case if a husband were to prove that according to a foreign law that applies in accordance with the opening clause of sec. 15 of the Law, a different arrangement is to apply – one that is not a community property arrangement as we expect, but is nevertheless an arrangement that is based upon the principle of equality as accepted in our legal system. However, if the court finds that the foreign law that is applicable under the provision of the opening clause of sec. 15 of the Law does not recognize the principle of equality from the outset, that law will be rejected as repugnant to an overarching principle of the Israeli legal system, an overarching principle that applies to all Israeli domiciles. In such a case, the community property rule will stand, and the case will be decided accordingly.

            The conclusion in the matter before us is obvious. The community property presumption applies to the Nafisis. From the moment that they immigrated to Israel, they became ours and one of us. If Mr. Nafisi wishes to be an exception, he bears the burden of proving why he is to be exempted from the presumption. Mr. Nafisi did not succeed in removing himself from the ambit of the overarching principle. Therefore, the parties remain at the end as they were in the beginning. The community property presumption continues to apply as it did from the outset. Mrs. Nafisi is entitled to share the properties that her spouse acquired in the course of the marriage, half and half.

38.       With great caution I will add – as the matter requires further consideration – that it may be possible to achieve the same conclusion by recourse to the famous distinction made by our teacher Professor Avigdor Levontin between “vested” rights and “floating” rights. See A.V. Levontin, Conflict of Laws with reference to Transnational Contracts, Israel Academy of Sciences and Humanities Proceedings, vol. 3, no. 2 (Jerusalem, 1968) (hereinafter – Levontin, Contracts); and see M. Shava, The Presumption of the Identity of Foreign Law, 4 Iyyunei Mishpat (1975-76) 583, at p. 587 ff (Hebrew); M. Shava, Personal Status, at p. 456, 460ff.

            We will briefly explain: Property relations between spouses can be classified with the family of “floating” rights. They are rights that are created between the spouses themselves (inter partes), and do not derive from the status of marriage per se. See, e.g., the Bavli case [18], at pp. 233-234 per Barak, D.P.). Being what they are, at the first stage we will apply – as to other “floating” rights – the lex fori, that is, Israeli law and the principle of community property of spouses, which represents the accepted Israeli idea of justice. If one of the spouses claims that the principle of community property does not apply to him by reason of the law of domicile at the time of the solemnization of the marriage, he will have to bear the burden of proving that law. If we find that that law does not recognize the principle of community property – unfairly discriminating against women – we will reject it as repugnant to an overarching principle that applies in Israel to Israeli domiciles. By this approach, too, we find that the community property principle will apply to spouses whose domicile was not Israel at the time of the solemnization of their marriage, but who became Israeli domiciles. It may also be possible to present that same result in terms of the application of the presumption of the identity of foreign law (see Shava, ibid.).

39.       My colleague Justice Mazza says (in the appeal that is the subject of this Further Hearing) that the doctrine of “floating” rights – which leads to the application of domestic law – cannot apply to our case. Why?

… inasmuch as sec. 15, itself (as part of the domestic law), directs us to the foreign law. In so doing, the legislature expressed its view that sharing (or non-sharing) of spousal property does not create (according to the well-known distinction of Prof. Levontin) “floating” rights … but rather rights that by their very definition are anchored in the particular law in which they were created … Under these circumstances, recourse cannot be made to the provisions of domestic law, inasmuch as such recourse to its provisions would be contrary to the express provisions of sec. 15.

I find it difficult to agree with this. In my opinion, by their very nature, property rights between spouses give rise to “floating” rights, and that is the initial assumption in construing sec. 15 of the Law. Therefore, the referral to the law of the spouses’ domicile at the time of their marriage is – from the outset – a referral that is required due to the nature of the rights as “floating” rights (as opposed to “anchored” rights). In other words, in doing what we are doing, we are not rebelling against the legislature. As we know, even in regard to contracts, for example, private international law refers us to a particular legal system. Should we therefore conclude that contractual rights are not “floating” rights? If we were to say that, then it is like saying that the distinction between “floating” rights and “anchored” rights is no distinction at all (one may legitimately reject this distinction, of course, but our assumption here is that we agree with the distinction).

40.       What we have said about “floating” rights, we say with extreme caution. The water is deep, and we should beware. Thus, for example, if we were to classify the right to community property as a “floating” right, then there would be nothing to prevent us from construing the provision of the opening clause of sec. 15 of the Law as referring to the domestic law of the couple’s domicile at the time of the solemnization of their marriage, while relinquishing renvoi. See and compare Levontin, Contracts, p. 85ff. (67ff.). And see Levontin, Choice of Law,  p. 59ff. We shall leave all this for the future.

41.       It may seem that what we have said conflicts with the doctrine of vested rights that Justices Elon and Barak speak of at length - and apply – in the Azugi case [1]. In fact, had the spouses litigated their claims in Iran, then the husband would have succeeded in keeping the properties registered in his name, since Iranian law does not recognize, ex hypothesi, the community property of spouses. And now, having immigrated to Israel, we recognize – as if by deus ex machina – community property. Doesn’t the path we are following infringe the doctrine of vested rights (a doctrine expressed in sec. 22 of the Interpretation Law, 5741-1981, and prior to that, in sec. 14 of the Interpretation Ordinance [New Version])? This argument will not succeed, in our opinion, for several reasons. First, inasmuch as in our case it contravenes an overarching principle of the Israeli legal system, which applies to all Israeli residents. At the end of the day, we must bear in mind that we are concerned with Israeli society – with the fabric and quality of life in Israel as expressed in the property relations between spouses. We are concerned with a “local” rule, a rule that arose from within Israeli society – with the active help of the courts – and created an overarching principle. Against this background, a claim of “vested rights” can only be spoken in a whisper. Indeed, whoever comes to rest in the shade of Israeli law should know that he must accept it as a package deal, and the package may contain some norms that he will not like. “Domicile” is a status or quasi-status. It is a status or quasi-status desired due to the nature and character of Israeli society, and a person who wishes to settle in Israel places himself under the burden of that status or quasi-status of domicile.

            Secondly, a claim of “vested rights” is not germane from the outset, inasmuch as we have not rejected any right that was acquired. All that we have done is to shift the burden of proof and place it upon the spouse who claims that the arrangements under a foreign legal system differ from the community property presumption accepted in Israeli law. And where those arrangements deny the rights of women to equality, we will not grant them recognition because they are repugnant to an overarching principle of Israeli law.

            Third, a claim of “vested rights” is liable to spin us around in a kind of vicious circle whose beginning is its end and whose end is its beginning. The claim that by following our approach we deny “vested rights” – that we deny rights or detract from rights – assumes that a person “acquired rights”, and that all that remains for us to do is to “recognize” those rights. But presenting the matter in this way creates a distorted view, if only because we are assuming what we seek to prove. Indeed, the question is whether or not the husband acquired “vested rights”, or more precisely:  should we recognize the “vested rights” that the party claims. This question is given to our decision, and our decision will be made in accordance with the values that we adopt. The spouses are residents of Israel, and where recognition of “vested rights” will infringe an overarching principle that applies to Israeli residents, it should be clear that we will not recognize their existence and will not adopt them into our system. We have discussed this elsewhere, see CrimA.5513, 5434, 4912/91 Talmi et al. v. State of Israel [43] p. 158ff; A. Levontin, Choice of Law in Torts: Labyrinth and Exit, in A. Barak & E. Mazuz, eds., Sefer Landau, vol. 3 (Boursi, 1995) 1349ff. (Hebrew).

            We will further ask: Doesn’t that fictional “implied agreement” attributed to the Nafisis infringe “vested rights”? Moreover, was not the construction of the fiction of “implied agreement” intended from the outset to infringe “vested rights”? Indeed, in that “implied agreement” approach, and in our approach, as well, we all intend to infringe “vested rights”. The difference between the two approaches is only this: The implied agreement approach is nothing but a technique for (indirectly) recognizing an overarching principle of the Israeli legal system, whereas our approach directly recognizes the substantive element that takes us to our objective.

            Fourth, it can be argued (and I will not express my opinion on this) that a claim of “vested rights” was never intended to apply between spouses themselves. It is a valid claim between strangers – in sales, leasing, commercial transactions – but in the ongoing relationship between spouses – and in marriage – it is possible that it should not be recognized, and surely not with the same force with which it may be made between strangers. As we see, where couples can move from country to country, the “marriage climate” changes as if by itself, and it would be strange if we were to bind them to the property relations of the country that they left, as if they were adnei hasadeh[7] of that land. After all, the two left the land that was their domicile (at the time of the solemnization of their marriage) because they no longer wished to be tied to it. And see and compare: Dicey and Morris, in their aforementioned book. In order to clarify and alleviate doubt we will add that we are speaking, of course, of a situation in which the husband claims “vested rights” by law (e.g., that in accordance with some legal system “all that a woman acquires is acquired by her husband”). We are not speaking of “vested rights” by virtue of an agreement made by the spouses, by which they decided, of their own free will, to arrange their property relations in a particular way.

 

Conclusion

42.       Our journey is at an end. We now know that the wall of sec. 15 stands at the crossroad, and Mrs. Nafisi cannot pass through, not through the portal of the opening clause, and not through the portal of the concluding clause. However, while that is the case in regard to sec. 15, relief and deliverance will rise for Mrs. Nafisi from another quarter, from an overarching principle of Israeli law. The overarching principle instructs us that the principle of equality is of primary importance. And the principle of equality – which gave birth to the community property presumption in regard to property relations between spouses – will come to the wife’s aid and tip the balance in her favour.

43.       The question nevertheless arises: will the couple be subject to the community property rule that held sway prior to the Law, or will they be subject to the resource balancing arrangement established by the Law? Neither the parties not the Court addressed this question in depth, but the long shadow of the decision in the Yaacoby and Knobler cases [9] covers us.

            My colleagues have concluded that the community property rule – and not the resource balancing arrangement of the Law – governs the matter of the spouses. How so? My colleagues (Justice Goldberg, President Barak and Justice Strasberg-Cohen) say, whether expressly or implicitly, that the resource balancing arrangement commenced – according to sec. 14 of the Law – on Jan. 1, 1974. The Nafisis married before that date (when the community property rule was in effect), and so they fall within the scope of the community property rule and not the resource balancing arrangement. I disagree with that line of reasoning. The Nafisis’ domicile at the time they were wed was not in Israel, and therefore Israeli law did not touch them, and they did not touch Israeli law (q.v. Tobago, Island of). It is of no legal significance that the couple married before the commencement of the Law. The only relevant date is the date of their immigration to Israel, which was in 1983, after the Law came into force. I addressed this at length in my opinion above (see paras. 4 through 7), and I will not add to it.

            Moreover, I do not wish at this time, at the end of a wearying journey, to take up the yoke of this difficult issue that has not been argued before us. I join in the opinion of my colleagues that Mrs. Nafisi is entitled, as a matter of principle, to share in the property of her spouse. I view the issue of whether the community property rule or the resource balancing arrangement applies as a secondary question. And inasmuch as my colleagues have concluded what they have concluded, I will not dissent.

 

Deputy President S. Levin:

I concur with the opinion of the President.

 

Justice T. Orr:

I agree with the result according to which the petition is to be granted, and I concur with the opinion of the President.

 

Justice E. Mazza:

I expressed my position as to the law applicable to the property relations of the litigating couple and explained it at length in my decision in the appeal. Examination of the reasoning of my esteemed colleagues, who are of the opinion that the petition should be granted, has not persuaded me to retract from what I wrote there. Then as now, I am of the opinion that in the absence of a claim – and all the more so, evidence – of an agreement between the parties determining or varying the property relations between them, they are bound by “the law of their domicile at the time of the solemnisation of their marriage”, as prescribed by the opening clause of sec. 15 of the Law. In fact, the Petitioner before us, who based her claim in the District Court solely upon the community property rule, did not assert and did not prove that any agreement was made between her and her husband (the Respondent). This is so not only in regard to a property agreement in particular (according to its meaning in the Law), but to any other express or even “implied” agreement.

            I am not dismayed by the result arrived at by my colleagues. In my decision I stated that the result that I had reached was not desirable. I therefore again reminded the legislature of the need to amend the arrangement in sec. 15, which this Court already criticized in the Azugi case [1]. But I am dismayed by the manner by which my colleagues arrived at their decision. Indeed, my colleagues arrived at their mutual decision by three distinct approaches, utterly different one from another. To my mind, not one of those approaches is consistent with the clear provision of sec. 15, and each of them, in its own way, effectively devoids the provision of sec. 15 of any real content. For my part, I am also not sure that, by their decision, my colleagues have not indirectly and impliedly modified the rule recently set down in the Yaacobi and Knobler cases [9], in which it was held (by the majority) that the community property rule does not apply to spouses whose property relations are decided by the Law. Justice Dorner (who was in the minority in the Yaacobi and Knobler cases [9]) appears correctly to question the basis for the decision in this Further Hearing: “…if the Law annulled the community property presumption in regard to spouses to which the Law applies, how can spouses who immigrated to Israel after the Law came into force continue to acquire rights on the basis of the presumption?”

In the decision in the appeal, it was emphasized that “the result that I have reached is required by the law”.[8] That remains my opinion. Indeed, the existing law is not the desirable law. In my decision in the appeal I pointed out that “a rigid choice of laws, like that established by the provision of sec. 15 of the Law, is inappropriate to the conditions of a state that absorbs immigration, like Israel, inasmuch as it subjects the property relations of spouses who married abroad (unless they managed to arrive at an agreement between them) to the laws of the state from which they have severed relations”.[9] But since the provision regarding choice of law is established by statute, and as long as the legislature does not act to amend it, I do not consider myself at liberty to ignore its existence and decide the rights of the litigants in accordance with a law that differs from that dictated by the choice of law. It might be noted in this regard that the call to amend sec. 15, which was included in the decision in the appeal, did not go unheeded. In fact, about a year after the decision was handed down, the memorandum for the Spouses (Property Relations) (Choice of Law) (Amendment) Law, 5755-1995, was published. The memorandum included a recommendation for replacing sec. 15 with a provision that establishes a new arrangement for the subject of choice of law. The text of the recommended law is based upon the choice-of-law rules established in the Hague Convention of 1978, the principles of which were decided at an international conference (in 1976) in which Israel participated. Examination of the recommended law satisfies me that it appears to correct the distortions that plague the existing legal arrangement. At least under these circumstances – so I naively thought – it would be appropriate that the Court refrain from making a decision that appears to disregard the existence of an express statutory provision, and leave it to the legislature to carry out its task. I hope that the decision in this Further Hearing will not delay the legislative process, as the need to amend the Law remains unchanged.

In my opinion, the petition should be denied.

 

Justice Z.E. Tal:

While I follow the path and principles set out in President Barak’s opinion, I refrain from his conclusion.

            I begin with the assumption, required by the majority opinion in the Azugi case [1], that sec. 15 of the Law applies to couples married before the commencement of the Law. I agree that, according to the concluding clause of the said sec. 15, the spouses can jointly agree upon a property arrangement, whether by choosing a legal system or by establishing a property regime between themselves. I agree that such an agreement can also be made impliedly.

            But I refrain from making the final, great leap: the finding that every couple that immigrates to Israel with a history that is appropriate to the community property presumption is deemed to have impliedly agreed to a community property regime. As President Barak states in para. 6:

In conclusion, upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel.

This is a far-reaching conclusion that effectively confers a “status” upon the spouses on the basis of their very immigration to Israel. However, the community property presumption no longer requires the support of “conjectured” intent and “attributed” intent that supported and maintained it when the rule was not yet secure. The community property presumption now stands in its own right on the strength of justice and equality between spouses. Nevertheless, the community property presumption is not a conclusive presumption. The creation of the circumstances for its application must be proven, and it can be rebutted (although this is becoming more difficult with the development of the case law).

            An implied agreement is created by conduct, that is, by actions. Is a couple’s very immigration to Israel sufficient to be deemed an implied agreement?! I do not think so. The conduct from which we infer legal conclusions must be claimed and proven. In this case, as Justice Mazza points out, an implied agreement was neither claimed nor proved.

            Like my colleague Justice Mazza, I too am not dismayed by the result reached by the majority. But “hard cases make bad law”. The hard case before us and the desire to grant justice and equality to the Petitioner lead to the generalization of the community property rule and its application in the absence of sufficient grounds.

            Therefore, even if I agree with President Barak in regard to the principles, I do not think that a basis has been laid for their application in the instant case.

            I therefore concur with the opinion of Justice Mazza that the petition should be denied.

 

Decided, by majority, as stated in the decision of Justice Goldberg.

Delivered this day, 10^th of Elul 5756 (Aug. 25, 1996).

 

 

 

 

 

 

 

 

 

 

 

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

1. Tel-Aviv-Jaffa Rabbinical Court
2. Supreme Rabbinical Court of Appeals
3. Ran Lev

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

Before Deputy President A. Barak and Justices S. Levin and D. Levin

 

 

 

 

[1]   CA 26/51 Kotik v. Wolfson, IsrSC 8, 1341

[2]   CA 99/63 Peleg et al. v. Attorney General, IsrSC 17, 1122

[3]   HCJ 136/54 Pollack v. Herzog et al., IsrSC 9, 155

[4]  HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court  et al., IsrSC 15, 106

[5]   HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals et al., IsrSC 40(3) 699

[6]   HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court et al., IsrSC 48(3) 203

[7]   ST 1/60 Winter v. Beeri, IsrSC 15, 1457

[8]   CrimA 230/56, 4/57 Shorer v. Attorney General, IsrSC 11, 750

[9]   FH 22/73 Ben Shahar v. Mahlev, IsrSC 28(2) 89

[10] HCJ 547/84 Of Ha’emek, Registered Agricultural Cooperative Association v. Ramat Yishai Local Council et al., IsrSC 40(1) 113

[11] MApp 613/82 State of Israel v. Awad, IsrSC 36(3) 612

[12] HCJ 991/91 David Pasternak Ltd. et al. v. Minister of Construction and Housing et al., IsrSC 48(5) 50

[13] HCJ 355, 370, 373, 391/79 Katalan et al. v. Prisons Service et al. IsrSC 34(3) 294 [http://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[14] HCJ 14/51 Attorney General v. Editor of “Davar” et al., IsrSC 8, 1017

[15] BAA 663, 691, 5145/90 A. v. Israel Bar Association District Committee of Tel Aviv – Jaffa, IsrSC 47(3) 397

[16] MApp 678/82 Tayar v. State of Israel, IsrSC 36(3) 386

[17] CA 703/70 Somech v. Ozer et al., IsrSC 24(2) 799

[18] CA 230/69 Kaneti v. United Shvili Film et al., IsrSC 23(1) 505

[19] LA 451/85 Adin Marketing Company Ltd. v. Flatto Sharon, IsrSC 39(3) 303

[20] CA 548/78 A. et al. v. B., IsrSC 38(1) 736

[21] LCA 26/89 Mashraki et al. v. "Rotem" Insurance Company Ltd., IsrSC 42(4) 348

[22] LCA 18/89 Pichman v. Bank Leumi Leyisrael Ltd., IsrSC 42(4) 513

[23] HCJ 243/62 Israel Film Studios Ltd. v. Levi Geri et al., IsrSC 16, 2407; IsrSJ 4, 208 [English]

[24] CrimApp 6654/93 Binkin v. State of Israel, IsrSC 48(1) 290

[25] HCJ 323/81 (Mot 533/81) Vilozny v. Supreme Rabbinical Court in Jerusalem, IsrSC 36(2) 733

[26] HCJ 158, 2130/66 Segev et al. v. Rabbinical Court et al., IsrSC 21(2) 505

[27] HCJ 10/59 Levi v. Tel Aviv Rabbinical Court et al., IsrSC 13 1182

[28] HCJ 155/65 Gurovitz v. Tel Aviv Rabbinical Court et al., IsrSC 19(4) 16

[29] HCJ 95/63 A. v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 17, 2222

[30] HCJ 161/64 Mussman v. Haifa Rabbinical Court et al., IsrSC 18(3) 502

[31] HCJ 816/80 Gotthelf v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 38(3) 561

[32] HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court, IsrSC 9, 1193

[33] HCJ 7/83 Biaris v. Haifa Rabbinical Court et al., IsrSC 38(1) 673

[34] HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court, IsrSC 20(2) 342

[35] HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court, IsrSC 46(2) 1

[36] HCJ 1689/90 Aasi v. Central District Sharia Court, IsrSC 48(5) 148)

[37] HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221

[38] HCJ 80/93 Gurfinkel v. Minister of the Interior, IsrSC 17, 2048

[39] CA 303/57 Reich v. Hammer,  IsrSC 11, 1362

[40] HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7, 534

[41] HCJ 190/57 Assaig v. Minister of Defence, IsrSC 12(1) 52

[42] HCJ 505, 496, 488/83 Baransi v. Director of the Visa and Nationality Dept; Dasuki v. Minister of the Interior et al., IsrSC 37(3) 722

[43] HCJ 448/85, HCJApp 32, 5/86 320, 284/85 Dahar et al. v. Minister of the Interior,  IsrSC 40(2) 701

[44] MApp 1064/86 Archbishop Ajamian v. State of Israel, IsrSC 41(1) 83

[45] FH 9/77 Israel Electric Corporation. v. “Ha’aretz” Newspaper Ltd., IsrSC 32(3) 33; IsrSJ 9, 295

[46] LA 558/85 Ilin et al. v. Rotenburg et al., IsrSC 40(1) 553

[47] HCJ 869, 852/86 Aloni et al. v. Minister of Justice et al., HJCApp 521, 523, 543, 518, 515-512, 507, 502, 487, 486, 483/86 IsrSC 41(2) 1

[48] HCJ 578/82  Naim v. Jerusalem District Rabbinical Court et al., IsrSC 37(2) 701

[49] HCJ 403/71 Alkourdi v. National Labor Court et al., IsrSC 26(2) 66

[50] ST 1/50 Sidis v. Chief Execution Officer, Jerusalem et al., IsrSC 8, 1020

[51] CA 174/83 N. Soher v. P. Soher, IsrSC 38(2) 77

[52] HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court et al., IsrSC 26(2) 765

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

[54] ] LC 52/8-4; 7-41 unreported

 

United States cases cited:

 

[55] Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

[56] Matter of Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2^nd 125 (1991)

 

 

 

 

Petition for an order nisi. The case was heard as if an order nisi were grated. The petition was granted, and the order nisi was made absolute.

 

M. Bar Shilton, Y. Bar Shilton – on behalf of the Petitioners

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

Deputy President A. Barak: The question before the Court in this petition is: What considerations may a Rabbinical Court take into account when considering whether or not to grant a writ ne exeat republica?

 

The Facts

 

1. Petitioner 1 (hereinafter: the Petitioner) and Respondent 3 (hereinafter: the Respondent) are married. They have three minor children (Petitioners 2, 3 and 4). Disputes arose between the Petitioner and the Respondent. The Petitioner filed a claim for child support and custody in the District Court (on May 10, 1992). She also sued for divorce in the Rabbinical Court. In response, the Respondent filed suit for marital reconciliation with the Rabbinical Court (Respondent 2). In the framework of the suit for marital reconciliation, the Respondent requested that the Tel Aviv-Jaffa Rabbinical Court issue a writ ne exeat republica to prevent the Petitioner from leaving Israel. The request stated that "for some time, the wife has been having an affair with a foreign man who is a resident of the United States, and it is her present intention to leave Israel, to move to the United States with the children, and  to live there with this man". The Rabbinical Court, in the presence of the Respondent alone, issued an order barring the Petitioner and her children from leaving the country. The Petitioner requested that the Rabbinical Court rescind the order. The request noted that the Petitioner and her eldest daughter (Petitioner 2) wished to go abroad for two weeks. The vacation was planned long in advance and was "meant as a bat-mitzvah gift for the daughter". The two sons (Petitioners 3 and 4) would remain in Israel. The Petitioner has an active business in Israel, and there is no concern that she might not return to Israel. The Respondent objected to this request. In the meantime, the original date for the Petitioner's departure from Israel passed. She amended her request to a new date (August 14, 1992), adding that she was also combining a business trip in her trip and that preventing her from leaving would inflict severe monetary damage.

 

The Proceeding before the Rabbinical Court

 

2. The Tel Aviv-Jaffa Rabbinical Court held a hearing in the presence of the parties (on August 2, 1992). The relationship between the parties was described in the course of the hearing. The Respondent stated that a foreign man disrupted the couple's marriage. According to the Respondent, the purpose of the Petitioner's travel abroad was to meet with the foreign man and to have intimate relations with him. The Petitioner emphasized the rift in their personal relationship. She stated that the purpose of the trip was an excursion (as a gift to the daughter) and business enquiries. At the end of the hearing (on July 30, 1992), the Rabbinical Court reached the following decision:

 

Having heard the arguments and responses of the parties and their attorneys, in light of the material presented to us, and in view of the claims of the husband who claims and who fears that the wife's travel abroad at this stage would cause a final and irreparable rift between them, this court decides – at this stage – not to grant the wife's request to rescind the writ ne exeat republica against her. The court will hold an additional hearing on the matter of the wife's request on the 24^th of Elul, 5752 (September 22, 1992) at 9:00 a.m. The parties are required to negotiate an appropriate solution which will enable them to travel abroad together, or will enable the wife to travel separately under such terms as will abate the husband's concerns.

 

An application for leave to appeal this decision was filed with the Supreme Rabbinical Court. The court was asked to schedule an urgent date for a hearing in order to allow the Petitioner to leave Israel on the date she requested, so that she and her daughter would be able to return to Israel in time for the beginning of the school year. The Supreme Rabbinical Court denied the application for leave to appeal (on August 6, 1992), ruling:

 

Inasmuch as the Regional Court decided to schedule an additional session to continue the hearing, it is inappropriate to hear the appeal at this stage .

 

The petition before us was filed against these Rabbinical Court decisions.

 

 

The Parties' Arguments

 

3. The Petitioners claim that the reason that was given by the Regional Rabbinical Court to bar their exit from the country – how the departure would affect the couple's relationship – is invalid. This reason is contrary to the Rabbinical Court's own approach and to the case law of the civil courts. It is repugnant to the provisions of Basic Law: Human Dignity and Liberty. This Basic Law establishes the right of every person to leave Israel. Against this background, granting a writ ne exeat republica must be limited to securing a party's appearance in court and guaranteeing the monetary rights of the other party. It was further argued that the Rabbinical Court lacked authority to prevent the daughter from leaving the country.

 

4. In his response, the Respondent argues that he seeks to achieve marital reconciliation. The court acted within this framework and did not act ultra vires. There is a concern that the Petitioner may not return to Israel for the Rabbinical Court's hearings and will thereby frustrate the claim for marital reconciliation. The Petitioner must wait until the hearing in the Regional Rabbinical Court is exhausted.

 

5. Upon the commencement of the hearing (on August 13, 1992), (at the consent of the parties) we treated the hearing as though an order nisi had been granted. After hearing the parties' arguments, we made the order absolute and cancelled the writ ne exeat republica against the Petitioners. We instructed that the cancellation of the order be conditioned upon the Petitioners' furnishing a personal bond securing their return by September 15, 1992, and a third-party guarantee in the amount of NIS 100,000.

 

We ruled that the Respondent will bear the Petitioners' costs in the amount of NIS 10,000. We instructed that our reasons will be given separately. These are our reasons.

 

The Normative Framework

 

6. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: the Rabbinical Courts Jurisdiction Law) sets forth the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law. The Rabbinical Courts also rule in accordance with the general substantive (statutory and case-law) law that applies to matters under their jurisdiction. The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. In the past, certain provisions in this regard were established in the Jewish Community Regulations.[1] These regulations are no longer valid, and for this reason alone they cannot serve as a source of the authority to promulgate procedural rules. What, then, is the procedural regime that applies in the rabbinical courts?

 

7. One might argue that the authority to prescribe procedural rules derives from the substantive law. Since the substantive law followed by the rabbinical courts is primarily Jewish law, therefore Jewish law should also be the source of the rabbinical courts authority to establish rules of procedure (see: E. Shochetman, Procedures (Sifriyat Hamishpat Ha’ivri, 5748) 12 (Hebrew)). This argument  cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules. Thus, for example, the civil court rules in accordance with Jewish law in many matters of personal status, however it does not apply the procedural (and evidentiary) rules of Jewish law when ruling on such matters (see, CA 26/51 Kotik v. Wolfson [1] at p. 1344; CA 99/63 Peleg. v. Attorney General [2] at p. 1128). Indeed, to paraphrase Justice Silberg’s statement that "the law here is, so to speak, a 'function' of the judge" (see: M. Silberg, Personal Status in Israel (Mif'al Hashichpul, 5718) 6 (Hebrew)), we might say in this case that the procedure is a “function” of the judge and not of the (substantive) law by which the judge rules. Therefore, the power of a rabbinical court judge to establish the court’s rules of procedure does not derive from the substantive law by which he rules. How, then, are the rabbinical courts’ rules of procedure established?

 

8. In my opinion, in the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures (see HCJ 136/54 Pollack v. Herzog  [3] at p. 165; also see P. Goldstein, The “Inherent Jurisdiction” of the Court, 10 Iyunei Mishpat 37, 49 (5744-45) (Hebrew); I. H. Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems 32 [1970]). Justice Berenson elaborated on this in reference to the rabbinical courts, stating:

 

A court for which the State did not prescribe procedures and did not delineate the manner by which they shall be established is authorized, by virtue of its inherent jurisdiction, to establish its own procedures that it will follow… When there is a hierarchic system of tribunals for which the legislature has not provided procedures, the question of who will decide them and how is generally an internal manner  (HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court [4] at p. 114).

 

Similarly, my colleague Justice D. Levin stated:

The Druze courts, which were duly established and have been conducting their hearings for years, do not operate in a vacuum. Since no procedural regulations were promulgated by the authorized minister, the judges of the Druze courts were permitted to establish their own procedures that they followed by virtue of their inherent jurisdiction (HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals [5] at p. 704).

 

Thus, the rabbinical courts have inherent jurisdiction to prescribe the procedures that they will follow. In exercising that jurisdiction, the Israeli Rabbinical Courts Procedure Regulations, 5753 (Y.P. 5753 2298) were promulgated. A review of these regulations reveals that their content reflects Jewish law (see Shochetman, ibid., at p. 11). However, in terms of the power to promulgate them, they in fact realize the rabbinical courts' inherent jurisdiction to prescribe their own procedures. Indeed, alongside the procedures that were promulgated in the past by virtue of the rabbinical courts' inherent jurisdiction, the courts continue to enjoy inherent power to regulate those procedural matters which have not been addressed in regulations (compare: HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court [6] at p. 214). This inherent jurisdiction derives from the rabbinical court (like any other judicial instance) being a judicial institution established by law, which is intended to rule upon disputes, and which is granted power that is inherent to the very performance of the duty and the need to conduct judicial proceedings.

 

Inherent Jurisdiction and its Limits

 

9. A judicial instance's inherent power to prescribe procedures is of signal importance. "Without it proper judicial activity would be impossible" (Justice H. Cohn in ST 1/60 Winter v. Beeri [7] at p. 1474). The inherent powers "are vital in order to allow the court to perform its duties properly…" (Justice Landau in CrimA 230/56 Shorer v. Attorney General [8] at p. 753). They underlie "that minimal authority in matters of procedures, trial efficiency and justice that the court needs in order to perform its purpose: administering justice. This power is the external reflection of the internal sense of justice with which the judge is endowed and that he expresses in his daily actions" (Justice Berenson in FH 22/73 Ben Shachar v. Machlev [9] at p. 96).

 

This power is broad. It "encompasses any matter that occurs in or out of the courtroom that is related to the trial" (HCJ 305/89 [6] at p. 214). Indeed, due to the broad scope of this power, it has long been accepted that it should be exercised with great caution (see: Roadway Express v. Piper (1980) [55] at p. 763). This ancillary power is not unlimited. It is not broader than the express authority to prescribe procedures. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control. Moreover: inherent jurisdiction (as well as express jurisdiction in procedural matters) is, in essence, "governmental authority". Therefore, it must be exercised reasonably. Indeed, the judge, like any person exercising governmental authority, must act reasonably. I addressed this elsewhere, stating:

 

A judge may not toss a coin. He may not consider any factor that he chooses. He must consider reasonably. We have here, as in administrative law, a margin of judicial reasonableness. There are a number of options within the margin among which a reasonable judge may choose. Two reasonable judges may reach different results (HCJ 547/84 Of Haemek v. Ramat Yishai  [10] at p. 141).

 

This duty to act reasonably also applies when a judge exercises his inherent jurisdiction (MApp 613/82 State of Israel v. Awad [11] at p. 616).

 

10. What constitutes reasonable exercise of judicial authority? The answer is that reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. I addressed this elsewhere, stating:

 

Judicial discretion, like any governmental discretion, must be exercised in the framework of the law. A judge must not be arbitrary or discriminatory. He must consider his discretion reasonably… This requirement means, inter alia, that the judge must weigh all of the relevant considerations, juxtapose them, and strike a balance among them where there is friction. The nature of the relevant considerations changes from case to case… what characterizes them all  is that they present considerations of judicial and judiciary efficiency along with considerations of justice, morality, human rights and the court's standing in modern Israeli society… (HCJ 991/91 David Pasternak Ltd. v. Minister of Construction and Housing  [12] at p.  60).

 

Thus, proper exercise of "inherent" judicial authority – like the exercise of explicit statutory procedural authority – means exercising the inherent authority in a manner that strikes a proper balance among the values, principles and interests that must be considered when exercising inherent authority.

 

11. What are the values, principles and interests that must be considered when exercising inherent jurisdiction? It would appear that these values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction. Naturally, these values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular. Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open  and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included in the framework of these typical considerations.

 

12. A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty (see: HCJ 355/79 Katalan v. Prisons Service [13]; HCJ 14/51 Attorney General v. Davar [14]). A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property (see BAA 663/91 A. v. Israel Bar Association [15]). It must consider the right to strike and lockout (see: MApp 678/82 Tayar v. State of Israel [16]; MApp 613/82 State of Israel v. Awad [11]; LC 52/8-4 7-41 [54]). It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country (see: CA 703/70 Somech v. Ozer [17]; CA 230/69 Kaneti v. United Shvili Film [18]; LA 451/85 Adin Marketing v. Flatto Sharon [19]). Indeed, constitutional human rights are part of constitutional law and are directed first and foremost towards the governmental authorities. However, they project (directly and indirectly) onto all the branches of law and thus create a constitutionalization of the law. Procedural law is not immune to human rights. On the contrary: procedural law must recognize them and give them expression. Indeed, in a long line of judgments, this Court has recognized procedural law's subordination to accepted human rights. Justice Elon addressed this in stating:

 

…In the absence of express law, the court does not have the power to order blood tests, even if it would not involve coercion. Indeed, the court has ancillary inherent jurisdiction to issue various decisions and orders in order to effect a just and efficient examination, however orders that by their very nature comprise an infringement of a person's basic right, even if the infringement will not be coercive, cannot not be included in this ancillary power (CA 548/78 A.. v. B. [20], at p. 756).

 

Similarly, the Supreme Court of the State of New York [sic][2] ruled, in reference to the court's inherent power, that: "Even in the name of its inherent power, the judiciary may not... violate the constitutional rights of persons brought before its tribunals" (Matter of Alamance County Ct. Facilities [56] at  p. 132). Similarly, my colleague Justice S. Levin emphasized the need to consider a person's constitutional right to leave Israel in the context of proceedings concerning the issuing of a writ ne exeat republica (see LCA 26/89 Mashraki. v. "Rotem" Insurance  [21] at p. 552).

 

My colleague, Justice S. Levin, wrote:

 

…In light of the severe restriction of the freedom of movement inherent to the use of this regulation (Regulation 376 – A.B), a freedom which is a constitutional right of the highest order, the regulation should not be employed unless all of its elements have been strictly proven…. (LCA 18/89 Pichman v. Bank Leumi [22] at p. 517).

 

13. I have addressed the corpus of general considerations that govern the exercise of (statutory or inherent) procedural power. Sometimes these considerations all lead in one direction and sometimes they conflict internally with one another: procedural justice leads in one direction while procedural efficiency leads in another. And both of these could lead in a direction that differs from the direction of human rights. In such a state of affairs, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights. This is particularly evident now, with the enactment of the Basic Law: Human Dignity and Liberty. This Basic Law has elevated human rights – the majority of which were based on case law ("'Unwritten' Basic Rights": HCJ 243/62 Israel Film Studios. v. Levi Geri [23]) to a supra-statutory constitutional level. Although the validity of the previous law – with its procedural rules – was preserved (sec. 10 of Basic Law: Human Dignity and Liberty), its interpretation, internal balances and application must be influenced by the constitutional status of human rights (see: CrimApp 6654/93 Binkin v. State of Israel [24]).

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

14. Does this general approach regarding the scope of inherent jurisdiction – both in terms of its breadth and in terms of its limitations – also apply to the inherent power of the rabbinical courts to prescribe their own procedures? The answer is affirmative. A rabbinical court is a judicial instance established by statute. "The rabbinical courts draw their judicial authority from the state's legal system that granted them that authority” (Justice Elon in HCJ 323/81 Vilozny v. Supreme Rabbinical Court [25] at p. 738). Like any judicial instance, it is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers. This approach was clearly expressed in a long list of judgments that held that the rabbinical courts' procedures must respect "basic principles of fairness" (HCJ 158/66 Segev v. Rabbinical Court [26] at p. 521, per President Agranat). These are the rules of natural justice that obligate any court system, including the rabbinical courts (see: HCJ 10/59 Levy v. Tel Aviv-Jaffa Rabbinical Court [27]; HCJ 155/65 Gurovitz v. Tel-Aviv Rabbinical Court [28] at p. 19; HCJ 95/63 A. v. Tel Aviv-Jaffa Rabbinical Court [29] at p. 2221; HCJ 161/64 Mussman v. Haifa Rabbinical Court [30]; HCJ 816/80 Gotthelf v. Tel Aviv-Jaffa Rabbinical Court [31]). Justice Berenson addressed this matter – in the context of the Rabbinical Court's inherent power – stating:

 

A court for which state law did not establish procedures nor delineate the manner for their establishment, is authorized, by virtue of its inherent jurisdiction, to decide for itself the procedures that it will apply. In this regard – to the extent that the state law does not limit the court – it is its own master. However, the arrangements it prescribes must not comprise anything repugnant to the relevant general laws of the State … and must realize the principles of natural justice, since they must be properly observed by every body that decides legal or quasi-legal matters … (HCJ 150/9 [4] at p. 114).

 

Observing the rules of natural justice is but one of the limitations upon inherent jurisdiction. It is not the only limitation. Justice Goitein addressed this in stating:

 

It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not intervene with judgments of the religious courts unless they have acted without jurisdiction, or in exceptional cases which call for our intervention for the administration of justice (HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court,  [32] at p. 1198; [IsrSJ 2, 429 at 436]).

 

Justice Bejski stated in a similar spirit:

 

That which has been stated until now justifies the intervention of this Court, despite its reticence to do so on the merits except in cases of ultra vires, of infringement of the principles of natural justice, or for the sake of tikkun olam [“repairing the world” – ed.] (HCJ 7/83 Biaris v. Haifa Rabbinical Court [33] at p. 687).

 

Thus, the "administration of justice" and the "repairing of the world" are additional limitations – beyond the limitation associated with the rules of natural justice – that apply to the exercise of (statutory or inherent) procedural authority. These also include, inter alia, the limitations deriving from the fundamental principles concerning recusal and judicial integrity, and open and accessible courts (and compare: HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court [35]; HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court [35] IsrSC 46(2) at p. 21; HCJ 1689/90 Aasi v. Central District Sharia Court [36]). Similarly, any recourse by the rabbinical court to its inherent authority must be consistent with the protection of human rights. Indeed, every litigant in the rabbinical courts appears before those courts bearing all the human rights enjoyed by every person in Israel. The Israeli legal regime guarantees human rights to every person, and every person enjoys these rights in every judicial forum. The move from a “civil” judicial forum to a “religious” one does not lead to a loss or denial of basic human rights. “It would be inconsistent with these fundamental rights that the move from a civil court to a religious court would lead to a loss or infringement of these basic rights. No ‘confiscation’ of these civil rights can be permitted in the absence of an express statutory provision consistent with the requirements established under our constitutional system” (HCJ 1000/92 Bavli v. Great Rabbinical Court [37] at p. 248). Indeed, the promise of human rights is general and applies to all relationships and before all the courts. A religious court does not operate in a vacuum. It operates within the general framework of the Israeli legal system. Professor Rosen-Zvi rightly observed:

 

The religious court indeed holds jurisdiction – sometimes exclusive – to address a certain area of Israeli law. But the court remains an Israeli judicial forum within the general framework of Israeli law. The court operates within the framework of Israeli law and the general legislative framework, and it is not exempt from the commandments of the provisions of Israeli law (A. Rosen-Zvi, Israeli Family Law: The Sacred and the Secular   (Papyrus, 1990) 86 [Hebrew]).

 

The Israeli legal system is not a confederation of separate systems. The Israeli legal system is a unity that recognizes the uniqueness of its various parts. Therefore, substantive matters of personal status are subject to Jewish law, which at times may take precedence over some arrangement of the general law. However, such precedence is limited exclusively to matters of personal status, “no more and no less” (per Landau J. in HCJ 80/63 Gurfinkel v. Minister of the Interior [38] at p. 2068). It does not apply to what does not fall within the scope of personal status (see: Rosen-Zvi, ibid., p. 76). Thus, for example, it does not apply to the civil “mass” (and the various property rights it encompasses) with which every person comes before the Rabbinical Court (see: HCJ 1000/92 [37]). It also does not apply to the exercise of the rabbinical court’s inherent authority to address the proceedings before it. In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue. This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.  What is that proper balance when the rabbinical court is requested to issue a writ ne exeat republica against one of the litigants?

 

 

Ne Exeat Republica

 

15.       A stay of exit, whether as temporary or interlocutory procedural relief, can only be issued as a procedural means intended to assist a party “in realizing the relief that the substantive law grants to the party” (per Landau J. in CA 303/57 Reich v. Hammer [39] at p. 1363). The inherent authority of a judicial instance to establish procedure in regard to the granting of this procedural relief must therefore properly balance the values, interests and principles vying for dominance in the framework of procedural law.  A person’s constitutional right to leave Israel must be placed on one side of the scales. This right has been recognized as a basic right of a person in Israel. “A citizen’s freedom of movement to leave Israel is a natural right that is recognized as self-evident in every country with a  democratic regime, of which our country is one …” (per Silberg J. in HCJ 111/53 Kaufman v. Minister of the Interior [40] at p. 536; and see: HCJ 190/57 Assaig v. Minister of Defence [41] at p. 55; HCJ 488/83 Baransi v. Director of the Visa and Nationality Dept. [42]; HCJ 448/85 Dahar v. Minister of the Interior [43]; MApp 1064/86 Archbishop Ajamian v. State of Israel [44]). It derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right. Basic Law: Human Dignity and Liberty adopted this approach (sec. 6(a)) and granted the right to leave Israel (“All persons are free to leave Israel”) supra-legal status (see: CrimApp 6654/93 [24]). “All governmental authorities” – including all judicial forums (as they, too, are governmental authorities) “are bound to respect” this right (sec. 11 of Basic Law: Human Dignity and Liberty).

 

16.       As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. A litigant’s leaving the country may influence the legal proceedings and the possibility of executing the judgment. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed. Leading a litigant to an “empty well” because the other side has left the country infringes both the personal interest of the victim and the public interest in maintaining proper legal proceedings. However, the plaintiff’s interest that  deserves protection is not the pressuring of the defendant to concede the suit in order to liberate himself from the restriction imposed by a stay of exit. The state is not a prison, and agreeing to a suit should not be a key for release from captivity. “… staying the defendant is not meant to serve as a means for pressuring him to ransom himself from captivity” Y. Sussman, Civil Procedure, S. Levin, ed., (6^th ed., 1990) 571 (Hebrew)).

 

17.       We have addressed the values, principle and interests that must be considered in regard to granting relief in the form of a stay upon exiting the country. On one hand stands the basic value of freedom of movement, while the litigant’s interest in ensuring his substantive rights by means of a legal process stands on the other. The two values stand in opposition. Balancing the conflicting values is therefore required.  My colleague Justice S. Levin addressed the need for striking this balance in the area of procedural law, noting:

 

The fundamental question that must be addressed in interpreting the said regulation is where is the balance point between the principle that the defendant’s right to freedom of movement not be restricted unnecessarily, and the need to prevent the defendant from fleeing abroad and thus frustrating the suit filed against him (LCA 26/89 [22] at p. 552).

 

Professor S. Goldstein similarly observed:

                       

…granting any type of preliminary relief involves a delicate balance of the plaintiff’s interests in preventing the defendant from frustrating the litigation, and that of the defendant in not having his liberty or property restrained prior to the definitive adjudication of his liability (Stephen Goldstein, Preventing a Civil Defendant from Leaving the Country as a form of Preliminary Relief, 20 Is.L.R. 18, 24 (1985)).

 

                       

Indeed, the balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a “decisional framework which contains a guideline of value…” (per Shamgar J. in FH 9/77 Israel Electric Corporation. v. “Ha’aretz” [45] at p. 361 [IsrSJ 9, 295]; and see: HCJ 991/91 [12] at p. 60).  This balance serves a dual purpose: first is serves as a standard for interpretation by which a procedural rule is given meaning; second, it establishes the boundaries of the (statutory or inherent) authority of the procedural rules themselves. Procedural rules whose interpretation leads to the possibility of preventing leaving the country to an extent that exceeds the standards established by the principled balance exceed the (statutory or inherent) power of the promulgator of the rules.

 

18.       It would appear to me that the proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment. My colleague Justice S. Levin gave expression to this standard in noting:

 

…when there is real, direct or circumstantial evidence from which one may infer a danger that the proceedings may be thwarted by the defendant’s travel abroad, the first principle (the defendant’s freedom of movement – A.B.) will retreat before the need to prevent the complainant from facing an empty well when judgment is rendered against the defendant, inasmuch as the rule is not intended to shield the defendant from his creditors and thwart them (LCA 26/89 [22] at p. 553).

 

I would like to make a few comments in regard to this standard. First, this standard is of a constitutional character. By establishing a causal connection between preventing leaving the country (as a constitutional right) and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system. Professor Goldstein addressed this in his abovementioned article in noting (at p. 26):

 

…the requirement of a causal connection is not merely a result of the interpretation of a specific rule of civil procedure, but rather the demand of a more fundamental principle of Israeli jurisprudence. It represents the application of a constitutional norm regarding the freedom of movement in general, and the right of a person to leave the country in particular.

 

Second, the causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. This standard was adopted in the Dahar case [43] in regard to striking the balance between the right to leave the country and the public interest in state security. In my opinion, this standard is also appropriate for striking the required balance in the matter before us. Dr. Yaffa Zilbershats addressed this in noting:

 

In our opinion, the “sincere and well-founded suspicion” test is better suited to balancing the interests in this case in which we deprive a person of his basic right to leave the country in order to protect the interest of the plaintiff that the legal proceedings or the execution of a judgment not be frustrated (Y. Zilbershats, The Right to Leave a Country (Ph.D. Diss., Bar Ilan, 1991) 203).

 

 

Third, not any possible harm, whether severe or insignificant,  can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., “frustrating the lawsuit in advance through the debtor’s fleeing abroad…” (LCA 26/89 [21] at p. 552, following LA 558/85 Ilin v. Rotenburg [46] at p. 556). In addressing the nature of the permissible infringement of a person’s right to leave Israel, Dr. Zilbershats writes (ibid., p. 180):

 

In our opinion, because the right to leave the country is a basic human right of great importance, it should only be possible to restrict it if it has the potential to frustrate a judicial proceeding or prevent the execution of a judgment against the person seeking to leave the country.

 

Fourth, meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country. It is not a sufficient condition. Thus, for example, procedural rules may impose additional demands, for example, that a condition for granting a writ ne exeat republica is that: “The defendant is about to leave the country permanently or for an extended period” (rule 376(a) of the Civil Procedure Rules, 5744-1984). Fifth, before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement. Thus, for example, providing an appropriate bond may often meet this requirement. Sixth, the court should exercise this procedural authority with great care. “Unquestionably, preventing a person from leaving the country infringes an individual’s liberty, and therefore requires careful consideration…” (per Ben-Porat, D.P. in LA 451/85 [19] at p.305). The court must therefore meticulously examine whether the required standard is met, and only “if all the elements have been strictly proven” can the requested order be granted (per S. Levin, J. in LCA 18/89 [22] at p. 517). Granting the order must not be routine, and it should properly be granted only when justified by the circumstances.

 

Seventh, naturally, the application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize. Proceedings for the return of a loan are not the same as divorce proceedings. In the former, the legitimate interests of the creditor can usually be ensured by an adequate bond. In the latter, at times (although not always) the sincere and well-founded suspicion that the woman may be rendered an agunah [a “chained woman” – ed.] may require granting a writ ne exeat republica. Moreover, proceedings that can lawfully be conducted without the personal presence of the parties are unlike proceedings that can only be lawfully conducted if the parties are actually present. In the former case, a party’s leaving the country will not frustrate the proceedings, while in the latter it will frustrate the very possibility of conducting proceedings.  Nevertheless, even here a less drastic means should always be preferred. Eighth, this standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. We must bear in mind that the claim has not yet been proved, and a judgment has not yet been rendered. The certain infringement of one party’s freedom of movement stands against the mere claim of the other party who argues that his substantive right has been infringed, but whose claim has not yet been accepted and no judgment has recognized it. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the person who will suffer the certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

 

Ne Exeat Republica in the Rabbinical Court

 

19.       As we have seen, the Rabbinical Court has the inherent power to establish rules of procedure. Procedures for preventing a litigant from leaving the country were established within that framework. Such procedures are established under rule 106 of the Rabbinical Courts Rules of Procedure, 5753 (see: HCJ 852/86 Aloni v. Minister of Justice [47] at p. 61). In the framework of its inherent power, the Rabbinical Court can, indeed, establish procedural rules in general, and procedural rules in regard to preventing a person from leaving the country in particular, in accordance with its procedural conceptions, which may differ from the procedural conceptions of the “civil” courts or of other religious courts (see: Shochetman, On Orders of Ne Exeat Regno against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts, 14 Mishpatim 83 (1984)). However, the Rabbinical Courts inherent power to establish procedural rules in general, and procedural rules in regard to preventing leaving the country in particular is limited by the proper balance of the values, interests and principles that characterize Israeli law. Therefore, the Rabbinical Court’s authority to order that a litigant may not leave the country is limited by the appropriate standard for balancing the conflicting values, interests and principles in this context. In accordance with them, judicial authority to bar a litigant from leaving the country may be exercised only when there is a sincere, well-founded suspicion that his leaving the country will frustrate or thwart the legal proceedings or prevent the execution of the judgment. It is against this background that one must understand this Court’s  statement that “the purpose of the restriction imposed upon a person, which prevents his leaving Israel, is identical for a [civil] court or a rabbinical court” (HCJ 578/82 Naim v. Jerusalem District Rabbinical Court [48] at p. 711), and that “the areas of the authority of the various judicial forums – civil and religious – in regard to preventing leaving the country…must be similarly construed” (per Shamgar P. in HCJ 852/68 [47] at p. 61). Adopting this standard will achieve the normative harmony and legal unity to which every legal system aspires. This will ensure that the fundamental values and principles grounding our legal system will be protected and uniformly realized in the procedural rules of all Israeli judicial forums. In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. “Their procedural rules are their own business” (per Berinson J. in HCJ 403/71 Alkourdi v. National Labor Court [49] at p. 70). However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the State of Israel.

 

From the General to the Particular

 

20.       The District Rabbinical Court’s decision to prevent the Petitioner from leaving the country must be examined against the background of this normative structure. The Petitioner’s suit for divorce from the Respondent was pending before the Rabbinical Court. The Respondent’s suit for marital reconciliation was also pending. The court was requested to issue a writ ne exeat republica against the Petitioner and the children in the framework of the reconciliation suit. The Rabbinical Court granted the request on the basis of the Respondent’s claim that he “fears that the woman’s leaving the country at this stage would result in a final, irreparable rupture between them”.  The Rabbinical Court ordered a further hearing in two months, and requested that the parties negotiate “to achieve a suitable solution that would allow their joint travel abroad, or allow the wife to leave subject to conditions that would allay the husband’s fears”. The Great Rabbinical Court denied the wife’s appeal, holding that there were no grounds for hearing the appeal “inasmuch as the District Rabbinical Court had set a date for a further hearing of the matter”.

 

21.       Does the District Rabbinical Court’s decision maintain the proper balance between the freedom of movement (of the Petitioner) and ensuring the realization of the substantive rights (of the Respondent) by means of the judicial process? In my opinion, it does not, for two reasons. First, the evidentiary groundwork presented to the Rabbinical Court did not substantiate a “sincere and well-founded suspicion”. All that was before the court was the husband’s claim (unsupported by any additional evidentiary foundation) and the wife’s denial. That is insufficient to ground a sincere, well-founded suspicion. Second – and of primary importance in this context – the condition that the Petitioner’s absence from the country might frustrate or thwart the judicial proceeding in regard to reconciliation was not met. The judicial proceeding in the matter of reconciliation would not be frustrated at all by the Petitioner leaving the country. It is clear from the circumstances that the Petitioner will be travelling abroad for only a brief period. This brief absence from Israel cannot potentially influence the proceedings. In any case, the matter can be adequately addressed by requiring an appropriate guarantee. Postponing the hearing on revoking the writ ne exeat republica for two months is inconsistent with the status of the freedom to leave the country as a basic human right. Note that I am willing to assume – without deciding the matter – that the Petitioner’s leaving the country might negatively influence the couple’s relationship, and might even – as the husband argues – result in a final rupture of the relationship. It is also possible – although here, too, I cannot make a finding – that preventing the women’s leaving might serve to advance a reconciliation between her and the Respondent. But even if that were the case, the Rabbinical Court’s inherent power to establish procedures does authorize it to prevent a litigant from leaving the country when the standard that properly balances the relevant values, interests and principles is not met. Indeed, the suit for marital reconciliation (which is a matter of personal-status law, see: ST 1/50 Sidis v. Chief Execution Officer, Jerusalem [50] at p. 1031; CA 174/83 N. Soher v. P. Soher [51] at p. 82) raises serious problems, particularly in the area of interlocutory relief. Interlocutory orders that infringe basic human rights like the right to property (in regard to vacating a residence), freedom of movement (in prohibiting leaving the country, see: HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court [52] at p. 770) and the autonomy of personal will (by preventing meeting another person) may be granted out of a desire to realize the substantive law (see in this regard: S. Dichovski, The Authority of the Rabbinical Courts as reflected in their Judgments, 10-11 Dinei Israel 9, 15ff. (5741-43) (Hebrew)). In this case, we are witnesses to an example of the fundamental problem deriving from the first attempt “of its kind in Jewish history to apply religious law and impose religious jurisdiction in a society in which the majority of its members define themselves as secular” (P. Maoz, The Rabbinate and the Religious Courts: Between the Hammer of the Law and the Anvil of Halakha, 16-17 Annual of the Institute for Research in Jewish Law 289, 394 (1991) (Hebrew)). In the matter at hand, this special attempt leads to a gap between the basic conceptions underlying marital reconciliation in religious law and the worldview of a largely secular society. As judges, we take the law as a given and do not  question it. However, to the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the Rabbinical Court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation (as opposed to interfering with the judicial proceedings in regard to reconciliation), inasmuch as its procedural power to grant such orders is subject to the limitations required by the proper balance that we discussed. In his aforementioned book,  Prof. Rosen-Zvi correctly pointed out (pp. 117, 119):

 

The Rabbinical Court issues [orders – A.B.] comprising remedies attendant to marital reconciliation that infringe the spouse’s liberty. Some of these orders also concern prohibitions that directly affect third parties. For example, an order forbidding a spouse to meet with a particular person whose name appears in the body of the order. Such an order seriously infringes an individual’s right and is inconsistent with the fundamental values of Israeli society…

 

…Israeli law does not grant the Rabbinical Court a free hand even if it is required by the worldview of religious law and the original content of the marital reconciliation cause of action. The Rabbinical Court operates within the framework of boundaries set by Israeli law. These exigencies obligate it, and it may not deviate from or exceed their borders.

 

Indeed, to the extent that such interlocutory orders do not conform to the delicate balance of the values, principles and interests that must be considered – primary among them the human rights of the parties to the proceedings and of third parties – they deviate from the inherent authority (as currently expressed in the Rules of Procedure of the Israeli Rabbinical Courts, 5753) of the Rabbinical Court to grant interlocutory relief. It may be superfluous to note that, nevertheless, the Rabbinical Court is authorized to take the conduct of the parties into account among its considerations in accordance with Jewish law, and give it the duly required weight under the substantive law. In this regard, it is apt to recall the words of Deputy President Y. Kahan, who held:

 

Clearly, the Rabbinical Court may draw all the conclusions that derive under [Jewish – ed.] law from the fact that the Petitioner, who is married, is conducting intimate relations with another man.

 

However, we have not found any legal basis upon which to ground a restraining order as issued in this case (HCJ 428/81 [53]).

 

That is also so in the matter before us. The Rabbinical Court is not authorized to issue a temporary order prohibiting the Petitioner from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that the Petitioner left the country, and from her conduct in the country and abroad. For these reasons, we have made the order absolute (as stated in para. 5 of our opinion).

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

Given this 29^th day of Shevat 5754 (Feb. 10, 1994).

 

 

 

 

 

 

LFA 3151/14

 

           

 

Applicant:                   A

 

                                    v.

 

Respondent:                B

 

                                   

                                   

                                   

           

 

Attorneys for the Applicant:   Doris Golsha-Netzer, Adv.; Roy Ashkari, Adv.

                                     

 

Attorney for the Respondent:             Maxim Lipkin, Adv.

 

 

                                   

The Supreme Court

 

Before: Deputy President E. Rubinstein, Justice Z. Zylbertal, Justice D. Barak-Erez

 

Application for Leave to Appeal the judgment of the Tel-Aviv District Court of March 23, 2014 in FA 21043-02-1311 (Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon)

 

 

 

 

Abstract

 

In a majority opinion (E. Rubinstein D.P. and Z. Zylbertal J.), the Supreme Court held that the family courts may limit the period of payment of spousal support to a woman due to her refusal to accept a get [Jewish religious divorce], even in the absence of a divorce order by the Rabbinical Court. As an operative outcome, the appeal was granted, as it was held by majority (D. Barak-Erez and Z. Zylbertal J.,) that, under the circumstances, the court should not have set a time limit for the payment of the Applicant’s support.

 

*Family – Spousal Support – Recalcitrant Spouse

*Family – Spousal Support – Right to Spousal Support

*Family – Spousal Support – An Unemployed Woman

*Family – Spousal Support – Rehabilitative Support

 

An application for leave to appeal a judgment by the District Court concerning the fixing of a time limit for spousal support awarded the Applicant despite the fact that the Rabbinical Court did not rule that she is a ”recalcitrant wife”. The application was heard as an appeal.

 

Background: The parties were married to each other for over 35 years. The Applicant was rarely employed outside the home during the marriage, and the Respondent was the sole supporter. The parties have been separated since 2011, and have conducted various legal proceedings related to the separation – divorce proceedings, proceedings concerning the woman’s right to support, and proceedings concerning the division of the family assets. Both the Family Court and the District Court believed the Applicant should be awarded support for a fixed period of time. In the course of the proceedings, the Court addressed the question of whether the Family Court could revoke a woman’s support due to her “get recalcitrance” in the absence of a decision by the Rabbinical Court ordering her to accept a get, and in the absence of a positive finding that the couple’s marriage had come to an end. What are the considerations that the Family Court must take into account when it is requested to fix a time period for support, or revoke the support of a married woman who it believes is refusing to agree to a divorce for financial reasons?

 

The Supreme Court (per D. Barak-Erez J., Z. Zylbertal concurring with the operative outcome, over the dissenting opinion of E. Rubinstein D.P.) granted the appeal:

 

In Justice Barak-Erez’s view, the principle of comity between courts required the civil court’s restraint and thus, in her opinion, as long as the couple’s divorce proceeding is pending in the Rabbinical Court, the civil court may not base its ruling on spousal support upon “get recalcitrance” in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion stems not only from the principle of comity between courts, but also from the Jewish religious law that applies to this case, which dictates that revoking the right to spousal support in a case of a divorce obligation must be accompanied (based on many opinions) with supplemental steps that are under the exclusive jurisdiction of the Rabbinical Court, and which require the active involvement of the Rabbinical Court (entrusting a get [Jewish bill of divorce] and the financial obligation required under the ketubah [Jewish marriage contract] to a third party).

 

In her opinion, the  means at the disposal of the civil court for addressing the phenomenon of “get recalcitrance” deriving from financial motivations, is through awarding “rehabilitative” support under the general principles of the civil law (on the basis of the principles of reliance and good faith.) Of course, since these are “civil” principles, they would also apply, mutatis mutandis, to a divorcing man under these very same conditions. In her opinion, it is possible to award rehabilitative support under civil law only where the partner is no longer entitled to support under the personal status law, and this at two points in time: “when before the divorce is granted, there is cause for revoking support; or after the granting of the divorce has extinguished the right to support.” The central factor that must be considered in order to determine wither one of the partners is entitled to rehabilitative support, and its amount, is the prospect for alternative sources of income. Therefore, the questions of the home-based partner’s vocational or professional training and work experience, age (including how close they are to the age of retirement), the value of the couple’s property  and whether it has already been divided, are of importance.  On the other hand, considerations of fault as to the responsibility for the separation are not relevant.

 

As applied to the matter before the Court, Justice Barak-Erez was of the view that the appeal must be granted, and that as long as there is no change in the couple’s circumstances, including the circumstances surrounding the proceedings in the Rabbinical Court, the Respondent must continue to pay the Applicant support as decided by the Family Court, without setting a termination date.

 

As opposed to this, the Deputy President, joined by Justice Zylbertal, disputed Justice Barak-Erez’s position regarding jurisdiction. In their view, under the principle of good faith, the civil courts may revoke a married woman’s spousal support when they are persuaded that the marriage has effectively ended and that the woman refuses to accept her get solely for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that often the civil court is called upon to make incidental findings that are required for the determination of the issue of spousal support and property matters that are in its primary jurisdiction (section 76 of the Courts Law.) According to the Deputy President, a civil court’s finding whereby a woman loses her spousal support for being a “recalcitrant spouse” does not lead to the end of the marriage in the Jewish halakhic sense, and does not conflict with the principle of comity between courts. The Deputy President added that he did not rule out the method proposed by Justice Barak-Erez as to the awarding of rehabilitative support in appropriate cases, however in his view, it is a tool in the Family Court’s “toolbox”, which is to be used according to the circumstances of the case in order to resolve the issue of alternative sources of income (while noting other tools, such as an unequal division of resources.)

 

According to the Deputy President, under the specific circumstances of the case at hand, and once the lower courts, including the Rabbinical Court, were persuaded that the marriage had come to an end, and that the Applicant is delaying the divorce only to improve her financial circumstances, the Family Court, and subsequently, the District Court, correctly fixed the period of support payments, and the District Court’s approach which met the Applicant more than halfway, is acceptable. Therefore, in his view, the appeal must be denied. At the end of the period set (December 2014), the possibility to extend the period of support payments would be revisited.

 

Justice Zylbertal, who, as noted, concurred with the view of the Deputy President on the matter of jurisdiction, concurred with the view of Justice Barak-Erez as to the operative result, whereby the appeal must be granted.

 

In Justice Zylbertal’s opinion, the considerations the court must take into account before revoking a woman’s support due to “get recalcitrance” are, inter alia: what is the reason for the refusal – personal vindictiveness or extortion, or a lack of sufficient financial protection for the financially weaker partner upon divorce, and the woman’s ability to continue to support herself after the divorce. In this context, the court must examine the woman’s ability to secure an income, and to this end, it should also consider her age, her share in the husband’s pension, and when she will be entitled to receive her share of those funds.

 

According to Justice Zylbertal, in the circumstances of this case, it is inappropriate to fix a timeframe for the Applicant’s support, both because her delaying of the divorce is not necessarily the result of vindictiveness or extortion, that is – not a lack of good faith that warrants fixing the period of support – and in light of the understandings that characterized the couple’s marriage, the Applicant’s age (over 50), and her prospects of integrating into the workforce during the short adjustment period left until the partners reach the age of retirement.

 

It should be noted that, in addition to the above, the members of the panel briefly discussed an issue related to the matter at hand – the possibility of awarding financial compensation in cases of get recalcitrance in the framework of a tort suit.

 

 

Judgment

 

15th Iyar 5775 (May 4, 2015)

 

Justice D. Barak-Erez

 

1.A married couple are  separated and conducting various, related legal proceedings – divorce proceedings, proceedings regarding the women’s right to spousal support, and proceedings regarding the division of the family property. Under the circumstances, was the Family Court correct in granting the woman spousal support for a fixed period of time, after which the woman would no longer be entitled to support, even if the couple do not divorce? This is the central issue at bar. Its determination raises additional questions, among them: can the Family Court rule that, for the purpose of deciding spousal support, a woman may be deemed a recalcitrant spouse even if the Rabbinical Court refrained from making such a finding in the course of the divorce proceedings between the parties? To what extent may the Family Court consider the fact that the woman lacks the capacity to earn an income, and may it refrain from awarding her spousal support even if she is entitled to such support under the personal-status law, because the couple are about to divorce, or because the Court is under the impression that the woman is a recalcitrant spouse?

 

The Factual Background and the Proceedings thus far

 

2.The Applicant and the Respondent (hereinafter: “the couple” or “the partners”) married in 1976. They are parents to three children, and grandparents to eight common grandchildren. Throughout their marriage, the Respondent worked for a large public corporation, while the Applicant ran their household. The Applicant worked outside of the home for only short periods of time. The couple own a house (hereinafter: the house) to which an additional residential unit is attached, and which is still under mortgage (though its amount is currently insignificant compared to the value of the house.)

 

3.In 2011, a dispute erupted between the partners. About a year and a half before the conflict started, the couple moved into a rental apartment in Holon, and rented out the house they owned, as well as the attached residential unit (which was rented when they resided in the house as well.) In July 2011, as a result of their dispute,  the Respondent left the apartment in Holon where the two resided.

 

4.On August 15, 2011, the Applicant filed suit in the Family Court for support for herself and for the couple’s youngest son, who was a minor at the time (FC 24331-08-11). As we will explain below, this was the suit that led to the application at bar.

 

5.Pursuant to that, several additional suits were filed between the parties. On the same day, the Applicant filed a suit for orders to preserve property rights and for accounts (FC 24358-08-11). On November 16, 2011, the Respondent filed for divorce in the Rabbinical Court, and later filed suit for a division of community property in the Family Court (FC 39732-11-12.) In the course of that proceeding, the Applicant argued that, under the circumstances, the couple’s property should be divided unequally, in view of the fact that she lacks any sources of income, and this under the court’s authority under section 8(2) of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law). On February 24, 2013, the Family Court ruled that if the Applicant wishes to request a remedy of unequal property division, she must file the proper suit. Accordingly, on March 18, 2013, the Applicant filed a suit for resource balancing (FC 33489-03-13,) in which she requested that the balancing of resources deviate in her favor from the principle of equal division (so that she will receive 80% of the community property,) and that it additionally be held that a second apartment that the Respondent inherited from his father is a property subject to resource balancing.

 

6.On September 27, 2011, the Applicant moved out of the Holon apartment and back into the house. On January 4, 2012, the Applicant filed a suit for reconciliation with the Rabbinical Court, and was granted an order for specific residence in the house.[1] 

 

7.On December 12, 2012, the Family Court delivered its decision in the suit for support (FC 24331-08-11, Judge J. Shaked). The Family Court held that, in this case, the traditional grounds recognized in Jewish law for ruling that the wife lost her entitlement to support were not proven. However, the Family Court added that it would seem that the partners lead separate lives, they both view their marriage as having reached a crisis, and that the marital relationship between them had “died”. The Family Court further held that in this regard that when a “dead” relationship is concerned, there is no justification for preserving it by awarding the woman support. The court also noted that awarding support is subject to the good-faith requirement (referencing LFA 3148/07 A v. B (June 13, 2007) (hereinafter: LFA 3148/07)). Therefore, the court held that for the purpose of the proceedings in regard to support, the court should take notice of the Applicant’s refusal to divorce the Respondent “artificially, in order to gain advantages in the legal proceedings between them,” as well as the fact that the Applicant was deliberately delaying the division of common property in regard to the house (which is valued at about two million shekels), as well as the resource balancing between the couple, by moving into the house and even obtaining an order of specific residence (that was still in effect at the time). The Family Court found that, under the circumstances, obstructing the sale of the house by the Applicant was inconsistent with the good-faith requirement.

 

8.In ruling on spousal support, the Family Court took into account the Applicant’s behavior, on one hand, while also noting her age (over fifty), the fact that she had not worked in more than three decades during the marriage, as well as the family’s lifestyle, on the other hand. Against that background, the court ruled that spousal support in this case should be awarded only for a fixed period of time. The Family Court explained that awarding spousal support for a fixed period would ensure legal certainty to both parties so that they might plan their next steps and will be more emotionally and financially free to negotiate and reach an agreement that would end their relationship.

 

9.After examining the Applicant’s expenses, the Family Court ordered spousal support in the amount of NIS 5,650 per month (assuming that she was paying the mortgage on the house), or in the amount of NIS 3,500 (if she was not paying the mortgage), for a fixed period of 24 months from the day the suit was filed, that is until July 15, 2013. Additionally, the Family Court dismissed the Applicant’s suit for support of their son, who was a minor at the time the suit was filed, because the claim was not adequately proven, and considering that at the present time he was already serving in the IDF and did not exclusively reside in the Applicant’s home.

 

10.The Applicant appealed the Family Court’s ruling on spousal support to the District Court  (FA 21043-02-13, Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon.) On March 23, 2014, the District Court granted the Applicant’s appeal, but only in regard to the date set for the period of support. The District Court held that it was appropriate to fix the period of the Applicant’s support, subject to setting a later date for ending the period during which the Respondent must pay it, as detailed below.

 

11.The District Court ruled against intervening in the amount of the support set by the Family Court, as it was based on factual findings, and limited the discussion before it to the general issue of the possibility of limiting the period of support payment and its resolution in the specific case.

 

12.The District Court noted that the premise for discussion must be that a woman’s support is based on personal status law. At the same time, the District Court reviewed the case-law developments in regard to taking account of the woman’s income prospects in deciding the amount of support, as well as the circumstances of the case (including the length of the marriage and the circumstances of the separation), and the approach that the awarding of support must be subject to the principle of good faith and public policy. As a result, the court noted that where there is “get recalcitrance” by the woman, this would affect her support, while examining whether this should be reflected in the amount or in denying right to support altogether. The District Court commented that denying a woman support on grounds other than religious law ought to serve as a legal tool for overcoming get recalcitrance, and as an incentive for the parties’ divorce, similar to the developments that had taken place in regard to tort claims for get recalcitrance.

 

13.The District Court went on to specify the factors that must be taken into account in considering a woman’s right to spousal support when she is a “recalcitrant spouse.” In doing so, the District Court considered the following factors, without exhausting the list: the primary reason for refusal – is it a result of a desire to continue to receive support, or a result of other proper reasons; the length of the marriage and its quality; the party at fault for delaying the divorce, and the Rabbinical Court’s findings in this context; the lifestyle prior to the separation, including the issue of the woman’s employment and her ability to secure an income compared to that of the husband; and the issue of whether the property matters between the couple had already been resolved. The District Court emphasized that denying the woman support is not a “penalty” and thus, the court must ensure that she has financial resources even when she is refusing the divorce. Additionally, the District Court emphasized that denying the right to support, or reducing it, is based on the principle of good faith – which is not a “one way street” – and thus the husband’s behavior is also important and should be examined from a broad perspective.

 

14.The District Court addressed the Family Court’s finding that, in this case, the woman refuses to arrange the divorce, although the Rabbinical Court did not make such a finding, and decided to intervene in that finding. The District Court addressed that fact that the couple had been married for over 35 years, and the Respondent is the one who elected to leave the family home. Therefore, this is not a case of get recalcitrance, particularly when the Family Court refrained from addressing the circumstances around the husband’s leaving. Additionally, the District Court noted that the Applicant was permitted to demand that the property matters be settled before the divorce, and that in light of the fact that there are financial resources of which the Applicant is entitled to part, a situation in which the Respondent enjoys these resources whereas the Applicant must wait for her share is unacceptable. Additionally, it was held, that even were it appropriate to set a limit to the period of support payments, it would have been appropriate to allow the Applicant a longer period in order to get “organized” for the future. This is because the result of the decision by the Family Court could have been that the Applicant would be compelled to agree to any demand presented to her in regard of the financial and property matters.

 

15.The District Court addressed the fact that the Respondent is expected to retire from his job in several years, and that at that time, the Applicant will be entitled to her share of his pension. On the other hand, the District Court considered the fact that the Respondent’s own entitlement to his pension had not yet materialized. The District Court held that it, indeed, would appear that the couple’s marriage had come to an end, but this finding alone, and the fact that the Applicant was granted an order for specific residence, are insufficient for denying her support considering the other circumstances. Ultimately, the District Court ruled that the date for the  expiration of support would be delayed for a period of three years from the date the Family Court handed down its decision, that is until December 31, 2015, or until the date when the Applicant would start receiving her share in the Respondent’s pension rights, according to the earlier of the two.

 

16.To complete the picture, it should be noted that the order for specific residence awarded by the Rabbinical Court was revoked in its decision of October 14, 2013. The Rabbinical Court noted the civil court’s impression that the marital relationship between the partners had expired, and that the Applicant was not interested in reconciliation. The Rabbinical Court recommended that the couple negotiate in order to end the marriage.

 

17.It should further be noted that on March 12, 2015, decisions were handed down in the two suits filed by the Applicant – for preserving property rights and for resource balancing (FC 24358-08-11 and FC 33489-03-13.) As mentioned, in the course of her suit for resource balancing, the Applicant requested that the property be divided unevenly so that 80% of the property would be handed over to her and only 20% would be awarded the Respondent, under section 8(2) of the Property Relations Law. Additionally, she requested the rights to the apartment that the Respondent inherited from his father. The Family Court was presented with an accountant’s report which pointed to two options for balancing the resources between the parties – one based on the current value of the rights, including the pension rights the Respondent had accrued, and the other based on the date the rights are to be realized. Under the latter option, the Applicant would receive most of the payments to which she is entitled through a monthly allocation of a fixed portion of the Respondent’s pension payments, each, once he retires. The Family Court rejected the Applicant’s claim that the resources be unevenly divided in her favor, as well as her claim to include the apartment inherited by the Respondent as property subject to resource balancing. In effect, it was held that the resource balancing would be even, according to the second alternative presented in the expert opinion, that is, in accordance with the date the pension rights would actually materialize. The Family Court added that it was under the impression that the Applicant was obstructing the divorce and refused to accept a get from the Respondent. As a result, the court held (referencing sections 5(c) and (d) of the Property Relations Law) that for the time being, the Applicant would be entitled to a sum of about NIS 73,000 unconditionally, while the remainder of the sums would be awarded her only later, subject to settling the divorce or any other decision by the Family Court. It was also decided that the Applicant bear the Respondent’s costs in the amount of NIS 59,000. The Applicant informed us that she intended to appeal the judgment. Needless to say, we are not concerned with this, and only mention it to complete the picture.

 

18.We would further add that in the course of the suit for dissolving the common property, and after the Rabbinical Court revoked the order for specific residence, the Family Court ordered to dissolve the community property rights in the house owned by the parties, and appointed the parties’ attorneys as receivers (FC 39732-12-11, decisions dated February 24, 2013, February 25, 2013 and April 14, 2013). Additionally, at the parties’ request and with their consent, a property appraiser was appointed on March 26, 2014, in order to prepare an appraisal of the house  for its sale.

 

The Application for Leave to Appeal

 

19.The application for leave to appeal before us challenges the District Court’s decision in regard to fixing the period of the Applicant’s support. The Applicant focuses her arguments on the fact that the District Court elected, despite the considerations it detailed, to terminate her support at the end of 2015, a date which she maintains is “speculative.” According to the Applicant, the District Court’s decision raises a fundamental question as to the Family Court’s authority to set a fixed period of time for spousal support in order to induce the parties to divorce, a decision which effectively denies the woman support contrary to the personal status law that applies to the parties, and despite the fact that the Rabbinical Court did not find her to be a recalcitrant spouse. In the Applicant’s view, this is a novel decision that provides the Family Court with new tools to compel parties to divorce.

 

20.On the merits, the Applicant maintains that, under the circumstances, her husband must be obligated to pay her support without an end date, and all subject to future developments (including the Respondent’s retirement in about five years time). The Applicant emphasized that she was married to the Respondent for over 35 years, during which time she did not work. She argues that she is currently over 56 years old, she is incapable of working and producing her own income, so that her entitlement to support is essential for her livelihood until she begins to receive her share in the Respondent’s pension in a way that ensures her continual income.

 

21.On the other hand, the Respondent argues that the request fails to invoke any special legal issue that warrants granting leave to appeal. He claims that the District Court ”was very gracious toward the Applicant”, in light of her unreasonable financial demands – demands which he believes hinder the resolution of the conflict by creating an “artificial delay” of the process. The Respondent adds that had the Rabbinical Court panel deciding the case not been substituted, their divorce decree would have been granted long ago.

 

22.The Respondent additionally claims that the Applicant’s conduct and her persistent refusal to accept a divorce in the Rabbinical Court, as well as deliberately delaying the hearings there, in stark contrast to her vigorous activity before the civil courts, should have been considered as bad faith that justifies revoking the support. The Respondent further argues, while addressing the unfolding of proceedings between the parties, that the lower courts examined the proceedings between the parties, as well as the factual circumstances, reviewed extensive evidence and made factual findings in which we should not intervene.

 

23.On May 5, 2015, a hearing on the Application was held before us. In the course of the hearing, the parties provided updates as to the ongoing proceedings between them in the various courts.

 

24.For her part, the Applicant insisted that the Rabbinical Court decided, on March 16, 2015, that her actions did not justify ordering a get, and rejected the Respondent’s request that she be required to divorce. The Rabbinical Court’s decision noted that, in accordance with the Applicant’s declaration, she is willing to live with the Respondent, and it was possible to end the case with the Applicant’s consent to divorce while granting her appropriate and reasonable compensation.

 

25.During the hearing, the Respondent updated us that, in the meantime, a decision was handed down by the Family Court in regard to the division of property between the parties, in the course of the Applicant’s suit for resource balancing. Additionally, the parties updated us that the house has yet to be sold, and that they still await the appraiser’s report on the matter.

 

26.At the end of the hearing, we instructed the parties to submit briefs on the question of whether it is permissible to fix the time period for support during the marriage.

 

27.On May 31, 2015, the Applicant submitted her brief. In her brief, the Applicant explained that requiring the Respondent to pay support stems from the personal status law that applies to them, which is Jewish religious law, which obligates the man to support his wife until the end of their marriage in divorce. The Applicant added that there is no obligation for a woman to work outside the home in order to be entitled to support, where she had not worked before and is unable to meaningfully produce an income, as in her circumstances. The Applicant notes further that there are no grounds to deny her support under the personal status law, and neither is there justification in her case to reduce the support or deny it for lack of good faith, which puts her in an impossible situation wherein she will remain without any source of income for several years until she becomes entitled to her share of the Respondent’s pension payments. The Applicant further argues that, in principle, there is no decision by this Court that has approved the denial or fixing of the term of support for a woman who is not working, is unable to produce an income, and is completely dependent on her husband for her livelihood.

 

28.On June 6, 2015, the Respondent filed his brief. The Respondent addressed a husband’s obligation for support under Jewish personal status law, but noted that the case-law balances these obligations against the principle of good faith, and created pragmatic rules to suit the changing times. Through good faith, he argued, the courts tend to reduce or deny support in general, and spousal support in particular, when necessary, as was done in this case, where the court is under the impression that the suit for support was designed merely to create “artificial pressure” in the property negotiations between the parties. The Respondent maintained that it is, indeed, common for family courts to fix the period of support, and that this approach can also be found in the writings of halakhic decisors. In this context, the Respondent presented the view of Rabbi Shaul Yisraeli  (Responsa Mishpatei Shaul, 5) according to which a man is not obligated to support his wife unless she is with him, “and if she leaves, there is no justification for this [halakhic] regulation as all”. It was also argued that the District Court’s decision is pragmatic and eliminates the need for additional deliberation on the issue of the amount of support and setting the date for its termination, as well as practices of investigations and surveillance of the woman in order to determine the extent of her expenses. The Respondent added that the courts’ approach as to fixing the term of a woman’s support is rooted in rehabilitative support awarded a common-law wife based on general contract law. It was thus argued that where the religious law discriminates against a man compared to a woman, its discriminatory instructions to this effect must be interpreted narrowly. One way of doing so may be fixing the period for support, as was done in this case. Additionally, it was argued that the approach adopted in the  case-law of the family courts is to prevent artificial continuation of the marriage where it no longer exists, and that, in this case, that approach should effectively have led to the denial of support altogether.

 

Discussion and Decision

 

29.After hearing the parties’ arguments, we are convinced that the law requires granting leave for appeal in this case, and we have decided to hear the application as if an appeal had been filed with the leave of the Court. The issue of fixing the period for a man’s support payments to his wife during their marriage is a new question that relates to the intersection between civil family law and the personal status law, as well as the “synchronization” between the decisions of the religious courts (in our case, the Rabbinical Court) and the rulings of the Family Court. In the background, as I will explain below, are additional questions touching on the financial survival of a partner who relies on the marriage in terms of income, considering, inter alia, that under Jewish religious law a woman is not entitled to support after the divorce (but without restricting the discussion in this context only to women, as opposed to men, who depended on the marriage in a manner that impacted their ability to produce an income). For the purposes of examining the question before us, I shall begin by presenting the complex tapestry of the relevant legal issues to be determined – some are matters of substantive law and some are matters concerning the jurisdiction of the relevant judicial tribunals.

 

30.Against this background, I will explore the rules that apply to spousal support, both through the lens of the personal status law that applies to the parties and through the lens of general civil law, all as related to the question of the “division of labor” between the family courts and the rabbinical courts as mandated under current legislation.

 

The Premise: The Connection between Entitlement to Support and the Marital Relationship under Personal Status Law and the Issues it raises

 

31.Section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959 [13 L.S.I. 73] (hereinafter: the Maintenance Law) mandates: “A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him.” Therefore, the premise for the discussion before us is the personal status as it applies to the parties. In our case, this is Jewish religious law, which closely links the woman’s entitlement to support to the marital relationship. As a general rule, only a married woman is entitled to support (subject to considering the income “of her own labor” in setting the amount of support). As opposed to this, after the divorce the woman is no longer entitled to support for herself (and this, as apposed to the maintenance awarded minor children that are, in effect, paid to the woman if the children are in her custody) (see also: Ben-Zion Schereschewsky and Michael Corinaldi vol. 1, 291-379 (2015) (hereinafter: Schereschewsky and Corinaldi)). This approach of Jewish religious law binds the family courts as well. This is an important point of departure for the discussion here, although it is not its final destination, as we explain below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law.

 

32.The application of Jewish religious law on awarding support between Jewish partners who married according to Jewish law – which is, as mentioned, the premise for the current legal situation – may occasionally create difficulties, and even incentives for unfavorable conduct. One of the immediate outcomes may be leaving the woman with no source of income after the end of the marriage, and in certain cases, even beforehand. Apparently, this outcome is not anticipated in the case of a woman who has worked and has been fully integrated into the workforce even during the marriage (and in any event, the amount of support to which she is entitled is often balanced against “her own labor”). However, this outcome is also highly problematic when we are concerned with a woman who, under the “division of labor” between her and her partner, did not participate in the workforce, and possibly has no profession or prospects of becoming integrated into the workforce due to her relatively advanced age (even if she may “formally” seek employment, and without detracting from the duty to combat the phenomenon of age-based discrimination). There is, thus, concern that women who divorce at an advanced age, and who are not integrated into the workforce, would descend into poverty, particularly when the community property amassed over the years is itself modest. As a result, women under these circumstances may refuse to divorce, even when there are no real prospects for the marital relationship to continue. This is because when support is contingent upon the marital relationship, as in Jewish law, divorce is likely to cut off their source of income.

 

33.The concern about the implications of ending the marital relationship on the entitlement to support for a woman who did not work during the marriage is exacerbated in those situations where the division of property between the parties is yet to be done. Should the woman stop being entitled to support, on one hand, while at the same time not be awarded immediate control over her share of the community property, on the other hand, the difficult outcome may compel her into a situation of no alternative but to unnecessarily waive some of her rights to the community property, in an attempt to achieve a prompt agreement as to the division of property and the ability to realize it.

 

34.The case before us demonstrates, so I believe, the complexity of the described situation. Of course, get recalcitrance – for financial reasons of any others – must not be encouraged, but it is also imperative to provide solutions for one who relied on the relationship and can no longer be integrated into the workforce, or alternatively requires a relatively extended training period in order to do so (for instance, by acquiring a new profession). This applies, of course, mutatis mutandis, to male partners who have relied on a  relationship in which his partner is part of the workforce and advances in it. Though the personal status law recognizes only a woman’s right to support, as I show below, under the general civil law, in the appropriate cases, a man’s reliance on the marital relationship may also be considered when granting the proper remedy to facilitate “adjustment” to independent financial existence (to the extent the “division of labor” in the former relationship justifies this).

 

 

Jewish Personal Status Law: The Death of Marriage, Obligation to Divorce and the Termination Date for Support

 

35.As noted, since the point of departure in the case before us is the personal status law that applies to the parties, we must first outline its principles in regard to an obligation to divorce and denying a woman’s right to support. In effect, the case before us raises two questions that, while related to one another, must be distinguished from one another. The first question is under which circumstances a woman my be declared a “recalcitrant spouse” even when there are no “classic” grounds for divorce, only because she refuses to divorce despite the fact that her relationship with her husband has reached an end in the sense of “disgust”, often described as the “death of the marriage” (see for example, Avishalom Westreich inhereinafter: Westreich)). The second question is what are the conditions to denying a woman’s right to support under circumstances characterized as the “death of the marriage.” These questions should be addressed briefly – not in order to purport to resolve the religious law disputes regarding them, but in order to understand their scope and their implications to the case before us.

 

36.The death of the marriage as grounds for divorce – as a general rule, there is a dispute among Jewish law decisors as to the whether an irreparable rift between the couple (regardless of the question of fault leading to this situation) justifies obligating a divorce (Westreich, 91). There is, indeed, halakhic support for the view that an irreparable rift in a marriage may give rise to a right to divorce, although that view is not universally accepted (Westreich,  93.) Such an approach is also consistent with economic concepts of human dignity that guide Israeli law. In any event, as I will explain below, determining this question does not “automatically” impact upon the determination in of the support issue. First, even if the Rabbinical Court decides to order the parties to divorce, it must still decide  upon the implications of that decision for the obligation of support. Requiring a divorce may be the “first step” toward revoking the right to support, but such a decision is a separate one, which may involve additional steps such as entrusting the get and the ketubah to a third party, that is depositing them with the Rabbinical Court for the woman. Second, even in the absence of a decision to require a divorce, it may be appropriate, in certain cases, to revoke the right to support, and this, as well, in a decision that may require additional steps such as entrusting the get and the ketubah to a third party.

 

37.Right to Support in the situation of the Death of a Marriage: As was already explained, the woman’s right to support in Jewish religious law stems from the marriage itself. This right expires when the woman is considered “rebellious” under Jewish law or where she is required to divorce under a “classic” ground for divorce, such as adultery (see:  Schereschewsky and Corinaldi, 309). Ordinarily, a woman is entitled to support only when she lives with her husband. When they live separately, the reason for the separation must be investigated (ibid., 335). Generally, a woman loses her right to support when she was the one to leave the home, unless “he was the cause”, i.e., she had a good reason to do so (ibid., 335, 354-57).

 

38.The issue of the right to support becomes more complicated in cases such as the one at hand, that is, in the case of the “death of a marriage.” The issue is partially related to the issue discussed above – whether the “death of a marriage” is grounds for requiring a get. However, as explained, these issues do not fully overlap. Doubts arise, inter alia, from the fact that denying the right to support may be seen as undermining the Decree of Rabbeinu Gershom prohibiting divorce without the woman’s consent due to the fact that non-payment of support may create economic pressure that would compel the woman to divorce against her will. In this context, Rabbi Elijah Mizrachi’s (the Re’em) position is well known. According to him, the husband may be exempted from supporting his wife when he could have lawfully divorced her against her will, but is prohibited to do so only due to the Decree of Rabbeinu Gershom. However, this position is considered, in many ways, a minority approach, and many halakhic decisors establish conditions for exempting the husband from paying support in this situation. Thus, for example, according to the view of Maimonides, this is contingent upon the husband depositing the get and ketubah with a third party. Additionally, Rabbi Herzog wrote, in regard to the approach of the Re’em, that “where the court is persuaded that she is responsible for disturbing a peaceful life (although the law does not require her to accept a get), and that there is no longer hope for restoring peace in the home, then it is permissible to rely on this approach, along while providing compensation so that she is not left without support, but of course this requires care and prudence and serious review in each and every case, in accordance with the situation and the circumstances.” In any event, clearly the basis for releasing the husband from paying support is an authorized finding of the Rabbinical Court that the marriage has come to an end, in terms of a ”disgust” claim (though the Rabbinical Court may refrain from deciding on actually requiring a get). Such a finding, and a consequent denial of support, usually involves entrusting the get and ketubah to a third party, acts that require, of course, active participation of the Rabbinical Court (see also: HCJ 7407/11 A v. Great Rabbinical Court in Jerusalem, para. 12 (January 27, 2013) and references there. For a detailed account of the approaches in Jewish law regarding support where the woman refuses to divorce, see: Rabbi Meir Batist, A Woman Obligated to Accept a Get: Has She Lost Her Support?, 23 125 (2003) (Hebrew); Rabbi Moshe Be’eri and Yuval Sinai, Obligating Support for A Woman Who Refuses a Get, The Center for Applied Jewish Law (February 9, 2007.) (Hebrew)).

 

Questions of Jurisdiction: Jurisdiction over Divorce, Jurisdiction over Support and the Relationship between them

 

39.Questions of jurisdiction must also be examined, alongside the examination of the substantive law, and we must address the dual system of litigation in the area of family law – in the rabbinical courts and in the family courts.  As we will see, the answer to the question before us is, in significant part, as much a result of the division of jurisdiction in family law as of the principles of substantive law that apply in this field.

 

40.As we know, the religious courts have exclusive jurisdiction over matters at the “core” of marriage and divorce. Family courts, too, hold jurisdiction over other matters in the area of personal status law. For the purposes of the case before us, it is unnecessary to elaborate on the distinctions between the different faiths’ religious courts and it is sufficient that we address rabbinical courts’ exclusive jurisdiction over all matters regarding marriage and divorce, as regulated by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953.

 

41.The Family Court is indeed authorized to hear a claim for a woman’s support, but as already discussed above, under the Maintenance Law the decision itself should be a product of the principles of personal status law detailed above, in this case Jewish law. Accordingly, when the Family Court hears a claim for support, it must determine whether there are grounds to end it in accordance with halakha.

 

42.What, then, must the Family Court do when faced with a claim for support where the husband argues in his defense that he is not obligated to pay because the woman is a “recalcitrant spouse?” The answer is that the Family Court cannot deny the right to support in the absence of an appropriate finding by the Rabbinical Court in the divorce case (this is distinct from the “classic” grounds, such as adultery, which the Family Court can consider independently). Indeed, it would appear that the Family Court may also address questions that are not under its “incidental” jurisdiction, in accordance with its authority under section 76 of the Courts Law [Consolidated Version], 5744-1984, and subject to the Rabbinical Court’s authority to find otherwise (CA 634/61 Makitan v. Makitan, IsrSC 15 945 (1962); Issachar Rosen-Zvi, 295 (2015) (Hebrew)). However, when the question at the heart of the dispute is whether to revoke the woman’s right to support for “get recalcitrance” (in the absence of a decision on this question by the Rabbinical Court,) it would be improper for the Family Court to address the issue. First, a claim of recalcitrance is closely tied to the matter of the divorce, which as noted, is under the exclusive jurisdiction of the Rabbinical Court. Therefore, in a case of a claim of recalcitrance, litigation is conducted concurrently in the Rabbinical Court and the Family Court, and thus it must be viewed from the perspective of the principle of comity between courts (see LCA 4982/92 Tabib v. Tabib, IsrSC 48(3) 390, 294-95 (1994); HCJ 8497/00, Feig-Felman v. Felman, IsrSC 52(2) 118, 134-40 (2003); HCJ 9734/04, A v. Great Rabbinical Court, IsrSC 59(2) 295, 303 (2004)). Under this principle, the Family Court should wait for the decision of the Rabbinical Court in the matter. Reciprocal comity requires that as long as the Rabbinical Court believes that a demand for reconciliation by the party wishing not to divorce is sincere and in good faith, and that the time for determining that the marriage has died has yet to come, the civil court should not rule otherwise while the proceeding in the Rabbinical Court is still pending. As noted, considering the principle of comity between courts is necessary in this situation, since the divorce refusal claim cannot be raised out of thin air without the husband having filed for divorce in the Rabbinical Court. Second, as detailed above, according to religious law itself, denying the right to support in a case of requiring a divorce should be followed (in many opinions) by supplemental steps, such as entrusting the get and the ketubah amount to a third party. Denying the right to support, as a stand-alone measure, does not, therefore, reflect the religious law.

 

43.Waiting for the decision of the Rabbinical Court on the issue of divorce obligation is not expected to create any mishaps, considering the temporary nature of a support decision. A decision to award support is always contingent upon changes in circumstances, and a court may be approached repeatedly to decide the support issue in light of changing circumstances. Therefore, the Family Court need not be concerned that it may award support to a woman despite the fact she may be declared a “recalcitrant spouse.” If and when this happens, her partner may apply to the Family Court to adjust the support award. The logic of this proposed approach can be illustrated by the reverse situation, as well. Consider a situation in which the Rabbinical Court finds that the woman is required to divorce and she refuses to accept the divorce. Could the Family Court nevertheless find that she is not a recalcitrant spouse and that she is entitled to support under personal status law? Because the negative answer to this question is clear, it ought to be clear that unilateral intervention by the Family Court in findings in regard get recalcitrance in order to restrict a woman’s support is unacceptable.

 

44.It should be noted in this regard that the Family Court sought to rely on LFA 3148/07, cited above, as an example of considering recalcitrance when awarding support. However, this decision by my colleague (then) Justice E. Rubinstein, which generally addressed the application of the principle of good faith to issues of awarding support, cannot support this. In that case, it was held that a woman’s support may not be increased beyond the rate she was originally awarded  in light of changes in her former partner’s separate financial circumstances. However, our case effectively concerns the revoking of a woman’s support (in the sense of setting a date for their expiration), rather than merely setting their amount. Additionally, invoking the principle of good faith may not be used as a “detour” to waiting for the decision of the Rabbinical Court that is concurrently adjudicating the very same issue.

 

45.Indeed, we must aspire that the partner delaying the divorce without just cause does not gain the upper hand only because that partner falsely made a reconciliation claim (see also: Pinhas Shifman,  122 (2012) (Hebrew)). However, accomplishing this cannot be through limiting entitlement to support while the divorce proceedings are still pending. Of course, a finding by the Rabbinical Court that the woman is required to accept a get, insofar as there is such finding, would itself serve as cause for amending the support award. However, as longs as the proceeding in the Rabbinical Court is pending, and that court believes the time for divorce has not yet arrived, the civil court cannot base its decision on support on a different finding.

 

The Civil Law: Rehabilitative Support and the Marital Relationship

 

46.Though this was not articulated in this way in the District Court’s decision, the case before us, and similar cases, highlight a real difficulty that repeatedly comes up in divorce proceedings – the disincentive to agree to a divorce when the woman has no independent sources of income, and where, under the personal status law (here, Jewish halakha), divorce would leave her without an income. In effect, the Respondent believes that the Applicant refuses to divorce him only in order to continue to be entitled to support, and it seems the lower courts were under the same impression. The avenue these courts have chosen is problematic in light of the principles detailed above. The lower courts based their decisions on the finding that the Applicant is delaying the divorce only because she wishes to improve her financial situation through the support to which she is entitled as long as she remains married. As noted, the jurisdiction to determine whether this is indeed the case is in the hands of the Rabbinical Court, not the civil court. However, admittedly, the difficulty that the lower courts point out is real.

 

47.I believe that the way to handle this difficulty is different. It should not take the route of denying the right to support based on a finding that the women is a “recalcitrant spouse” (as longs and the Rabbinical Court has not decided this issue in the course of the divorce proceedings), but rather should be based on the recognition that, in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to “civil” support with a rehabilitative objective, that is “rehabilitative” support according to general principles of the civil law. Of course, since this is a “civil” principle, this must apply, with the necessary changes, to a man who has divorced and is facing the same conditions, as well.  This Court has already said repeatedly that there is a contractual aspect to support, and general principles of fairness and good faith should also be considered on a case-by-case basis. I believe that these are principles that may be taken into account for the purpose of awarding rehabilitative support where, under religious law, the woman does not have a right to support. This would apply to a partner – man or woman – who is left with very limited or no ability to produce an income after the marriage, due to their reliance on the marital relationship and the “division of labor” between the partners during their relationship.

 

48.The right to an award of “rehabilitative support” (under the principles of reliance and good faith) has been recognized by this Court in regard to partners in a  cohabitation relationship that is not subject to regulation by religious personal status law – “common-law” partners (see: CA 805/82 Versano v. Cohen, IsrSc 37(1) 529, 531-32 (1983); CA 2000/97 Lindorn v. Karnit – Road Accident Victims Compensation Fund, IsrSC 55(1) 12, 33-34 (1999)), or even couples married in civil ceremonies abroad (see: CA 8256/99 A v. B, IsrSC 58(2) 213 (2003); HCJ 2232/03 A v. Tel Aviv Regional Rabbinical Court, IsrSC 61(3) 496 (2006) [http://versa.cardozo.yu.edu/opinions/v-tel-aviv-jaffa-regional-rabbinica...).

 

49.To date, this Court has yet to recognize the right of spouses married under Jewish law to “rehabilitative support”. However, at least prima facie, we should not rule out the possibility of awarding support under similar principles of protecting reliance, fairness, and good faith even when the couple is or was lawfully married. For example, consider CA 4590/92 Kahana v. Kahana (January 30, 1994) which addressed the matter of a kohen who married a divorced woman and was obligated to pay her support even after the Rabbinical Court found, in the course of the divorce case, that the woman was required to divorce (given that the marriage was prohibited).

 

50.How can this obligation, to the extent that it regards women, be reconciled with their right to support under religious law? I believe that rehabilitative support may be awarded under the civil law only to a woman who is no longer entitled to support under religious law (and, mutatis mutandis, to a man, too, as he is not entitled to support under religious law to begin with). This may arise at two possible points in time when the man’s duty to pay support expires under Jewish law – either before the divorce is granted but when there is a cause for denying support, or  after the divorce is granted, thus ending the right to support. This is consistent with the approach of Jewish religious law – both relevant points in time, whether before the divorce and after it, are occasions where the marital relationship substantively “ends.” In effect, awarding rehabilitative support even to a woman who was married under Jewish law (subject to appropriate restrictions, such as where she did not work, or worked only on a limited basis, and considering her anticipated challenges in integrating into the workforce) is consistent with the halakhic system in a broad sense. In practice, the woman’s ketubah is meant, inter alia, to guarantee her means of support at least for a period after the end of the marriage, and when she is no longer entitled to support (after divorce) (see for example: Eliav Shochetman, The Woman’s Status in Marriage and Divorce Law, 380, 398-401 (Francis Raday, Carmel Shalev and Michal Liban-Kobi, eds. (1995) (Hebrew)). Adjusting this idea to present circumstances (see and compare: LFA 9606/11 Estate of A (deceased) v. A (May 20, 2013)) supports awarding rehabilitative support to a married woman who was not integrated into the workforce at all, or only partially so, and where the end of the marriage would make it difficult to integrate into the workforce or where time would be needed to adapt in order to do so fully. Additionally, there are halakhic approaches that support awarding compensation to a woman who divorces, as another means (in addition to the ketubah) to provide her a “decent existence” after the divorce, as explained by Menachem Elon in his book (see Menachem Elon, 233-37 (2005) (Hebrew)).

 

51. As noted above, the question of whether the wife has income potential was already examined by the Family Court for the purposes of reducing the amount of the support awarded her under Jewish religious law (see: Halperin-Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 767, 789-91 (2005) (Hebrew); CA 6136/93 Bikel v. Bikel (July 6, 1994); CA 5930/93 Padan v. Padan, para. 2 (December 22, 1994)). The other side of the coin would appear to be accounting for a situation where the woman has no income potential, and where this fact results, inter alia,  from her reliance on the marital relationship (as the Court also saw things in the Acase, at 403). Moreover, the enactment of the Basic Laws, and the recognition that the right to a minimally dignified existence is a derivative right of human dignity, appear to reinforce the legal basis for awarding rehabilitative support as a duty stemming from the general  law – regardless of personal status law (though in a manner that is consistent with it, as explained above) – to the extent this is necessary for a minimally dignified existence. Indeed, a divorced woman has no independent right that her former partner ensure her right to a minimally dignified existence. This right is, first and foremost, a right in regard to the state (HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005) [http://versa.cardozo.yu.edu/opinions/commitment-peace-and-social-justice... HCJ 10662/04 Hassan v. National Insurance Institute (February 28, 2012) [http://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute]). However, the factor of guaranteeing a minimally dignified existence should influence the interpretation of support law (as this was already considered in the past for the purposes of limiting the scope execution of a support debt (see and compare: LCA 4905/98 Gamzo v. Yeshayahu, IsrSC 55(3) 360 (2001)).

 

52.Rehabilitative support of this type may reduce the incentive for “get recalcitrance” stemming from economic reasons, as well as provide the civil court with an effective tool for considering fairness and good faith. Such rehabilitative support could provide a partial response to the outcome resulting from  partners who contributed to maintaining the household possibly finding themselves in a situation where their work has no realizable “market value” (see: Shahar Lifshitz 332-334 (2005) (Hebrew) (hereinafter: Lifshitz)). To a certain degree, the possibility of awarding rehabilitative support is an obvious supplement to accounting for “career assets” in the division of property (see: LFA 4623/04 A v. B, IsrSC 62(3) 66 (2007) (hereinafter: LFA 4623/04); HCJ 8928/06 A v. Jerusalem Great Rabbinical Court of Appeals, IsrSC 63(1) 271, 280 (2008) (hereinafter: HCJ 8929/06)). Accounting for “career assets” expresses the “advantage” enjoyed by the partner whose work during the years of marriage acquired a special value, particularly where there are clear disparities in income potential because the partner who stayed at home facilitated the working partner’s ability to maximize their income potential (LFA 4623/04, at 86). On the other hand, awarding rehabilitative support also reflects, in appropriate cases, the special “harm” suffered by the partner who exited the workforce and was thus left in a position in which it became difficult to reintegrate into the workforce because of reliance upon the marital relationship and the understandings created within it. Indeed, these considerations may be reflected in the division of property, but that is not always the reality (Lifshitz, at 350-51.) Of course, awarding rehabilitative support must also take account of the manner of the property division– to the extent it already has occurred.

 

53.It is important to emphasize: rehabilitative support is what the title suggests. It is not a permanent entitlement to support, but an entitlement designed to achieve the rehabilitative objective of integration into the workforce – an end that advances dignified existence for the period of “rehabilitation”, which reflects the reliance upon the partnered relationship to the extent that the ability to produce an income was compromised. In practice, this may also be expressed as a “transition” until the realization of a different right to an income, for example, from a pension fund. Therefore,  as a rule, setting a fixed period for the support payments is possible, and may be required, although under certain circumstances this may be for an extended period, particularly where there is a significant difference between the partner who never worked and the supporting partner, and where the separation is at such a late stage of the partnered relationship that the ability of the partner who stayed at home to produce an income is very low.

 

54.Therefore these are considerations that must be taken into account when determining whether one of the partners is entitled to rehabilitative support, and what their amount ought to be. The central issue in this context is the likelihood of alternative sources of income. Therefore, the questions of professional training and work experience of the “home-based” partner, their age (including how close they are to retirement age,) as well as the value of the partners’ property and whether it has already been divided are important. On the other hand, considerations of fault as to responsibility for the relationship ending should not be taken into account. Generally, the prevalent approach to the property and economic aspect of family law is that it should not be subject to fault considerations (see also: HCJ 8928/06; LFA 7272/10 A v. B, para. 24 of my opinion (January 7, 2014)). To this we may add the fact that considering fault may also hinder the rehabilitative purpose of the support award, since it diminishes the abandoned partner’s incentive to rehabilitate through integration into the workforce.

 

55.In theory, one might argue that recognizing the possibility of awarding rehabilitative support will not reduce the phenomenon of “financial” divorce refusal by women in a case in which a woman may attempt to “drag out” the divorce in order to maximize her right to support as long as the marital relationship continues. This is because while recognizing rehabilitative support may address the concern that the partner who did not work during the marriage would be left without any source of income when it ends, it does not negate the fact that a woman is entitled to support under  personal-status law as long as she is married and there are no grounds for denying it, as explained. Rehabilitative support does not diminish this right and thus one might argue that women would attempt to “drag out” the marriage even where they may be awarded rehabilitative support once the marriage is over. Indeed, rehabilitative support does not fully resolve this problem, but I do believe that it significantly reduces it. First, from the moment when there is real “rift” between the parties and the woman no longer lives with her husband (whether by her desire or by his) it is likely she will attempt to return to the workforce or pursue professional training, and the need to do so, in the absence of any obstacle, is part of the good-faith duty imposed by the general law (to clarify, this duty is distinct from the considerations of fault in the relationship’s dissolution). In this context, the time that has lapsed during which the woman could have attempted to return to work may be factored into the decision whether to extend the “rehabilitative support” (considering her circumstances, including her age and health). Second, recognizing the institution of rehabilitative support may be expected to reduce the incentive for artificial delay of the marriage, which burdens partners in a situation of “rift” (and all the more so for the woman, considering the Jewish law consequences of an extra-marital relationship).

 

Other Civil Aspects of Divorce Refusal

 

56.At first glance, the possibility of seeking civil remedies through a tort suit in cases of get recalcitrance would appear to raise a tangential question to those under examination  (see, for example: FC (Jlem) 21162/07 A v. B (January 21, 2010) (hereinafter: FC 21162/07); FC (Krayot) 48362-07-12 A v. B (February 28, 2013); FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014)). As noted, in our case the District Court referred to this practice in order to infer that just as divorce refusal may serve as a cause of action in tort, so the Family Court may consider it for the purpose of reducing (or even revoking) the entitlement to support. In my opinion, this analogy is not at all obvious, and I believe it is misplaced.

 

57.I shall first note that the question as to when one may prevail in such a suit has yet to be addressed by this Court, and the case before us is not the proper case for discussing it (for the dispute on this matter see: Yehiel Kaplan and Ronen Perry, Tort Liability of Recalcitrant Husbands, 28 773 (2005) (Hebrew); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gaps between Them: A Response to Yehiel Kaplan and Ronen Perry, 28 I, 871 (2005)). I shall, therefore, only note  that even according to the view that filing a tort suit for get recalcitrance does not depend on a prior ruling of the Rabbinical Court “obligating a divorce”, this would not ground an analogy that would permit taking the indirect path of denying a right to support that is prescribed by Jewish law, without an authorized decision by the Rabbinical Court as to the “death of the marriage”. There are several reasons for distinguishing the two types of suits, as I shall explain below.

 

58.In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support. Therefore, revoking it may affect her ability to survive in the most basic sense, as earlier explained. A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance (which, in any event, is subject to the rules governing execution of judgments, which condition enforcement upon ensuring that the party concerned be left with the means for existence). Moreover, denying the right to support may leave the woman destitute, and thus lead to “surrendering” to accepting a divorce in order to survive. On the other hand, taking the opposite step of increasing the support amount paid by the man (even in the absence of a divorce obligation by the Rabbinical Court) would necessarily be limited by laws restricting enforcement so as to ensure the right to a minimally dignified existence, as held in the Gamzo case. The result may, therefore, be asymmetrical for men and women.

 

59.Another, more formal but not unimportant reason for the distinction derives from the fact that tort suits for get recalcitrance are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

From the General to the Particular

 

60.In light of the legal principles detailed above, I am of the opinion that the appeal should be granted.

 

61.First, the District Court (and prior to that, the Family Court) was guided by considerations of preventing “get recalcitrance”, but did so without positively determining that the Applicant is required to accept a get, and this while a parallel proceeding on the matter of the divorce was pending before the Rabbinical Court, which holds exclusive jurisdiction over the matter. A woman’s right to support cannot be revoked merely for considerations related to the subject matter of divorce refusal, without a positive finding of the Rabbinical Court that the woman is required to  accept a get. It must be either one or the other – if the woman is a recalcitrant spouse in the sense that the Rabbinical Court found her to be required to accept a get, or it is found that the marriage has come to its end and the get and her ketubah amount were deposited for her, with all that implies,  then she is not entitled to support under religious law. Or, if she is not a recalcitrant spouse, there are no grounds for revoking her support under religious law and neither can it be set for a fixed period of time at this point.

 

62.Indeed, it would appear from the Regional Rabbinical Court’s decision to revoke the specific residence order, as well as from its most recent decision, which was presented before us, that the Rabbinical Court was also under the impression that the marriage between the parties has, to a large extent, come to an end. However, the Rabbinical Court refrained to find as such, and also refrained from finding that the Applicant was required to accept a get. Instead, the Rabbinical Court sufficed in recommending that the partners reach an agreement between themselves. Of course, such findings are dynamic, and to the extent that the Respondent is able to persuade the Rabbinical Court that his wife is a recalcitrant spouse, this finding would have clear implications as to her entitlement to support, as well.

 

63.In our case, no “classic” ground was found, in the words of the Family Court, for revoking the Applicant’s support under religious law (see para. 17 of its opinion). The District Court did not find otherwise, but only wished to take into account, inter alia, the fact of the woman’s “recalcitrance”, although it noted that under the circumstances this was not “recalcitrance” that immediately leads to revoking the right to support. The District Court addressed additional considerations that are relevant to the “rehabilitation” of the marital relationship and the extent of her fault in ending it. I do not believe that these findings can stand. As explained above, to the extent that at this stage there are no grounds under religious law to deny the Applicant’s support (and even more so in light of the most recent decision of the Rabbinical Court presented to the Court) – she is lawfully entitled to it. In addition, to the extent that it be held in the future that the Applicant is not entitled to her support under religious law (and I do not, of course, take any position in this regard), then it would also be necessary to explore whether she must be awarded rehabilitative support, under the principles outlined, and as a result of a concrete examination of the woman’s prospects for securing an income. Indeed, the District Court noted that in setting the amount of support, a court must consider various factors, including whether the woman would have sources of income. The District Court even stated that one of the rationales for the award is affording the Applicant a reasonable period of time to prepare for the future. However, in applying this principle, it did not clarify to what extent the time it set might facilitate the woman’s ability to secure an income when that period of time comes to an end.

 

64.As noted, after the delivery of the District Court’s decision regarding support, which this proceeding concerns, a decision as to the division of the community property was also handed down, which was presented to us. The Respondent may, therefore, wish to argue that the community property at the woman’s disposal would serve as her source of income. However, this argument must be examined on its merits, and we cannot make the desired assumption. What matters for our purposes is that when the decision regarding support was delivered, there still was no decision regarding the property, and its outcome could have left the Applicant with no source of income. On the merits, the consideration of the woman’s share of the community property for the purposes of her ongoing income must factor in the date of sale of the house, the expected sale price to be received, and other information, while examining the woman’s living expenses during the time she may remain without a source of income, and the fact that she relied on the partnered relationship with her husband and the “division of labor” in that framework.

 

65.Under these circumstances, I would propose that my colleagues decide that the Family Court’s decision as to fixing the period of the support be reversed, and that to the extent that there is not change in the couple’s circumstances, including the circumstances relating to the proceedings in the Rabbinical Court, the Respondent continue to pay the Applicant’s support in accordance with the Family Court’s decision, without setting a time for the payments’ expiration.

 

66.I wish to end my opinion by expressing hope that despite the conflict between the parties and the great pain they have inflicted on one another, they may find the strength to ultimately conclude all the proceedings between them, which at the end of the day, benefit neither of them.

 

Afterward: Between the Principle of Good Faith and the Rules of Jurisdiction

 

67.At this stage, after completing my opinion, I have received the opinion of my colleague Deputy President E. Rubinstein. My colleague believes that fixing the term of the support awarded a woman by reason of “recalcitrance” should be permitted even without an appropriate ruling by the Rabbinical Court, on the basis of the required application of the good-faith principle. He further explains that such decisions may “encourage” the parties to reach agreements and end the marriage. I wish to disagree in this regard, although, of course, I do not dispute the general statement that the principle of good faith should appropriately apply to an adjudication between parties in the area of family law, just as it must apply to any other issue.

 

68.Indeed, there can be no dispute that the principle of good faith is an overarching principle of Israeli law, and rightly so. Additionally, I concur with my colleague that the principles of fairness and decency can also be found in the fundamental principles of Jewish law itself, and that is encouraging. However, as I explain below, the dispute between us does not concern whether the principle of good faith obligates the parties and the trial court, but other questions – how it ought to be implemented, and primarily which court does Israeli law entrust with ruling on the question of the death of the marriage, and what are the consequences of that finding for personal status law?

 

69.Given that in the matter of the parties’ before us two parallel proceedings are pending – both in the Rabbinical Court and in the Family Court – I do not believe that we can accept a situation wherein the Family Court issues a ruling concerning recalcitrance that is inconsistent with the rulings of the Rabbinical Court on this very same issue. Insisting on the principle of comity between courts, a point whose importance my colleague, too, emphasizes, is not consistent with conflicting rulings on this matter on an issue that is at the core of the Rabbinical Court’s jurisdiction, and while this issue is yet pending before it.

 

70.My colleague explains that the special care that the Rabbinical Court exercises in regard to recalcitrance must be taken into account. My view is different. The Family Court cannot impose sanctions under the Rabbinical Courts (Enforcement of Divorce Judgments) Law, 5755-1995, against the husband where it is persuaded that he is a recalcitrant spouse in the absence of the proper finding by the Rabbinical Court, regarding which the Rabbinical Court also exercises great care. Similarly, there is no place for the Family Court to deviate from the Rabbinical Court’s position to the detriment of women in matters of support. Otherwise, we may undermine the delicate balance upon which the division of jurisdiction in Israeli family law is founded.

 

71.Even on the merits, I do not believe that the principle of good faith is directed, in this case, at setting support for a particular period of time. My colleague bases his position, inter alia, on the set of incentives that influences women’s conduct during divorce proceedings, and points to the contribution of the position he expresses in his opinion to promoting compromise between the parties. This is but one possibility. However, a no less reasonable possibility is that of “pressuring” a woman who has no independent sources of income to agree to divorce under unfair conditions, only because of her concern over becoming truly impoverished. We must remember that the procedural equality between the couple when one has a steady income and the other lacks a steady income is a fictional equality, and in this sense, the proverbial sand in the hourglass runs out unilaterally to the woman’s disadvantage.

 

72.The response to my colleague’s concern about divorce “extortion” by the woman may be found in other proceedings of a civil nature. This solution is preferable because it does not involve putting existential pressure on a woman left without a steady income, but rather allows for appropriate “recalculation” after the fact, to the extent it is needed.

 

73.Should my opinion be accepted, I would propose that the appeal be granted as stated in paragraph 65 above, and that the Respondent bear the Applicant’s costs in the amount of NIS 20,000.

 

 

 

Deputy President E. Rubinstein:

 

1.I have carefully read my colleague Justice Barak-Erez’s comprehensive opinion. Her opinion presents weighty questions for consideration, however, at the end of the day, I cannot concur in her opinion as to the outcome of this case, although the idea of rehabilitative support she discusses is appealing. Should my opinion be heard, the District Court’s decision – which, in essence, took the same route as the Family Court – would be upheld. I shall restate the gist of the matter, as my colleague presented the details of the proceedings. We are concerned with a couple who married and lived together for 35 years, after which they separated and proceeded to sue each other. Over the years, the husband (the Respondent) worked continually at a regular workplace, carrying pension benefits, whereas the Applicant worked at home and managed the household. She worked out of the home for only brief periods of time. I shall not go into the issues of property described by my colleague, as we are here concerned with the issue of support. The Family Court believed that in light of the Applicant’s refusal to divorce in order to gain advantages in the property proceedings, and for considerations of good faith, support must be set for a fixed period of time that would take all the factors into account. The period set was for two years from the date of filing the suit in 2011. The District Court noted that refusal of a get affects support, but that in this case the Rabbinical Court has yet to decide on the issue of recalcitrance, and the personal status law applies. Thus the support was set for three years from the date of the Family Court’s decision (December 12, 2012) or until the day the Applicant begins receiving her share of the Respondent’s pension, according to the earlier of the two. Hence the application, and it should be noted that we tried unsuccessfully to lead the parties to a compromise.

 

Support for Fixed Periods

 

2.My colleague believes that as long as there are no grounds under personal status law to revoke a woman’s support, it must be awarded as her legal right. Indeed, in her view, it is incorrect for the Family Court to revoke a woman’s support when the Rabbinical Court refrained from finding that she is a recalcitrant spouse in the course of the divorce proceeding.

 

3.Indeed, as my colleague also noted that, under personal status law, only a married woman is entitled to support. This rule binds the Family Court, which follows personal status law in matters of support (section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; B. Schereschewsky and M. Corinaldi, , vol. 1 (2015) 291-92) (Hebrew), yet, as my colleague carefully explained: “This approach of Jewish religious law … is an important point of departure for the discussion here, although it is not its final destination, as explained below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law” (para. 31) (emphasis added – E.R.). One of these – and one of the most important – is the principle of good faith.

 

4.Our law recognizes the principle of good faith as a “‘royal, multi-faceted provision” (HCJ 1683/93 Yachin Plast v. National Labor Court, IsrSC 47(4) 702, 708 (1993) (per Barak J.) which casts its net over the different areas of law (CA 2070/06 Equipment and Construction Infrastructures Ltd. and Others v. Attorney Yaakov Greenwald – Receiver (2008)). The principle of good faith is a flexible legal rule, and the court may fill it with content and meaning, and determine whether any particular act deviates from it or complies with it (CA 467/04 Yitach v. Mifal Hapayis (2004)). In this regard, President Barak’s well-known statement in (CA 6339/97 Rocker v. Solomon, IsrSC 55(1), 199 (1999) is apt: “The principle of good faith establishes a standard for the behavior of people who are each concerned with their own interests. The principle of good faith holds that protecting one’s own interest must be fair, and considerate of the justified expectations and proper reliance of the other party. Person-to-person, one cannot behave like a wolf, but one is not required to be an angel. Person-to-person, one must act like a person” (at 279).

 

5.In CA 10582/02 Ben Abu v. Hamadia Doors Ltd., (2005) (hereinafter: the Hamadia Doors case) I was presented with the opportunity to address the moral aspect of the principle of good faith:

 

I will admit without shame that, in my view, the subject of good faith crystallizes moral principles into the law. As Justice (emeritus) Professor Itzhak Englard said in his lecture The Principle of Good Faith in Israeli Civil Law: “There is basis for the view that the aspiration for comprehensive application of the principle of good faith is also based on the desire to incorporate moral values into human relations, including in the commercial field” (lecture in a judges’ conference in Paris, June 2004, p. 2)… in CA 1662/99 Haim v. Haim, IsrSC 56(6) 295, 340, Justice Strasberg-Cohen wrote that the “theoretical foundation for the doctrine of estopple, like the principle of good faith, is rooted in principles of decency and morality,” and she quoted Professor G. Shalev (Promise, Estopple, and Good Faith, 15 Mihspatim 295, 313 (1989))… I cannot but concur with these words of truth, and under section 61(2) of the Contracts Law, they extend over the entirety of private law…” (para. 15).

 

It should be added that “good faith” is not a common term in Jewish law (although linguistically, the origin of the term “good faith” [tom lev] is in the language of the Bible – “In the integrity of my heart [tom lev] and clean hands” (Genesis 20:5)). In his paper Comments on the Draft Civil Code, 5771-2010, in light of Jewish Law (2011) [Hebrew], Dr. M. Wigoda explains that our Sages recognized three other principles that reflect different aspects of the principle of good faith: “Do what is right and good”, “one is compelled not to act in the manner of Sodom" (one is compelled not to abuse a legal right), and the rule of “lacking faith” (originally this phrase referred to reneging on a promise, and later referred more broadly to reprehensible conduct due to a moral flaw, as opposed to breeching an explicit lawful duty); see also Moshe Silberg, Such is the Way of the Talmud (1964) (chapter 7, pp. 97ff.) [Hebrew]). Dr. Wigoda explains that: “these rules are perceived both as general standards that create certain duties, and as principles that control the entirety private law” (pp. 4-5.) Additionally, according to the commentator to Maimonides’ Mishne Torah, Rabbi Vidal of Tolosa (Spain, 14^th century) (Laws concerning Neighbors 14:5): “And thus [the Torah] said, and you shall do the good and righteous, meaning that one must conduct well and honestly with people, and it was not proper in this matter to command details as the Torah’s commandments are eternal and for all time and apply to every matter and issue,  and one is obligated to do so, but the attributes and conduct of people change with the times and the people. The Sages wrote some useful details under these rules, some are absolute rules and some preferred and ways of piety, and this is all said by them.” See also the Hamadia Doors case (para. 16), particularly as to how the principle of good faith is reflected in the principle “what is hateful to you do not do to others,” and as Hillel the Elder said “this is the entire Torah, and  the rest is commentary, go study” (Babylonian Talmud, Shabbat 31a); and also see there one of the questions by which a person is judged by the heavenly court – “did you deal faithfully?” To summarize, good faith is a central legal and moral principle that must interpreted and applied according to the circumstances of the case, and must not be forgotten.

 

6.In CA 32/81 Tzonen v. Stahl, IsrSC 37(2) 761 (1983) then Justice M. Elon first applied the principle of good faith to spousal support obligations: “Although it is a statutory obligation, it has a contractual nature and it is rooted in the marital relationship, which is itself – by nature and at its core – a contractual relationship” (at 771). In LFA 3148/07 A v. B (2007) (hereinafter: LFA 3148/07) in which the Applicant petitioned to increase her support due to the improvement in her partner’s financial circumstances, I noted:

 

As a general rule, the court must consider not only whether a change in support should be considered under personal status law, but also how awarding increased support as requested would influence the entirety of the relationship, for better or for worse, and particularly whether it is requested in good faith. In our case, therefore, there is no reason to intervene in the decisions of the lower courts, which addressed the entirety of the relationship between the parties… [para. 6(4)) (emphasis added – E.R.)].

 

It should be noted that LFA 3148/07 concerned a decision not to increase spousal support, whereas our case concerns revoking it, and see my colleague’s comments in paragraph 44. Put simply, in these situations the court must exercise exponentially more caution on a legal and the human level. And yet, I believe our words are apt in these situations as well.

 

7.Considering the principles of personal status law under which a woman may be denied her right to support, the family courts have reached the conclusion, under general civil-law principle of good faith, that even if the personal status law obligates the husband to continue supporting his wife, in the case of a long separation and a marriage that has effectively ended (“a marriage on paper”) it may be appropriate to relieve the husband of the obligation to pay support. The family courts did so where they were satisfied that the woman’s objection to the divorce stemmed from her interest in support, and believed it was a “ruse”:

 

To summarize things thus far – only when we are concerned with a long separation will the court carefully consider the matter before it from all angles, and scrutinize its circumstances and root causes. This examination is broad, comprehensive, and multifaceted. However, the court will not easily stray from the primary duty that Jewish law imposes on the husband to pay his wife’s support, and make recourse to the possibilities for relieving him of that fundamental responsibility. The court will also consider who is to blame for the separation, whether there is a real chance for reconciliation between the parties, whether the Rabbinical Court required a divorce or merely recommended it, whether the Rabbinical Court ruled as to reconciliation, who is refusing the divorce and whether this refusal is merited, whether all the property issues between the parties have been resolved, and other factors. After the court has gathered the relevant facts, it must attempt to examine them through two lenses, one is the lens of the essence of the law as it is reflected in halakhic decisions and its interpretation under the civil law, and the other, that of the heart of the law, that is, the principle of good faith, a principle which can take the sting out of the law and reconcile it with logic and common sense… [FC (Fam. Petach Tikva) 51689-11-12, I.L. v. E.L. (2013) para. 28) (Judge Weizman); see also FC (Krayot) 11495-11-08, A v. B (2010); FA 765/05 (Jlem) A v. B et al.  (2006) and many others].

 

And also see that decision in regard to the need to strike a balance between  personal status law and “applying moral norms stemming from the principle of good faith, which also have a place in Jewish law” (para. 18).

 

Clearly, the principle of good faith, which covers all areas of life and applies to relationships between strangers in one-time contractual relations, certainly holds an important place when two individuals who decided to join their lives together wish to end their relationship. I believe that a different conclusion would lead the Family Court to do a disservice to this area of the law, by encouraging the continuation of a marriage that has ebbed, by the artificial means of continuing spousal support in a case of “a marriage on paper.”

 

8.However, this reflects one – fundamental -- aspect of the problem. Of course, I am aware that in many cases the woman is left without a source of income after the marriage ends (R. Halperin Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 ebrew))and of the concern about the consequences of the end of the marriage for the woman’s entitlement to support when she has not worked outside the home during the marriage – and I would emphasize: did not work outside of the home, as the common term “did not work” does an injustice to a woman who worked, sometimes to exhaustion, in performing household tasks – increases when the division of property between the couple is yet to be completed. These situations were common in past generations, and even though today there are very many couples where both partners work outside the home for purposes of income and for purposes of self-fulfillment, there are still couples, as in our case, where the woman did not work outside of the home for years, or hardly did so, and often, even when she did work, it was limited and her professional advancement was hindered due to the demands of child raising. Nevertheless, it is hard to accept denying the Family Court the option of encouraging the parties to negotiate, with its understanding of the complex dynamics of life, and its practical experience with cases of the sort (to complete the picture regarding the background for get recalcitrance by a man, and Jewish law’s solutions, see: HCJ 6751/04 M. S. v. Great Rabbinical Court of Appeals, IsrSC 59(4) 817 (2004) and the amendment to the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (Amendment 1 of Section 11 of the Rabbinical Courts (Enforcement of Divorce Judgments) (Temporary Provision) Law, 5755-1995, as well as Yehiel S. Kaplan, Punitive Maintenance as a Solution to the Plight of the Wife of the Recalcitrant Husband, 10 381 (2005)). The solution to the difficulty my colleague describes, which I do not take lightly at all, is provided by the law in the authority granted the court under section 8(2) of the Spouses (Property Relations) Law, 5733-1973, to make an unequal division of assets, along with the additional powers it provides. This is expressed in the Explanatory Notes to the Spouses (Property Relations) (Amendment 4) Law, 5769-2008:

 

Section 8 of the Law establishes that under special circumstances that justify it, the competent court may decide that the balancing of the assets of the partners will not be carried out by means of an equal division between them, but according to a different equation. It is proposed to make clear that in determining such  a division, the competent court also factor the future assets of each of the partners (such as goodwill, professional degrees, professional experience, and workplace tenure) and the income prospects of each of them (section 5(2)). In western countries, there is a growing trend in legislation and jurisprudence of considering the financial gaps between the spouses in proceedings for the division of community assets, inter alia, when awarding one-time or periodic compensation to the weaker partner. Often, these gaps are a result of one partner forgoing their professional development and the consequent income prospects in order to allow the other partner to do so (see Shahar Lifshitz, On Past Assets and Future Assets and the Philosophy of Marital Property, 34(3) Mishpatim 627 (2005), primarily p. 728ff. (Hebrew)) [(emphasis added – E.R.) (Spouses (Property Relations) (Amendment 4) (Earlier Balancing of Assets), 5767-2007, H.H. 163)].

 

Moreover, the current state of the law allows partners who did not earn an income – mostly women – to share the pension that their partner receives upon retirement, as in this case, which has great significance.

 

It should be noted that in our matter, the court (FC 24358-08-11 and FC 33489-03-12) did not find it appropriate to rule in that manner, despite the Applicant’s request, for its own reasons. I shall address the issue of rehabilitative support below.

 

9.My colleague further explains in her opinion that it is inappropriate for the court to consider the matter of get recalcitrance, which is given to the exclusive jurisdiction of the Rabbinical Court. She emphasizes – and this is undisputed – that the situation must be must be viewed from the perspective of the principle of comity between courts, and that it is difficult to accept that in a situation in which the Rabbinical Court believes that the reconciliation claim by the party who does not wish to divorce still stands and that ordering a get would be inappropriate, the Family Court should rule otherwise. The principle of comity is undisputedly a central principle of our system (HCJ 8578/01 Haliva v. Haliva, IsrSC 56(5) 634 (2002)), and the civil courts are scrupulous in that regard, and we need not address the complex questions of res judicata. I am the last to take comity between courts lightly. However, the rabbinical courts  have halakhic concerns regarding the matter of a get, which is an extremely complex subject (“Rabbi Judah said in Samuel’s name: One who does not know the peculiar nature of divorce and betrothal should have no business with them” (a, and they should, of course, be respected. But the civil court sees a broader picture in the financial matters. The Family Court has jurisdiction over issues of support, and it is required to adjudicate under personal status law. It is only logical that in that framework, weight will be given to the general principles of the civil law, as well. Moreover, the courts are often called upon to make incidental rulings that are necessary for deciding upon the support issue (section 76 of the Courts Law (Consolidated Version), 5744-1984). It should be further noted, and this may be the main point, that a finding as to the lack of likelihood for reconciliation (“the death of the marriage”) does not imply a halakhic obligation to divorce, and the lack of a divorce obligation does not mean there was good faith. The possibility for reconciliation, or the lack thereof, is determined by examining the entirety of the relationship between the parties over the years, as we can also see in our matter (see the decision of the Rabbinical Court (Rabbinical Court Judges Rabbi Domb, Rabbi HaLevi, and Rabbi Zer) of October 14, 2013, where the court noted that “it seems the Respondent’s goal is that she have a whole house rather than a peaceful home”). Indeed, the Family Court handed down its decision on December 12, 2012, about ten months before the Rabbinical Court’s decision, and at the Applicant’s request, the Rabbinical Court initially attempted, as is usually the case, to explore the possibility of reconciliation.

 

10.My colleague reminds us (in para. 36) that, in cases in which the Rabbinical Court has orders a get, revoking the right to support  may be accompanied by supplementary steps such as entrusting the get and the ketubah amount to a third party. The issue of entrusting the get is generally relevant in the case of a recalcitrant husband, while the matter of the ketubah is, of course, highly relevant to the general proceedings as to property. My colleague ably reviewed the halakhic literature on the topic of “the death of the marriage.” In my view, the question before us is whether to maintain the moribund marriage  through “artificial respiration” merely because of the property dispute. In general, I do not believe that the doors of the family courts are barred when the Rabbinical Court, for its own considerations, has yet to rule on ordering a get, while the Family Court is persuaded there are no prospects for the marriage, although appropriate caution should be exercised. The Family Court holds jurisdiction over the subject of  support, and in considering the overall picture, there is no reason for it not to see the couple as it truly is, where the get is clearly serving as a “property weapon”.

 

11.In this case, under the circumstances described – and given that the lower courts, including the Rabbinical Court, were, in fact, under the impression that the marriage had reached its end and that the Applicant was delaying the divorce in order to improve her financial situation – I am of the opinion that the Family Court was correct in its decision, as was the District Court, to award support for a fixed period of time. Therefore, the approach of the District Court, which took further steps to accommodate the Applicant, is acceptable to me.

 

Rehabilitative Support

 

12.My colleague proposes awarding rehabilitative support in cases where the partner is no longer entitled to support under personal status law, and this at two possible points in time: “either before the divorce is granted but when there is a cause for denying support, or after the divorce is granted, thus ending the right to support” (para. 50). I am not certain whether the term “rehabilitative support” is appropriate, and perhaps “bridging support” is preferable where the support is meant to bridge the period remaining until retirement. This mechanism is primarily rooted in the desire to assist the partner (in the majority of cases, the woman) when she lacks independent sources of income, and where there is reliance on the partnered relationship. I agree with my colleague’s holding that “in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to ‘civil’ support with a rehabilitative objective, that is ‘rehabilitative’ support according to general principles of the civil law.” (para. 47); this on a case by case basis, including examining the partner’s possibility to integrate back into the workforce, and the entire property arrangement between the couple.

 

13.The basis for awarding rehabilitative support where they were not agreed upon in advance is, as my colleague noted, as well, also to be found in the principle of good faith, which attributes to the couple a normative intent as to support (LCA 8256/99 A v. B, IsrSC 58 (2) 213 (2003)). In appropriate cases, I believe that this is even consistent with the spirit of section 8 of the Spouses (Property Relations) Law, which – as noted – seeks to grant the court flexibility in balancing resources and to deviate from the principle of equal distribution prescribed by the law. This can be seen, in my view, as an attempt to achieve “real equality” as opposed to “formal equality.” Indeed, when we are concerned with “rehabilitative support” we are not concerned with a permanent entitlement to support, but rather with an entitlement designed at rehabilitation until another entitlement to income materializes, while considering the factors of good faith and fairness in this regard, as well.

 

14.In addition to the cases referred to by my colleague in regard to partners who are not “regulated” by religious law, the family courts have, on more than one occasion, awarded rehabilitative support to partners married in accordance with Jewish law. For example, in FC (Haifa) 7282-12-09 A v. B (2011), support was awarded after the couples’ divorce (before the issue of the community property and its division was decided) in light of the woman’s financial dependence on her partner after 28 years of marriage, during 16 years of which she managed the household. Also see FC (Krayot) 11495-11-08, mentioned above, where it was held that the right to support would be for a fixed time in light of the principle of good faith and in order not to perpetuate a “marriage on paper”. It was held that should the parties divorce beforehand (thus prima facie extinguishing the obligation for support under personal status law), the woman would be awarded rehabilitative support. In practice, this mechanism facilitates a divorce where the relationship has died, while granting the woman support for an additional period of time. To a certain extent, it could be said that we are concerned with semantics, that is, with a formula designed not to cause friction with the Rabbinical Court, but its goal is to achieve the same material outcome that the lower courts reached in our case, although by a different path.

 

15.I do not rule out this manner of awarding support in appropriate cases, however, in my opinion, it is a tool in the Family Court’s “toolbox” that should be used in accordance with the circumstances, in order to solve the matter of alternative income. However, I fear this method does not always solve the cases of “dragging out” a moribund marriage by artificial means, in order to achieve economic advantages, and I am not certain that it leads to more attempts to integrate into the workforce than before.

 

16.It would not be superfluous to note that support under the personal status law is clearly to be paid when the husband is the recalcitrant spouse, and further discussion of this matter would, indeed, be superfluous.

 

17.And now to the case before us. With all due respect, I disagree with my colleague’s statement in paragraph 63. At the end of the day, once I have not seen fit to bar the way to the civil courts considering the “clinical death” of the marriage, I see no flaw in the position of the lower courts here, including the District Court’s fixing of support for a relatively extended period of time. It is entirely possible that the District Court’s ruling is what prompted reaching a decision as to the property.

 

18.In concluding,  I would note that I will not address the issue of tort claims in cases of recalcitrance, which raise significant questions (FA (Tel Aviv) 46631-05-11 A v. B (2014); FC (Jlem) 1748/06 A v. B (2011); FC (Jlem) 6743/02 K. v. K. (2008)), though I, with all due respect, and with proper concern for the issue of a “coerced get” [get me’useh], which is often at the basis of such disputes (due to the fear that the husband’s consent to the divorce was a result out of concern about tort damages rather than his free will), believe the path to compensation should not be barred. In this context, also see the Professor A. Radzyner’s enlightening article,  “The Essential Thing is not the Study, but the Deed”: Get Procedures after Tort Claims and the Policy Respecting Publication of Rabbinical Court Judgments, 44(1) M  5 (2105). It should be noted that, according to this article, a get can be granted even after compensation is paid. I believe that a decision to revoke support is no more harsh than a decision finding that a  recalcitrant husband is a tortfeasor and a nuisance, and liable for compensation.

 

19.In closing, I think it appropriate to briefly address my colleague Justice Erez-Barak’s response. I fear that I do not agree with presenting the matter as a binary dichotomy between the jurisdiction of the Rabbinical Court in matters of divorce and the jurisdiction of the Family Court in matters of property. The Family Court, in adjudicating matters of property, which are undisputedly within his primary jurisdiction by default, sees the picture before it in the matter within its jurisdiction (that is, matters of property) and must render judgment. It does not consider factors of halakha, and does not end the marriage in the halakhic sense. However, it is not required to grant one of the partners, be it the husband or the wife, a perpetual key. Surely, my colleague has no intention of presenting the Family Court or the District Court as insensitive to distress of the male or female partner who has no source of income, or to the rights of women. And indeed, this is not the case in general, nor is it the case before us. The Family Court, like the District Court, as fair courts, will know how to navigate in the appropriate cases, and properly examine good faith in matters of property before reaching a decision. The Rabbinical Court’s jurisdiction stands and is respected. Finally, as for the comments by my colleague Justice Zylbertal, I believe his concern as to the possibility of filing tort claims for get recalcitrance, which he wishes to put at center stage, should not be taken lightly. His reasons for disputing our colleague Justice Barak-Erez’s distinction between suits for fixing periods of support for recalcitrance and tort suits for recalcitrance are essentially acceptable to me.

 

20.In conclusion, in light of the above, should my opinion be heard, the District Court’s decision would be upheld, and support would be paid until the date set. At the end of that period, it will be possible to reexamine the situation between the parties, and whether there might be any justification for rehabilitative support on the basis of a new request.

 

21.After reviewing the opinion of my colleague Justice Zylbertal, and having been left in the minority as to the operative outcome, I would suggest that, at the end of the day, the gap between my colleagues’ positions as to the outcome and my own is not so wide. My colleague Justice Barak-Erez proposes that the Respondent continue to pay the Applicant’s support as decided by the Family Court, without determining a termination date, whereas, in my opinion, the situation ought to be revisited at the end of such period – this coming December of 2015, when the possibility for extending the period of support may be considered. In any case, as my colleagues are in the majority in this matter, the operative outcome is according to the opinion of my colleague Justice Barak-Erez.

 

 

 

 

Justice Z. Zylbertal:

 

1.I have carefully read the compressive, thorough opinions of my colleagues Justice D. Barak-Erez and Deputy President E. Rubinstein. I will begin by stating that in the disagreement between my colleagues, I concur with the outcome arrived at by Justice Barak-Erez, whereby the appeal should be granted as set out in paragraph 65 of her opinion. Nevertheless, as will be explained below, I cannot concur with all the principled findings that led my colleague to that outcome, and I concur with the opinion of the Deputy President on the main point of dispute between my colleagues.

 

2.The discussion here may be divided into two primary issues: the first, on which my colleagues are divided, is the question of jurisdiction (or, at least, how it is exercised). Is the Family Court permitted to revoke a woman’s support without a prior decision by the Rabbinical Court requiring that she accept a get, and without a positive finding that the couple’s marriage has come to an end? My colleague Justice Barak-Erez’s position is that the principle of comity between courts calls for restraint by the civil court, and therefore, in her opinion, as long as the divorce proceedings are pending in the Rabbinical Court, the civil court cannot base rulings as to the issue of support on “recalcitrance” in regard to the get in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion results not only from the principle of comity between courts, but also from the Jewish religious law that applies in our case, according to which revoking a right to support in a case where a get has been ordered must (in the opinion of many) be followed  by supplementary steps that are within the exclusive jurisdiction of the Rabbinical Court, and that require the active involvement of the Rabbinical Court (entrusting the get and the ketubah amount to a third party.)

 

The Deputy President disputes Justice Barak-Erez’s position on the matter of jurisdiction. His position is that the civil courts may revoke a married woman’s support when they are satisfied that the marriage has effectively ended and that the woman refuses to accept her get only for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that the civil court often makes incidental findings that are required for determining the issue of support and the property matters under its primary jurisdiction (section 76 of the Courts Law [Consolidated Version], 5744-1984). In the Deputy President’s view, the civil court’s finding that a woman must lose her support because she is a “recalcitrant spouse” does not lead to the end of the marriage in the halakhic sense, and does not deviate from the principle of comity between courts.

 

3.My colleagues’ positions are well reasoned and internally consistent, and each expresses important (sometimes conflicting) principles that are necessary for a functioning legal system. Still, my position is that a broader perspective as to the unfortunate phenomenon of “get recalcitrance” tips the scale in favor of the Deputy President’s position, and thus, on the fundamental issue in question, I join his opinion. I will explain my conclusion below.

 

4.Both the Deputy President and Justice Bark-Erez briefly discussed an issue that is tangential to ours – the possibility of being awarded monetary compensation in cases of get recalcitrance through a tort suit (see paras. 56-59 of Justice Barak-Erez’s opinion, and para. 18 of the Deputy President’s opinion.) Indeed, in recent years, various legal and halakhic means have been explored in order to contend with the harsh phenomenon of get recalcitrance, including the option of filing a tort claim against the recalcitrant party. In this context, Justice Barak-Erez’s position on the jurisdiction issue, as presented above, may – by a possible analogy – lead to the outcome that it will not be possible to award tort damages against a recalcitrant spouse in the absence of a positive finding by the Rabbinical Court  requiring the husband to deliver a get. Justice Barak-Erez considered this possibility in noting:

 

In my opinion, this analogy is not at all obvious and I believe it is misplaced… There are several reasons for distinguishing the two types of suits, as I shall explain below.

In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support…A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance…Another, more formal but not unimportant, reason for the distinction derives from the fact that tort suits for divorce refusal are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

5.With all due respect, in my view, the distinction my colleague proposes is not problem free. I fear that her position may seal the fate of tort claims against recalcitrant spouses in the absence of appropriate findings by the Rabbinical Court, and this despite my colleague’s clarification that such an analogy is misplaced. Below, I will attempt to explain why I believe that such an analogy is possible, as well as the problems posed by the reasons for distinguishing between the two claims that my colleague addressed, and why, in my opinion, such a distinction is inappropriate.

 

At the end of the day, both in regard to tort claims and support claims, the civil court will be called upon to determine whether one of the partners is a “recalcitrant spouse.” This issue, which goes directly to the issue of the state of the couple’s marriage, is subject, as noted in my colleague’s opinion, to the exclusive jurisdiction of the Rabbinical Court. It can be further assumed that when a support suit (as in our case) or a tort claim for get recalcitrance is filed in the civil court, a parallel  divorce proceeding is pending in the Rabbinical Court, such that the principle of comity between courts applies equally to both types of claims. Therefore, it is not impossible that establishing my colleague Justice Barak-Erez’s position as binding precedent whereby the civil court may not determine that the woman is a “recalcitrant spouse” in the absence of a finding to that effect by the Rabbinical Court would, in practice – and without persuasive reasons for distinguishing the two types of claims – lead to an analogous conclusion with regard to tort claims for get recalcitrance. In other words, in the absence of a finding by the Rabbinical Court that the man is required to issue a get, it will be impossible for the civil court to find that the husband is recalcitrant and order that he pay compensation in a tort action. In this context it should be emphasized that rabbinical courts are very cautious, for their own reasons, in regard to ordering a man to deliver a get, and it often takes many years from the beginning of the conflict and the filing of the divorce suit until the Rabbinical Court orders that the issuance of a get is required. It should also be noted that the family courts, which have been hearing tort claims for get recalcitrance in recent years, vacillated on this issue, but it would appear that the prevailing approach allows them to grant such claims (under the tort of negligence) even in the absence of “get obligation” by the Rabbinical Court (see: FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014) para. 51). As noted, I fear that accepting my colleague’s approach, and its resulting application to the parallel case of tort claims against “recalcitrant spouses” as well, would lead to a change in the current state of the law regarding such claims, which is, in any event, somewhat vague, and will seriously undermine the possibility of employing one of the central tools for combating this wrongful phenomenon.

 

6.Justice Barak-Erez, who is aware of the possible ramifications of implementing her position in regard to tort claims for get recalcitrance, made it clear that she believes that the analogy above is misplaced, and even provided two reasons for her distinction between the types of claims. In doing so, my colleague attempts to alleviate the concern for the undesirable consequences of her position in the context of the general fight against the phenomenon of get recalcitrance to which I referred. However, as I will explain below, I do not believe that there is any real justification for the distinction proposed by my colleague. Moreover, I believe the proposed distinction may lead to a lack of coherence and legal consistency, and create different laws for recalcitrant husbands and recalcitrant wives. Therefore, I am unable to agree with my colleague’s fundamental position, as well as with the attempt to restrict that position so that it would apply only to limiting the periods for the payment of support in response to get recalcitrance, as opposed to tort claims in which the civil court must consider which of the parties is the recalcitrant spouse. I shall explain my position.

 

As noted, my colleague gave two reasons for a distinction between suits for limiting the period of support due to get recalcitrance and tort suits for get recalcitrance. The first and central reason is that a decision to revoke a woman’s support is a harsher act in comparison to awarding compensation for get recalcitrance. Therefore, as I understand it, her position is that the civil courts must not be granted authority to revoke a woman’s support without “speed bumps” of sorts, or threshold requirements, in the form of the Rabbinical Court’s order requiring the issuance of a get, because of the severe consequences of such a decision. On the other hand, as the argument goes, awarding compensation for get recalcitrance would not render the recalcitrant spouse impoverished or in a state of existential distress, and thus my colleague is willing to permit the civil courts to rule on this matter even without “speed bumps” or other moderating mechanisms. With all due respect, I cannot agree. Indeed, a decision to deny support to a woman who for years relied on her husband’s income may have a dramatic effect on her life and bring her to a state actual poverty. Therefore, my position is that clear rules must be established as to the circumstances under which it may be possible to revoke a “recalcitrant” woman’s support, so that reducing women to poverty will not be possible (see, for example, my position in regard to fixing the support of the Applicant at bar, below.) We must assume that the family courts will act responsibly in regard to the issue of revoking a woman’s support, and will rule in accordance with the guidelines that will be established in the case-law as to the circumstances in which a woman’s support may be revoked for being a “recalcitrant spouse.” I shall further comment that even under my colleague’s approach, revoking support from a “recalcitrant wife” would be possible after the Rabbinical Court orders her to accept a get, so that the harsh outcomes of revoking the support would not be fully prevented, but only delayed until after the Rabbinical Court hands down an appropriate decision. I do not see much point in this. A decision to deny a woman support for “recalcitrance”, whether it is given before the “get obligation” by the Rabbinical Court or after it, must, in any case, be made very carefully, with consideration for the reason for the recalcitrance, the woman’s prospects of supporting herself, and the understandings between the couple throughout the marriage (and on this – in detail – below). Therefore, I do not share my colleague’s position that the harsh consequences of revoking support of the recalcitrant spouse warrant a distinction between such a suit and a tort claim for recalcitrance. In my view, a finding whereby a civil court may revoke a woman’s support only after she is required to divorce by the Rabbinical Court is merely delaying the inevitable, but it does not offer a real solution for concerns about reducing the recalcitrant woman to a state of poverty. Below, as noted, I will discuss the considerations that the civil court must weigh before reaching a decision with such dramatic consequences, and this, I believe, would provide a real response to the concerns my colleague has raised.

 

The second reason my colleague mentioned for distinguishing between suits for denying a woman’s support and tort claims for “get recalcitrance” is based on the fact that tort claims are adjudicated exclusively under civil law, and that jurisdiction over them is granted only to the civil courts. As opposed to this, according to Justice Barak-Erez, ruling on the matter of support depends on the marital relationship and draws upon religious law. Here, too, I am not persuaded that the distinction my colleague proposes will indeed be possible, inasmuch as the tort cause of action – the get recalcitrance – is itself dependent upon religious obligations and norms stemming from the applicable religious law, and it may not be viewed as a classic, “pure” civil tort claim, as my colleague implies.

 

I would further add that the distinction proposed by my colleague between the two claims – that claims to revoke a woman’s right to support would require a positive finding of the Rabbinical Court requiring a get, but that such a finding would not be required in tort claims against a recalcitrant spouse – may be interpreted, and with some justification, as an improper distinction between the law applicable to recalcitrant husbands and the law applicable to recalcitrant wives.

 

7.In conclusion, though it is clear from my colleague’s opinion that, in her view, there is no place for an analogy between her general position on denying support and the tort claim for get recalcitrance, I believe that such an analogy is possible and even warranted, and I do not find it proper or possible to distinguish the two cases. Therefore, although this consideration is beyond the scope of this case, I saw fit to emphasize it and bring it to center stage as a primary consideration for joining the position of the Deputy President on the issue of jurisdiction. As stated, the fundamental positions of my colleagues are possible, in my view, in terms of their logic and the important values that each expresses. Therefore, in determining which of the two is preferable, and with a broad perspective as to their future ramifications, I find that Justice Barak-Erez’s position strikes a hard blow that significantly restricts the powers of the civil courts when dealing with the difficult phenomenon of get recalcitrance. Therefore, and as it is possible in our legal system, as extensively detailed in the Deputy President’s opinion, my position is that the civil courts are authorized, in principle, to revoke the support of a “recalcitrant woman”, even in the absence of an explicit ruling by the Rabbinical Court requiring her to accept a get. Therefore, as stated, my position on the issue of jurisdiction is as that of the Deputy President.

 

8.The second question that should be discussed after determining the matter of jurisdiction, is what considerations the court must contemplate before revoking a woman’s support due to “get recalcitrance”, and whether, under the circumstances of this case, fixing a time period for the Applicant’s support was proper.

 

Indeed, we must assume that leave for appeal on a “third incarnation” would not have been granted were this issue adjudicated on its own and independently from the jurisdiction question, because it seemingly does not raise an issue of public or general importance that goes beyond the matter of the direct parties to the proceedings (LCA 103/82 Haifa Parking Lot Ltd. v. Matzat Or (Hadar Haifa) Ltd., IsrSC 36(3) 123 (1982.)) Leave to appeal was granted in our case because of the public and general importance of the jurisdictional question, discussed above. Having concluded that the Family Court is authorized, in principle, to fix a time period for a woman’s support due to “get recalcitrance” even in the absence of a positive finding by the Rabbinical Court, the fundamental question that was the reason for granting leave to appeal is decided, and it is held that the lower courts’ ruling was within their competence. Therefore, we could have stopped here and upheld the District Court’s ruling without further intervention into the operative, concrete matter before us. This is the path that the Deputy President adopted in reaching the conclusion that support should be paid to the Applicant until the date set by the District Court (that is until December 31, 2015). The Deputy President added that, at the end of that period, it would be possible to reconsider the situation between the parties, and whether there is justification for awarding rehabilitative support on the basis of a new motion. On this point, my position diverges from that of the Deputy President. I believe that once leave for appeal was granted on the fundamental question, and once a comprehensive, in-depth discussion into the case at hand was conducted, the door is now open to consider the additional questions the case raises, including the matter of the actual application in the circumstances before us. Moreover, as will be explained below, this question, too, has fundamental, broad consequences that go beyond the particular matter of the parties (on the broad jurisdiction of appeals courts over family court decisions, see Chemi Ben Nun and Tal Havkin, The Civil Appeal 568-71 (3rd ed., 2012) (Hebrew)).

 

9.What, then, are the considerations the Family Court must consider when it is called upon to fix the period for support or revoke the support of a married woman merely because she is delaying the divorce and refusing to accept her get for financial reasons?

 

I have noted above that the phenomenon of get recalcitrance is wrong and severe. It exploits the get – which is a “ticket” out of a failed marriage – as a bargaining chip for extortion. Often male partners refuse to release their wives from a marriage in which they are no longer interested, and condition their consent on financial demands and compromises in which the women partners forgo their property rights. In my opinion, this wrongful and painful phenomenon requires that we find legal and halakhic tools that would respond to the plight of those who for many years (often – their fertility years) beg for the possibility to end a marital relationship which they do not wish to continue, and for the possibility to move on to a new relationship.

 

10.Though I present this phenomenon in a gender-based manner, clearly when the woman refuses to accept a get and allow the husband to end the marriage and go on with his life in order to compel him to forgo his property rights or for sheer vindictiveness, the matter is just as serious. Parenthetically, I would note that, nevertheless,  the distress of women who are refused a get is more extreme than that of men, primarily because a married woman may not start a new family with another man (that is “move on with her life” without a get) without her new children being considered mamzerim [bastards] in the eyes of Jewish halakha. Married men do not face this problem, and the may go on with their lives and raise new families without the having the cloud of halakhic “bastardy” hanging over the heads of their future children.

 

11.In light of all this, it is clear why, in appropriate cases, the Family Court must be allowed to deny incentives to recalcitrant men and women who act out of a lack of good faith (to put it mildly). However, in my opinion, the matter at hand is not among those cases, at least not obviously. We must distinguish between recalcitrance that is rooted in personal vindictiveness or extortion, and recalcitrance that is rooted in the absence of adequate financial protection for the financially weaker party in a divorce. It seems that when the support guaranteed to a woman who, as in our case, managed the household for decades and never integrated into the workforce or acquired a vocation or profession, is absolutely stopped upon divorce (without simultaneously providing a solution for her financial distress in the division of property), she must not be condemned for refusing to divorce due to her economic dependence on her husband. Surely, this is not analogous to the more difficult case of a “get recalcitrance” which, as noted, involves extortion and vindictiveness (Shahar Lifshitz, Family and Property Relations: Challenges and Tasks subsequent to the 4th Amendment of the Property Relations Law, 1 Hebrew)and see the references there; and also see the end of section 5A(d) of the Spouses (Property Relations) Law which mandates that “the refusal of the applicant [for balancing resources – Z. Z.] to waive rights to which they or their children are entitled by law, shall not be deemed an absence of good faith”).

 

12.Indeed, there are currently many legal tools designed to contend with the financial distress of the “home-based” partner and the inequality in the ability of partners to produce income when the division of labor during the marriage was the “traditional division.” A significant number of these tools were mentioned, in one way or another, in the opinions of my colleagues, as well. These include, for example, “rehabilitative civil-support,” which was discussed at length in the opinion of Justice Barak-Erez, as well as the possibilities for an unequal balancing of resources, for division of human capital and resources, and compensation for career losses. Indeed, as a general rule, the court adjudicating the end of the couple’s marriage has a full “toolbox” that is meant to bring about a just outcome, as well as  the economic protection of the “home-based” partner after the divorce.

 

13.Sadly (and this is regretfully typical of proceedings between partners due to the split jurisdictions in the area), the picture before us at this point is only very partial and limited. The full picture of the couple’s assets and its division has not been presented to us, and the parties did not present arguments on the issue of balancing the assets between them or the division of non-monetary assets such as human capital or career assets. Although the Family Court did decide on the issue of the division of assets between the couple (and denied the woman’s request for an unequal division in her favor), the Applicant informed the Court that she intended to appeal that decision (and we were not informed as to whether any appeal was actually filed). In any event, there is not doubt that in the absence of many relevant details as to the Applicant’s ability to maintain herself after the divorce, it is extremely difficult to reach a just outcome on the matter of support in and of itself. That being the case, and although we are unable to “complete the task”, neither are we free to absolve ourselves of it [ 2:16]. We must, despite our  frustration, determine only the issue before us solely on the basis of the facts and arguments of which we are aware.

 

14.Before us is a couple that, until the dispute between them erupted, were married for about thirty-five years, raised three children, and lived a shared, full life together that included shared vacations and a warm relationship (see para. 31 of the District Court’s decision). Over the course of  the marriage, the Applicant hardly worked outside of the home, and she is currently over fifty years old. In other words, during all of her adult life, the Applicant relied on the income of the Respondent, her husband, and did not acquire a profession or professional experience through gainful employment. It is therefore understandable why, when the dispute between the couple began, the Applicant became concerned about the implications of a future divorce for her financial circumstances and daily survival, and why she filed a suit for support. Similarly, it is understandable that as long as the entirety of the couple’s financial relationship and division of property has not been settled, and lacking any secure, stable source of income, the Applicant refused to divorce and forgo the support to which she is lawfully entitled. Thus, I do not find that the Applicant’s delay of the divorce necessarily proceeds from  extortion or vindictiveness, and it is entirely possible that the refusal to divorce before a final determination as to the division of the property between the couple derives from a concern over coming out of the divorce process having lost everything and without financial support.

 

To all the above we must add the fact that the Respondent is expected to retire relatively shortly (and in any event, in the next few years), and there is no dispute that the Applicant will be entitled to pension rights accumulated until the time of the rift. In other words, effectively the matter of the Applicant’s entitlement to support concerns only a short period of time, which is a “transitional period” of sorts, until the Respondent retires and she receives her share in his pension rights.

 

15.This being the case, my position is that, under the circumstances of the case, in light of the Applicant’s age (which is not very far from retirement age) and her limited prospects of integrating into the workforce, gaining experience and earning a satisfactory income during the short time left until the Respondent’s retirement,  setting a fixed period for her support would not be appropriate. The District Court noted that one of the rationales for fixing the term of support was to allow the Applicant a reasonable amount of time to prepare for her future. However, as my colleague Justice Barak-Erez noted, in applying that principle the lower court did not explain to what extent the term it set (about three years from the date of the Family Court’s decision) is supposed to serve the woman’s ability to produce an income when that term comes to its end.

 

We must bear in mind that requiring the Applicant to go out and attempt to integrate into the workforce may be an excessive burden in view of the short period of time she would be able to work before both parties reach the age of retirement. Above all, and this must be emphasized, after many years of common effort in maximizing the couple’s assets (including, the Respondent’s ability to produce an income), it would be unjust  that the Applicant be the one to bear the primary financial costs of the divorce, and it would be unfair that her quality of life and financial security be compromised while the Respondent continues to enjoy a high salary and the lifestyle to which he has been accustomed. Requiring a woman in her fifties to integrate into the workforce within three years (for any job?  for any pay?) only because her husband decided that he wishes to end the marriage between them is unreasonable. And it should further be emphasized that the Respondent’s decision to divorce the Applicant is a legitimate decision, in and of itself, but it does not allow shirking the responsibility stemming from decades of understandings that led to the current state of affairs. Therefore, my position is that, in the case at hand, the term of the Applicant’s support must not be fixed as long as she does not receive her share in the Respondent’s pension rights.

 

16.As noted, this finding relies upon an incomplete picture of the facts and data related to the division of property between the couple. Therefore we should make it clear that this determination would not permit the Applicant to “double dip”. If it be decided in any of the other proceedings conducted between the partners that she is entitled to any periodic payments that represent her share in the Respondent’s monthly salary (in the form of civil support, an unequal division of resources, career assets, and the like), it will be appropriate to set off the payment of support, which is designed to realize the very same goal.

 

17.In light of the above, we would again make it clear that there may indeed be cases in which the civil court would be authorized to fix a woman’s support for a set period, even in the case of a woman who did not work outside the home for many years. For example, a woman facing a long period of time until the age of retirement may acquire a profession, gain experience and stand on her own two feet financially within a reasonable adjustment period (the length of which would depend on the concrete circumstances). During the adjustment period, the woman would be entitled to her support (or to a similar amount through one of the other legal tools at the court’s disposal), until she realizes her income potential. There is also great significance to the nature of the relationship during the years of marriage, and primarily to the question of whether the man encouraged his wife to manage the household and thus forgo acquiring a profession or higher education, or whether he did all he could to facilitate her personal and professional development, and it was she, contrary to his wishes, who chose to stay at home. These considerations are relevant and must be taken into account by the Family Court when adjudicating a request to fix the period of support for a woman who has no independent sources of income.

 

18.Before concluding I would emphasize that I am not ignoring the concern that a decision not to set a fixed time for the Applicant’s support may become an incentive for her, and for other woman under similar circumstances, to continue to refuse to divorce. Nevertheless, we cannot ignore the fact that negotiations between the parties over a future settlement are not conducted in a vacuum. The parties know that if they do not arrive at an agreement, the compulsory arrangement the court will establish will be in accordance with the relevant legal rules. Therefore, it may be assumed that husbands – like the Respondent in our case – who foresee a high probability of being obligated to pay their wives’ support (or another financial obligation that would reflect the future support of their wives through one of the other possible legal tools) would conduct the negotiations over the division of property accordingly. To the extent that the negotiations for a settlement between the couple would include a proposal for periodic or fixed payment of equivalent value to the woman’s support payments, and the woman would still maintain her refusal to divorce as an  extortionist or vindictive tactic, the court may take this into consideration and fix the period of her support, and thus somewhat mitigate the concern over incentivizing wrongful refusal.

 

19.In conclusion, on the fundamental question at issue in this application for leave to appeal, I concur with the position of the Deputy President: the family courts may fix the term of support for a woman by reason of get recalcitrance, even in the absence of an order by the Rabbinical Court requiring a get.

 

However, my position is that under the circumstances of the case at hand, fixing period of the Applicant’s support would not be appropriate, both because her delay of the get in not necessarily a result of wrongful vindictiveness or extortion, that is, we are not concerned with a lack of good faith that would justify setting a time limit for support, and in light of the understandings that characterized the couple’s marriage, the Applicant’s age and her prospects for integrating into the workforce during the short adjustment period left until the partners reach the age of retirement. Therefore, under the circumstances of this application for leave to appeal, I concur with the operational outcome of my colleague Justice Barak-Erez, as detailed in paragraph 65 of her opinion. The case is remanded to the Family Court to rule on the matter of support in accordance with the Rabbinical Court’s updated decision and in accordance with the considerations outlined above. Until a further decision by the Family Court, the Respondent shall continue to pay the Applicant her support as decided, without fixing a date for the termination of payment.

 

                                                                                   

                                                                                   

 

The Appeal is granted in regard to the operative outcome, as stated in paragraph 65 of the opinion of Justice D. Barak-Erez. The Respondent will bear the Applicant’s costs in the amount of NIS 20,000.

 

Given this 23^rd day of Heshvan 5776 (November 5, 2015)

 

 

 

 

 

H. C. J 125/49 JULIETTE COLETTE AMADO v. 1. DIRECTOR OF THE IMMIGRANTS' CAMP, PARDESS HANNA 2. YOSEF AMADO In the Supreme Court sitting as the High Court of Justice. [April 16, 1950] Before: Smoira P., Dunkelblum J., Assaf J., Cheshin J., and Agranat J. Habeas Corpus - Order for custody of children by foreign court - Enforcement of order by High Court - Recognition of foreign judgment - Family Law - Interests of children paramount consideration. Subject to the paramount consideration of the interests of the children concerned, where a competent foreign court has granted a right of custody to husband or wife, the High Court will issue an order of habeas corpus to enforce that right. Radoyevitch v. Radoyevitch (1930 Sess. Cas. 619) referred to. A Civil Court in Paris granted a decree of divorce to the petitioner and second respondent (being respectively the wife and the husband), who were French nationals domiciled in France, and declared that the petitioner was entitled to the custody of the children, a girl aged seven years and a boy aged four and a half years at the time of the application, but ordered that the second respondent have access to them at stated times. On one of these occasions the second respondent smuggled the children out of France and brought them to Israel, where they were living with him in an immigrants' camp. The Paris Court reaffirmed the petitioner's right to custody and annulled the second respondent's right of access. The petitioner applied for an order in the nature of habeas corpus against the second respondent. It was her intention to take the children back to France; the second respondent declared that he would bring up and educate the children in Israel. Held: making absolute an order to deliver the children to the petitioner, 1. If the actual right to custody was the subject of a bona fide dispute, petitioner's claim would be a matter of personal status which must be brought before the District Court or the Rabbinical Court. But here the question of custody had already been determined, and since the application was to enforce a right already judically recognised, the High Court had jurisdiction to grant an order in the nature of habeas corpus. 2. A foreign judgment given by a competent court which determined the right to custody of the children of a marriage as a matter incidental to a decree of divorce, is a judgment in rem binding on all the world, and will be recognized in Israel, subject to the question of the welfare of the children. 3. A foreign judgment validly pronounced is presumed to be free of error both as to fact and as to law, and it is immaterial, from the point of view of its recognition in Israel, that it may be subject to appeal. 4. The fact that the parties, who bad been married in Paris both by civil process and before a Rabbi, had not been divorced in accordance with Rabbinical Law, might render invalid a second marriage contracted by either of them, but it could not affect the question of custody of the children. 5. In the circumstances of this case, and for the reasons set out in the several judgments of the court, the interests of the children were not such as would require the court to decline to give effect to the foreign judgment. Palestine cases referred to : (1) H.C. 24/40; Morris Louis Silverman (Caspi) v. Pearl Buxenbaum (Harubi), and others; (1940), 1 S.C.J. 95. (2) H.C. 118/43; Joseph Flint v. E. Jones and another; (1944), 1 A.L..R. 4. (3) H.C. 45/43; Levana Bar-Emun v. Moshe Bar-Emun; (1944), 1 A.L.R. 34. (4) C.A. 85/40; Jamil Abyad v. Isaac Ancona and another; (1944), 1 A.L.R. 34. English cases referred to: (5) The Queen v. Maria Clarke; (1857), 119 E.R. 1217. (6) Antoniye M. Radoyevitch v. Florence M. Webb of Radoyevitch; 1930 S.C. 619. (7) Salvesen of Von Lorang v. Administraton of Austrian Property; (1927) A.C. 641. (8) Stuart v. Moore; (1861) 9 H. L. Cas. 439. American cases referred to: (9) Halvey v. Halvey; 67 S. Ct. 903. Stoyanovsky for the petitioner. Michaeli for the second respondent. Glucksmann, Deputy State Attorney, for the Attorney-General. SMOIRA P. The petitioner, the mother of two children, applied to this court for an order in the nature of habeas corpus against their father, the respondent, directing him to deliver their two children into her care. She also asked for an interim order pending a final order. Both the father and the mother are French nationals. An affidavit submitted to us by the petitioner in support of her application contained the following allegations. The petitioner is the mother of the two infants, Jules Regine Amado, born on March 28, 1943, and Gilles Henri Amado, born on July 16, 1945. On June 2, 1949, the Civil Court in Paris granted a decree of divorce in favour of the petitioner against her husband, Yosef Amado. According to the decree, the custody of the children was granted to the petitioner, and their father was ordered to pay the petitioner the sum of 8,000 Francs a month for the maintenance of each of the children. The father was permitted to see the children twice a month and to have them with him during the second half of the school vacations. In accordance therewith, the petitioner handed the children over to the father on September 1, 1949, and the father was to have returned them to the mother on October 2; but the father failed to do so. The father, moreover, did not pay the mother the children's maintenance from June 1949 onwards, and on October 98, 1949, on a charge of "neglect of family" he was sentenced in absentia to four month's imprisonment, and ordered to pay the mother 20,000 Francs and the costs of the case. Since the mother could not find the children, she applied to the court in Paris. and on December 12, 1949, obtained a further judgment putting an end to the father's right to see the children or to have them with him. The petitioner attached to her petition a certified copy of that decision, which may be translated as follows: "Session of the Court (référé) of December 12, 1949, before the Deputy President and his assistant, the Registrar, undersigned, hearing the case in the absence of the President. "Whereas according to the judgment given in the presence of the parties by Tribunal No. 4 of this Court on June 2, 1949, a decree of divorce was made in favour of the wife, "And whereas that judgment granted to Mme. Amado the custody of the two children, Jules Régine, born on March 28, 1948, and Gilles Henri, born on July 16, 1945, and ordered the terms of that judgment to be carried out for the time being (exécution provisoire), ''And whereas it has been proved that Amado was sentenced by Tribunal No. 14 of this Court to four months' imprisonment for neglect of family, "And whereas, on the other hand, it has been proved that Amado, into whose care the children were committed during the second half of the long vacation, has disappeared with them and has not returned to his place of abode, "And whereas in view of the gravity of that act, Mme. Amado ought to be allowed to seize the two children committed to her custody in any place where they may be found and that any right of M. Amado to access to the children ought to be ended completely, "And whereas the matter is urgent, "Therefore, on the grounds aforesaid, we decide in the absence of Amado, who did not appear in the case although he was lawfully summoned, that as regards the substantive matter the parties must apply to the Court, but from now on and for the time being in view of the urgency, we authorise Mme. Amado to seize the infants Jules Régine and Gilles Henri Amado, the custody of whom was granted to her by this Court, in any place where they may be found, with the assistance of the Police Commandant and, if need be, with the assistance of the armed forces; "Finally terminate the right of M. Amado to access to the children, "Order the execution of this order for the time being and immediately, and even before its registration, because of its urgency, "Appoint M. Statte to deliver this order to the defendant who has not appeared and to preserve this order. "Given in Paris on the 12th day of December, 1949." (Signatures and certifications) When the mother discovered that the father had left France with the children and was keeping them in an immigrants' camp in Pardess Hanna in Israel, she, too, left France in the footsteps of the father and the children, and she also is at present in Israel. While she was trying in France to discover the whereabouts of her children, she says that she learned from her friends that the father had threatened to take revenge if they tried to take his children away from him, and for that reason did not turn directly to him and demand the return of the children to her. According to her, she even feared for the lives and safety of her children when the father should find out about her applying to this court. The petitioner is a teacher in a secondary school in Paris, and earns her own and her children's upkeep, and her parents in Paris have supported her whenever her husband has refused to carry out his obligations towards the family. Relying on this affidavit, this court issued an order nisi against the first respondent, the director of the immigrants' camp, Pardess Hanna, and against the father, the second respondent, to appear and show cause why they should not bring the said minor children before this court, and why they should not be delivered to the petitioner, and an interim order was further made directing the father to deliver the children to the first respondent, to remain in his care and control until the final hearing of the matter, and ordering the said director, for the well-being and safety of the children, not to permit the father to be in the company of the children unless a responsible person is also present and in charge. An affidavit in opposition that was filed by the father in reply to the order of habeas corpus did not, in fact, deny the main facts set out by the petitioner in her petition, save that the father states that he has never said that he would kill the children, their mother and himself if they tried to take the children from him. Tie describes this as a pure fabrication and the product of the petitioner's diseased imagination and as an illegitimate means of influencing the courts. As for the decree of divorce made against him on June 2, 1949, he argued that the judgment is not final and absolute, that he, the husband. has lodged an appeal against it, through the offices of his lawyer, to the Court of Appeals in Paris, and that the appeal has not yet reached its turn for hearing. According to him, the petitioner deliberately refrained from producing to this court a copy of the decree of divorce, since from its contents one might learn the nature of the proceedings before the court in Paris, the petitioner's character and the background to the family dispute. Dr. Stoyanovsky, counsel for petitioner, in reply to a question put to him by the court, confirmed that an appeal against the decree of divorce of June 2, 1949, was lodged before the respondent left France. The respondent devoted a large part of his reply to the order nisi to allegations against his wife, the petitioner, allegations that he also brought before the court in Paris in the divorce case. According to him, his wife does not attend to the running of the household or to the care of the children. She left their home because a man of no principles, a trickster from Bulgaria. by the name of Michael Ibenoff, who purported to found a special mystic sect at Sévres in France, introduced his wife into the sect together with many other women. At one time, this matter caused a considerable scandal in France, and Ibenoff was sentenced by a French court to four years' imprisonment and deportation from the country. The respondent sought to prove his allegations in the French court, in particular that his wife was suffering from mental disease as a result of Ibenof's influence, and that she was incapable of looking after the children; and he complains that the French court granted a decree of divorce against him without referring to his defence and found that the substance of his allegations were a ground for a religious divorce. He fears that his children will not receive a Hebrew and Jewish upbringing if they remain in the custody of the petitioner, especially in France or some similar place, and even fears that the mother will convert them to the Christian faith, or to the sect of that same Bulgarian who still has his followers in France amongst the women believers. He says that whenever he met his children, they were very depressed and would tearfully recount to him that their mother was not in fact looking after them, and they besought him to save them. Accordingly, out of concern for the fate of the children and in order to enable them to live traditional Jewish lives, to which he had always been devoted despite his living in the Diaspora, and in order to put at the disposal of his people the benefit of his skill and knowledge as a doctor, he decided to immigrate to Israel with his children. The father states that the children have been happy since they have been with him in Paris and in Israel. He has made endeavours to place the children in a suitable educational institution or in Youth Aliya 1) These are the main outlines of the story which was presented to as in the affidavits of the mother and the father. The examination of the mother and the father by counsel for the parties revealed the following additional facts : Dr. Amado was born in Izmir and went to France at about the age of 14 where he received his education. He is a doctor and is now 43 years of age. His wife, a native of France, is a teacher in a secondary school in Paris, and she is 30 years old. The couple were married in 1942, both according to civil law and Jewish law, before a rabbi in France. According to the petitioner it was her parents, and not her husband, who insisted that the marriage be solemnized before a rabbi. No steps have yet been taken towards obtaining a divorce according to Jewish law. She is ready to receive a religious divorce after the civil decree of divorce becomes final. At first the mother educated the children herself, and later entered them in a kindergarten conducted in accordance with the Montesori system, and if the children are committed into her hands by this court, she will take them to France and bring them up as heretofore. The mother confirmed, in answer to a question by the father's counsel, that the director of the kindergarten is a Jewess who has been converted to the Christian faith, and added that in the institution there are also two Israeli girls who are learning the Montesori system. She denied that the director of the institution asked her to send her children to take lessons in the Catholic catechism and she said that, if the latter were to do so, she would immediately withdraw the children from the institution. She further testified that her hus band had never objected to the children being educated in a Montesori institution. She describes her husband's fear lest she introduce her children into the Christian faith or Ibenoff's sect as a pure fabrication. Her husband contended in the divorce case that she belonged to the Ibenoff sect and that her state of mind had been influenced by Ibenoff. She had, indeed, on the advice of one of her teachers at the University, once taken an interest in Ibenoff's books, but had at no time belonged to that sect. She received a letter from Ibenoff dated March 31, 1945, and a photostat copy of it was produced to the court by counsel for the respondent. In that letter, Ibenoff invited her to go one morning to Sevres in order to participate in the prayers and exercises at break of day. In response to that letter, the petitioner visited Sevres, and on one or two later occasions visited Ibenoff's home together with her husband and children. According to her, Ibenoff's sect appeared to be a philosophical sect. Her husband also went to meetings of the sect, and at no time did he say to her that it was a sect of madmen, and that contact with members should be avoided. The petitioner knows that Ibenoff was sentenced in 1948 to four years' imprisonment for offences of inciting children to acts of indecency and immorality. She had indeed been impressed, at first, by the theories of Ibenoff, the central theme of which was the bringing closer together of the spirit of the East to the spirit of the West, but when she saw that his acts bore no relation to his preaching, she became confused. When she heard of the charges against Ibenoff, she said to one of her acquaintances that she was about to lose a good friend who had guided her with his advice. But the case affected her relationship with Ibenoff and his sect. She had taken an intellectual interest in the sect, and now all that was over for her. She had discovered that his ideas are also to be found in another philosophy, in a less complex form. The petitioner denied in her evidence any connection between the Ibenoff affair and her divorce petition. In reply to the respondent's contention that she is not capable, mentally or emotionally, of looking after the children, the petitioner testified that at the time of her studies she interested herself in the humanities, French literature, Latin, Greek and philology in general. She holds the degree of licencie (agrege) es. letters. At the secondary school in Paris she serves in the dual capacity of French teacher and secretary to the management. The number of pupils at the school is 1,100, between the ages of 11 and 19. There are at least eighty teachers engaged in teaching there; there is an assistant mistress in the school who deals with medico-social problems, and the petitioner has to examine all the social cases and the question of giving scholarships, which calls for the examination of the cases and of the family background of the pupils. As for the children's state of mind, she testified that from time to time, when the children returned from their visits to their father, they related to her what the father had said about her, and were very irritable and upset. The father gave evidence, inter alia, that he received no official notice of the decree of divorce of June 2, 1949. He saw an unconfirmed summary of the divorce decree in July, 1949, in his lawyer's file, and it may be that the decree was also delivered to tile latter. He presumes that an appeal was lodged on September 7, 1949; on September 14 he left France. He has not received to this day any news of the lodging of the appeal. He was present with his wife at the time of the first "reconciliation" hearing on April 14, 1948. In the first "no-reconciliation" order, the custody of the children was provisionally granted to his wife, and he was given access to them once a fortnight. On July 16, 1948, a second hearing took place for the purpose of reconciliation. Then, too, he was present with his wife. The existing order regarding the custody of the children was confirmed. He appealed against both the orders relating to the right to the children's custody. The appeal was heard on February 17, 1949, and he did not succeed in his appeal. On March 28, 1949, he filed a petition with the court known as référés, asked that they return his children to him, and set out his grounds for the petition. As a result of that petition, the court appointed a lawyer to examine the children's condition. According to the witness, the lawyer did not carry out his task properly. Instead of visiting the children at their place of residence with the petitioner's father, they were brought to the lawyer's offices, and the latter stated in his report that the children were in a normal state of health, and that they were being well looked after. The father knew that he had to return the children to their another on October 2, 1949, but, he states, he took them with him in order to save them. He has never said that his wife was out of her mind, but said that she showed signs of mental instability. He is still of that opinion after hearing her in this court. According to him, he did not live specifically in accordance with Jewish tradition, but he has been a Zionist for some time and his family is Zionist. He holds a number of invitations to Zionist meetings from the year 1947. He was a member of the Zionist Doctors' Association in Paris. There are three main legal questions which arise from the petition under consideration. (a) If the petitioner should have filed an action in the district court for custody of the children, is she nevertheless entitled to apply to this court for a. writ in the nature of habeas corpus? (b) If a petition for habeas corpus is a proper remedy, will this court recognise the decisions of the court in France, which granted the petitioner the custody of her children, as a basis for its decision on such a petition? This second question gives rise to two subsidiary questions:- (1) Does the fact that the French decree of divorce is still subject to appeal affect the petitioner's present right to the custody of her children? (2) Does the fact that the couple are not as yet divorced according to Jewish law prevent or delay the recognition of the decisions of the court in France relating to the right of custody? (c) If the answer to the last question is in the negative, does the rule that the benefit of the children is the real test justify this court in the present case in altering the decisions of the court in France regarding the right to the custody of the children? The first of these three questions is one of the jurisdiction of this court in the hierarchy of courts in Israel. The father's counsel, Mr. Michaeli, argued that the matter in question is not in the nature of habeas corpus, which is included within the jurisdiction of the High Court of Justice by section 7(a) of the Courts Ordinance, but is a case between parents over the right to the custody of the children, and is therefore one of the matters of personal status of foreigners and within the jurisdiction of the District Court (Article 64 and Article 51 of the Palestine Order in Council, 1922). On the other hand, the petitioner's counsel, Dr. Stoyanovsky, emphasized at the outset of his argument what he is not asking of this court. He stated that he is not asking for execution of the divorce decree granted by the Tribunal in Paris on June 2, 1949, or of the order made by the same court on December 12, 1949. He is not, moreover, asking for guardianship of the children for the mother. He is not even claiming the right to custody of the children, for he says that the mother is legally entitled to the custody of the children by virtue of the judgment and the orders made in France in favour of the mother. He is no longer in need of a determination of the right of custody in favour of the mother by this court. His application is for recovery of the custody and possession of the children of which the father has deprived the mother in an unlawful manner, and accordingly the children are in the unlawful custody of the father. For that reason, he contends, the matter falls within the scope of section 7 of the Courts Ordinance and the jurisdiction of the High Court. Before I consider the authorities, let me examine the two provisions of the law on which each one of the opposing parties relies. The definition of matters of personal status in Article 51 of the Order in Council speaks of "suits regarding marriage or divorce. . . guardianship" and others. Section 7(a) of the Courts Ordinance, which provides for the exclusive jurisdiction of the High Court of Justice, speaks of "Applications (in nature of habeas corpus proceedings) for orders of release of persons unlawfully detained in custody." In the present case, the divorce proceedings have already taken place in France, and it has been decided in favour of the petitioner that she is entitled to the custody of the children. There is no disputing the fact that the respondent took the children into his custody in breach of what was decided by the courts in France and brought them to Israel. Indeed, he contends that there were grounds and reasons for his doing so. But the fact remains that he is the one who had defied the courts in France. Counsel for the mother once more emphasizes that she is not asking for her right to the custody of the children to be determined. That right has been determined for her abroad, and therefore there is no case here in a matter of personal status. In bringing her petition in the nature of habeas corpus before this court, she relied on decisions made in her favour abroad in order to found her contention, which is the basis of her petition, that the children are in the hands of the father in unlawful custody, and therefore she claims their release. I do not hesitate to say that this contention seems to me to be sound. To start with, I shall consider the question as if the decisions in the mother's favour had been made here in Israel. The question as to what is the binding force of decisions made abroad (the second of the three questions above mentioned) is a problem of private international law, which I shall consider later. In order to make absolutely plain the question of jurisdiction and the definition of the border-line between a claim for custody and a petition for habeas corpus, it would be better to regard the matter separately from any problem of private international law. In this respect, the two parties were right in citing as authorities on the question of jurisdiction the judgments of the Supreme Court (during the period of the Mandate) which were delivered in cases in which no question arose as to the effect of a foreign judgment in this country, for the question of jurisdiction and the definition of the border-line between a case concerning the right to custody and a petition for habeas corpus is a question that arises, as I have already mentioned, from the provisions relating to the jurisdiction of the different courts in Israel. Counsel for the respondent cites as authority Silverman v. Buxenbaum and others (1). The truth of the matter is that that authority is not on all fours with the present case. That judgment contains only a few lines, and one gathers that the case concerned a family dispute which broke out over the question whether a child that was staying with relatives of his deceased mother should remain with them in accordance with his mother's will, as it was alleged, or should return to his father, and the father filed a, petition for habeas corpus. No judgment had been given in that matter before it came before the High Court. During the course of the hearing, the father undertook "to apply to the appropriate court to have these matters settled", and all that the court decided was that the child would remain with the mother's relatives until a decision was given on the part of the competent court. It is difficult to see how counsel for the respondent can rely on that judgment. On the other hand, counsel for the petitioner cited in support of the jurisdiction of this court authority from the following two judgments : Flint v. Jones and another (2); Bar-Emun v. Bar-Emun (3). The first judgment, Flint v. Jones (9), was delivered in a case based on a petition of habeas corpus. The petitioner, the father, demanded the handing-over to himself of his son from his divorced mother and her second husband. The petition was founded on a judgment of the Principal Rabbinical Court of Jaffa and Tel Aviv, according to which the custody of the child had been given to the mother until he reached seven years of age, and thereafter to his father. The mother, apparently, refused to obey the judgment of the Rabbinical Court, although at first the child had been handed over to the father but had been taken away from school after that by the mother's second husband without the knowledge of the father. The court acceded to the father's petition, issued an order nisi in the nature of habeas corpus against the mother and her second husband and, in the absence of an affidavit by the respondents, made it absolute. In the second case, Bar-Emun v. Bar-Emun (8), the petitioner (the mother) obtained a judgment of the Rabbinical Court against her husband, and this ordered the child to be delivered to the mother, but the Execution Office refused to execute the judgment, on the ground that the child was in the hands of her father-in-law, and the latter had not been a party to the case. Later, the mother sought the execution of a second judgment of the Rabbinical Court, which had been given in the absence of the father-in-law, for the delivery of the child to her. The Chief Execution Officer refused to execute that judgment also, since the child's grandfather had never consented to the jurisdiction of the Rabbinical Court, whereupon the mother applied to the High Court of Justice on a petition of habeas corpus, and won her case. The common denominator in the two cases - Clint 6. Jones (2), and Bar-Emun v. Bar-Emun (3) - is that the right to the custody of the children had been considered and determined by a competent court before the matter came before the High Court, and this court, relying in each case upon the decision previously given by such competent court, issued the order of habeas corpus. Admittedly, neither of those two judgments is of much value in deciding the problem that we are considering, for the first one was given without any reply on the part of the respondent, and neither of them defined the borderline between a case based on the right to custody and a petition for habeas corpus. But the judgments were given on the assumption that habeas corpus is the remedy wherever it is preceded by a decision of a competent court as regards the right of custody. That assumption is, indeed, correct. The rule may be expressed in this manner : so long as the right to the custody of the child has not yet been determined by the competent court, and the very right itself is the subject of a bona fide dispute, this right can only be determined by the court. A claim of this kind is a matter of personal status which, in accordance with Articles 47, 51-54, and 64 of the Palestine Order in Council, 1922, is within the jurisdiction of the District Court both as regards Israel nationals and as regards foreigners or, under certain conditions, is within the jurisdiction of the religious courts. Where the right has been determined by a competent court in favour of one of the parents, and the parent acts in breach thereof, and takes the child out of its lawful custody or continues to detain it unlawfully, then the remedy is the filing of a petition in the nature of habeas corpus. If it be said that a petition to take a child out of the hands of a person unlawfully detaining it is indeed a form of petition of habeas corpus, because you are demanding to put an end to the detention, but that the demand to deliver the child to whomsoever is entitled to possession of it is a claim to the right of custody, the judgment in Queen v. Clarke (5), decided in 1857, shows us that the two demands cannot be separated, for they are linked to one another. In that judgment, Lord Campbell C.J. said :- "The question then arises, whether a habeas corpus be the proper remedy for the guardian to recover the custody of the child, of which he has been improperly deprived. Certainly the great use of this writ, the boast of English jurisprudence, is to set at liberty any of the Queen's subjects unlawfully imprisoned; and, when an adult is brought up under a habeas corpus, and found to be unlawfully imprisoned, he is to have his unfettered choice to go where he pleases. But, with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned ashen unlawfully detained from the custody of the guardian; and when delivered to him he child is supposed to be set at liberty." The rule is thus summed up in Halsbury, Hailsham Edition, Vol. 9, page 717, article 1219:- "A parent, guardian, or other person who is legally entitled to the custody of a child can regain such custody when wrongfully deprived of it by means of the writ of habeas corpus. The unlawful detention of a child from the person who is legally entitled to its custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child." (Compare also, Halsbury, Vol. 17, p. 666, article1383.) As is well known, the institution of Habeas corpus is likewise one of the corner-stones of the Constitution of the United States, and therefore it may be worth mentioning that there, too, it serves as an appropriate remedy for carrying into effect a decision which has been given on the question of the right to custody of the children in a previous divorce case. See the Corpus Juris Secundum, Vol. 89, Title "Habeas Corpus", section 46, p. 586, and the judgment of the United States Supreme Court of the 3lst March, 1947, in the case of Halvey v. Halvey (9). As regards the value of American judgments on questions of the kind under discussion here, see Dicey, Conflict of Laws, 6th Edition, pp. 10, 11 (note 16). I have dwelt at some length on the first question although I have no doubt as to the true position. A number of cases have recently come before this court in the form of habeas corpus in matters concerning the right to the custody of children, and this is the first case in which we have been called upon to give judgment upon it : and I hope that my expanding on the subject here at some length will enable future cases to be dealt with more briefly. The second question that arises here is, what is the force of the judgments and orders made in France in relation to the courts of our country? Must this court recognize those decisions as a basis for its decision in the case under consideration? That is, as stated, a problem of private international law. Authority for that may be found in Abyad v. Ancona (4), in which the Supreme Court confirmed what had been decided in the Haifa District Court by Evans, R.P., in these words:- "The defendant argues that the Order in Bankruptcy made in Egypt must come within the Ordinance Cap. 75 or else is of no effect. Similarly he argues that all international law is founded in treaties and that before the Courts could give any effect to this order there must be some agreement or treaty on the matter between the Palestine and Egyptian Governments. We do not agree with either proposition. It is true that agreements have been made regarding reciprocal enforcement of judgments, but these are largely matters of procedure. The Courts had to consider the weight and effect to be attached to foreign judgments long before. The Defendant says we are not bound by what is called Private International Law. We think we are. Those Rules (i.e. the rules of private international law) enforced in the English Courts are part of the English Law to which we must have recourse in the absence, as admittedly here, of any local provisions on the matter in question. Rules 124 and 125 of Dicey's Conflict of Laws show clearly that an order, such as that of the Egyptian Court... would be effective in England... and must therefore be treated as effective here for the same purpose." Now let us examine the English rules of private international law in this field as applied to the present case. A first general principle is to be found in Dicey's book on the Conflict of Laws (6th Edition, 1949, p. 11) :- "Any right which has been acquired under the law of any civilised country which is applicable according to the English rules of the conflict of laws is recognised and, in general, enforced by English courts, and no right which has not been acquired in virtue of an English rule of the conflict of laws is enforced or, in general, recognised by English courts." In explanation of that rule, it is stated there (p. 11) :- "Their object and result is to render effective in one country, e.g., England, rights acquired in every other civilised country, e.g., France or Italy, the law of which (of France or of Italy) is applicable according to the English rules of the conflict of laws." That is the general rule; and what are the particular rules touching the present case ? Rule 71 in Dicey's book (p. 868) says: - "The Courts of a foreign country have jurisdiction to dissolve the marriage of any parties domiciled in such foreign country at the commencement of the proceedings for divorce. This Rule applies to - (1) an English marriage; (2) a foreign marriage." Rule 83 (p. 400):- "Any foreign judgment is presumed to be a valid foreign judgment unless and until it is shown to be invalid. " Rule 84 (p. 401):- "A valid foreign judgment is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either)(1) of fact; or (2) of law " Rule 93 (p. 430):- "A valid foreign judgment... of divorce... has in England the same effect as a decree of divorce...granted by the Court in England, as regards the status of the parties to the marriage which is dissolved..." As to the particular item in the matter under consideration, the right to the custody of the children, an incidental remedy generally given in a divorce case, the following is to be found in the commentary in Dicey to Rule 71, p. 878 :- "There is also a lack of ad hoc authority as to the extent to which English Courts will recognise the power of foreign Courts to exercise control in matters of the property and parental rights of the persons whose marriage is affected by their decrees similar to that exercised by English Courts when granting ancillary relief in matrimonial causes. But the principle that similar authority should be conceded to foreign Courts is implicit in the cases which decide that the ancillary decrees of foreign Courts will not be recognised if the principal decree cannot be recognised in England." In illustration 5 (ibid., p. 878) :- "H and W are divorced by a Court in France, where they are domiciled, and the custody of the child is given to the father. W takes the child to England. He claims the custody of the child, and is entitled to the aid of the English Courts, which will, however, have regard to the welfare of the child." In the commentary to the aforementioned Rule 93 (ibid., p. 431) :- "Subject to the paramount consideration of the welfare of the children, effect would presumably be given in England to a foreign decree dealing with custody of children in connection with matrimonial questions, as a similar power belongs to English Courts." As authority for that, the judgment in Radoyevitch v. Radoyevitch (6), is cited (note 64). The considerable importance attached to that judgment for the problem with which we are dealing immediately becomes apparent, and so I propose to quote at length from the judgment of Lord President Clyde:- "The petitioner was at the date of his marriage to the respondent and is still a domiciled Jugoslavian, resident in Belgrade. The respondent was at the date of the marriage a Scotswoman, and the marriage took place in 1921 in London. The parties lived together in Belgrade until after the birth of their only child, a daughter, in 1922. Thereafter the respondent, taking the child with her, came back to this country, where she and the child have since remained. In 1928 the petitioner raised an action before the Spiritual Court of the Archbishopric of Belgrade against the respondent for divorce on the ground of desertion, and for custody of the child of the marriage... the Spiritual Court granted decree of divorce, and ordered the child to be delivered to the petitioner... The Supreme Spiritual Court (in Jugoslavia) approved of it subject to certain modifications, one of which was to give the respondent right of access... The respondent refuses to obtemper the order of the Spiritual Courts, and the present petition is brought in order to invoke the aid of this Court (in Scotland) in making it effective. "The important point in the case is raised by...the respondent's contention... namely, 'that, it being highly prejudicial to the health, welfare, and interests of the child that her custody should be awarded to the petitioner, the petition should be refused.' It will be - observed that this contention assumes that the question of awarding the custody of the child to one or other of the parties is an open question in this Court, notwithstanding the foreign judgment; and the assumption may be at first sight warranted by the fact that the prayer of the petition includes a crave that the petitioner should be found entitled to the custody. But, as appears from the averments in the petition, the petitioner's real case is that the foreign judgment already entitles him to the custody; and therefore any finding of the kind prayed for can only refer to a finding that the petitioner is - in respect of the foreign judgment - so entitled. Nevertheless, the respondent argued that the circumstances alleged by her provide sufficient grounds on which this Court should refuse its aid in making the foreign judgment effective. The petitioner's answer was two-fold; he maintained that this Court has no jurisdiction to review or alter what has been judicially done by the competent Court of the domicile, but is bound to give effect to its judgment. ...It is to be observed that... none of the allegations made by the respondent... relate to circumstances which were not extant and fully known to the respondent prior to the proceedings in Belgrade, and therefore pleadable by her - quantum valuerint- in those proceedings. It is also to be observed that there is nothing in the proceedings before the foreign Court, as far as appears from the pleadings in the present petition or from the documents before us, which is inconsistent with our Scottish notions of substantial justice. "The unlimited scope attributed in Administrator of Austrian Property v. Von Lorang, (1997) A.C. 641, to the doctrine of the universally binding effect of foreign judgments in rens goes to support the petitioner's argument. The custody of a child, like its tutory (which may or may not include the right of custody), is clearly a question of status; and proceedings for the disposal or regulation of the custody must therefore be regarded as proceedings in rens. The foreign judgment was pronounced in an undefended action, and was thus a decree in absence, although preceded by inquiry. In a case not dealing with status this might perhaps be enough to prevent the judgment from being res judicata between the petitioner and the respondent...; but the specialty of a foreign judgment in rem is that, so long as it is pronounced by the competent Court of the domicile, it is binding (alike as between the parties themselves and in questions with third parties) upon the Courts of this country without further inquiry. Accordingly, the petitioner's argument is that the status rights of the parents to the custody of the child of their marriage (which status rights constitute the res) have been conclusively adjudicated upon by the competent court of their foreign domicile that is, of the husband's domicile, which is also the domicile of the child - and that this Court is precluded from inquiring into any of the matters with which the respondent's answers are concerned. The fact that the child is for the time being resident in this country and within the jurisdiction of this Court has no importance, according to the petitioner's argument, except as calling for the aid of this Court in giving executive effect to a judgment which is conclusively binding upon it. "But, after all, an appeal to this Court for that purpose is an appeal to its jurisdiction for aid in carrying out the foreign judgment, and necessarily assumes that the jurisdiction can be legitimately used for that purpose, in some way or other, over both the respondent and the child, notwithstanding that both the child in particular - are of foreign domicile. The assumption is of course well founded. In the case of Stuart v. Moore (9 H.L.C. 439; 11 E.R. 799), (in which the guardians in England claimed the handing over of an infant who was in Scotland) Lord Chancellor Campbell said this :- 'The Court of Session had undoubted jurisdiction over the case. By their nobile officiunt conferred upon them by their Sovereign as parens patriae it is their duty to take care of all infants who require their protection, whether domiciled in Scotland or not. But I venture to repeat what I laid down for law in this House near twenty years ago, 'that the benefit of the infant is the foundation of the jurisdiction, and the test of its proper exercise'." "In considering the benefit of the child, it must be kept in mind that neither in such a case as Stuart v. Moore, nor in the present case, are we concerned with any question about the choice between two claimants or candidates for the child's tutory or custody. There is already a tutor or custodier duly appointed by the Court of the foreign domicile; and the benefit of the child is relevant only to the question whether we should lend our aid by ordering delivery of the child to that tutor or custodier". Lord Sands, concurring in the judgment of the Lord President, said :- "The question before us is whether this child falls to be handed over to the custody of her father in Belgrade, or to be allowed to remain with her mother in Scotland. We are bound to regard that question in the same impartial manner us would the Court of a third country - say France - if the child were found temporarily there, and a competition arose in a French Court between the father and the mother. When the matter is so regarded, I think the law is clear. "As your Lordship in the chair points out, this application is not in substance an application to us to determine a question of custody. It is an application to us to give effect to a judgment upon that matter which has already been pronounced by a Court of competent jurisdiction." The Court of Session examined only the terms of transfer of the child from Scotland to Belgrade and the terms of her reception there in surroundings that were unfamiliar to her. After tile court had received satisfactory answers it decided that the mother should deliver her daughter to the petitioner. I have quoted that Scottish judgment in detail, because it is the only one which deals exactly with the question before us in this case, and both in the actual facts and in the arguments, there is great similarity between the two cases. In the same way that counsel for the petitioner repeatedly emphasized before us that he is not asking us to determine the mother's right to the custody of her children, but for the recovery of the custody established in her favour by a competent foreign court, so that approach is prominent also in the Radoyevitch case (6) and was accepted there. As for private international law, the principle was unhesitatingly established in that judgment, that a foreign judgment, which determines incidentally to a divorce the right of one of the parents to the custody of the children, will be recognised. The importance of that judgment is the emphasis therein that the decision concerning the right to custody of children is in the nature of a decision in rem, with all the wide implications inherent in such a decision, binding as it does the whole world. We shall have no difficulty in arriving at a conclusion, on the basis of the rules that we have quoted from Dicey's book and of what we have quoted from the judgment in Radoyevitch (6), that we must recognise the decisions of the French Court that determined the right to the custody of the children in favour of the mother, the petitioner. There is no disputing the fact that the court in France was the competent court to try and to decide the question of the divorce between the parties. The father was present at the trial, and was represented by a lawyer. His argument that, since he was no longer in France when the court delivered its further decision of December 12, 1949, the court had no jurisdiction to make it, is an absurd argument. Here is a father who has flouted and defied the court's decision and has smuggled the children away from their mother, and yet argues that he was tried in his absence. In fact, the petitioner was entitled to found her petition to us on the main divorce decree which was granted on June 2, 1949, and which gave her the right to the custody of her children. The respondent had no real argument to raise against the content of the decree and the decisions that came after it, and, furthermore, could hardly have done so, seeing that according to the rules that we quoted above, there can be no appeal here against a foreign judgment, which is presumed to be extant and effective, on account of an error in the facts or the law. In so holding, it must be said at the same time, that the respondent did not succeed in showing us any error whatsoever in the law or on the facts in the proceedings in France. Counsel for the respondent tried indeed to argue even before us that, in any event, we should not recognise the decisions made in France on two grounds : (a) because the divorce decree is still appealable, and the rule is that foreign judgments are recognised only when they are final; (b) this court, he contends, will not regard the divorce decree as binding so long as the husband and wife have not become divorced by a religious divorce according to Jewish law, and if the actual divorce itself cannot be recognised, then the incidental decisions of the question of the right of custody cannot be recognised. Both arguments are untenable. Admittedly, it is right that, according to the rules of private international law, a foreign judgment is recognised only when it is final and conclusive. As regards a judgment in personam, the matter is covered by Rule 86 (see p. 403 in Dicey's Conflict of Laws). Moreover, as regards a decree of divorce, the question of "finality" is mentioned in the commentary to Rule 93 (p. 431). But in the same place, in Rule 86, it is laid down that a foreign judgment can be final and conclusive even when it is subject to appeal and notwithstanding that an appeal against it is pending abroad where it was given. (Compare also Martin Wolff, Private International Law, paragraph 242, p. 266.) In fact, the opposite view for which counsel for the respondent contended before us would put at nought the intention of the foreign court. For the French court held, even before it gave its judgment on the actual divorce, in its previous decisions, where the father himself gave evidence, that the mother was entitled to the custody of the children; and the judgment of June 2, 1949, it held that the orders concerning the handing over of the custody of the children to the mother were to be executed for the time being, notwithstanding any appeal and without giving security. It is clear that the intention of the court there was not to retract from the weight of its decision by the use of the word "provisoire", and to say that the handing-over of the right of custody was only for the time being. On the contrary, it regarded as urgent the arrangement of the right of custody in favour of the mother, and so, as can be seen from the insertion of the words "notwithstanding any appeal and without giving security", it provided for the immediate execution of its orders concerning the right of custody. As for the second argument concerning the absence of a religious divorce according to Jewish law, counsel for the petitioner was right in saying that we are not dealing with the question of the possibility of a second marriage on his part or on hers. It is clear that, according to Jewish law, such second marriage is forbidden, in spite of the civil divorce, unless preceded by a religious divorce. But, as stated, that question does not arise here. We are here dealing with the question of the effect of the decisions in France relating to the right of custody. The divorce decree, as a civil divorce, is effective according to French law, which applies to the parties according to Israel law (Article 64 of the Order in Council, 1922)1), and therefore the same part dealing with the right to the custody of the children is also effective. (Incidentally, the question of the right to the custody of the children can also arise, according to Jewish law, even while the marriage still subsists though the parents are separated.) . The result is that neither the appeal lodged in France nor the absence of a religious divorce, will entitle us to defer the recognition of the decisions made in France concerning the right to the custody of the children. That brings us to the last point, and that is whether the benefit of the children requires us to alter the decision of the French court. It is agreed that the established rule, and the one which most appeals to the intelligence, is that the benefit of the children must be decisive in exercising judicial discretion, even in cases of habeas corpus. But what are the factors to be taken into account in such judicial discretion? The opinion of the children themselves as to whom they want to go to cannot be sought when they are of such a tender age as are the children in the present case, in particular in habeas corpus proceedings. If authority is required for that, it may be found in the above-mentioned judgment of Queen v. Clarke (5), and in Eversley on Domestic Relations, (pp. 418-423). The parents' opinions are completely at variance. The father contends that the children are depressed when they return from a visit to the mother, and the mother contends that they are irritable when they return from their visit to the father. Their views, therefore, are of no assistance. Even taking into account the requirement of the benefit of the children, the court will not readily alter the decision of the court abroad concerning the right of custody. It is clear that each case has to be considered according to its special nature, and no hard and fast rule can be laid down here. But it may generally be assumed that before the court abroad there were more data to assist in weighing the matter than before the tribunal which is called upon afterwards in another country to recognise the former judgment. There is also special significance in the length of time that has elapsed between the decision of the original court and the decision required from the court in the other country on the strength of the judgment given abroad. In the present case, the court in France, before which all the data were available, including an examination of the state of the children, decided a short while ago in favour of the mother. What in essence did the father contend before us in order to move us to alter the decision of the court in France regarding the custody of the children? Mainly the Ibenoff affair, that I mentioned in some detail in setting out the facts. I assume that for a certain period, the mother (petitioner) was influenced by that person and his opinions, until he turned out to be a criminal. But there is no ground for not believing her, that since then, the man and his system mean nothing to her. There is no foundation for assuming, on the basis of what we heard in evidence from the two parties, that that affair influenced or will influence in any way her capacity as educator of her children. Furthermore, there is no argument here that the husband could not have put forward in the French court, and now he comes before us and claims a new factor in deciding the question of the custody of the children. We know from his evidence and from the divorce decree that the respondent certainly argued the matter of Ibenoff, and not only did the court not accept his argument, but viewed the very fact of his making allegations against his wife arising out of the Ibenoff affair as a serious insult and a grave reflection on her, and as a sufficient ground for divorce. If the French court, which was so close to the "atmosphere", held thus, are we here going to differ from it on that point? He further argued, that his wife lacks the necessary mental stability, and therefore her influence is harmful to the children. That argument, too, was submitted to the French court at various stages in the proceedings, was heard and rejected outright. Now the petitioner has given evidence before us, was examined by counsel for the respondent, and by her own counsel. Her replies were completely balanced and she gave the impression of a restrained person, despite the difficulties she has been through. We have heard about her position in the secondary school in Paris in which there are 1100 children. There, she is not only a teacher, but also assistant to the Board of Directors in dealing with medico-social questions. We have no reason for dismissing the petitioner as not being a satisfactory mother and educator, or for departing for that reason from the decisions of the court in France. Lastly, the respondent father appealed to this court saying that the custody and education of the children should be committed into his hands, contrary to what was decided in France, in view of the fact that he wishes to give them here a national-Jewish upbringing that they cannot receive in France. His counsel added that the rule of public policy calls for such a decision by us. I have the feeling that there is a lack of sincerity in the father's statements in this connection. We have not heard that before the divorce he objected to the method of education given to the children in the school in France, or that he did anything in order to give his children a Hebrew or Jewish education. According to the evidence before us, it is to be assumed that if there remained a spark of Jewish tradition in the Amado family, that spark was rather to be found in the mother's family. The suspicion which the husband projected into the atmosphere of the court, that the mother was likely to convert the children to another religion, was rejected by the mother with disgust, and I have no reason to doubt the sincerity of her words. As for public policy, this court and every judge in Israel would obviously be pleased if every Jewish child that immigrates into the country were to receive his education in Israel. But this is not the way to encourage the immigration of Jews to the Land of Israel. Heaven forbid that we should turn our country into a refuge for people who, during the course of quarrels in their married lives, smuggle their children away in contravention of the law and of justice. That way brings no blessing either to the country or to the children. My conclusion is that, from the point of view of the benefit of the children also, there is no ground for altering the decision of the court in France which gave the mother the right to the custody of her children. Accordingly, the order nisi should be made absolute as against the second respondent. DUNKELBLUM J.: I agree with the judgment of the learned President, and with its reasoning and conclusions. AGRANAT J.: I concur in the opinion of the learned President both as to the result at which he arrived and as to the grounds upon which he relied. CHESHIN J.: I concur without hesitation in the learned President's opinion, insofar as it relates to the first two questions raised in his judgment, namely, that the matter in question was rightly brought by way of petition in the nature of "habeas corpus", and that in the light of the principles of private international law, this court is required to regard the decision of the French court, which entitled the mother to the custody of the children, us the basis for its own decision. The third question however - and it is, in the opinion of all the authorities, the decisive question - namely, whether the benefit of the children requires that that decision be maintained or altered - this question, I must confess, gave me much ground for thought both while the parties and their counsel argued their case before us and when examining the great and varied mass of authorities which were brought to our attention. which the learned President dwelt at some length in his judgment, the father demanded, on the strength of a Jugoslav judgment, to have their eight-year-old daughter, born to them in Jugoslavia and taken by the wife to Scotland when she was a few months old, removed from the custody of his wife and handed over to him. Lord Sands, one of the three judges who composed the court, asked himself the question in this form : is the Scottish court bound to commit the child into her father's custody in Belgrade, or to permit her to remain with her mother in Scotland? The learned judge came to the conclusion that the court should examine the matter from an objective point of view, in the way that, say, a French court might have done, if the child had found her way temporarily to France and her father and mother were carrying on a legal battle in the same court over the right to have the child with them. "When the matter is so regarded," concludes Lord Sands, "I think the law is clear." The Lord President of the Court of Session, Lord Clyde, says in the same case :- "It is quite impossible for us to make up our minds on the balance of advantages and disadvantages ...attendant on Jugoslavian or on Scottish nationality, or on the social or educational associations of either country, and I do not conceive that such a balance could be reasonably or fairly applied to the problem of the child's welfare, even if we thought ourselves able to make it." (p. 627). I dare to express a doubt whether those considerations that were in the mind of the Scottish court, and those only, must be in our minds when we come to deal with a problem of the kind that arises in the present case. An Israel court, in determining the fate of a Jewish child within its jurisdiction, is not entitled to ignore the special position of the Jewish people or of the individual Jew among the nations of the world, and to say to itself, in the words of Lord Clyde, or by way of the illustration that Lord Sands brought : "Let us assume that we are sitting as an English Court in England or an American Court in America." This court and its members are not sitting in vacuo, cut off from reality and from the people among whom they work and create, sharing their ambitions, experiences and desires, and they are not always required to confine themselves within the four corners of a rule and to see everything from the aspect of the letter of the law applicable in other countries. In this respect, one might say that Israel is not like all other nations, and a Jugoslav child whose Scottish mother has brought him with her from Belgrade to Scotland is not the same us a Jewish child whose Jewish father has brought him to Israel from the lands of the Diaspora. The vast majority of the Scottish people resides in its own homeland, and the dangers of becoming assimilated and vanishing do not face them. In the last war, it was not bereaved of a third of its people on account of their being Scottish, and the people of Scotland living in other parts of the world are not subject to perpetual persecution and discrimination on account of their race, and the stock from which they spring. The same applies to the English, to Americans and to Jugoslavs. The Israel nation, alone of all the nations, during all the long years of its exile and through all the lands of the dispersion, almost without exception, has been wantonly persecuted for its religion, its race, its customs, its culture. Whole communities of Jews have been condemned to physical and spiritual destruction and have been utterly destroyed, and others are fighting a desperate struggle for their religion, their culture and their very existence. So well known is it that it requires no proof, that millions of our brethren, among them children of tender years, and youngsters who had hardly left their nurseries and whose parents had at one time taken them with them from the Land of Israel and brought them to the lands of the Diaspora, have been wiped out in our days and before our very eyes and the eyes of the whole world, by one of the "advanced" nations of civilisation, thinking up methods of killing which the Devil himself could scarcely have conceived, contrary to the law of nations and humanity. Can a court in Israel forget this story of annihilation, when it comes to consider the question of removing one of its children from Israel? And are we required to shut our eyes to the reestablishment of Israel in its own land, and the consequences involved for every Jew because of his being a Jew in the achievement of the hope of generations for the return of its people to its own country? The ingathering of the exiles is not just an empty phrase, and each one of us here today, and each one who is not with us today, is fully and clearly cognisant of the fact, that every Jew who immigrates to Israel aids not only the restoration of the nation and the building of the land, but also ensures his own security and future and the security and future of his children and family. A child from Israel who becomes rooted in the land of his forefathers has been freed from the dangers of assimilation and annihilation. The benefit and security of the children whose fate this court has been called upon to settle have to be seen in the light of these and similar considerations. Furthermore, in the case of Radoyevitch (6), the Scottish mother objected to the handing over of her daughter to the Jugoslav father, and gave her reasons for so doing in a long series of arguments and replies; but it was apparent there - and the Lord President, Clyde, comments thereon - that none of the mother's arguments were new, and that she could have submitted them to the Spiritual Court in Jugoslavia before the latter decided on the matter of the right of custody. She did not do so, and was therefore out of time. That, however, is not the position in the present case. Here there has been a change, an enormous change, since the day on which the French court gave its judgment. The father has opened a new chapter in his life. He has decided to settle among his own people, and to bring his children up in the spirit of Israel. I was not particularly impressed with the argument of counsel for the mother, that the father immigrated to Israel because he had kidnapped his children from their mother's home, and because he could find no other place to which to take them. The opposite is true : he took his children with him because he had made up his mind to abandon the life of exile and to live a Jewish life in his own land. It is true that he grew up and was educated in foreign surroundings, and that national values were not of particular importance to him, and that his children have been brought up in that spirit, too. But his intentions are not to be dismissed on account of his past. An enormous change of values has taken place in the outlook and inclinations of many Jews of the Diaspora since the last World War, and in particular after the establishment of the State of Israel. The fact is that he has immigrated to Israel and has brought his children with him. The fact is that, in court, he expressed his desire once more to live with his wife a normal family life, forgetting the past, should she desire to settle in Israel, but she persists in her refusal and she is content with life in the Diaspora. The fact is that, when the children were transferred to a hospital at the commencement of the Festival of Passover, he would not rest until he had succeeded in moving this court to order the children's transfer to a Jewish institution until after the Festival had ended. On the other hand, although she gave her consent to that transfer, the actual entering of the children into a non-Jewish institution was done at the mother's request, and she was not troubled by the fact that the children would be during the Festival and the intermediate days in non-Jewish surroundings. In those circumstances, I am prepared to believe the father when he declares on oath that "out of concern for the fate of the children and a desire to give them traditional Jewish lives... I decided to immigrate to Israel and to live here a quiet, Jewish life, to devote my life to bringing up my children and together with that to put my skill and knowledge in the science of medicine at my people's disposal." I weigh against that the personality of the petitioner - the mother - with her emotional tendencies, to the extent that they were revealed to us in these proceedings. I stated at the outset of my remarks that I am in full agreement with the learned President, that since the French court has committed into her hands the custody of the children, the right to custody is hers. But since the benefit of the children as at today is the true test which must apply, in view of the above stated considerations, me are not free to overlook any of the facts. The words of Lord Sands in the Radoyevitch case (6) are enlightening, when he declares in this connection :- "It is the duty of this Court to extend protection to every child found within its jurisdiction, and it may in certain cases be our duty to extend such protection even against a claim based upon a legal award of custody. The Court will not de plano in every case order delivery to the legal custodian." (p. 628). In other words, it is one thing to treat a judgment of a foreign court with the respect which is its due, and in certain cases also to recognise it, particularly in the light of the principles of private international law, it is quite another matter to consider the benefit of the child. The latter is settled according to the outlook and discretion of the judges who are called upon to determine it in each and every case according to its particular circumstances. There they are not tied to universal principles. You cannot draw an analogy in this type of case from the rules of private international law, nor will such rules be in any way affected even if the court does not uphold to the letter the judgment of the foreign court. From that point of view, considerable importance attaches to the character and capabilities of the mother, who demands for herself the upbringing of her children and the whole of their future. It must be mentioned at the outset that she gave me the impression of being a somewhat fanciful spirit, who has not yet found the way of life suitable to her. In her adolescent years, she engaged in the science of philosophy, and under the guidance of one of her teachers at the University, the Greek teacher, a near and enchanting world was opened before her in the theory of a certain Bulgarian named Michael Ibenoff. For a number of years she studied this theory, and even began to correspond, after her marriage, with Ibenoff, the creator of this theory. I did not succeed in understanding the niceties of this theory, but I heard from the petitioner that it discloses the ways of the East to the peoples of the West, that is to say, a sort of harmonious intermingling of the two differing worlds. While she is engaged in this study, Ibenoff invites her to his home, and somewhat surprisingly she becomes involved, at her very first meeting, in a conversation about her marriage to her husband. Afterwards, Ibenoff invites her - and she accepts his invitation to be present at a ceremony of "breathing exercises of the Yogi kind", "accompanied by beautiful Bulgarian songs", conducted at the first rays of dawn by men and women in the fields near the town of Sevres in France. We were given no explanation, and we do not know to this day, how this idolatry, carried on at an hour which is neither day nor night and when the whole world is fast asleep, is designed to bring the East closer to the West, but we do know that Ibenoff also founded a mystic sect, and that it was his wont to work up women and virgins from among the female followers of his sect into a frenzy, and to incite youngsters to acts of indecency and immorality. We further know that this Ibenoff, who was once given the name of the Bulgarian Rasputin by the French press, was finally caught red-handed and sentenced by a French court to four years' imprisonment. The petitioner served as a disciple to this charlatan, she participated several times in meetings of members of his mystic sect (according to her, together with her husband), and the petitioner was invited to send her children to the school that was about to be founded by the followers of that same sect. In this school, the petitioner explains and declares, it was proposed to introduce the theories of Ibenoff. When Ibenoff was put on trial, the petitioner was at a complete loss and said to one of her acquaintances, as she herself admits in her evidence : "I am utterly confused because I am about to lose a dear friend who has guided me with his advice and led me in the paths of life." In her evidence, she indeed declares that she has drawn away from Ibenoff's sect and today she no longer interests herself in it, "because it is possible to find it (that is, the philosophy of life that Ibenoff preached) in any other philosophy without complications", and she sends her children to a State school, of which by coincidence - or perhaps not by a coincidence - the headmistress, as teacher and principal, is a converted Jewess. The story of the petitioner's relations with Ibenoff and his mystic sect was indeed recounted to the French court, and from the fact that the children were eventually placed in the hands of the petitioner, it is plain that that court found nothing objectionable in her and her character; but the Ibenoff affair is not at an end, since the second respondent - the husband - has lodged an appeal against the judgment, and we do not know what will be the result of that appeal. However, more important than that is that there were not before the French court - nor could there be - the facts that came into existence, as stated, after the giving of the judgment; and it is all the more obvious that it did not take into account those considerations with which we are faced. That court regarded the children as it would regard French children, whereas we regard them as we would regard Israel children, whose father seeks to have them regarded as attached to the body of their resurrected nation. The revival of a nation in its land means the revival of every member of the House of Israel, and the benefit of an Israel child requires that he be formed in the likeness of his people, on the soil of his homeland, and that he should grow and be educated a free person among his brothers, the children of his people, without the marks of a bowed head and an inferiority complex so characteristic of the Jew in the Diaspora in his relations with the people among whom he lives, even though he be born there. From that point of view, that is, from the long-term and final point of view, I do not hesitate to express the opinion that the benefit of the children requires a decision that their place is here in Israel, amongst their people, and by the side of their father. We have, however, still not exhausted the problem, for there is another side to the coin which is no less important : that is the short-term aspect of the matter, the prosaic question as to what the children will eat today and what they will wear tomorrow. The petitioner, in her affidavit, speaks of herself as being a secondary school teacher in France, and earning enough for her own and her children's upkeep. Moreover, she says, her parents have supported her in the past, whenever the second respondent has refused to carry out his obligations towards his family. It seems that those parents are good Jews, and at least in their home they carry on the tradition and customs of Israel. The petitioner even mentioned in her evidence that her mother bad at the time objected to her grandchildren, the children of the petitioner and the second respondent, learning Christian religious studies in the school in which they were being educated, and this objection fell on willing ears so far as the petitioner was concerned. Those statements, whether in writing or made orally, were not denied by the second respondent. On the other hand, it appears that the material position of the second respondent is by no means bright. In his affidavit, he speaks of "prospects of getting settled in his profession in Israel" (paragraph 19), of prospects "of entering my children into a suitable educational institution or into Youth Aliya ...with the assistance of one of the social workers ...in Pardess Hanna" (paragraph 13). But all that is, at the very best, no more than a sort of good hope for the future, and it has not got beyond the stage of prospects. There is nothing positive. At the moment, the children are running around in an immigrants' camp, without supervision and without the presence of relatives which are so necessary to children of tender age (the girl is about seven and the boy about four-and-a-half), subject to the kindness of good people and living on a pittance. When the children became ill on the eve of Passover (and it turns out that their illness was not so dangerous), they had to be transferred to hospital, where they could receive the necessary treatment. We do not know what will happen to them tomorrow, or how the father proposes to supply his children with their most vital needs. At the moment, their sustenance is poor. They have no corner of their own, and even the roof above their heads is not permanent. In the Radoyetvitch case (6) also, in which the Court of Session held that, from the legal point of view, the father was entitled to have the child in his possession, the court was not in a hurry to hold in favour of the father, but demanded satisfactory guarantees to ensure that the child would take root in the land to which the father proposed to take her, taking into account her age, her sex and the fact that she had grown up without any knowledge of her country's language. In this respect, the words of the Lord President, Clyde, are enlightening. The learned judge puts it this way :- "We must in the first place, be fully informed of the petitioner's plans for taking delivery of the child and for its safe conduct to Belgrade, ...and we must be satisfied that he is at the present time in a position to carry those plans out. In the second place, we must be fully informed of the arrangements made by him for the proper reception in Belgrade (with a view to education and upbringing) of this girl of eight years of age, who when she first comes under his care) will be unable to communicate her needs or wishes to those around her, unless they have some knowledge of English. We must also be satisfied that he is at the present time in a position to carry out whatever arrangements for these purposes he may have made." If such is the position of a father, claiming his right on the decision of a court which has already decided in the matter, how much more so in the case of a father whose actual right is still in dispute. When I weigh that short-term view in my mind, it seems to me - and not without considerable hesitation - that despite the long-term view, and notwithstanding the father's good intentions, it would not be right to leave the children's fate hanging on a thread. For that reason, and that reason alone, I, too, think that the order should be made absolute. ASSAF J.: I concur with the learned President on the question of this court's jurisdiction to try the matter before us, brought by way of a petition in the nature of habeas corpus, and also on the question of giving recognition to the judgment of the court in France. In relation to the question whether the benefit of the children requires us to alter the decision of the French court, I admit to considerable hesitation and heartsearchings, similar to those which my learned colleague, Cheshin J., has discussed at some length, although I do not feel the same certainty that he has as to the sincerity of the respondent's statements in relation to the upbringing of the children - that he wants to educate them in a traditional Jewish spirit - seeing that they were made after domestic peace had been shattered, and strife had come in its stead. Further, from the evidence of the respondent in court, it is clear that he was not one of those people who maintain the Jewish tradition, and before the divorce case did not object to the method of education that the children received in France. In his affidavit, the respondent states that, in order that domestic peace be restored, he is prepared to forgive his wife her past offences and to live with her a normal family life, but the serious allegations he has made against her throw doubt on whether he feels the same way as he declares. Counsel for the respondent contended that, if the petitioner were to decide to remain in Israel and leave the children, who are still very young and in need of a mother's care, with her, he would have nothing left to argue; but since she does not propose to do so, and since she is still not divorced from her husband according to Jewish law, he relies on the express passage in the Mishnah 1) that "a man may compel all his household to go up with him to the Land of Israel, but none may be compelled to leave it" (Ketuboth, 110b; Shulhan Aruh, Even Ha'Ezer, 75), and accordingly a husband is entitled to demand of his wife that she, too, immigrate to the Land of Israel. But it seems to me that that rule cannot be relied upon in the present instance. It is obvious that the rule was intended for normal cases, where the husband and wife are living together in the customary way and in the manner of Jewish people, and the husband proposes to immigrate to the Land of Israel while the wife is opposed to immigration, on the ground that it involves the giving up of their established home, the ardours of travel and the liky, or out of lack of desire to leave their former place of residence, where her father's household, her relatives and friends live; but in the present case, where the couple are living separately as the result of a serious quarrel that has already lasted a number of years and where a divorce petition was filed more than two years ago, the better view is that a husband cannot demand that his wife leave her father and mother in the land of her birth and the place where she is earning her living and go after him to the Land of Israel, without being certain that she will lead there a happy life. That can only be done by way of request and compromise and not by compelling her to do so and deeming her a rebel for that reason alone, if she refuses. That being so, we return once more to the question of giving effect and recognition to the French court's decision as it stands, according to which the custody of the children has been accorded to the petitioner. After consideration I, too, agree with the opinion of the learned President and my other learned colleagues, that the former situation should be restored by making the order nisi absolute. SMOIRA P. Accordingly, we make the order nisi absolute as against the second respondent. In doing so, we express the hope that the petitioner will not enforce her legal rights to their full extent, but will see her way clear to make some arrangement which will enable the father to see his children from time to time. Order nisi made absolute against the second respondent. Judgement given on April 16, 1950.

The Supreme Court sitting as the High Court of Justice

 

HCJ 3856/11

 

Before:                                                The Honorable Deputy President M. Naor                                                                 The Honorable Justice E. Arbel                                                                                  The Honorable Justice N. Solberg

 

The Petitioner:                        Anonymous

 

v e r s u s

 

The Respondents:                   1.       The Supreme Sharia Court of Appeals

                                                      2.       The Sharia Court in Tayibe

                                                      3.       Anonymous

 

The Parties Requesting

to Join as amici curiae:           1.       "Kayan" – Feminist Organization

                   2.       The Concord Research Center for Integration of International Law in Israel

                                                                                   

Petition to Grant an Order Nisi

 

Date of Session:                                           13^th of Kislev, 5773 (November 27, 2012)

 

On behalf of the Petitioner:                Adv. V. Herzberg, Adv. T Mudlij

 

On behalf of Respondents 1-2:           Adv. A. Avzek

 

On behalf of Respondent 3:                Adv. A. Natur

 

On behalf of Party 1 requesting

to join as amicus curiae:                      Adv. S. Batshon

 

On behalf of Party 2 requesting

to join as amicus curiae:                      Adv. F. Raday

 

On behalf of the Attorney General:    Adv. D. Bricksman

 

 

J U D G M E N T

 

 

Justice E. Arbel:

 

Before us is a petition against the decision of the Sharia Court of Appeals ruling it is impossible to appoint a female arbitrator in a divorce proceeding before the court.

 

 

 

 

Background and Review of the Proceedings

 

1.The Petitioner and Respondent 3 (hereinafter: the “Respondent”) are Muslim Israeli citizens who are married to each other. A dispute erupted between the two, which led to various proceedings held in civil courts, including motions for protective orders, alimony actions and more. At the same time, on April 23, 2009, the Respondent filed an “Arbitration Claim” with the Sharia Court in Tayibe. There, the Petitioner claimed that the claim was filed in bad faith since the Respondent intended to divorce. Despite this, the court accepted the Respondent’s petition and on November 1, 2010, instructed that each party appoint an arbitrator on its behalf pursuant to Sections 130 and 131 of the Ottoman Family Law (hereinafter: the “Family Law”). On January 17, 2011, the Petitioner filed a notice to the Sharia court regarding the appointment of Hajjah Rudina Amsha from Tayibe as the arbitrator on her behalf.

 

2.On January 18, 2011, the Sharia Court ruled that: “This court sees that the religious scholars stipulated that the arbitrators must be men, according to the Maliki, Hanbali and Shafi schools of thought…”. Later the court required the Petitioner to appoint a male arbitrator. The Petitioner appealed this decision to the Sharia Court of Appeals. On April 5, 2011, the court denied the appeal. It was ruled that Section 130 of the Family Law, which is the binding law in Sharia courts in Israel, is based on the Maliki interpretation. Since the Maliki required that arbitrators be men, it is impossible to appoint women as arbitrators. Following the judgment, the Sharia Court in Tayibe decided again that the Petitioner must appoint an arbitrator on her behalf within a week. After the Petitioner did not appoint an arbitrator on her behalf, the court appointed two male arbitrators on its behalf on May 11, 2011. At the same time, this petition was filed. Notably, on June 2, 2011, this Court (Honorable Justice Meltzer) granted the Petitioner an interim order prohibiting the arbitrators appointed by the Sharia court from issuing any decisions in the entire matter handed over to their care, until another decision in the petition.

 

3.Following a hearing we held on July 13, 2011, we decided to issue an order nisi, and to have the Attorney General file its position on the matter. After receiving the positions of the parties, we held an additional hearing on May 7, 2012, in which we decided that the Sharia Court of Appeals should give a detailed and reasoned decision on the parties’ arguments, and particularly regarding the applicability of the Equal Rights for Women Act, 5711-1951 (hereinafter: the “Equal Rights for Women Act” or the “Act”). Such judgment was indeed handed down and provided to this Court on August 9, 2012, whose main points we shall address immediately. On November 27, 2012, we held a final hearing in the petition and heard the parties’ arguments. In order to complete the picture, it shall be noted that two organizations filed motions to join the petition as amici curiae“Kayan”–Feminist Organization (hereinafter: the “Kayan Organization”), and the second is the Concord Research Center for Integration of International Law in Israel (hereinafter: the “Concord Center”). Following these proceedings, it is now time to deliver our decision in the petition.

 

 

 

The Sharia Court of Appeals’ Judgment

 

4.As mentioned, following our decision, a reasoned judgment in the matter was given by the Sharia Court of Appeals on June 18, 2012. The Court stated that first the question of which school of thought was chosen by the Ottoman legislator when legislating Section 130 of the law, which binds the Sharia courts in Israel, must be addressed. The Court clarified that according to the Maliki school of thought, the arbitrators serve as a kind of Qadi, and not as representatives of the parties. Their authority is to reconcile the couple or divorce them from each other even without the couple’s consent. In contrast, according to the Hanafi, Shafi and Hanbali schools of thought, the arbitrators’ authority ends with delivering a report to the Qadi who is the one who performs the divorce according to the arbitrators’ report, and the arbitrators do not have authority to perform the divorce unless they have been permitted to do so. The Court further ruled that in Section 130 of the law, the Ottoman legislator relied on the Maliki's opinion, as the language of the section authorizes the arbitrators to dissolve the marriage and provides that the arbitrators’ judgment will be final. The court also relied on the explanatory notes to the Family Law that explicitly referred to the Maliki school of thought.

 

5.The Court stated that the Sharia courts indeed operate pursuant to this principle when implementing Section 130 of the Family Law, and it has been ruled that the act of the panel of arbitrators is a judicial act that creates a judgment similar to the act of a Qadi. The Qadi's only role is to confirm whether the arbitrators’ report is consistent with the law, and if not, to void it. It has been ruled that the Qadi may intervene in the scope of the dowry (mahr) given to the women if he found that the arbitrators unjustifiably reduced it, however this is only the case for a monetary matter and where the court has tools to intervene, in the absence of a Sharia reason for the reduction. It has been ruled that the purpose of the intervention is to prevent the prolonging of the litigation between the parties. In contrast, the court cannot intervene in other matters of the arbitrators’ report since the arbitrators are the ones who heard the couple’s arguments based upon which they reached their conclusions. In summary, the Sharia Court of Appeals rules that “the arbitrators, pursuant to Section 130 of the law, are Qadis and not representatives, and they are the ones who rule regarding the dissolution of a marriage, and the Qadi’s authority is to confirm their ruling.”

 

6.The Court stated that the law does not clarify the terms and characteristics required of the arbitrator, and therefore, it is necessary to turn to the customary opinion in the Maliki school of thought to clarify such terms. According to this school of thought, the arbitrators must be men. The court clarifies that the religious scholars that viewed arbitrators as representatives permitted women to be arbitrators, while the religious scholars that viewed arbitrators as Qadis did not permit women to be arbitrators. The Court further noted that according to the Hanafi school of thought a woman can also be a Qadi.

 

7.As for the Equal Rights for Women Act, the court rules that both of the Act’s exceptions apply: the exception regarding laws permitting or prohibiting marriage and the exception regarding appointing a person to a religious position. The Court emphasized that the arbitrators’ judgment has Sharia implications that stem from the dissolution judgment, which is final and binding, and therefore the Equal Rights for Women Act should not be applied to the appointment of arbitrators. The Court rejected the argument that the Family Law is a civil law and ruled that this law is the codification of Sharia laws that includes laws regarding marriage and divorce that were taken from various schools of thought. The Court also stated that at hand is a religious lex specialis that prevails over the provisions of the Mejelle which is legi generali. The Court cautioned that adopting a different school of thought would harm women, since according to other schools of thought the arbitrator cannot perform a divorce without the husband’s consent, while the Maliki school of thought is the only one that applies a cause of action for dissolving a marriage without the husband’s consent.

 

The Petitioner’s Arguments

 

8.The Petitioner’s attorney claims that Section 130 of the Family Law does not prohibit the appointment of a female arbitrator. According to him, we are concerned with a statue of a civil governing body within the codification process and reforms made during the Ottoman Empire. The Family Law was intended to introduce some into the existing rules and also to reform the legislation while adopting and integrating opinions from various schools of thought and creating a single body of binding legislation. It follows, as argued, that the law is to be interpreted similarly to other civil laws, rather than according to interpretations that were customary among the religious scholars in the period preceding the law’s legislation. It is further argued that the Ottoman legislature did not adopt the Maliki interpretation across the board and allowed itself to prescribe norms that diverge from this school of thought. For example, it is argued that the idea the law established, whereby the authority to dissolve the relationship is granted to the Qadi and not the arbitrators, deviates from Maliki law, as does the Qadi’s authority to appoint a third deciding arbitrator. The Petitioner’s attorney also refers to religious institutions in Muslim countries, such as Jordan, Egypt and Morocco, and even in the Palestinian Authority, where women were appointed in recent years to serve in the position of Qadis. The Petitioner’s attorney claims that according to the civil interpretation, Section 130 of the law is to be interpreted as allowing the appointment of a male or female arbitrator, based also on comparison with the provisions of the Mejelle, which deal with arbitration and grant the parties the freedom to choose the arbitrator acceptable to them.

 

9.The Petitioner’s attorney further claims that the Sharia court’s decisions are to be reversed as they are contrary to the Equal Rights for Women Act. According to the attorney, the Petitioner’s right to be heard (audi alteram partem) was impaired as her arguments regarding the appointment of the female arbitrator were not heard at all before the decisions of the Sharia courts were handed down.

 

10.In the supplementary arguments by the Petitioner, following the Sharia court giving its supplementary judgment, her attorney repeated the argument that the interpretation of Section 130 of the law must be separated from the Maliki school of thought and the law must be treated as an independent and modern statute. According to him, the Sharia courts have also not necessarily adhered to the Maliki school of thought in interpreting the law and that it has been ruled many times that the court has the authority to intervene and revoke the arbitrators’ judgment. He further argues that the Mejelle is based on the Hanafi school of thought and that that is how the residents of the country conducted themselves for several years, and therefore the rules of the Maliki school of thought should not be imposed upon them now. He states that no specific characteristics are required of the arbitrators other than them being acceptable to the parties.

 

The Respondent’s Arguments

 

11.The Respondent’s attorney claims first that the Petitioner’s right to be heard was not impaired since all her arguments were reviewed in writing before the Sharia Court of Appeals, which is not required to conduct oral hearings. As for Section 130 of the Family Law, he argues that this is part of the material-judicial-religious law that is based on the Quran. He presents references that the arbitrator is a judge of sorts who is somewhat inferior to a Qadi. The arbitrators’ authority to listen to the parties’ arguments, and even to rule on a divorce, indicates, so it is argued, their judicial position. The arbitrators’ authorities go to dissolving the relationship between the couple, and therefore their actions relate to the hard core of the laws of divorce. The Respondent’s attorney further states that the Court must accept the arbitrators’ judgment as long as it is not flawed. His conclusion is, therefore, that this is a religious judicial position that falls within the exceptions of the Equal Rights for Women Act. The Respondent’s attorney agrees that the Family Law was indeed legislated primarily based on the Hanafi school of thought, but it includes sections, such as Section 130, which were legislated based on the Maliki school of thought. Furthermore, he argues that the Court is authorized to appoint arbitrators without granting the parties the option of choosing arbitrators on their behalf. Finally, the attorney argues that this is not a case for the High Court of Justice to intervene.

 

12.In relating to the Sharia Court of Appeals’ supplementary judgment, the Respondent’s attorney reiterates his arguments and supports substance of the supplementary judgment. According to him, the Family Law is not a civil law, and contrary to the Mejelle, it is directly based on the Quran, which is a religious law. It is a lex specialis that prevails over the legi generali of the Mejelle. It is also argued that one must distinguish between arbitration under the Mejelle and arbitration under the Family Law. Arbitration under the Mejelle is pursuant to the parties’ desire and at their choice, while arbitration under the Family Law is mandatory by law and it is in fact the Qadi who is authorized to appoint. He further mentions that according to the Maliki school of thought, the arbitrators must be male.

 

The Position of the Attorney General

 

13.At our request, the Attorney General presented its position that the Family Law is a civil law that was legislated based on Sharia Law. During the Ottoman period it was applied to all of the subjects of the Empire irrespective of their religion, but since 1919 this law binds only the Sharia courts. The Family Law was primarily legislated based on the Hanafi school of thought, and it is turned to only upon a lacuna in the law. However, there are sections that were legislated based on other schools of thought, including Section 130, which is based on the Maliki school of thought. According to the Attorney General, the adoption of the Maliki school of thought in this context was apparently meant to benefit women, since this school of thought allows a woman to separate from her husband in broader circumstances and causes of action than the other schools of thought. According to this school of thought, the arbitrators must try to reconcile the couple that is in conflict, but should their attempts be unsuccessful, they have the power to separate the couple even without their consent. The arbitrators are further authorized to determine the sum of the dowry that the husband must pay the wife, according to the degree of fault by each party. The Attorney General clarifies that according to the Maliki school of thought the arbitrators are Qadis for all intents and purposes, and therefore, their ruling is final and binds the Qadi who is not authorized to intervene therein. Additionally, the arbitrator must be a man. However, there are schools of thought which relate to the arbitrators as representatives and allow a woman to be appointed to this position.

 

14.The Attorney General examines the two exceptions of the Equal Rights for Women Act. As for the exception regarding laws permitting or prohibiting marriage and divorce, the Attorney claims that there is doubt whether this exception applies. Indeed, according to the Maliki school of thought the arbitrators are authorized to dissolve the marriage, however, on the other hand it is not actual laws of divorce that are at hand, but rather the identity of those authorized to determine the divorce. According to the Attorney, it is doubtful whether the exception was meant to apply also to those authorized to implement the marriage and divorce laws. As for the exception regarding the appointment of a religious position pursuant to religious law, the Attorney General claims that according to the Maliki school of thought arbitrators have a somewhat judicial position that requires Sharia education. However he notes that this Court has ruled in the past that the arbitrators’ decision is not final and their decision is subject to the confirmation of the Sharia court, in which the court is also authorized to intervene. The Attorney General notes that the Sharia courts indeed do so de facto, similarly to the Hanafi school of thought. According to the Attorney General, these figures allegedly indicate that the exception does not apply to the appointment of the arbitrators. However, the Attorney General believes the exception also applies to religious positions that are not judicial. Since the position of the arbitrator was created by virtue of the Muslim religious law, it appears that the exception in the Equal Rights for Women Act does apply. The Attorney General adds that the Family Law grounds religious laws even if it was made by the Ottoman legislator which applied the law to all the subjects of the Empire.

 

The Position of the “Kayan” Organization

 

15.The "Kayan" organization emphasizes that the decisions of the Sharia court constitute an ultra vires act since they are contrary to the principle of equality and to the Equal Rights for Women Act. As for the exception regarding the appointment of a religious position according to religious law, the organization argues that it is to be interpreted narrowly, so that it shall only apply to actual religious or judicial positions. It is further argued that the arbitrator’s position is not a judicial or religious position and therefore does not fall within this exception. According to the provisions of the Family Law and according to the customary practice of Sharia courts, the arbitrators have the status of representatives of the parties and their recommendations are subject to the court’s confirmation. It follows that this is not a judicial position. According to the organization, these arguments were already accepted and ruled in the past, by this Court. The organization further adds that according to Sharia law and customary practice, the arbitrator can be any person whom either party chooses to appoint and that there are no criteria for such choice. The arbitrators can even be relatives of the couple. It is further argued that it is obvious that a relative, who lacks objectivity and independence in performing his duties, cannot accept a judicial position. Additionally, the Qadi is the one with the authority to confirm the marriage or to declare a separation between the parties. Scholars indicate that the Sharia court has deviated from the Maliki school of thought in all that relates to the roles of the arbitrator and has ruled that the court can reject the arbitrator’s judgment.

 

The “Kayan” organization further clarifies that it is its position that the arbitrator is not a religious position. There are no criteria for appointing an arbitrator, who may also be a relative, which indicates this is not a religious position. At issue, so it is argued, is a familial-social role that is intended to reconcile the couple. It also states that the Family Law is a civil law and argues that in any event the interpretation that minimizes the violation of the principle of equality should be chosen.

 

16.As for the exception relating to laws permitting or prohibiting marriage and divorce, the “Kayan” organization argues that since the arbitrator does not fulfill a judicial or religious position, and since the court is the one that rules on the divorce claim as it is permitted to reject the arbitrators’ recommendation, then this is not a matter of violating laws permitting or prohibiting divorce. The arbitrator has limited discretion that amounts to examining the fault of each of the parties and making a recommendation in the matter of the dowry.

 

17.In general, the “Kayan” organization further argues that preventing the appointment of a woman to the position of an arbitrator in a Sharia court critically violates women’s rights to dignity. It emphasizes that there is no relevant difference between men and women in terms of this position, and therefore, any distinction between them is improper. Furthermore, according to the organization, the appointment of women as arbitrators in necessary in order to realize women litigators’ right to self-expression, and so that they may have an arbitrator on their behalf who would listen to their inner-most feelings in such personal and sensitive matters, who would serve as a voice and a mouthpiece to the woman. Doing so would, in fact, prevent a double infringement, both to the arbitrating women and to the litigating women. Preventing the appointment of a woman as an arbitrator prejudices Muslim women’s access to Sharia courts and contributes to silencing their voice.

 

The Position of the Concord Center

 

18.The Concord Center focuses its arguments on the implications of international law on the case at hand. According to the Center, the Family Law and the Equal Rights for Women Act must be interpreted in light of the human rights conventions Israel committed to uphold. The Center mentions the International Convention for Civil and Political Rights, which protects the right of litigating parties to equality in civil legal proceedings. According to the Concord Center, the Sharia court’s interpretation violates this right, as it prevents one of the parties to the proceeding from exercising the litigating party’s right to choose the person who, pursuant to her discretion, will most efficiently represent her before the family council, while the other party benefits from the option of appointing such a person. According to the center, the said interpretation particularly violates women’s right to due process without discrimination. The disqualification of women to serve as arbitrators has negative implications for the status of women as litigating parties. Such disqualification signals to the litigating woman that her position is inferior to that of the man against whom she is litigating. Finally, the Concord Center argues that the Sharia court’s ruling excludes women in terms of public representation. Such exclusion is contrary to Israel’s commitment pursuant to Section 7(b) of the Convention on the Elimination of All Forms of Discrimination against Women, not to restrict women’s participation in the public arena.

 

Discussion and Decision – Intervening in the Judgment of Religious Courts

 

19.The religious courts, including Sharia courts, are independent judicial authorities with judicial jurisdiction in matters relating to personal status. As such, this court exercises narrow and limited judicial review to decisions of the religious courts, in accordance with that stated in Section 15 of Basic Law: The Judiciary:

 

15.       The Supreme Court

…

(c)        The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.

(d)       Without limiting the general applicability of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be authorized –

…

(4) to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction; provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at its earliest opportunity; and if he had no reasonable opportunity to raise the question of jurisdiction until a decision had been given by a religious court, the Court may cancel a hearing that was held or a decision given by the religious court without authority.

…

 

It has been repeatedly said that this Court does not sit as an instance of appeal on decisions of the religious courts. As such, and in light of the authorities granted to them by law, defined causes of actions were prescribed for this Court’s intervention in decisions by religious courts (HCJ 2578/03, Pachmawi v. Pachmawi, para. 17 (May 8, 2006)). Among such causes of action is the cause of action of ultra vires – the cause of action of violating the rules of natural justice; and the cause of action enshrined in Section 15(c) of Basic Law: The Judiciary, regarding granting relief for the sake of justice (HCJ 11230/05, Muasi v. The Sharia Court of Appeals in Jerusalem, paragraph 7 (March 7, 2007) (hereinafter: the “Muasi Case”). These causes of action, and particularly the latter two, could include various matters from both sides of the coin of justice, violation of the rules of natural justice on the one hand, and relief that shall be granted for the sake of justice, on the other hand. As for this latter cause of action, it has been said:

 

“The latter cause of action for intervention – ‘for the sake of justice’ – is a blanket cause of action which can cover various different matters. The crux of all these matters is the need to grant relief for the sake of justice in the circumstances of a given case, and there is no necessary internal logical connection between them” (HCJ 5227/97, David v. The Great Rabbinical Court of Jerusalem, IsrSC 55(1) 453, 458-459 (1998)).

 

20.An additional cause of action justifying this Court’s intervention in the religious court’s decisions is the court’s deviation from the provisions of a law directed to it. The question whether this cause of action falls within the ultra vires cause of action prescribed in Section 15(d)(4) of Basic Law: The Judiciary, or rather within the cause of action justifying intervention to grant relief for the sake of justice, prescribed in Section 15(c) of Basic Law: The Judiciary, has been raised in the court’s rulings. The different classification of the causes of action implicates the determination of the scope of this Court’s intervention:

 

“This distinction between the causes of the High Court of Justice’s intervention according to the different alternatives of Section 15 of Basic Law: The Judiciary, could implicate the scope and extent of the High Court of Justice’s intervention in the relevant judicial act. If at hand is a court decision that is ultra vires since it did not follow all of the specific details of the civil partnership rule, such decision would generally be overturned. On the other hand, if the matter is classified as a case where relief must be granted for the sake of justice, then there is extensive discretion to examine the essence of the result reached by the court, from a perspective of justice, even if all of the specific details of the civil law required in the path chosen to obtain it, were not strictly implemented.” (HCJ 2222/99, Gabay v. The Great Rabbinical Court, IsrSC 54(5) 401, 426-427 (2000)).

 

In any event, the proper classification has yet to be ruled upon by courts, and it appears that we, too, are not required to rule on the matter.

 

The Matter Before Us

 

21.As emerging from the petition before us, the cause of action that merits our intervention in the Sharia court’s decisions is that relating to the religious court ignoring provisions of law directed to it. The relevant statutory provision here appears in Section 1A(a) of the Equal Rights for Women Act, which prescribes as follows:

 

“There shall be one law for a woman and a man for purposes of every legal act; any statutory provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be followed.”

 

This statutory provision, which is also directed to the Sharia court, must be applied by the court, even if applying the religious law brings about different results:

 

“The actions of any court, which shall not act according to the law, shall be ultra vires. Because the Equal Rights for Women Act limited and restricted the authorities of the religious courts to act according to religious law, as they did before the Act’s legislation” (HCJ 187/54, Briya v. Qadi of the Muslim Sharia Court, Acre, IsrSC 9(2), 1193 (1955)).

 

Meaning, the religious court is not permitted to rule based on discriminating against the woman, at least as long as the exceptions to the application of the Equal Rights for Women Act do not apply, or as long as there is no other statute that trumps the provisions of the Equal Rights for Women Act (see HCJ 1000/92, Bavli v. The Great Rabbinical Court-Jerusalem, IsrSC 48(2), 221, 241 (1994) (hereinafter: the “Bavli Case”). It follows that should the Act apply to the case at hand, and the Sharia court reached a result that is contrary to this provision of the Law, and if there is no other law that implicitly overrides the provisions of the Equal Rights for Women Act, the petition is to be accepted and the decision of the Sharia court is to be overturned.

 

Therefore, first we shall have to examine whether the Act applies to Sharia court in the case before us, and whether the exceptions prescribed in it do not. To do so we must interpret the Act’s provisions, while elaborating on its fundamental principles and primarily on the principle of equality between the sexes. It is also necessary to elaborate on the essence of the Sharia court’s ruling in the matter before us. Should we find that the Act applies to the case at hand and that there is no other overriding statutory provision, it would be necessary to examine whether the Sharia court’s ruling violates it. Should the answer to this be in the affirmative, we shall examine the relief that should be granted to the Petitioner in this case.

 

The Principle of Equality Between the Sexes and the Equal Rights for Women Act

 

22.When the architects of the nation wrote the Declaration of Independence they promised to ensure “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. In doing so, they signed a bill for the benefit of the State, society and the women among it. A bill of promise of basic rights to life, liberty and equality. The State requested to honor the bill and in its early days legislated the Equal Rights for Women Act. The basis for the legislation of the Equal Rights for Women Act is, of course, the principle of equality between the sexes. The principle of equality constitutes one of the main foundations of our legal system and of the democratic rule, in general. The principle of equality is the soul of democracy. “Where there is no equality for a minority, there is also no democracy for the majority” (HCJ 6924/985, The Association for Civil Rights in Israel v. The Government of Israel, IsrSc 55(5) 15, 28 (2001) (hereinafter: the “Association for Civil Rights Case”)). This Court has emphasized the great importance of the principle of equality on many occasions, “setting its place in the center of the legal map and in the roots of all of the rules of law” (HCJ 6845/00, Niv v. The National Labor Court, IsrSc 56(6) 683 (2002) (hereinafter: the “Niv Case”); HCJ 2671/98, The Israel Women’s Network v. The Minister of Labor and Welfare, IsrSC 52(3) 630, 650-651 (1998) (hereinafter: the “Second Women’s Network Case”). Violating the principle of equality creates a double violation: both to the individual and to the public. Discrimination sends out a message of inferior status to the individual and to the discriminated group, and in doing so creates deep humiliation and violates the dignity of such individual or group (HCJ 4541/94, Miller v. The Minister of Defense, IsrSC 49(4) 94, 132 (1995) (hereinafter: the “Miller Case”); (HCJ 953/87, Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309, 332 (1988) (hereinafter: the “Poraz Case”). “Discrimination is an affliction that creates a sense of deprivation and frustration. It damages the sense of belonging and the positive motivation to participate in social life and contribute to it” (HCJ 104/87, Nevo v. The National Labor Court, IsrSC 44(4) 479, 760 (1990) (hereinafter: the “Nevo Case”). Equality is essential for society and for the social contract upon which it is built. Infringing the principle of equality means not only prejudicing the individual discriminated against or the group experiencing the discrimination, but also “derogating from the entire public interest, from the character of the society, the wellbeing of all those who comprise it” (HCJ 5755/08, Aren v. The Government of Israel, para. 4 of Justice E. E. Levy’s opinion (April 20, 2009) (hereinafter: the “Aren Case”)). It should be emphasized that the meaning of equality is, not relating differently to people who are not different in any relevant way. The existence of a relevant difference directly and concretely related to the purpose at hand, could, however, justify a permitted and legitimate distinction (the Miller Case, on pages 109-110; the Nevo Case, on page 754). It shall further be noted that the examination of discrimination is an objective examination which is not impacted by the existence or absence of the intent to discriminate (the Niv Case, on page 698; the Second Women’s Network Case, on page 654).

 

23.The principle of equality holds many meanings and various sub-principles. However, the core of the principle of equality, or as it is called “the principle of equality in the narrow sense”, includes a list of defined causes of action which are referred to as the classic causes of action of equality or the generic causes of action of equality. Among these causes of action is equality between the sexes. Violation of the principle of equality in the narrow sense in considered especially severe, and in many countries is even deemed a violation of a constitutional right (the Association of Civil Rights Case, on page 27). “Discrimination due to religion, race, nationality or sex is among the most severe forms of discrimination”, and “the prohibition of sex discrimination – the prohibition of discrimination against women – became one of the strongest leading principles of Israeli law” (the Niv Case, p. 683; 689). Sex discrimination is a form of discrimination with which many of the world’s countries are dealing, and which requires eradication of prejudices and perceptions that were common in human society as to the essence of the differences between the sexes:

 

“Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was grounded in human society as part of a perspective that for generations viewed the status of women as inferior and without rights. The granting of rights to women has developed step by step. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is taking place in various arenas and with a range of weapons. It occupies a place of honor in literature, philosophy, articles, the media, political frameworks and various public arenas.” (the Miller Case, p. 122; see also Justice Dorner’s review there, p. 129).

 

24.The principle of equality, in general, and the principle of equality between the sexes, in particular, have both been recognized in the State of Israel, since the birth of the State of Israel. The declaration of independence establishes the new state’s commitment to maintain “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. Not long after the Basic Laws were enacted, the principle of equality was recognized as a constitutional principle that is encompassed within human dignity – in its narrow model – and therefore, is protected by Basic Law: Human Dignity and Liberty. The position that was voiced was that the equality that is constitutionally protected is that whose violation amounts to humiliation. Sex discrimination was recognized as humiliating discrimination, and therefore a violation of a constitutional right (the Miller Case, p. 110, 132). It shall be noted that today an interim model has been adopted in the rulings of this Court, whereby “discrimination that does not involve humiliation may also be included within the boundaries of human dignity, provided it is directly related to human dignity as an expression of personal autonomy, freedom of choice and freedom of action, and such other aspects of human dignity as a constitutional right” (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, para. 38 of President Barak’s opinion (2006); HCJ 4948/03, Elhanati v. The Minister of Finance, IsrSc 62(4) 406, para. 17 of Justice Hayut’s opinion (2008) (hereinafter: the “Elhanati Case”).

 

25.Israeli courts’ jurisprudence has, for many years, dealt with discrimination against women in various fields. The courts have constructed the roof beams upon the foundations laid by the legislature. Step by step, courts are taking strides towards eradicating discrimination against women, at least at the declarative and normative levels. The court applies the duty not to discriminate first and foremost to government authorities, “however since it derives from the fundamental principles of fairness and good faith that formulate any social contract and any jurisprudence that stem from them, the forms of the right to equality are not absent in the fields of private law” (the Elhanati Case, para. 17 of Justice Hayut’s opinion). Over the years, the legal system has played an important role in advancing the status of women in society and in realizing the aspiration towards an egalitarian society in which each individual has the opportunity for self-fulfillment, and realizing their capabilities, their desires and aspirations. The Court has not been deterred from intervening in and overturning decisions and actions that were afflicted by sex discrimination, in all walks of life, in a broad and varied list of matters: in the field of employment and wages (the Nevo Case; HCJ 1758/11, Goren v. Home Center (Do it Yourself) Ltd., (May 17, 2012); the Niv Case); in the matter of appropriate representation for women (the Aren Case; HCJ 5660/10, Itach-Women Lawyers for Social Justice Organization v. the Prime Minister of Israel, (August 22, 2010); HCJ 453/94, The Israel Women’s Network v. The Minister of Transportation, IsrSC 48(5) 501 (1994) (hereinafter: the “First Women’s Network Case”); the Second Women’s Network Case; NLC 33/3-25, Air Crew Flight Attendants Committee - Hazin, IsrLC 4 365 (1973)); in the military and security field (the Miller Case); in the family law field (developing the partnership presumption – see for example CA 1915/91, Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995); FC 4623/04, Anonymous v. Anonymous, IsrSC 62(3) 66 (2007); during pregnancy, birth and parenting (HCJ 11437/05, Kav Laoved v. The Ministry of Interior, (April 13, 2011)); and more. “The equal status of women within the principle of equality is not solely formal and it must span over all the arenas of our life in a practical and real way” (the Poraz Case, p. 342). The meaning of all of the above is that we hear the sounds of equality but still do not see it in full. There are still things to be done, improved and advanced, and the Court has an important and significant role in this matter.

 

One of the sensitive fields in which the court must deal with discrimination against women is that field which directly or indirectly relates to matters of religious law, religion and state. Indeed, the Court has, on more than one occasion, addressed the principle that prohibits discrimination against women because of their sex, in this field as well, and has overturned decisions afflicted by such discrimination. Thus, this Court intervened in the matter of training and appointing female rabbinical pleaders when it appeared that the relevant institutions were attempting to make it difficult for them in order to prevent such positions from being performed by women (HCJ 6300/93, “Hamachon Lehachsharat Toanot Beit Din” v. The Minister of Religious Affairs, IsrSC 48(4) 441 (1994) (hereinafter: the “Rabbinical Pleaders Case”); thus, a petition to order that the female petitioner be added to the Religious Council in Yerucham, after such candidate was disqualified merely because she was a woman, was accepted (HCJ 153/87, Shakdiel v. The Minister of Religious Affairs, IsrSC 42(2) 221 (1988) (hereinafter: the “Shakdiel Case”); and thus it was ruled that a local authority is not permitted to avoid selecting a woman as a representative to the meeting electing a city Rabbi, merely because she was a woman (the Poraz Case).

 

26.However, this is a field in which discrimination against women at the declarative and principle level, too, still remains. This is partly protected by legislation, and the Court must maneuver its way in a manner that respects the legislator’s decisions, but with maximum commitment to the basic principle and constitutional right of equality for women. This is particularly true when at hand are public and state institutions whose services are required by the entire public who cannot avoid such institutions’ services. The perspective regarding discrimination against women shall be different for a member of a community that chooses to belong to it and to accept its rules and the rulings of its institutions, than for a public institution which the public cannot choose whether or not to need its services (see Ruth Haplerin-Kaddari, More on Legal Pluralism in Israel, 23 559, 570 (5760)). It is clear that as every right, the right to equality between the sexes is also not absolute and at times requires balancing with additional interests and rights. However, a violation of equality between the sexes shall have to comply with the tests of the Limitation Clause prescribed in Basic Law: Human Dignity and Liberty (HCJ 11163/03, Vaadat Hamaakav Haelyona Leinyanei Haaravim Beyisrael v. the Prime Minister of Israel, IsrSC 61(1) 1, para. 22 of President Barak’s opinion (2006); the Miller Case, p. 138).

 

27.When we focus on religious courts, the difficulty is exacerbated, since discrimination is inherent to these institutions’ system. This is primarily because only men are being appointed to judicial positions, the appointment to which is allegedly protected by the Act, as we shall see below. Additionally, repeated arguments are heard that the religious law itself often creates discrimination against women, and that at the very least, in terms of results, there is often some kind of propensity against women in these institutions (see for example, Frances Raday, Religion and Equality: Through the Perspective of Jurisprudence, 341, 381, 386 (Vol B, 5760); Frances Raday, On Equality, 19 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995); Shirin Batshon, (Kayan Organization, 2012); Aharon Layish, The Status of the Muslim Women in the Sharia Court in Israel, 364 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995) (hereinafter: Layish); Pinchas Shipman, Rabbinical Courts: Where Are They Heading, 2 523 (5755); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gap between Them: Response to Yechiel Kaplan and Ronen Perry, 28 871, 875, 890 (5765)). It shall be emphasized that it is important to maintain the sense of equality and egalitarian results particularly in these institutions, which deal with most sensitive matters of family law, and already often reflect a struggle between the sexes. In any event, the principle of equality also applies in religious courts, subject to the exceptions that were prescribed in the Act (the Shakdiel Case, on page 278). Hence, the role of the state and the government systems, with the support and intervention of this court, is to try, to the extent possible, to balance the said picture, so that women who require the services of these institutions feel they are equal and that they receive the same treatment given to men. For example, one can encourage the appointment of candidates to judicial positions, who besides their professional skills, are supported by women’s organizations (see my remark in HCJ 8756/07, Amutat “Mavoi Satum” v. The Committee for the Appointment of Religious Judges (June 3, 2008)); additionally, one can promote the appointment of women to managerial and administrative positions in the religious courts themselves (see HCJ 151/11, The Ruth and Emanuel Rackman Center for the Advancement of Women's Status v. The Ministry of Justice, (December 27, 2011)); one can also enable and encourage women to fill various positions in religious courts that do not represent the court itself, such as was done with respect to female Rabbinical pleaders in the Rabbinical Courts (the Rabbinical Pleaders Case). This is also the point of departure when examining the appointment of female arbitrators in Sharia courts. Having said that, we must examine the matter in light of the provisions of the Equal Rights for Women Act.

 

The Equal Rights for Women Act, Its Exceptions and Interpretation

 

28.Along with the work done by case law in advancing equality between the sexes, the legislature did not stand still either. Over the years, commencing from shortly after the establishment of the State and until this very day, statutes have been legislated with the purpose of protecting women from sex discrimination. First on the list of these laws is the Equal Rights for Women Act, which was legislated in as early as 1951, and which we discuss in further depth below. Additionally, the Authority for the Advancement of the Status of Women Act, 5758-1998, and the Local Authorities (Advisor for the Advancement of the Status of Women) Act, 5760-2000, were legislated with the general purpose of advancing equality between men and women in Israel. In the area of employment the following statutes and provisions were legislated: section 42(a) of the Employment Service Law, 5719-1959; the Equal Employment Opportunity Act, 5748-1988; the Equal Pay for Female and Male Employees Act, 5724-1964, which was replaced by the Equal Pay for Female and Male Employees Act, 5766-1996; and the Encouragement of Advancement and Integration of Women in the Workforce and the Adjustment of Workplaces for Women Act, 5768-2008. The Women’s Employment Act, 5714-1954, which was intended to protect women in the workplace was also legislated. Sections intended to obtain appropriate representation of women in various institutions and bodies were also legislated (see Section 18A of the Government Companies Act, 5735-1975; Section 4(b) of the Senior Citizens Act, 5750-1989; Sections 8(b)(3) and 16(c) of the National Laboratories Accreditation Authority Act, 5757-1997; Section 63(a)(3) of the Sewage and Water Corporations Act, 5761-2001; Section 15A of the State Service (Appointments) Act, 5719-1959; Section 11(d) of the National Battle Against Road Accidents Act, 5757-1997; see also the Niv Case, on page 686; the Second Women's Network Case, on pages 652-654). One of the long-standing and general statutes in this matter is the Equal Rights for Women Act, which stands at the heart of this petition, and on which we shall now focus.

 

29.As stated, the Equal Rights for Women Act was legislated in as early as 1951, and its purpose was to maintain “complete and full equality for women – equality in rights and obligations, in the life of the state, society and market and in the entire network of laws” (see the Equal Rights for Women Bill, 5711-1951, on page 191). The Act was recognized by this Court as having a special status, superior to ordinary laws. As such, it was referred to by President Barak as a “royal” law (the Bavli Case, p. 240), and Justice Zilberg emphasized that “this law is not like another ordinary law! This is an ideological, revolutionary law that changes social order” (HCJ 202/57 Sides v. The President and Members of the Great Rabbinical Court, Jerusalem, IsrSc 12 1528, 1537 (1958)). The Law is directed at all of the government authorities as well as all of the judicial instances, and religious courts were explicitly obligated to act accordingly (see Section 7 of the Act and the Bavli Case, p. 240). In 2000, a purpose statement was added in the following section:

 

1.Purpose of the Act

The purpose of this Act is to set principles for the assurance of full equality between women and men, in the spirit of the principles of the Declaration of Independence of the State of Israel.

 

It shall be noted that within that same amendment from the year 2000 the exception provided in Section 7(c), upon which we shall elaborate further below, was also added (see Equal Rights for Women (Amendment no. 2) Act, 5760-2000). The Act’s center of gravity, in my opinion, is located in the general and broad provision anchored in Section 1A of the Act, pursuant to which “There shall be one law for a woman and a man for the purposes of every legal act.” This section has been interpreted broadly as anchoring women’s right to equality not only regarding any legal act, but also regarding any legal aspect whatsoever (see Civil Appeal 337/61, Lubinski v. The Assessment Officer, Tel Aviv, IsrSC 16 403, 406 (1962); the First Women’s Network Case, p. 522, the Poraz Case, p. 335). It is further important to emphasize that this is a declaratory and descriptive statue rather than one that is constitutive, since the principle of equality between the sexes existed before the Act was legislated (see the Niv Case, p. 686). An interesting question then follows – what will the impact of the principle of equality on the matter be should we determine that the Equal Rights for Women Act does not apply to the case at hand (see the Shakdiel Case, p. 277). In any event, as we shall see below, we need not rule on this issue here. However, I find it appropriate below to add a few words on it.

 

30.The Equal Rights for Women Act applies broadly. Section 7(a) provides that every governmental authority is obligated to honor the rights detailed in the Act. Section 7(b) expands this application to all courts and tribunals competent to address matters of personal status as well, unless all parties agree to litigate according to the laws of their community. However the law establishes two central exceptions to its applicability, both of which relate to religious courts. Section 5 of the Act provides that “this Act shall not infringe any legal prohibition or permission in connection with marriage and divorce”. Section 7(c), which, as mentioned, was added to the Act in the legislative amendment of 2000, provides that:

 

The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

31.In light of the Act’s objective, its unique status and the principles upon which it relies, it is my opinion that the Act should be interpreted broadly while the exceptions provided in the Act should be interpreted narrowly. This approach follows this Court’s jurisprudence that legislation that violates basic human rights should be interpreted narrowly, based on the assumption that the Act’s provisions are not intended to violate the principle of equality (the Miller Case, p. 139; the Nevo Case, p. 763; the Shakdiel Case, p. 273; the Poraz Case, p. 322). This is all the more relevant when the principle of equality under the Equal Rights for Women Act is concerned:

 

“In this case even more weight should tip the scale in favor of the Equal Rights for Women Act. This law reflects an important and central value, a principle that formulates life in our state as a civilized state. The Equal Rights for Women Act declares a value that should encompass our entire legal system. Therefore, as long as nothing explicitly contradicts this law, an interpretation that corresponds with the principle of equality between the sexes should be preferred” (the Nevo Case, p. 764).

 

This approach certainly corresponds with the general objective of the Act, as is explicitly provided in Section 1 of the Act, which addresses securing full equality between men and women, explicitly provides. It is appropriate in a democratic state that honors human rights, in general, and equality between the sexes, in particular, and is all the more relevant when an interpretation relating to state and public institutions that serve the entire public is concerned. This approach also addresses the need to interpret the provisions of the Act in light of the spirit of Basic Law: Human Dignity and Liberty, which protects women from discrimination (see the Miller Case, p. 138).

 

32.The exceptions that are relevant to the case at hand appear, as mentioned, in Section 5 and Section 7(c) of the Equal Rights for Women Act. Pursuant to Section 5 of the Act we must examine whether the appointment of a female arbitrator according to Section 130 of the Family Law violates laws permitting or prohibiting marriage or divorce in Muslim law. Pursuant to Section 7(c) of the Act, we must examine whether the appointment of arbitrators is an appointment to a religious position according to religious law or an appointment to a judicial position in a religious court. In order to examine whether or not the case before us falls under the said exceptions, we must first elaborate on the legislative framework in Sharia law that applies to the matter at hand and understand its essence.

 

Arbitrators in Sharia Law and Section 130 of the Family Law

 

33.Before turning to understanding the matter that was presented to the Sharia Court, I shall state in general that the authority of the Sharia courts stems from Section 52 of the King’s Order in Council that grants Sharia courts exclusive jurisdiction to address matters of personal status of Muslim Israeli citizens. The matters of personal status also include matters of marriage and divorce pursuant to Section 7 of the Act of Procedure of the Muslim Religious Courts 1933 (see S. D. Goitein and A. Ben Shemesh The Muslim Law in the State of Israel 42, 276 (1957) (hereinafter: “Goitein and Ben Shemesh”)). It shall be noted that the Family Matters Court Act, 5755-1995, was amended in 2001 to grant parallel jurisdiction to the family matters courts to address personal status matters of Muslims, except matters of marriage and divorce (see HCJ 2621/11, Anonymous v. The Sharia Court of Appeals in Jerusalem, para. 13 (December 27, 2011)). The matter before us, which addresses the divorce of a couple, is, indeed, still in the exclusive jurisdiction of the Sharia court.

 

34.The law that applies to this case is the Ottoman Family Law. The Family Law was legislated by the Ottoman regime and its purpose was to regulate the family laws that would apply to all citizens regardless of their religion. In 1919, the British Mandate adopted the law in the framework of the Muslim Family Law Ordinance, but limited its applicability to Muslims only. The statute’s provisions address matters of marriage and divorce, and the drafters of the law adopted various laws from various schools of Muslim thought – the Hanafi, the Shafi, the Maliki and the Hanbali – in an attempt to choose the rules most appropriate for the twentieth century (Goitein and Ben Shemesh, p. 213; Layish, p. 371).

 

35.The parties before us disagree on whether the Family Law is a religious or civil law. The Family Law was legislated by the Ottoman legislature and was even intended to apply to all citizens of different religions, allegedly indicating that the law is “civil”. The Family Law does not adopt each and every rule of the Quran. For example, there are forms of termination of marriage which appear in the Quran and which were not expressed in the Family Law (see Goitein and Ben Shemesh, p. 139). The Ottoman legislature even took the liberty to select various rules from different schools of thought in Muslim law, as a sign of the times, as it deemed fit. However, the Ottoman legislature did not create rules out of nowhere, but rather, even if in a mixed manner and as per its civil discretion, anchored rules from the various schools of thought which are ultimately based on the Sharia and the Quran (see Iyad Zahalka, The Identity of the Sharia Courts in Israel, in 75 (edited by Liat Kozma, 2011)). It follows that I am willing to assume that the Family Law is a law that is religious in its essence (however, see Moussa Abu Ramadan, The Status of the Ottoman Family Law” in 49 (edited by Liat Kozma, 2011) (hereinafter: “Abu Ramadan”).

 

36.The section the Sharia court applied in this case is Section 130 of the Family Law, which reads as follows, as translated by Goitein and Ben Shemesh:

 

“If arguments and disagreements erupt between a couple, and one of them approached a judge, the judge shall appoint two arbitrators from the couple’s families and if arbitrators from among the relatives are not found or do not have the required characteristics, the judge shall appoint appropriate arbitrators not from among the relatives. A family panel of such composition shall listen to the parties’ complaints and arguments and shall try, to the best of its ability, to reconcile them. If this is not possible because of the husband, they shall rule that the marriage be untied, and if because of the wife, they shall also revoke her right to the entire dowry or a portion thereof. If the arbitrators cannot agree among themselves, the judge shall appoint appropriate arbitrators in a different composition, or a third arbitrator not from among the relatives. The decision of such persons shall be final and non-appealable.”

 

The section anchors an additional way of dissolving the marriage in the event that disputes emerge between the couple. Each one of the couple may demand that a family “panel” or “council” be established and that it shall be comprised of one representative from the husband’s family and one representative from the wife’s family. The council must attempt to reconcile the couple, but if they do not succeed, they must rule to untie the marriage and determine the scope of the dowry to be paid (the Muasi Case, para. 9). If the first arbitrators that were appointed do not agree among themselves, additional arbitrators must be appointed or a third arbitrator must be appointed to decide (HCJ 9347/99, Hamza v. The Sharia Court of Appeals in Jerusalem, IsrSC 55(2) 592, 597 (2001) (hereinafter: the “Hamza Case”).

 

37.The different schools of thought in Sharia law viewed the role of arbitrators differently. As the Sharia court stated in its decision here, the Maliki school of thought allows arbitrators to dissolve the marriage themselves without the involvement of the Qadi, and they serve as a kind of Qadi themselves. According to this school of thought, the arbitrators must be male adults. In contrast, the Hanafi school of thought, along with other schools of thought, views the arbitrators as representatives of the parties, and therefore there is nothing preventing the Qadi from intervening in their decision. According to these schools of thought, a woman can be appointed as an arbitrator (see also Moussa Abou Ramadan, Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003), 13, 2 / (2006) (hereinafter: Abou Ramadan); Abu Ramadan, p. 61).

 

38.The matter of interpretating Section 130 of the Family Law was already brought before this Court in the Hamza Case, which addressed how to interpret the end of the section that “the decision of these people shall be final and is non-appealable.” This Court interpreted the section to mean that after the arbitrators completed their role, the matter is handed to the Sharia court to make its decision, and it has the discretion whether or not to adopt the arbitrators decision:

 

“It is my opinion that the proper interpretation of the sentence in dispute is that the finality mentioned therein means that from that stage, the matter is transferred to the decision of the Sharia court that appointed the arbitrators. At this stage, the arbitrators have completed their role, and the Sharia court is to have its say. The sentence uses the phrase “the decision of these people.” “These people”: the arbitrators, and the finality means that their decision is final, in the sense that their decision is the last decision to be given in by arbitrators before the Sharia court has its say. The arbitration proceeding pursuant to Section 130 has been exhausted and from this stage the Sharia court must rule in the dispute with the arbitrators’ decision before it. This does not mean that the Sharia court cannot return the matter to the arbitrators. But as of this stage, the arbitrators have completed their work, the decision is “final”, and the matter is transferred to the Sharia court for it to reach a decision.

This interpretation accords with the fact that in order for a separation between the couple to be valid, a Sharia court judgment is required. The arbitrators’ decision in and of itself does not dissolve the marriage. Only once a judgment by the court is handed down can the divorce be registered under the law (Section 131 of the law). It is unreasonable to interpret the sentence in dispute such that even though the court must issue a judgment, it does not have the discretion whether or not to accept the arbitrators’ decision. Only an explicit statement that the Sharia court is bound by the arbitrators’ decision and has denied the authority to rule in the matter, could bring about such an extreme result. Therefore the correct interpretation is that the arbitrators’ decision is final, on the arbitration level, but does not derogate from the regional Sharia court’s authority to consider the merits of the arbitrators’ decision and decide whether or not to adopt it” (the Hamza Case, p. 598).

 

According to this interpretation, the final authority to confirm a divorce judgment is granted to the Sharia court. The arbitrators’ decision itself does not dissolve the marriage, and the Sharia court must exercise its discretion and decide whether to adopt the arbitrators’ decision, reject it or accept it in part. The parties may raise arguments against the arbitrators’ decision before the Sharia court and the Sharia court has the authority to accept such or other arguments. It is the one that makes the final ruling in the dispute before it. It shall be noted that in its ruling, the Court also relied on the customary practice in Sharia courts, whereby the Sharia courts have consistently ruled that they have the authority to intervene in the arbitrators’ decision:

 

“One can see that the Sharia court intervenes in the arbitrators’ conclusion when it finds that it does not accord with the facts of the case or is not based on sufficiently solid evidence. It can further be seen that in certain circumstances the court sends the case back to the arbitration level. Meaning, it also emerges from the customary practice that the court has the authority to intervene in the arbitrators’ decision, and that this is how the sentence that is in dispute is interpreted." (The Hamza Case, p. 600).

 

This case law has indeed since been implemented by this Court (the Muasi Case).

 

 

 

Applying the Exceptions of the Equal Rights for Women Act on the Appointment of Arbitrators

 

39.After elaborating on the Equal Rights for Women Act, its purpose and the manner it is interpreted, as well as on the essence of the matter before us, it is now time to examine whether the exceptions in the Act apply to the appointment of arbitrators under Section 130 of the Family Law. The first exception is that in Section 5 of the Act whereby “this Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” In this matter I agree with the Attorney General’s position that this section was intended to apply to the content of the religious law itself that regulates the matters of divorce and not to the laws that apply to the persons having the authority to implement such laws. This explicitly emerges from the language of the section that deals with the prohibition and permission laws.

 

Furthermore, as mentioned, in my opinion the exceptions in the Act should be interpreted narrowly and thus the interpretation which relates only to the content of religious law, as implied by the language of the section itself, must be preferred. Section 7(c) of the Act also supports this interpretation, since it addresses the persons holding the positions that implement the religious law. The logical conclusion is that Section 5 does not address those in these positions. However, I shall leave instances where a certain appointment in and of itself results in violating laws prohibiting and permitting marriage or divorce for future consideration. In the case of the appointment of arbitrators, at hand is an appointment to a position that exercises authorities related to divorce and not to the actual law that regulates divorce. Additionally, as we saw, there are schools of thought in Sharia law which allow women to be appointed as arbitrators. So the question left for future consideration does not arise. Hence, the conclusion is that the exception in Section 5 does not apply to the case at hand.

 

40.The main exception on which the litigating parties focused, is in Section 7(c) of the Equal Rights for Women Act, and in light of its importance I found it appropriate to restate it here as well:

 

(c)        The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

The section effectively includes two exceptions, and we must explore the application of both here. The first addresses the “appointment to a religious position under religious law,” and the second addresses the “appointment of holders of judicial positions in religious courts.” On its face, according to the Act’s language the second exception is encompassed by the first exception, but we shall examine each exception separately.

 

41.Is the appointment of arbitrators an appointment to a religious position under religious law? As mentioned, I am willing to assume that the Family Law is a religious law and therefore the end part of the exception applies. This assumption is not free of challenges, because this Act was legislated by a civil legislature and was absorbed into our general system of laws (see Abu Ramadan). However, we shall leave this assumption in place, since in any event I am of the opinion that one cannot say we are concerned with a religious position. The legislature did not exclude any appointment to a position under religious law, but rather only the appointment to a religious position under religious law. This distinction by the legislature is significant. I find much logic in this distinction. There can be an appointment to an administrative position under religious law. Why should such an appointment be excluded from the provisions of the Act? I believe that the expression “religious position” must be interpreted as a position in which some level of professionalism and expertise in religious law and the exercise of such law in the course of the position are required (see the Shakdiel case, p. 274: “Indeed, there is nothing in the Religious Services Act that indicates that only religious and legal scholars should serve on religious councils, and in principle even a non-religious person is qualified to serve on the council”). The more professionalism and expertise in religious law are required for the position and the more religious law is actually exercised in the course of the position, the more we will tend to perceive the position as a religious position, and vice versa.

 

The appointment of arbitrators pursuant to Section 130 of the Family Law does not meet such definition at all. The arbitrators, as we have seen, are representatives of the disputing couple’s relatives. They are not required to have any familiarity with religious law, skills, understanding or qualification in this law. They have no professionalism or expertise in exercising the religious law. Even according to the Maliki school of thought, the characteristics are unrelated to the religious matter (for example, it is required that the arbitrators be fair, mature, adult persons who are not slaves, are not corrupt, are not wastrels and are not atheists. It is preferable that they be relatives or neighbors and in any event that they be aware of the problems between the parties. See Abou Ramadan, p. 264-265). Furthermore, the arbitrators are not required to implement religious law in the course of their position. All they are required to do is act according the provisions of the section – to try to reconcile the couple, and when unable to do so, they must rule a divorce while determining which party is at fault, and accordingly, the scope of the dowry. Once they encounter any problem they must turn to the Sharia court for instructions (see the Muasi Case, paragraph 13).

 

The conclusion is, therefore, that the appointment of the arbitrators is not a religious appointment under religious law, and therefore is not included in this exception.

 

42.Is the appointment of arbitrators an appointment to a judicial position in a religious court? I believe that the answer to this question is also in the negative. On its face, it appears that the section’s interpretation must be limited only to holders of judicial positions in actual religious courts, such as rabbinical judges or Qadis. However, even were we to assume that the exception should be interpreted more broadly, it would not cover the appointment of arbitrators pursuant to Section 130 of the Family Law. As mentioned, in the Hamza Case the Court held that the arbitrators’ decision is not final and is subject to the Sharia court’s absolute discretion. In practice, Sharia courts intervene in the arbitrators’ rulings (see Abu Ramadan, p. 61). It follows that even pursuant to Section 130 of the Family Law the judicial position to rule the divorce is granted to the Qadis in Sharia courts, and not to arbitrators. While arbitrators are important auxiliary tools for Qadis in ruling in the dispute between the couple, they do not make the final decision and they have no authority to divorce the couple without receiving material confirmation from the Sharia court of such decision. The conclusion is that arbitrators cannot be perceived as holding any judicial position whatsoever. It shall be further noted that contrary to holders of a judicial position, arbitrators are not an objective party in the dispute, but rather an involved party, that is generally appointed from among the relatives and as per the desire of the parties in dispute, and therefore, their position cannot be perceived as a judicial position.

 

Hence, Section 7(c) does not apply to the appointment of arbitrators pursuant to Section 130 of the Family Law.

 

43.It emerges from the above analysis that the exceptions provided in the Equal Rights for Women Act do not apply to the case at hand. It follows that the Sharia court should have ruled in this case according to the provisions of the Act that there shall be one law for a woman and a man. The parties before us did not, in fact, dispute the fact that the ruling of the Sharia court was contrary to this provision. None of the parties even raised an argument that there are contrary or conflicting interests in the matter. In my opinion it cannot be said that Section 130 of the Family Law intended for the provisions of the Equal Rights for Women Act not to apply. First of all, the Equal Rights for Women Act was legislated after the Family Law. Secondly, there is not even a hint in the section implying the intention of the law not to allow the appointment of female arbitrators. Furthermore, the purpose of the section supports the appointment of female arbitrators according to the parties’ desire. The arbitrators are meant to represent the parties. They are meant to try to reconcile the couple, and if this is unsuccessful, to determine fault in the dissolution of the couple’s relationship. As such, it is proper to allow the couple to choose an arbitrator who shall be acceptable to them and with whom they are comfortable. Indeed, the Sharia court, as occurred in the case at hand, approaches the couple and allows them to choose an arbitrator on their behalf who shall be approved by the court. Since we are concerned with a dispute between a couple, in a system that is generally patriarchal, it should not come as a surprise that a woman would, at times, prefer to appoint a woman, rather than a man, as arbitrator on her behalf (and of course the man may as well). Perhaps by appointing someone who is acceptable to each of the parties and with whom they are comfortable, the chances of reconciling the couple increase. Similarly, maybe the chances of reaching the correct decision regarding each party’s fault in the dissolution of the relationship and the scope of the dowry would also increase. It follows that the objective of the section also indicates the need to allow a female arbitrator to be appointed.

 

The conclusion that emerges from all of the stated above is that the decision by the Sharia court is to be overturned as it ignored the provisions of the Equal Rights for Women Act. Before I turn to examine the relief, I would like to add one additional remark beyond the necessary scope here.

 

44.It is possible that we would have reached the same result even had we assumed that the Equal Rights for Women Act does not apply to this case. Religious courts, as all judicial tribunals and government authorities, are subject to the fundamental principles of the system, including the principle of equality, which has been consistently implemented in the rulings of this Court. As I mentioned, the principle of equality between the sexes was not born of the Equal Rights for Women Act, but rather only received practical and declarative grounding. Therefore, religious law must also be exercised while taking the fundamental principles of the system, in general, and the principle of equality, in particular, into consideration, to the extent possible within the limitations of the religious law itself. As President Barak stated “There is equality in the application of the principle of equality” (the Shakdiel Case, p. 278; see also the Bavli Case, p. 248). Thus, Basic Law: Human Dignity and Liberty provides that “All governmental authorities are bound to respect the rights under this Basic Law” (Section 11). In my opinion, the implication of this provision is that if there is a customary school of thought in the religious law that conforms to the principle of equality, the religious court must prefer it over a different school of thought in the religious law that does not conform to such principle.

 

45.As I specified above, there are a number of customary schools of thought in Sharia law which religious courts as well as the Ottoman legislature applied in a mixed fashion, without any absolute commitment to one school of thought or another (see also Goitein and Ben Shemesh, p. 24). Indeed, part of the Family Law is based on the Maliki school of thought that only allows appointment of male arbitrators. However, there is also the Hanafi school of thought which is customary in the Muslim world and upon which the Mejelle is based (Goitein and Ben Shemesh, p. 4). Even most of the Family Law is based upon it (Iyad Zahalka 115 (2009)). It allows the appointment of female arbitrators (and it shall be noted that it also allows the appointment of female Qadis). In my opinion, given the principle of equality, the court should have preferred the school of thought that fits this principle over the school of thought that denies it. Especially given that in fact the Sharia courts actually conduct themselves in a manner similar to the Hanafi school of thought, since they do not relate to the arbitrators’ decision as final, but rather exercise their discretion whether or not to confirm it.

 

46.It shall be further emphasized that I do not accept the argument that should it be decided to appoint a female arbitrator similar to the Hanafi school of thought, the Sharia court will have to also adopt the causes of action for divorce of such school of thought, which are more stringent against the wife (see Goitein and Ben Shemesh, p. 141). First of all, as mentioned, the law combines laws from different schools of thought, and therefore there is nothing preventing the appointment of arbitrators under the Hanafi school of thought, meaning allowing a female arbitrator, while the causes of action of divorce shall be determined under the Maliki school of thought, which is more friendly toward women, as has been done so far. The causes of action of divorce have nothing to do with the characteristics of the arbitrators. Secondly, the causes of action of divorce have already been grounded in the Family Law, and it is impossible to derogate from those that are grounded in the law and are customary today as per the rulings of the Sharia court (see CrimAppeal 353 Al-Fakir v. the Attorney General, PD 18(4) 200, 221 (1964)).

 

Summary and Relief

 

47.As we have seen, the exceptions of the Equal Rights for Women Act specified in Sections 5 and 7(c) of the Act, do not apply to the appointment of arbitrators under the Family Law. It follows that the Sharia court should have taken the provisions of the Act into consideration and it failed to do so. Taking the provisions of the Equal Rights for Women Act into consideration would have led to the result that it is possible to appoint female arbitrators, and in turn to the approval of the arbitrator suggested by the Petitioner. The conclusion that follows is that the Sharia court’s decision is overturned. The case shall be remanded to the Sharia court for the arbitration process to continue, while granting the Petitioner the option to choose a female arbitrator on her behalf. Hopefully this may open a window to equality and prevent discrimination among officers in this field.

 

Should my opinion be heard, the petition would be accepted. The Respondent would pay the Petitioner’s costs in the amount of NIS 15,000.

 

 

 

Justice

 

 

Justice M. Naor

 

1.I agree with my colleague, Justice Arbel’s extensive judgment.

 

2.At the basis of the Sharia Court of Appeals’ reasoned decision is the approach that arbitrators are Qadis. The Sharia court summarized its approach in Section 12 of the reasoned judgment dated June 18, 2012, as follows:

 

“12.     In summary, arbitrators pursuant to Section 130 of the law are Qadis and not representatives, and the judgment regarding the dissolution of a marriage is in their hands, and the Qadi's authority is to confirm their judgment. As for the monetary rights, the dowry resulting from the dissolution, the Qadi has the authority to alter the judgment of the arbitration panel and rule that the wife receive the entire dowry in the absence of a Sharia cause of action to reduce it, and the sole purpose is to prevent prolonged litigation” (my emphasis – M.N.)

 

3.Accepting this approach that the judgment regarding the dissolution of the marriage is in the hands of the arbitrators and that the Qadis’ authority is solely to confirm the arbitrators’ ruling, could, in other cases, lead to severe results. Where Qadis conclude the facts of the case do not justify the arbitrators’ ruling that the marriage is to be dissolved, are the hands of Qadis – who were authorized by the law of the State to judge – indeed tied by arbitrators’ final judgment regarding the dissolution of a marriage? This is hard to accept. This is an approach that takes judging out of the hands of those who were appointed to judge – the Qadis. As my colleague noted, this is inconsistent with the rulings of this Court in HCJ 9347/99, Hamza v. the Sharia Court of Appeals in Jerusalem, IsrSC 55(2), 592 (2001) and in HCJ, Muasi v. The Sharia Court of Appeals in Jerusalem (March 7, 2007).

 

 

 

Deputy President

 

 

 

 

 

Justice N. Solberg

 

I agree.

 

Justice

 

 

It was decided as per Justice E. Arbel’s judgment.

 

Given today, the 19^th of Tamuz, 5773 (June 27, 2013).

 

 

Deputy President                                Justice                                     Justice

 

 

In the Supreme Court

Sitting As the High Court of Justice                                             HCJ 8638/03

 

Before:	His Honor, Vice President (Ret.) M. Cheshin Her Honor, Justice A. Procaccia His Honor, Justice S. Joubran
The Petitioner:	Sima Amir
v.
The Respondents:	1. The Great Rabbinical Court in Jerusalem
	2. The Regional Rabbinical Court in Jerusalem
	3. Yoseph Amir
On Behalf of the Petitioner:	Adv. Michael Korinaldi
On Behalf of the Third Respondent:	Adv. Nechama Segal
On Behalf Of the Rabbinical Courts System:	Adv. S. Jacoby

 

JUDGEMENT

 

Justice A. Procaccia

 

1.         This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

 

2.         The petition concerns the petitioner's motion to vacate the decisions of the Great Rabbinical Court in Jerusalem – the first respondent – of May 4 and June 9, 2003, which dismissed the petitioner's appeal against the judgment of the Regional Rabbinical Court of Jerusalem – the second respondent – of May 27, 2002, and its decisions of March 5, 2001 and June 18, 2002.

 

Background and Proceedings

 

3.         The petitioner and the third respondent (hereinafter: “the respondent") were married in 1980 and have three children. Their relationship became unstable and they motioned the Regional Rabbinical Court of Jerusalem in 1992 in order to arrange for divorce proceedings. As part of that proceeding, the couple requested the Regional Rabbinical Court to approve a divorce agreement that they had made. In the agreement, the couple agreed on the act of divorce, the custody and support of the children, and various financial and property arrangements, as follows: the three children would be in the custody of the wife until reaching the age of 18 (clause 3); the husband would pay child support in the sum of NIS 1,000 per month for all three of the children until they reach the age of 18; the sum of the child support as set in the agreement would not be increased, and in exchange, the husband would transfer his share of the couple’s apartment to the wife, including his share of the apartment’s contents and the gold objects, ownership of which would all be transferred to the wife (clauses 4(a) and (b)); the husband also undertook to discharge the balance of the mortgage loan each month (clause 6(c)). The agreement also included a condition whereby the wife undertook not to sue the husband in any court for an increase in child support, either directly or indirectly, and if the husband were sued, the wife would compensate him in such a way that he would receive half of the apartment, half of its contents and half of the gold (clauses 4 and 5 the agreement). Taking out a stay of exit order inhibiting the husband's departure from the country would also be deemed a breach of the agreement and lead to the same result (clause 13). In order to secure the wife's obligation in accordance with the agreement, a cautionary note would be registered against the apartment, pursuant whereto one half of the apartment would be transferred into the husband's name if he were sued to increase child support. The relevant provisions of the agreement are as follows:

 

                        "4.       Child Support

 

                                    (e)       For the avoidance of doubt and without prejudice to the generality of the aforegoing, child support under the agreement shall unequivocally cover all the children's needs without exception… until the children reach the age of 18.

 

                                    The mother undertakes not to sue the father in any legal instance for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest), and if the husband is sued, the wife shall compensate him and he shall receive one half of the apartment, one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    …

 

                        5.         Indemnification

 

                                    (a)       The mother undertakes and takes it upon herself not to sue the father in any legal instance whatsoever for an increase in child support or for the satisfaction of any of the children's needs without exception beyond what the father has undertaken in this agreement, either directly (herself) or indirectly (through any institution, entity, authority, person and/or in the name of the minor and/or anyone who now and/or in future has an interest).

 

                                    (b)       If, contrary to the abovementioned, the father is sued for an increase in child support and/or satisfaction of any of the children's needs, whether the lawsuit is brought by the mother and/or the mother in the name of the children or by an entity, authority, institution and/or anyone who now and/or in future has an interest, beyond what the father has undertaken in this agreement, then the mother undertakes to transfer one half of the apartment into the father's name and one half of its contents and one half of the gold. The obligation is in perpetuity.

 

                                    (c)       To secure the wife's obligations in this agreement, a cautionary note shall be registered, pursuant whereto one half of the apartment shall be transferred into the husband's name if the husband is sued to increase child support…"

 

            The agreement also includes a provision with regard to the exclusivity of the Rabbinical Court's jurisdiction in the event of a dispute between them after the divorce, in the following terms:

 

                        "9.       Cancellation of Mutual Claims And/or Complaints

 

                        …

 

                        10.       …

 

                        11.       If after the divorce, differences arise between the couple, they undertake to file the lawsuit solely in the Rabbinical Courts.

 

                        12.       …

 

                        13.       The wife undertakes not to take out a stay of exit order preventing the husband's departure from the country, and taking out such an order shall constitute a breach of this agreement, and the husband shall be entitled to obtain one half of the value of the apartment, of the contents and of the gold.

 

                        …"

 

            The divorce agreement was given the effect of judgement by the Rabbinical Court, and on May 26, 1992 the couple was divorced.

 

4.         About five years later, in June 1997, the couple's children (through the petitioner) filed a child support motion against the respondent in the Jerusalem Family Court (FC 10330/97). The motion was mainly intended to increase the child support upon which the couple had agreed in the Rabbinical Court to NIS 6,700. This was, inter alia, due to the petitioner's claim that the respondent was not paying the mortgage payments as undertaken by him in the divorce agreement. In the answer of defense, the respondent defended the claim on its merits. According to him, he was living off a general disability pension of NIS 1,200 per month, from which he was paying child support. The Family Court (per Judge N. Mimon) held in its judgement that the children's monthly support should be increased to a total of NIS 2,000 for both minor children together, and the sum of NIS 500 for the other child until his enlistment to the IDF; with respect to the minors, it was further held that from the time they reached the age of 18 until they completed their service in the IDF, the child support for them would be reduced by NIS 700, and upon completion of their military service the liability for their support will be terminated; if they do not enlist, the liability for them would be terminated when they reach the age of 18. With regard to the other child, upon his enlistment to the IDF and until his discharge, support of NIS 300 would be payable for him.

 

            On September 20, 1997, about three months after the motion to increase child support was filed in the civil court, the respondent filed a motion in the Regional Rabbinical Court of Jerusalem "for a declaratory judgement and specific performance" of the divorce agreement. In the motion, he pleaded that the petitioner had breached the divorce agreement several times and in several different aspects, as follows:

 

                        "8        (a)       The defendant (the petitioner – AP) filed a motion to increase child support in the name of the minors before this Honorable Court on February 28, 1993 – a motion that was dismissed by the Court

 

                                    (b)       The defendant filed another motion on November 6, 1994 and at the end of that motion the wife again applied for an increase in child support.

 

                                    (c)       The defendant motioned for a stay of exit order that was cancelled on July 21, 1997.

 

                        9.         (a)       The defendant went further, and when she saw that her motions were being dismissed by the Honorable Rabbinical Court, she  filed a motion to increase the child support in the name of the minors in FC 10330/97 in the Jerusalem Family Court.…

 

                                    (b)       As part of the motion in Family Court, the wife applied for a stay of exit order that the Court approved.

 

                                    (c)       Moreover, at about the time she filed the motion, the defendant filed a motion for a stay of exit order on July 22, 1997, after the previous order inhibiting departure from the country had been set aside, and the Chief Execution Officer approved it".

 

            He pleaded that the wife had therefore breached clauses 5 and 13 of the divorce agreement. On the basis thereof, the respondent sued the wife for one half of the apartment and its contents and one half of the gold.

 

5.         After filing his motion to the Regional Rabbinical Court, the respondent traveled abroad for more than two years and abandoned his motion. After returning to Israel, he renewed the motion in the Rabbinical Court. The petitioner pleaded in her defense, that the subject of the motion was " breach of a divorce agreement" and according to the law laid down in HCJ 6103/93 Sima Levy v. The Great Rabbinical Court in Jerusalem, PD 48(4) 591 (hereinafter: "Sima Levy Case") the Rabbinical Court did not have jurisdiction to adjudicate the motion. As for the merits of the motion, the petitioner argued that the respondent had come to court with unclean hands because he had breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The Regional Rabbinical Court, in its decision of February 25, 2001, referred the issue of jurisdiction raised by the petitioner to the Rabbinical Courts' then legal counsel on rabbinical jurisdiction, Adv. E. Roth, for his opinion.

 

            During the same month (February 2001) the petitioner filed a lawsuit in the Jerusalem Family Court against the respondent for "declaratory judgement as to the revocation of the indemnity provision in the divorce agreement" (FC 10331/97). This was based, inter alia, on the argument that the respondent breached the divorce agreement by not paying the mortgage payments as he had undertaken in the divorce agreement. The petitioner further requested that the Court declare the revocation of clauses 11 and 13 of the divorce agreement, pleading that they were "contrary to public policy and the law". The respondent argued in his defense that the claim should be summarily dismissed due to the proceedings conducted on the same issues in the Rabbinical Court.

 

            On March 4, 2001, and before the Family Court had awarded its decision on the respondent's motion for the summary dismissal of the petitioner's claim, the opinion of the legal counsel on rabbinical jurisdiction, Adv. Roth, was filed in the Rabbinical Court. In his opinion, with reference to clause 5(b) of the divorce agreement, the Rabbinical Court did not have jurisdiction to adjudicate the respondent's motion after the divorce. Nevertheless, he believed that clause 11 of the divorce agreement could be treated as an arbitration clause in accordance with the Arbitration Law, 5728-1968 (hereinafter: "the Arbitration Law"). By virtue of the rules of arbitration, the Rabbinical Court is empowered to adjudicate the suit as an arbitrator in accordance with the rules and restraints governing an arbitrator. He further added that, in his opinion, it was unnecessary for the couple to sign an arbitration deed, since clause 11 of the divorce agreement constituted an arbitration deed in all respects.

 

            Following the opinion of the legal counsel, Adv. Roth, the Regional Rabbinical Court decided on March 5, 2001 that it was vested with jurisdiction to adjudicate the respondent's suit "since in the Court's opinion clause 11 constitutes an arbitration deed".

 

            On May 14, 2002, and before the Regional Rabbinical Court's judgement had been awarded in the respondent's suit, the Family Court awarded its decision in the respondent's motion for the summary dismissal of the petitioner's suit. It reviewed the question of the Rabbinical Court's jurisdiction to try the respondent's claim, whether as a court empowered by virtue of statute or as an arbitrator, but it decided to stay the award of its decision on jurisdiction on the ground that:

 

                        "Mutual respect of legal instances requires that after a decision has been awarded by the Rabbinical Court holding that it has jurisdiction to adjudicate the suit that has been filed with it as an arbitrator, the award of a decision on jurisdiction should be stayed until the proceedings in respect of jurisdiction have been exhausted by the plaintiff, who will perhaps wish to act by applying on appeal to the Great Rabbinical Court or by applying to the High Court of Justice to clarify whether her position with regard to jurisdiction will be allowed, or even by motioning to vacate an arbitral judgment as provided in section 24 of the Arbitration Law…"

 

            On May 27, 2002, the Regional Rabbinical Court awarded its judgement in the respondent's motion. The court was divided in its opinion between the three judges, and the decision was made, in the words of the judgement, in accordance with –

 

                        "the third opinion, which was the decisive one of the three, since there are several doubts regarding the interpretation of the agreement, and there is a doubt as to whether it constitutes a breach according to Halachic authorities and the circumstances. Therefore, the case should be decided according to the law, and if the apartment has already been transferred into the wife's name, it is not possible to take away her ownership of the apartment because of a doubt, and of course the wife is liable to comply with all of the obligations in the divorce agreement.... If the apartment has not yet been transferred, it is not possible to order the plaintiff ... to transfer his share of the apartment into the wife's name ....

If the plaintiff has already signed a power of attorney and delivered it to the wife, it would appear that the wife cannot be precluded from exercising the power of attorney in order to transfer the plaintiff's share of the apartment into the wife's name…. On the other hand, if the husband still needs to sign transfer documents and the like, he should not be made to help transfer the dwelling into the wife's name in any way whatsoever….

With regards to the gold objects that the wife has received, it would also appear that she cannot be made to return them to the husband because they are in her possession and in this way her possession is valid…"

 

            As mentioned above, according to the Rabbinical Court's decision of March 5, 2001 it decided the respondent's suit as an arbitrator, but on June 18, 2002 it awarded another decision that was headed "Clarification", according to which:

 

                        "The Rabbinical Court makes it clear that it was the Rabbinical Court that approved the agreement and that there was an undertaking that all matters involved in the agreement would be tried solely by the Rabbinical Court. Therefore, since both parties undertook in the agreement, and the Rabbinical Court also approved the agreement, the Rabbinical Court consequently has jurisdiction to hear and adjudicate the matter, and the Rabbinical Court awarded the judgement by virtue of its jurisdiction, and there was no need for the Rabbinical Court to adjudicate the same as arbitrator, and although the Rabbinical Court could also adjudicate the matter as an arbitrator, the Rabbinical Court also had jurisdiction to try the matter as an adjudicating court in accordance with the aforegoing".

 

6.         The petitioner appealed to the Great Rabbinical Court against the Regional Rabbinical Court's judgement of May 27, 2002. Her main plea in the appeal was that the Regional Rabbinical Court did not have jurisdiction to adjudicate the respondent's suit, either as a competent court by virtue of the law or as an arbitrator, and its judgement is therefore void. As to the actual merits, she argued that the Regional Rabbinical Court had made an error "of judgement" and "disregarded facts" by not giving proper weight to the fact that it was the respondent who was in breach of the divorce agreement by not making the mortgage payments as he had undertaken in the divorce agreement. Consequently, on that ground too, on the merits of the case, the Regional Rabbinical Court's judgement should be vacated. The respondent also appealed to the Great Rabbinical Court against the said judgement.

 

            The Great Rabbinical Court, in its decision of May 4, 2003, dismissed the petitioner's appeal with respect to jurisdiction and held that the interpretation of the divorce agreement indicated that it concerned the couple's agreement for "property in consideration for child support". That interpretation affects the substance of the complaint that the respondent filed to the Rabbinical Court, and it demonstrates that it is a suit to revoke the divorce agreement as opposed to a motion for the enforcement of an indemnity provision. That being the case, the Rabbinical Court had jurisdiction to adjudicate the respondent's motion by virtue of its original (primary) authority because "indemnification was not involved, but property and child support and the connection between them, and those matters of property division and child support are certainly matters of personal status that are governed by section 9 of the Rabbinical Courts Jurisdiction Law". The Rabbinical Court was also vested with original (primary) jurisdiction to adjudicate the suit in view of clause 11 of the divorce agreement, which provides that if differences arise between the petitioner and the respondent after the divorce, the two undertake to file the motion solely to the Rabbinical Courts. The Rabbinical Court mentions that at the hearing, the respondent also pleaded avoidance of the Get and the divorce because according to him the Get had been given by mistake. Consequently, on that ground too, the Rabbinical Court had original (primary) jurisdiction to adjudicate the claim. According to the Rabbinical Court, it also had jurisdiction by virtue of its "continuing" jurisdiction, because the respondent was "applying expressly for the revocation of the property arrangement as a result of a change in circumstances concerning child support". Finally, the Great Rabbinical Court held that the jurisdiction to adjudicate the respondent's suit was vested in the Regional Rabbinical Court, when "the jurisdiction is the essential jurisdiction vested in the Rabbinical Court, rather than jurisdiction by virtue of the Arbitration Law". The Great Rabbinical Court adjourned the deliberation on the appeal itself to a later date.

 

            On June 9, 2003 the Great Rabbinical Court awarded another decision, this time with regard to the respondent's appeal against the Regional Rabbinical Court's judgement. In its decision, the Great Rabbinical Court ordered the matter to be remitted to the Regional Rabbinical Court for it to try the argument, which had not been tried in the Regional Rabbinical Court, that the petitioner had breached the divorce agreement by suing for increased child support in the Regional Rabbinical Court in 1993.

 

The Petition

 

7.         In her petition before us, the petitioner seeks to set aside the decisions of the Great Rabbinical Court and the Regional Rabbinical Court, according to which the Rabbinical Court had jurisdiction to adjudicate the respondent's motion, both as original (primary) jurisdiction and by virtue of an arbitration clause.

 

            This Court issued an order nisi in the petition.

 

The Parties' Arguments

 

8.         The petitioner's essential argument in her petition herein is that the Rabbinical Court lacks jurisdiction to adjudicate the property dispute that has arisen between her and the respondent in respect of the divorce agreement that was made between them. According to her, the Rabbinical Courts are not vested with original (primary) jurisdiction to adjudicate the suit. Moreover, they do not have continuing jurisdiction to hear the respondent's suit. The respondent's motion to obtain one half of the property, which was transferred to the wife, is based on the cause of enforcing an indemnity provision in the divorce agreement. This cause is based on a plea of breach, if one occurred, after the divorce agreement was made and the judgement of the Rabbinical Court giving it force and effect was awarded, and after the couple had been duly divorced. A subsequent breach of the divorce agreement in respect of property after the parties' divorce cannot be bound in retrospect with the divorce agreement and the judgment that materialized in the past. From the divorce and onwards, motions that relate to the breach of the divorce agreement are not a part of matters of personal status. The Rabbinical Court therefore lacks jurisdiction to adjudicate them, and jurisdiction in respect of them is vested in the civil court. Moreover, it was argued that the respondent himself breached the divorce agreement by not paying the mortgage payments as he had undertaken to do in the divorce agreement. His breach of the agreement has civil-financial character, which also demonstrates that his suit after the divorce is subject to the jurisdiction of the civil, rather than religious, court. The petitioner further pleads that clause 11 of the divorce agreement does not amount to an arbitration clause and does not purport to establish an agreement for arbitration. Instead, its wording and contents merely demonstrate its determination, by agreement of the parties, to which court the couple's motions after the divorce should be filed. This agreement, per se, does not vest jurisdiction in the Rabbinical Court. In view of all of this, and based on other grounds too, upon which we shall not focus, the Rabbinical Courts' decisions on jurisdiction are void.

 

9.         The respondent's position in his petition is that the Rabbinical Court is vested with jurisdiction to adjudicate the suit he filed to it. In this respect, he relies on the provision of the divorce agreement, according to which the parties expressly agreed to vest the Rabbinical Court with jurisdiction to try any future dispute between them concerning the agreement. He pleads that, according to case law, a matter that can be bound from the outset with the divorce suit, such as property matters, and it was agreed in the divorce arrangement to vest jurisdiction in the Rabbinical Court in respect to them, is also within its jurisdiction after the divorce. He further asserted that the meaning of the cause of the action that he filed was the revocation of a conditional undertaking given under the agreement, as opposed to the enforcement of a contractual indemnification arrangement. That is to say that the respondent entered into a conditional undertaking to transfer property to the petitioner in consideration for the child support being set in a binding amount and not being increased, and for motions not to be brought in this matter. Since that condition had not been fulfilled, the property undertaking that he had given is void. A contractual indemnification provision is not to be treated in the same way as a conditional property undertaking, with regard to which the Rabbinical Court has continuing jurisdiction even after the divorce. Alternatively, it is argued, the Rabbinical Court has jurisdiction to entertain the respondent's suit according to the law of arbitration, by virtue of clause 11 of the divorce agreement, which constitutes an arbitration agreement, even if the word "arbitration" is not mentioned in it.

 

Judgment

 

10.       This Court's intervention in the decisions of religious courts is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal (sections 15(c) and (d)(4) of the Basic Law: the Judiciary; HCJ 323/81 Vilozni v. The Great Rabbinical Court, PD 36(2) 733; HCJ 1689/90 E'asi v. The Sharia Court, PD 45(5) 148, 154-155; HCJ 1842/92 Blaugrund v. The Great Rabbinical Court PD 46(3) 423, 438; HCJ 5182/93 Levy v. The Rehovot Regional Court PD 48(3) 1, 6-8).

 

            The subject matter of the petition herein justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it for the reasons explained below.

 

The Question

 

11.       The couple signed a divorce agreement containing property and child support arrangements. In the scope of the property arrangements, they agreed to limit and not increase child support. They added a condition according to which if motions to increase child support were filed by the wife, directly or indirectly, or if she took out stay of exit orders, these actions would have certain property consequences. The parties further agreed that if differences arose between the couple after the divorce, they undertook to conduct the claims solely in the Rabbinical Courts. Indeed, after the divorce, disputes did arise between the parties following motions to increase child support that were brought against the husband, and stay of exit orders were taken out. Further thereto, the husband filed a suit in the Rabbinical Court claiming a breach of the divorce agreement by the wife and requesting to receive one half of the property because of that breach. In those circumstances, after the couple's divorce, is the Rabbinical Court vested with jurisdiction to adjudicate the husband's property suit, which is based on an alleged breach of the divorce agreement by the wife? Or is the exclusive jurisdiction to deliberate and adjudicate that claim vested in the civil court?

 

            The subsidiary questions that are to be decided can be divided into two:

 

            First is whether the Rabbinical Court has jurisdiction by virtue of the law to adjudicate a property claim based on a breach of the divorce agreement after the divorce has been completed, by virtue of one of the following:

 

            (a)       Original-primary jurisdiction by virtue of statute to hear and adjudicate issues pertaining to the divorce;

 

            (b)       the Court's "ancillary" jurisdiction to adjudicate matters connected with the divorce after its completion, as interpreted and expanded by case law.

 

            The Second is whether the Rabbinical Court has jurisdiction to decide a property claim based on the breach of a divorce agreement by virtue of the parties' agreement, and what legal significance is to be given to this agreement.

 

            We shall consider these questions.

 

The Starting Point

 

12.       The starting point underlying the analysis of the Rabbinical Court's scope of jurisdiction is based on several fundamental assumptions:

 

            First, the Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom. As such a state judicial instance, the bounds of the Rabbinical Court's powers are defined and fashioned in accordance with the state law.

 

            Second, every state judicial instance, including the religious court, has merely those jurisdictions that the state law has granted it; it is the statute that established it, and it is the one that defined its powers and assigned them to it. In doing so, the statute assumed, as part of the basic concept of democratic government, that in the granting of judicial powers also lay judicial limitations. Anything that has not been granted to the judicial instance is outside and beyond its power, and it must not surpass its acknowledged boundaries and into areas that have not been entrusted to it and go beyond its responsibility. That is the principle of legality that characterises the structure of democratic government, upon which rests the perception of the status of the government authorities, including the courts. It is on the basis of this principle that the realm of jurisdiction that is vested in the state judicial instances, of which the Rabbinical Courts form part, extends.

 

            Third, the definition of the judicial powers of the various different courts, including the Rabbinical Courts, derives from statute, and statute is subject to interpretation by case law. The case law's interpretation of the extent of the powers vested in the judicial instance is intertwined with the provisions of the statute as the primary source of the power vested in the judicial instance, and it is intended to serve its purpose. In reviewing the boundaries of the religious court's power we shall therefore assume that the religious court is vested with the powers that have been granted to it by the statute, as they have been interpreted by case law, and it has only what the law has given it. As the Court stated (per Justice Landau) in HCJ 26/51 Menashe v. The Chairman and Members of the Rabbinical Court in Jerusalem, PD 5 714, 719:

 

                        "The Rabbinical Courts of our country exist in accordance with the general law, which determines their place in the state courts system, and the questions relating to the spheres of their jurisdiction should generally be resolved in accordance with the same principles as govern other courts".

 

            This is what distinguishes Rabbinical Courts from arbitrators, internal tribunals and voluntary tribunals, which are not established by virtue of statute but mainly by virtue of contract or regulations, and the scope of their jurisdiction is determined pursuant thereto. These entities are essentially governed by the principles of the private law that creates them and they are not part of the country's state judicial system.

 

            As Justice Zamir stated in HCJ 3269/95 Yosef Katz v. The Jerusalem Regional Rabbinical Court, PD 50(4) 590, 602:

 

                        "The Rabbinical Court is established by virtue of statute and its jurisdiction derives from the statute. Its budget comes from the State Treasury and its judges receive salaries like state employees; it sits in judgement beneath the symbol of the State and it writes its judgements on State paper; the orders that it issues speak in the name of the State and are enforced by the State. The Rabbinical Court is not a private entity but a state institution. It is therefore subject to public law and review by the High Court of Justice. Amongst other things, the Rabbinical Court is obliged to respect and observe the fundamental principle that governs every government agency, namely the principle of legality. According to that principle, the Rabbinical Court has nothing other than the power granted to it in accordance with the statute" (emphasis added).

 

            In this respect Justice Cheshin stated in the Sima Levy Case (ibid, p. 616):

 

                        "The legal system takes a grave view of a judicial entity acting beyond the bounds set for it by the law; hence, the case law holds that a lack of subject matter jurisdiction plea stands out and the court will consider it at any stage of the litigation, even where a party first raises it on appeal".

 

            (See also HCJ 816/98 Eminoff v. Eltalaff, PD 52(2) 769, 796-7; HCJ 512/81 The Hebrew University Archaeology Institute v. The Minister of Education, PD 35(4) 533, 543-4; HCJ 30/76, MF 150/76 Siho v. The Karaite Jewish Community Religious Court, PD 31(1) 15, 17-18.)

 

            The state judicial system, and its various different courts, both civil and religious, is built on common norms that govern all its agencies. Thus, for example, it has been held in the past that the fundamental principles that govern civil judges also apply to rabbinical judges. The rabbinical judge, like the civil judge, is part of the judicial authority and in his position he is subject to the same basic rules as obligate any judicial officer:

 

                        "He is not an arbitrator between parties who voluntarily apply to him. He operates by virtue of state law and his authority extends over the whole public with all its diversity, opinions and views. Like a civil judge, a rabbinical judge enjoys independence in matters of judgement. The laws concerning conditions of service, immunity, appointment, discipline and the like that govern the rabbinical judge are very similar to those that govern a civil judge. Like the civil judge, so too the rabbinical judge must, by his action, ensure the public's trust in his judgement. The public is not only the religious public. The rabbinical judge deals with the whole people and he must by his conduct ensure the trust of the whole people, both secular and religious". (Per Justice Barak in HCJ 732/84 MK Tzaban v. The Minister of Religious Affairs, PD 40(4) 141, para. 16.)

 

            In this context, case law has also drawn a clear distinction between a person's fitness as a rabbinical judge of the Israeli Rabbinical Court and his fitness as a community rabbi. On enactment of the Dayanim (rabbinical judges) Law a clear separation was created between judicial and rabbinic functions, and a mix between the two in judicial work is no longer consistent with the concept of state law. In the words of the Minister of Religious Affairs Warhaftig, when he presented the Dayanim Law draft on first reading in the Knesset, as cited in the Tzaban Case:

 

                        "With the establishment of the State of Israel we adopted this course. We distinguished between those functions and separated between rabbis and rabbinical judges" (Knesset Proceedings Session 5457, 1954, p. 2182).

 

 

 

            As Justice Goldberg added on this subject in the Tzaban Case:

 

                        "The main power of the Rabbinate rests in its traditional authority over those who come 'to seek God', whilst the rabbinical judges' authority when sitting in judgement does not depend on the wishes of the litigants but is enforced in the context of the judicial system prescribed for it by the legislature. In this sphere, the rabbinical judges perform the function of 'judging the people', with its varied opinions and views".

 

 

            The religious function of the rabbinical judge as rabbi is not intertwined with the judicial function that he performs as a rabbinical judge and is separate from it. The Rabbinical Court cannot therefore rely on its religious power in order to assume jurisdiction in a matter that exceeds its powers and authorities in accordance with state law (Schiffman, Family Law in Israel, 5755, Vol. I, p. 42).

 

            Against this background there is difficulty with the argument that is sometimes made that the Rabbinical Court might perform a dual function: on the one hand, a state judicial function imposed upon it by virtue of state law, and on the other hand, a religious court in monetary matters by virtue of the parties' agreement. Like any public entity that performs a function in accordance with the law, so the Rabbinical Courts, which operate by virtue of statute must also discharge the responsibility owed by them by virtue of statute and decide the matters entrusted to them. As part of the state judicial system, they possess only the jurisdiction that the statute has placed in their hands. That is the essence of the principle of legality that underlies public administration and the judicial system (Katz Case, ibid, p. 607); hence, even if Jewish law and tradition permit a Rabbinical Court to adjudicate and decide disputes in a certain manner, that does not suffice to authorize it to do so because "the Rabbinical Court, as a state institution, must act within the authority vested in it by state law" (Katz Case, ibid, p. 607). To the same extent, a civil court, which is part of the judicial authority, may not assume an authority or function that does not derive from state law (Tzaban Case, ibid, p. 152).

 

            It is against this background that we shall examine the question of the Rabbinical Court's jurisdiction to decide the respondent's property suit against the petitioner based on a breach of the divorce agreement, and the relief deriving therefrom. A comprehensive analysis of the issue of jurisdiction in a similar context can be found in the judgement of Justice Cheshin in the Sima Levy Case and it will guide and direct us.

 

The Rabbinical Court's Original – Primary Jurisdiction

 

13.       The original primary powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built on two tiers: exclusive powers by virtue of the statute; and parallel powers of the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The exclusive powers comprise matters of marriage and divorce, as well as matters that are duly bound up in the motion for divorce, including wife and child support. Parallel jurisdiction that is vested by agreement relates to matters of personal status in accordance with article 51 of the Palestine Orders in Council and the Succession Ordinance. The relevant provisions are as follows:

 

                        "1.       Jurisdiction in matters of marriage and divorce

 

                        Matters of marriage and divorce of Jews in Israel, nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

 

                        …

 

                        3.         Jurisdiction in matters incidental to divorce

 

                        Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including support for the wife and for the children of the couple.

 

                        …

 

9.         Jurisdiction by consent

 

In matters of personal status of Jews, as specified in article 51 of the Palestine Orders in Council, 1922 to 1947, or in the Succession Ordinance, in which a rabbinical court does not have exclusive jurisdiction under this Law, a rabbinical court shall have jurisdiction after all parties concerned have expressed their consent thereto."

 

The Rabbinical Court's powers – both the exclusive ones (marriage, divorce and matters bound with divorce) and the jurisdiction in accordance with the parties' agreement in matters of personal status – are original-primary powers by virtue of the statute to hear and rule on the matters that fall within the scope of those powers.

 

Power Ancillary to Original Jurisdiction

14.       The Case law has recognized the existence of a judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the statute and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past. Such is, for example, the jurisdiction of the civil and religious courts to vacate a judgement awarded by them that is based on an agreement between the parties, in the making of which there has been a defect. Such a material defect might lead to the revocation of the agreement and therefore also to revocation of the judgment that rests upon it, and the instance empowered to decide its revocation is the one that rendered the judgment (HCJ 124/59 Glaubhardt v. The Haifa Regional Rabbinical Court, PD 13 1490; CA 151/87 Artzi Investment Co. v. Rachmani PD 43(3) 489, 498-500). Additional expression of such ancillary jurisdiction occurs when there is a material change in the circumstances of the matter, that has occurred after the award of judgement by consent, which makes its continued performance unjust (Sima Levy Case, ibid, pp. 605-6; CA 442/83 Kam v. Kam PD 38(1) 767, 771; CA 116/82 Livnat v. Tolidano PD 39(2) 729, 732; CA 219/87 Rachmani v. Shemesh Hadar, Building Company Ltd et al. PD 43(3) 489, 498-500). The recognition of this ancillary jurisdiction is intended to bring about a proper balance between the judgment’s finality on the one hand, and the interest not to leave in effect a judgment, the enforcement of which has become extremely unjust due to a change in circumstances. Inherent jurisdiction is also vested in the judicial instance, including the Rabbinical Court, to retain jurisdiction in respect of a matter that is pending before it until the proceedings have been completed. So long as final judgement has not been awarded, jurisdiction continues until the judicial court has completed its work. Once a final, unconditional judgment has been awarded, the work is completed (Sima Levy Case, p. 607; CA 420/54 Ariel v. Leibovitz PD 9 1337; ALA 2919/01 Daniel Oshrovitz v. Yael Lipa (Fried) PD 55(5) 592; J. Zussman, The Civil Procedure (seventh edition, 5755) 550).

One of the expressions of ancillary jurisdiction relates to the existence of the Rabbinical Court's "continuing jurisdiction", the essence of which is that, under certain conditions, where the Rabbinical Court has in the past heard a particular matter, its continuing jurisdiction to hear it again will be recognized. The continuing jurisdiction also derives from the inherent power of the judicial instance. Its basic purpose is to give expression to the duty of mutual respect and the need for harmony between judicial instances where there is parallel jurisdiction between them, and in order to avoid parties running from one judicial instance to another. It has nevertheless already been explained that continuing jurisdiction is not intended to undermine or derogate from the original powers vested in the judicial instances in accordance with statute. Its purpose is essentially "to vest power to vacate or modify an earlier decision due to a change that has occurred in the circumstances upon which the first decision was based" (per Justice Cheshin in the Sima Levy Case, ibid, p. 608, 610). Such are matters of child support and custody, which by their nature are subject to material changes of circumstance, and the original judicial instance therefore has inherent jurisdiction to reconsider them when the appropriate conditions arise.

It should be made clear that no inherent power has been recognized for a civil or religious court to exercise its original authority again in order to interpret a judgement awarded by it. Hence, a Rabbinical Court that has granted a divorce does not have inherent jurisdiction to interpret the divorce agreement and the judgement that awarded it force and effect (Sima Levy Case, ibid, pp. 612-13).

These are the characteristics of the original jurisdiction that is vested in the Rabbinical Court in accordance with the statute, alongside its ancillary powers that are sparingly exercised in special circumstances by virtue of its inherent jurisdiction, in order to complete the judicial act and make it a complete and just deed.

We shall now examine the question of whether the Rabbinical Court has jurisdiction to adjudicate a dispute by virtue of the parties' agreement, where such jurisdiction is not set in the statute empowering the Rabbinical Courts, and is not within the scope of the ancillary jurisdiction vested in it.

The Rabbinical Court's Jurisdiction by Virtue of the Parties' Agreement

15.       The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement to grant the Court jurisdiction in a particular case, regardless of the provisions the Rabbinical Courts Jurisdiction Law; second, agreement intended to empower the Court to hear and rule on a dispute as an arbitrator. Can such agreement by the parties vest power in the Court that is not granted to it by the empowering statute or embodied in its ancillary powers?

The Israeli state judicial system and the various different judicial instances, derive their powers from statute. It is the statute that establishes them, it is what delineates the bounds of their activity and it is what defines the sphere of their subject matter and territorial jurisdiction. This is also the case in respect to the civil judicial instances; and so it is with respect to the special judicial systems, including the courts of Israel's different religious communities. These include the Rabbinical Courts in Israel.

By defining the powers of the various different judicial instances in Israel, the statute intended not only to delineate the function and responsibility of the system and its various different arms. It also sought, at the same time, to deny the power of a judicial instance to hear and adjudicate a matter which it was not charged with by the statute and which is not within its inherent jurisdiction. The definition of the judicial instances' powers has a dual dimension, both positive and negative: it constitutes a source of power and responsibility on the one hand, while denying the exercise of authority and power that have not been so conferred; the judicial instance has only what the statute that established it has vested in it, and insofar as it has been made responsible to adjudicate disputes within the scope of the power vested in it, it is under a duty that derives from the statute and the concept of democratic government not to try or adjudicate a matter that is beyond its statutory power.

A preliminary and mandatory condition for the satisfactory activity of any judicial system is a clear and exhaustive definition of the framework of powers and the apportionment of functions that rest with its various different instances. Without an exhaustive and specific definition of powers the systemic structure, built in accordance with the statute, is blurred and the stability of its functioning is not secured. The harmony necessary in the area of operation of the different judicial arms and the relationship between them is impaired; the allocation of professional, administrative and budgetary resources to the different instances is disrupted, and direct harm might occur to the efficacy of the judicial system and the level of judicial performance. The uniqueness of the responsibility owed by the judge, which requires the existence of a clear framework of authority, alongside which is the responsibility and duty to rule, becomes blurry. Thus, recognizing the power of a judicial instance to adjudicate matters, the power and responsibility for which have not been legally transferred to it, might materially disrupt the internal balance required in the structure of the judicial system and severely undermine its standing and performance.

A consequence of the aforegoing is that the power of a judicial instance, as such, be it civil or religious, is acquired by law and it has no power to be derived from the parties' agreement, except where the statute itself has seen fit to recognize such agreement in certain circumstances as a source of the power to adjudicate. Thus, for example, with regard to the effect of the parties' agreement, the law has distinguished between the apportionment of subject matter jurisdiction and territorial jurisdiction between judicial instances. It is willing to acknowledge, in certain conditions, the parties' agreement as a valid source for changing the territorial jurisdiction that has been prescribed. Section 5 of the Civil Procedure Regulations, 5744-1984 provides that when an agreement between parties as to the place of jurisdiction exists, the lawsuit will be filed to the court in that area of jurisdiction. The relative flexibility regarding territorial jurisdiction, and the willingness to recognize the parties' agreement as the source of such jurisdiction, stems solely from the statute and derives its power from its provisions. That is not the case in respect of subject matter jurisdiction. Generally, the law does not recognize that the parties' agreement has power to depart from the rules of subject matter jurisdiction, as crafted by state legislation.

A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to hear and rule a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. In general, a judicial instance is not supposed to adjudicate a matter that is referred to it as arbitrator. However, in certain circumstances, the law has expressly recognized the power of a civil instance to adjudicate a dispute in departure from the ordinary rules of procedure. Thus, for example, in the area of small claims, section 65 of the Courts Law (Consolidated Version), 5744-1984 provides that if a lawsuit has been filed in the small claims court, the judge may, with the parties’ consent, try the claim as arbitrator, and the provisions of the Arbitration Law will govern the matter, with certain restrictions; in addition, a court hearing a civil matter has been empowered, with the parties’ consent, to decide a matter before it by way of settlement (section 79A of the Courts Law) or to refer a matter, with the parties' consent, to arbitration or conciliation (sections 79B and 79C of the Courts Law). The said authorities are all vested in the court by virtue of statute. They assume that the subject of the dispute is within the subject matter jurisdiction of the court hearing the case and they give it special procedural means that are intended to facilitate and expedite the process of deciding the dispute and bringing about a just result. The various judicial instances have not been generally empowered by law to hear and decide matters that are not included in the scope of their subject matter jurisdiction by virtue of the parties' agreement, either as arbitrators or otherwise. Since such authority has not been conferred to them, it is, ipso facto, denied and does not exist.

The Rabbinical Courts are an integral part of the Israeli judicial system. They were established by virtue of the Rabbinical Courts Jurisdiction Law and they derive their power and authorities from the state statute. They have nothing other than what is vested in them by the statute, and they are subject to the set of powers of the statute in their judicial work, as interpreted over the years by case law. Along those lines, this Court has held in the Katz Case that the Rabbinical Court is not empowered to issue a Letter of Refusal in monetary matters that is intended to compel a party to submit to the Rabbinical Court's jurisdiction by ostracizing and disgracing the recalcitrant party; and in HCJ 2222/99 Gabai v The Great Rabbinical Court PD 54(5) 401, the opinion was expressed that the Rabbinical Court lacks legal authority to issue a forced settlement decision, without the parties' consent, thus forcing a judgment on the parties without determining facts on the basis of evidence, if it is unable to decide in accordance with the law.

It emerges from this that the parties' agreement as such cannot, per se, grant jurisdiction to the Rabbinical Court, unless, it has been recognized by the law as a primary source of authority. Thus, the parties' agreement has been recognized as a source of the Rabbinical Court's jurisdiction pursuant to section 9 the Rabbinical Courts Jurisdiction Law, in matters of personal status of Jews pursuant to article 51 of the Palestine Orders in Council or according to the Succession Ordinance, which are within the parallel jurisdiction of the Rabbinical Court and the civil instance. Nevertheless, the Rabbinical Court does not have power to hear and decide a matter that is not of the kind found within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their consent to its jurisdiction. Such agreement does not derive from a legally recognized source of authority in the law and it cannot, per se, vest jurisdiction in a state judicial instance.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Agreement

16.       According to the same line of reasoning, the Rabbinical Court has no power and authority to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter, which by its nature is not within its legal jurisdiction. The Court has not been vested with jurisdiction by law to decide disputes as an arbitrator and the parties' agreement cannot vest it with such power.

The issue of the Rabbinical Court's jurisdiction to arbitrate financial and other matters that go beyond the powers granted to it in accordance with the Rabbinical Courts Jurisdiction Law has caused consternation and confusion over the years. It appears that, in reality, the Rabbinical Court assumes the role of arbitrating matters that are beyond the scope of its subject matter jurisdiction (Katz Case, ibid, pp. 606-8; CA 376/62 Bachar v. Bachar, PD 17(2) 881, 882, 885; CA 688/70 Doar v. Hamami, PD 25(2) 396, 399; M. Alon, Jewish Law – History, Sources and Principles, third edition, vol. III, 5748, 1529). Justice Barak considered the inherent difficulty of a state judicial instance's need to adjudicate a dispute by arbitration where it was not empowered to do so by law, saying:

"The first possible argument is that the motion to the Rabbinical Court is like that to an arbitrator and embodied in the Arbitration Law, 5728-1968. That possibility – which has used in practice and can be encored as a year-long custom - raises serious problems in principle. Thus, for example, it can be asked whether it is proper for a judicial entity, whose powers are prescribed by law, to assume additional judicial powers, by being empowered as an arbitrator. Is it conceivable that parties would motion the magistrate’s court to try a pecuniary claim, that is outside its jurisdiction, as an arbitrator? From the state's point of view, is it justifiable to use judicial time and tools (whether of the civil or religious courts) for matters outside the jurisdiction that the law has granted the judicial authorities? Is there no fear that the public be confused as to which decisions the judicial instance has awarded as the government and those that it has awarded as arbitrator?"

(HCJ 3023/90 Jane Doe (a minor) v. The Rehovot Regional Rabbinical Court PD 45(3) 808, 813-14; see also S. Ottolenghi, Arbitration, Law and Procedure (fourth edition, 5765) 167-8; Schiffman, ibid, vol. I, 37.)

In HCJ 2174/24 Kahati v. The Great Rabbinical Court, PD 50(2) 214, this Court (per Justice Dorner) once again referred to the practice, adopted from time to time by the Rabbinical Courts, of deciding disputes as arbitrators in matters that are not within their jurisdiction. It expressed skepticism with respect to the validity of the practice. However, as in the previous case, it again left this question open without making any conclusive ruling, since such a ruling was not necessary in that case (cf. Aminoff, ibid, pp. 792-3).

17.       There is indeed an inherent difficulty in recognizing the Rabbinical Court's power to decide a dispute in a matter on which it has not been given jurisdiction by law (cf. Ottolenghi, Dispute Resolution by Alternative Means, Israeli Law Yearbook, 5752-5753, p. 535, 550-1). In the past, the Mandate government empowered the Rabbinical Courts to act as arbitrators by means of section 10(d) of the Israel Knesset Regulations of 1927, but upon the establishment of the State, the “Israel Knesset”, within its meaning under the Mandate, ceased to exist and it was held that those Regulations no longer had any force or effect (Crim. App. 427/64 Yair v. The State of Israel PD 19(3) 402; HCJ 3269/95, ibid, p. 622-3; Schiffman, ibid, p. 39). It cannot therefore be argued that the said section might serve as the source of the Rabbinical Courts' power as arbitrators. Moreover, upon enactment of the Arbitration Law, it was proposed that an arbitration decision made by a religious court when ruling as an arbitrator would in all respects, except with regard to the appeal, be treated as a judgement of the court sitting in accordance with its jurisdiction prescribed by statute, and that the award would not require confirmation under the Arbitration Law. That proposal was not accepted (Knesset Proceedings 5728, pp. 2966-7).

It is indeed difficult to settle the governing perception that views the judicial system as an arm of government, which derives its power and authority from statute, while acknowledging the possibility that the selfsame system can acquire other subject matter authorities deriving merely from the parties' agreement that do not originate from the empowering law. The Israeli Rabbinical Courts, that are part of the Israeli judicial system, integrate with the said perception and, like the other judicial instances, operate in accordance with the principle of legality of the arms of government (see the dissenting opinion of Justice Tal in the Katz Case, distinguishing between the power of religious courts as a state authority and the power they have, in his opinion, by virtue of Jewish law, which is not connected with state law).

18.       Apart from the essential difficulty inherent in the judicial decision of the Rabbinical Court as an arbitrator, which is not consistent with the principle of legality of the government authorities, other difficulties arise from the said procedural practice. The practice blurs the spheres of the Court's own activity in respect of the procedural basis upon which its decision rests: is it a decision within the scope of the Court's state power that is subject to review by the High Court of Justice in accordance with section 15 of the Basic Law: the Judiciary, or is it an extra-statutory power that is built on a different foundation originating from the parties' agreement and subject to review by a different judicial instance, like the District Court, in accordance with the Arbitration Law (cf. Jane Doe Case, ibid, para. 7)? In more than a few cases the parties might misunderstand the nature of their agreement to vest jurisdiction in the Rabbinical Court as they do not always understand the meaning and implications of their consent. Moreover, usually, in the course of such adjudication, strict attention is not paid to enquiring into the existence of an arbitration agreement or the application of the Arbitration Law and the rules pursuant thereto, such, for example, the mechanism for the confirmation and revocation of an arbitral award and the role of the District Court as the competent instance in accordance with the Arbitration Law (Ottolenghi, ibid, p. 168; Dichovski, The Standing of a Rabbinical Court Dealing with Property Law As Arbitrator, The Jewish Law Yearbook 16-17 (5750-5751) 527; MF 268/88 Delrahim v. Delrahim, DCJ 49(3) 428; SC 2329/99 Kfir v. Kfir, PD 55(2) 518, para. 5). An arbitral judgment made by the Rabbinical Court frequently does not undergo confirmation or revocation proceedings in the District Court as required by the Arbitration Law for the purpose of its execution, and the Rabbinical Court has no power to confirm an arbitral judgment (Kahati, ibid, p. 220; HCJ 5289/00 Mograbi v. The Great Rabbinical Court, Takdin Elyon 2000(2) 581; Kfir Case, ibid, para. 5). Furthermore, a situation in which the District Court, by virtue of the Arbitration Law, might oversee the Rabbinical Court's decisions as an arbitrator might harm the proper balance between the instances and aggravate the tension between the civil and religious judicial arms (A. Porat, The Rabbinical Court As Arbitrator, Kiriat Mishpat II (5762) 503, 521-4; Dichovski Case, ibid, p. 529).

The Rabbinical Court, purporting to act as an arbitrator between the parties, still operates under cover, and with the characteristics, of its state role. To that end it makes use of the court's physical and organizational system, which is financed by the state; it adjudicates disputes as an arbitrator in the scope of the court calendar, as part of its ordinary work; the overall services, the organizational and professional arrangement and the government budget are also used by it in that function, which by its nature does not have a state character. The time that it should devote to matters of personal status in its official capacity is partly assigned by it to a different judicial function that is not for the state, despite appearing to carry the state seal in the eyes of the public at large, who finds it difficult to distinguish between the judicial function and the extra-statutory function performed by the Court. This intermingling of functions is inconsistent with the principle of legality and a correct definition of the functions and powers of a state judicial instance (Katz Case, ibid, p. 608; Schiffman, ibid, pp. 37-8).

19.       Mention ought to be made to the approach of Prof. Shochatman in his paper entitled The Rabbinical Courts' Jurisdiction in Matters Other Than Personal Status (Bar Ilan University Yearbook on Humanities and Judaism, vols. 28-29 (5761) p. 437, p. 449 et seq.). As he sees it, the Rabbinical Court might acquire jurisdiction by virtue of the parties' agreement in matters outside its jurisdiction in accordance with the Rabbinical Courts Jurisdiction Law by virtue of section 15(d)(4) of the Basic Law: the Judiciary, thereby acquiring jurisdiction as an arbitrator. According to that Law, which defines the High Court of Justice's power to review religious courts, the question of a religious court's jurisdiction can only be referred to this instance when it was raised at the first opportunity. The author infers from this that where there is prior agreement between the parties to vest subject matter jurisdiction in the religious court, a party who has so agreed may not later dispute jurisdiction. By virtue of that preclusion the religious court acquires subject matter jurisdiction, and the High Court of Justice is itself precluded from intervening therein. According to this approach, such an agreement vests subject matter jurisdiction and is not limited solely to matters of personal status. It might encompass numerous spheres that are beyond the subject matter jurisdiction of the religious court, as defined in the Rabbinical Courts Jurisdiction Law.

I cannot agree with this position. The interpretation expressed by Prof. Shochatman assumes that it is possible to recognize the existence of subject matter jurisdiction of an Israel state judicial instance by means of the parties' consent, combined with the doctrine of preclusion and estoppel that prevents someone who has agreed to jurisdiction from later disputing it. That approach is fundamentally inconsistent with the principle of legality that obligates judicial instances, including the religious courts. It is not consistent with the starting point whereby subject matter jurisdiction is vested in a judicial instance by a positive arrangement, and its existence is not to be inferred by an indirect interpretation of provisions of law concerning estoppel and preclusion. The Rabbinical Court's powers are granted to it by virtue of the Rabbinical Courts Jurisdiction Law and they cannot be added to by an indirect interpretation of statutory provisions, the purpose of which is not the vesting of power. Moreover, it has already been held (in Sima Levy Case, ibid, p. 618-19) that the element of preclusion emerging from section 15(d)(4) of the Basic Law: the Judiciary was not intended to vest in the Rabbinical Court subject matter jurisdiction that is not vested in it by virtue of the Rabbinical Courts Jurisdiction Law. The said preclusion is based on the assumption that the matter being adjudicated by the Rabbinical Court is of the type that are within the parallel jurisdiction of the civil court and Rabbinical Court, and regarding the latter, jurisdiction is conclusively consummated if both parties have agreed to it. In those circumstances, and only in them, a party's prior agreement or silence, or subsequent denial of jurisdiction, might lead to preclusion with respect to a lack of jurisdiction argument in the High Court of Justice - that and nothing more. An interpretation that takes the doctrine of preclusion out of context, and assumes the existence of a potentially unlimited Rabbinical Court subject matter jurisdiction, the final consummation of which is dependent only upon the parties' agreement, is directly opposed to the principle of legality, upon which the concept of democratic government is based. It is inconsistent with the subject matter jurisdictions vested by statute in the arms of government, including the judicial system.

Alternative Decision-Making Systems

20.       The need of various different circles in the religious world to entertain alternative systems for the resolution of disputes is proper and recognized. Indeed, alternative rabbinical judicial systems that are not associated with the state rabbinical judicial system, which decide disputes between litigants in the community, are recognized. They can be granted powers to act as arbitrators by agreement of the parties. The need of different communities for alternative dispute resolution systems specific to them can be met by reference to internal arbitration frameworks that are not part of the state judicial system, within which disputes can be settled by virtue of the parties' agreement. This alternative course to litigation in the state judicial instances can be developed and strengthened in accordance with the different needs and preferences of the communities. This was considered by Justice Zamir in the Katz Case (ibid, p. 606), who stated:

"As is known, there are still observant Jews who prefer to litigate in matters of property according to religious law before a religious court rather than the state court. The state's law does not preclude that, if both parties to the dispute so desire, and it is even willing to give the force of arbitration to such litigation, if the litigants fulfil the provisions of the Arbitration Law. Indeed, in practice, such courts exist in various communities around Israel, not by virtue of state law or as official institutions but as private entities. That is, for example, the case of the rabbinical court of the Edah Chareidis [the Haredi Community] in Jerusalem. However… in these cases we are not dealing with a private entity but a state court, and the law applies to it just as any other of the state's courts. Like any court, in fact, like any government agency, the Rabbinical Court is also subject to the principle of legality, meaning that it has nothing other than what was granted to it by the law… In this respect, the Rabbinical Court in Jerusalem is distinguished from the rabbinical court of the Edah Chareidis in Jerusalem. The Israeli Rabbinical Court, which has jurisdiction in accordance with the Basic Law: the Judiciary, is not like one of the rabbinical courts of the Jewish communities in the Diaspora. Unlike them, it has the power and authority of a government institution. So too, unlike them, it is also subject to the restrictions that apply to any government institution".

Consensual Resolution – Looking to the Future and to the Past

21.       The scope of the Rabbinical Courts' subject matter jurisdiction to decide a dispute by virtue of the parties' agreement outside the framework of the law looks to the past and the future. It calls into question the validity of the Court's rulings based on the parties' agreement outside the scope of the statute, not merely henceforth, looking to the future, but also with respect to the past. The outlook to the future seeks to find a binding definition of the limits of the Rabbinical Court's jurisdiction and to strictly observe those limits hereafter. However, the outlook to the past calls into question the binding legal validity of the Rabbinical Court's decisions that have been made over the years by virtue of the parties' agreement as aforesaid. That issue is far from simple; there is no need to decide it here, and it will wait until its time comes.

From the General to the Particular

22.       Let us return to the respondent's suit against the petitioner in the Rabbinical Court and examine whether it is within the subject matter jurisdiction of the Rabbinical Court; the test of jurisdiction depends on the nature of the cause of action, and whether the cause falls within the jurisdiction of the Rabbinical Court.

The Cause of Action – Enforcement of a Contractual Indemnity Clause

23.       The respondent's cause of action in the Rabbinical Court is the enforcement of a contractual clause concerning property, which is contained in the divorce agreement that was made between the couple for the purpose of the divorce proceedings. It provided that if the respondent were sued for an increase in child support and the satisfaction of any of the children's needs or if a stay of exit order was granted at the initiative of the wife, then the petitioner would compensate him, in the language of clause 4(e) of the agreement, with half the property. That provision is also mentioned in clause 5 of the agreement, which is headed "Indemnification", and according to the substance of the provision, and also its location and wording, it is an indemnity clause. The respondent sues for the enforcement of a property condition for his indemnification due to a breach of contract by the wife, and he gave expression thereto by heading his claim as one for "specific performance". That is to say, we have here a property claim for the enforcement of the contractual indemnity clause in a divorce agreement that received the effect of a judgement of the Rabbinical Court and further to which the parties' divorce was completed.

The Rabbinical Court's Jurisdiction to Adjudicate a Property Claim for the Breach of a Contractual Indemnity Clause in a Divorce Agreement after the Parties' Divorce

Does the respondent's suit, according to its cause, fall within the scope of one of the sources of the Rabbinical Court's jurisdiction? Because of the great similarity between the instant matter and the case of Sima Levy, we shall draw guidance and direction from that case.

 

 

Original – Primary Jurisdiction

24.       The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce, as provided in section 1 of the Rabbinical Courts Jurisdiction Law, does not apply in the instant case because the subject of the suit is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is, no longer involved. Nor is it a matter "connected with a divorce suit", including support for the wife and children, within the meaning of section 3 of the Law. After divorce, a property claim in respect of the breach of an indemnity clause is not connected with the divorce suit, which has ended and no longer exists. The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce judgment, based on a divorce agreement. The cause is based on the breach of a divorce agreement after the award of the divorce and completion of the couple's divorce, and such a new cause is naturally not to be bound up with the matters that were in the past connected with the divorce suit.

With regard to the property cause of action, which surrounds the breach of an indemnity clause of a divorce agreement, the Rabbinical Court does not have jurisdiction by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council and the Succession Ordinance. Section 9 of the Rabbinical Courts Jurisdiction Law raises the question of whether jurisdiction can be vested in the Rabbinical Court by consent in a matter included in its parallel jurisdiction after completion of the divorce, or whether its jurisdiction pursuant to that provision is limited solely to matters within its parallel subject matter jurisdiction that arise in connection with, and until, the divorce and its completion, but not afterwards. Whatever the answer to this question, it is in any event clear that the subject matter jurisdiction pursuant to section 9 is limited solely to the matters mentioned therein, that is, matters of "personal status" as defined in the Palestine Orders in Council and the Succession Ordinance. In a dispute that is not within the bounds of those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court (Schiffman, ibid, vol. I, p. 37; Jane Doe Case, ibid, p. 812). The power of the parties' stipulation is restricted solely to the matters defined by the statute (MF 358/89 Zalotti v. Zalotti PD 43(4) 41, 42; Porat, ibid, p. 510).

Clause 11 of the divorce agreement in this matter looks to the future, and provides that if differences arise between the couple after the divorce, then they undertake to bring their claims solely in the Rabbinical Courts. That agreement is effective only to vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law in respect of matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. A property claim for the enforcement of a contractual indemnity clause in a divorce agreement is not a matter of personal status within the meaning of the Palestine Orders in Council or the Succession Ordinance, and thus, the parties' contractual agreement in respect of such a dispute cannot vest jurisdiction in the Rabbinical Court pursuant to section 9 of the Law.

The Rabbinical Court therefore does not have original jurisdiction to adjudicate the respondent's claim.

"Ancillary" Inherent Jurisdiction

25.       Does the Rabbinical Court have "ancillary" inherent jurisdiction to adjudicate the respondent's claim? The answer is in the negative.

            In the instant case, the Rabbinical Court's ancillary jurisdiction is irrelevant insofar as it relates to the revocation of a divorce award because of a defect in the making of the divorce agreement. It is not a defect of fraud, mistake, deceit, duress or similar that occurred in the making of the agreement and that might have given the Rabbinical Court ancillary jurisdiction to consider its revocation.

            Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after granting the divorce judgment that allegedly justifies revoking the divorce agreement and the divorce judgment in order to achieve a just result. On the contrary, the respondent's suit is for the specific performance and enforcement of the divorce agreement, not its revocation. Although, in the Great Rabbinical Court, the respondent pleaded that his suit was to revoke the divorce agreement because, according to him, the Get had been given by mistake (the Great Rabbinical Court's decision of May 4, 2003). These arguments were made as an "embellishment" at a late stage of the trial and do not reflect the real cause of action; the motion to revoke the divorce agreement and the act of divorce is inconsistent with the respondent's claim in his suit to compensate him with half the property (the apartment, the contents and the gold), which is nothing other than a claim for the enforcement of the divorce agreement (cf. CA 105/83 Menashe v. Menashe PD 38(4) 635; Yadin, The Contracts (Remedies for Breach of Contract) Law 5731-1970, Second Edition, 5739, p. 44).

            Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction in this case. The Regional Rabbinical Court had granted a final and unconditional judgment and awarded the effect of judgement to the divorce agreement. Indeed, the divorce agreement does contain an indemnification provision, which by its nature looks to the future, but this fact cannot transform a judgement that gave effect to a divorce agreement into a judgment that is not final, leaving the Rabbinical Court with jurisdiction that has not yet been exhausted to continue adjudicating with respect to the divorce agreement's future performance in this property matter. A financial-property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law (see Sima Levy Case, pp. 607-608; CA 468/85 Dondushanski v. Don PD 40(2) 609; D. Bar Ofir, Execution - Proceedings and Law (Sixth Edition, 2005, pp. 164-5)).

            Nor has the Rabbinical Court acquired jurisdiction to hear this matter by virtue of the doctrine of "continuing jurisdiction". It should be kept in mind, that continuing jurisdiction is vested where an instance has tried a particular matter in the past and, in special circumstances, a need has arisen to vacate or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based such, for example, in matters of child support and custody. The instant case is fundamentally different. The motion does not seek to modify or revoke the divorce agreement made between the parties. On the contrary, it seeks to enforce the agreement, and such a claim has no place within the continuing jurisdiction vested in the Rabbinical Court. A decision on property matters is a final one and not a matter for continuing jurisdiction, as the Court stated in Sima Levy (Justice Cheshin, ibid, p. 611):

                        "As distinct from decisions concerning the payment of support or child custody – which by their nature are not final and the doctrine of continuing jurisdiction applies to them – a decision on a property matter is in principle a final one" (emphasis added).

            The property aspect of the divorce agreement, including the indemnification clause, and the divorce judgment that gave it effect, are therefore not within the Rabbinical Court's continuing jurisdiction.

            And finally, the Rabbinical Court does not have ancillary jurisdiction to adjudicate the new cause that arose following the divorce agreement in order to interpret the agreement. Firstly, the Rabbinical Court, having completed and exhausted its power to rule on the matter of divorce, no longer has ancillary power to interpret the divorce agreement or the divorce judgment (cf. HCJ 897/78 Yigal v. The National Labour Court, PD 33(2) 6, 7; CA 5403/90 The State of Israel v. RAM Revhiat Ibrahim PD 46(3) 459). Moreover, in the instant case, the question of the agreement’s interpretation hasn’t risen as such, but a claim for its enforcement has been brought instead. Hence, the Rabbinical Court does not have ancillary jurisdiction in this respect either.

            In conclusion: the Rabbinical Court does not have primary original jurisdiction, or ancillary inherent jurisdiction, to adjudicate a property claim for enforcement of a contractual indemnification clause in a divorce agreement that has given the effect of judgement, once the couple's divorce has been completed.

The Rabbinical Court's Jurisdiction by Virtue of Consent

26.       As can be recalled, clause 11 of the divorce agreement provides that differences between the couple after the divorce are to be adjudicated solely in the Rabbinical Courts. The couple's agreement as such cannot vest the Rabbinical Court with jurisdiction where there is no legal source for it. The agreement in this case concerns something that is not a matter of personal status according to section 9 of the Rabbinical Courts Jurisdiction Law, and it was therefore given for this purpose outside the scope of the law, and is ineffective.

            Indeed,

                        "where the subject of the litigation is not within the jurisdiction of a particular judicial entity, no agreement in the world has power to grant the entity jurisdiction that the statute has not given it; it is the statute that gives and it is the statute that takes away" (Sima Levy, p. 617).

            The Regional Rabbinical Court's decision of June 18, 2002 and the Great Rabbinical Court's decision of May 4, 2003, according to which the Rabbinical Courts have jurisdiction in principle to try the claim by virtue of the law, are inconsistent with its provisions.

The Rabbinical Court's Jurisdiction by Virtue of an Arbitration Arrangement

27.       It was further argued that clause 11 of the divorce agreement is an arbitration provision that vests the Rabbinical Court with power as an arbitrator to adjudicate the respondent's claim of a breach of the agreement's indemnification provision. Although not strictly necessary, we have considered the question in principle of whether a Rabbinical Court can be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. We have answered that question in the negative and the answer is applicable to the case herein.

            In the instant case, the conclusion that the Rabbinical Court lacks jurisdiction to try the matter as an arbitrator is also reinforced by another reason. Studying the contents of clause 11 of the divorce agreement shows that it cannot be construed as an arbitration clause, equal to an "arbitration agreement" between the parties. It is well known that the power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. Without an arbitration agreement, no arbitration arises. An "arbitration agreement", according to the Arbitration Law, is "a written agreement (between parties) to refer to arbitration a dispute that arises between them in the future, whether an arbitrator is named in the agreement or not" (section 1 of the Arbitration Law). The condition precedent for arbitration is therefore the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement (ALA 4928/92 Aziz Ezra Haj v. Tel Mond Local Council PD 47(5) 94; Ottolenghi, ibid, pp 9-41).

            In this case, the parties undertook to refer any disputes arising between them after the divorce solely to the Rabbinical Courts. No intention can be inferred from that agreement to refer such disputes to the Rabbinical Court qua arbitrator. In Jane Doe (para. 6 of Justice Barak's opinion), as in the case herein, the couple mistakenly believed that their consent to the Rabbinical Court's adjudicating disputes connected with the divorce agreement could vest it with power to decide as a state judicial instance, rather than as an arbitrator. Indeed, the wording and contents of clause 11 of the divorce agreement do not demonstrate the parties' intention to treat it as an arbitration clause purporting to empower the Rabbinical Court to act as arbitrator. Consequently, even if we assumed that the Rabbinical Court could be empowered to act as an arbitrator in matters in which it has no original or ancillary jurisdiction by virtue of the law, there is still no effective arbitration agreement, as pleaded.

A Note before Closing

28.       The issue of the Rabbinical Court's power to adjudicate by virtue of the parties' agreement, outside the scope of the law, has arisen in earlier contexts in the past, and although different opinions have been expressed in such respect by the courts, no binding decision has been necessary in connection therewith. This absence of a ruling has permitted the continuation of a procedural practice that is inconsistent with the organizational structure of the courts and the division of powers between them in accordance with state law. This custom has enabled a judicial practice that is inconsistent with the principle of the administration's legality and the legality of the judicial system. The time has come to move from the stage of expressing an opinion to the stage of making a ruling, which is necessary to ensure the proper function of the judicial system within the scope of its powers, and thereby to protect the basic foundation that defines the boundaries of its activity based on the principle of legality and the rule of law. This will not harm, in a any way, the need and ability of various social groups to entertain alternative resolution systems outside the state judicial instances, based on the principles of arbitration regulated by law or on the basis of other agreed and recognized rules of procedure. However, at the same time, it is necessary to safeguard, and protect against blurring the boundaries between the state judicial systems and alternative resolution systems that are built on the parties' agreement, in order to protect the proper operation of the different arms of the judicial system and the public's confidence in the way in which its powers are exercised and its judgments.

Conclusion

29.       By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification clause in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the Regional Rabbinical Court and the Great Rabbinical Court in the respondent's claim are void. The result is that the order nisi that has been awarded should be made absolute. The respondent shall bear the petitioner's professional fees in the sum of NIS 12,000.

 

Vice President (Ret.) M. Cheshin

 

            I concur.

 

Justice S. Joubran

            I concur.

Therefore, held as stated in the opinion of Justice Procaccia.

Awarded today, this eighth day of Nissan, 5766 (April 6, 2006).

 

___________________	___________________	___________________
Vice President (Ret.)	Justice	Justice

 

            C.A. 127/52

            Motion 80/52

 

 

RENA ROZNEK

v.

MELECH DAWMAN

 

 

In the Supreme Court sitting as a Court of Civil Appeal.

[July 23, 1952]

Before: Olshan J., Assaf J., and Witkon J.

 

 

 

Custody of minor - Agreement of parents after divorce - Jewish Law - Interests of minor paramount - Application for custody by mother - No defence filed by father - RuIe 134 of Civil Procedure Rules - Discretion of court - Dismissal of application on its merits.

 

                The parents of a girl of five years of age agreed in the course of divorce proceedings that the child should be placed in an orphanage, and that both parents should be entitled to visit her there. The mother remarried, and subsequently applied to the District Court for custody of the child on the ground that it would be in the child's interests that she should live with her mother. The father entered an appearance, but failed to file a defence, and the District Court, after considering the merits of the case, dismissed the application. The mother appealed and contended that, according to Jewish law, she was entitled to the custody of the child, and that as the father had failed to file a defence, the court was bound, under Rule 134 of the Civil Procedure Rules, 1938, to enter judgment in her favour.

               

                Held, dismissing the appeal:

               

                (1)           Rule 134 gives a discretion to the court either to dismiss the case, or to deal with it, and in the circumstances of the present case the District Court had acted correctly in dealing with the matter on its merits.

               

                (2)           The first duty of the court in matters of custody is to act in the best interests of the child, and although the general rule in Jewish law is that a small daughter should remain with her mother, this rule is not absolute

               

                (3)           In the circumstances of the present case the District Court had acted correctly in departing from the rule, by not granting custody to the mother.

           

Israel case referred to :

(1)   Dr. Meir Manfred Rosenberg v. Mrs. Shoshana Suzi Rosenberg-Ellbogen, (1950/51), 3 P.M. 36.

 

Levitzky for the appellant.

Scharf, for the respondent.

 

            ASSAF J. giving the judgment of the court :

            This is an appeal from a judgment dated June 23, 1952, of the District Court of Tel Aviv, dismissing a claim of the appellant for the delivery of her daughter, Shulamit (Sabena) Dawman, to her custody.

 

2. These are the facts. The appellant and the respondent are the parents of the child Shulamit (Sabena). They lived happily together for some years, and then serious quarrels broke out between them. Eventually, about a year ago, the appellant and the respondent were divorced, and the child, who was five years of age, was placed in a children's institution in Ramatayim, under an agreement entered into between the parents before the granting of the divorce. One of the conditions of the agreement was that neither of the parents would be entitled to remove the child from the institution without the consent of the other, and that the expenses of keeping her there would be borne by the father. The child has remained in the institution from the date of the divorce, and the father has paid the expenses of her maintenance there as agreed. Each of the parents visits the child once a week on different days, so that they should not meet.

 

            The mother, who has since remarried, now asks that the child be handed over to her - contrary to the agreement entered into between her and the father - since in her opinion the interests of the child demand that she be placed in the care of her mother. She admits that her daughter has been well cared for in the institution, but she contends that the care given by the institution is not the same as that of a mother. A doctor, who visited the institution on one occasion only, and stayed there with the child for about an hour with the mother present, noticed that the child was worse off from the psychological point of view and was not as bright as she had formerly known her to be. The child was brought before the judge, who formed a different impression. He was not satisfied that there had been a change for the worse, and his opinion was strengthened by the evidence of the owner of the institution.

 

3. The father, the respondent, entered an appearance in the court below. He did not, however, file a statement of defence, nor did he appear to defend the case at the time of the hearing. We do not now find as a fact what was the reason why he failed to file a statement of defence, although it would appear that the respondent's ill health at that time was the cause. Nevertheless the court dismissed the mother's claim. It is from this decision that the present appeal has been brought.

 

4. In the meantime an application, supported by an affidavit, was submitted to us on behalf of the respondent, requesting that he be permitted to place certain certificates before the court at the hearing of the appeal. By consent of counsel for the parties, it was decided by the court not to deal with this application separately, but to permit the parties to submit argument at the same time on the appeal itself, and on the question whether the certificates should be submitted.

 

5. Counsel for the appellant made two principal submissions in regard to the merits of the appeal, namely:

 

(a) The court below erred in not proceeding in accordance with rule 134 of the Civil Procedure Rules, 1938. The respondent entered an appearance and a statement of defence should have been filed within 15 days. He knew that a claim had been filed against him, and he also knew the nature of that claim. Since he did not file a statement of defence, it must be presumed that he waived his right to do so, and the judge should have entered judgment in favour of the mother, the plaintiff. As far as the application to this court is concerned, it can be of no assistance to the respondent even if it be allowed. The respondent was given 15 days from March 27, 1952 to file a statement of defence. He fell ill on April 4, 1952. If that is so, he had a period of seven days before he fell ill in order to file a statement of defence, and he should not have left the matter until the last minute.

 

(b) The judgment is contrary to law. The judge took no account whatever of Jewish law, according to which "a daughter shall always be with her mother, even after the age of six... and even if the mother has remarried - her daughter shall be with her" (Shulhan Aruh, Even Ha-Ezer, 82, 7). It is true that, in terms of the agreement, the child was to have been kept in an institution, and the father - with the consent of the Rabbinical Court of Tel Aviv - was the one to decide to which institution she should go.

        According to both Jewish and English law, however, no great importance is to be attached to an agreement relating to the custody of a child, and the court must have regard to the interests of the child alone. In the present case the interests of the child demand, in the submission of the appellant, that she be delivered into her mother's care, and counsel for the appellant relies upon the evidence of the doctor who saw the child.

 

6. We shall deal with these submissions seriatim.

 

            We do not accept counsel's first argument in which he relied upon rule 134 of the Civil Procedure Rules, 1988, for he based his submission upon the opening words of that rule without taking into account the last words. That rule provides that if the party served with a summons does not file a defence on or before the day fixed therefore, "the plaintiff may set down the action for judgment and such judgment shall be given on the statement of claim as the court shall think fit." Counsel for the appellant emphasised the opening words of the rule : "...and such judgment shall be given on the statement of claim", but the concluding words of the rule provide "as the court shall think fit". The court, therefore, is not bound to give judgment on the statement of claim, but may deliver such judgment as it thinks fit, being guided by what is just. If the court is of opinion that the statement of claim is not well founded, it will refuse to give judgment upon it and will not hold the defendant liable, even in the absence of a statement of defence filed within the period provided by law, and will give the judgment in his favour not only in his absence, but even without his knowledge.

           

7. In regard to the second and far more important submission of counsel for the appellant, we must hold that the rule under which a son is not separated from his mother until he is over six years of age, and a daughter remains with her mother always, is not absolute. This rule may be varied according to the circumstances. It was already laid down by one of the great Rabbis about 300 years ago that in matters such as these :-

 

"There is no contradiction between the scholars, for each case is dealt with on its own merits ... and the decisions will vary according to the facts. He who decides in a case of this kind cannot be accused of departing from what has been laid down by another scholar, where it has not been first ascertained that the circumstances of the two cases were the same, for even a slight difference in the facts may change the legal position of the case, and in this branch of the law, each case depends upon its own facts." (Responsa Darchei Noam of Rabbi Mordechai Halevi, Even Ha-Ezer, 38.)

 

8. The governing consideration in every case of this kind is the welfare of the child. When the scholars of the Talmud laid down that a daughter shall remain with her mother permanently, and a son until he has reached the age of six years, they did so for the good of the child, for even a boy of six feels more comfortable in the company of his mother (Eruvin, 82b). This general rule, however, only applies "when both the father and the mother are alive, and both are equally good for the child -in that case the mother is to be preferred." (Darchei Noam, ibid.) If the court was of opinion that it was in the interests of the child to be with his father, or even with relatives of his father, he would be taken from the care of his mother and handed to the father or the father's relatives (Darchei Noam, 26). This is also the case with a son of over six years of age, and if the court is of opinion that it is in his interests to be in his mother's home, he is left in the care of his mother (see also Compilation of the Judgments of the Chief Rabbinate of Eretz Yisrael, Jerusalem, 1950, p. 12). Rabbi David Ben Zimra went even further, and ruled that a small sick child whose mother had died should be given to his grandmother, who was prepared to take him, although the father requested that the child remain with him and be supervised by neighbours. It is clear that, according to the rule, a son must remain with his mother and not with his grandmother but if, in the opinion of the court, it will be better for the child that it should be with its grandmother, although the father "seeks the pleasure, and the joy of having his son with him", the child is not to be taken from his grandmother's home. (Responsa, Rabbi David Ben Zimra, 1, 128; Response Darchei Noam, 88.)

 

9. Rabbi Meir of Padua, after holding that where the sages laid down the rule that a daughter should remain with her mother, their purpose was to protect the welfare of the daughter, also concludes :-

 

''If it appears to the court that it is in the interests of the orphan to take the opposite course, and that she should be with her brothers, the court may simply reverse the rule in her favour ...and if she be in her brothers' home, and wishes to remain with them, there will be no need to remove her from there and return her to her mother, for it is her welfare that is sought, and not something to her detriment" (Responsa Meir of Padua, 53).

 

10. This principle - that the court must act in the interests of the child alone - runs like a golden thread through all the authorities and the Responsa of all the periods of history (see the Responsa of Rabbi Shlomo Ben-Adereth which are ascribed to Maimonides, 38; Responsa of Rabenu Asher Ben-Yehi'el, 82, 2; Responsa Perah Matte Aharon, I, 110, and so forth), and the court will not give its assent to a contract entered into between the parents if such contract is not in the interests of the child. (See Rosenberg v. Rosenberg-Ellbogen (1).) Such a contract may indeed have some relevance. That will only be so, however, where the contract does not conflict with the interests of the child, that is to say, where the homes of both the father and the mother are equally good for the child. If the mother in such a case consents to waive her preferential right, then she is bound by her agreement, and her waiver is a valid waiver. But if such an agreement is against the interests of the child, then it is void.

 

            The same rule applies where the agreement was not against the interests of the children at the time it was made, but it became so when the situation changed. In that case too the agreement is void. We find a case such as this in the Responsa of Hamabit, 2, 62:-

           

            "Reuven divorced his wife. He had two daughters, and they remained with their mother ...she remarried, and had quarrels with her husband, and for the sake of peace in the home she returned her daughters to their father after he too had remarried.  Her husband then went to another place and did not wish to return ...The daughters were unhappy in their father's home because of his new wife and wished to return to their mother now that her husband was no longer with her ...Reuven said to his former wife, 'it was your wish to hand them to my care - I do not wish to return them.' "

 

            It was held by Hamabit that "even if it was the mother's wish to hand the daughters over to their father, he is obliged to return them to her, for when it is said that a daughter must remain with her mother, it is not because the attachment and love of a mother for her daughter are greater than those of her father, but for the better upbringing of the daughter... and it is well known that it is better for a daughter to remain with her mother than with her father who has married a second time."

           

11. We shall now return to the case before us. The learned judge said in his judgment:-

 

            "I have heard the owner of the institution in which the child has been placed, and she has given me the impression that the child is in good hands. I have seen the child in my chambers, and although I cannot pretend to be an expert in understanding children, her appearance made a good impression upon me: she looks well, she is well-dressed and well-mannered ...  As far as I could see she was quite untroubled.

 

            Personally I feel that in the majority of cases, though by no means in all cases, the intimate treatment which a child receives in its parents' home is better than the best treatment which it receives at the hands of strangers...But the parents' home was broken up when the plaintiff and defendant separated, and that home no longer exists. The arrangement reached by the parents seems to me to be effective and fair, and I am not convinced that the welfare of the child calls for my intervention... The child has the benefit today - it is true in a partial and incomplete form - of the care of both father and mother - while the proposed arrangement is likely to afford her the full benefit of her mother's care, it will take from her completely that of her father. I do not think that, in the absence of some compelling reason, I am called upon to act against what one of the parents regards as his right, particularly as the arrangement in question was made by consent."

 

            We see that the learned judge weighed all the circumstances thoroughly, and was not convinced that the welfare of the child demanded his intervention. After having considered the matter, we are of the same opinion as the learned judge, and we accordingly dismiss the appeal.

           

12. It follows from what I have said, therefore, that the judgment of the court below must be confirmed. Counsel for the appellant, however, has presented us with a new - and alternative - prayer and that is that should this court decide to dismiss the appeal, the arrangement made between the parties in regard to their visits to the child should be varied so as to permit the mother to visit her every day when the mother wishes and even take her on excursions. It is not the function of this court to consider and decide on this new prayer, which was not even mentioned in the grounds of appeal. This is a matter for the District Court. Since, however, we are dealing here with arrangements for the welfare of a small child, we wish to avoid the necessity of a new case which will involve the loss of a great deal of time. Despite the fact, therefore, that we agree with the judgment of the court below, we shall set that judgment aside and return the case to the District Court with the following instructions :

 

        (a) that it deal with the application for altering the terms of the present arrangement and decide in the matter, after hearing both the parties, and after taking the advice of those experienced in matters of education, whether more frequent visits by the parents are desirable from an educational point of view;

 

        (b) that it add to its previous judgment the conclusions at which it will arrive in regard to the new prayer of the mother .

 

13. In view of the conclusions which we have reached on the merits of the appeal, we see no reason for acceding to the application filed before us by the respondent. We are doubtful, moreover, whether we are entitled in any case to accede to that application.

 

Appeal dismissed, but case remitted to District Court to consider appellant's application for variation of existing arrangements between the parties.

Judgment given on July 23, 1952.

HCJ 2232/03

A

v.

1.         Tel-Aviv-Jaffa Regional Rabbinical Court

2.         Great Rabbinical Court of Appeals

3.         B

 

Joined pursuant to the court’s decision of 13 December 2005:

Attorney-General

 

 

The Supreme Court sitting as the High Court of Justice

[21 November 2006]

Before President Emeritus A. Barak and Justices M. Naor, E. Hayut

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The petitioner and the third respondent are Jews who are Israeli citizens and residents. Although they were competent to marry in accordance with Jewish law, they chose to marry in a civil ceremony in Cyprus. The marriage subsequently broke down and after various proceedings in the rabbinical courts, the rabbinical court dissolved the marriage by means of a divorce decree. The petitioner petitioned the High Court of Justice. In her petition she argued that the rabbinical court acted unlawfully when it dissolved the civil marriage and the grounds for the dissolution of the marriage were improper.

 

Held: Following the decision of the Great Rabbinical Court in this case, civil marriages of Jews contracted outside Israel are recognized by Jewish law as marriages in accordance with the ‘laws of the Children of Noah,’ i.e., those laws which under Jewish law govern the whole of mankind. Such marriages between Jews, while not having any ‘internal’ validity under Jewish law because they do not comply with the requirements of Jewish (religious) law, have ‘external’ validity in that they are recognized internationally and prevent parties who have contracted such a marriage from remarrying until the civil marriage is dissolved. In Israel, the rabbinical courts have sole jurisdiction to make a divorce decree that dissolves civil marriages between Jews. Such a decree need not be based on one of the grounds for divorce under Jewish (religious) law. The proper ground for dissolving such marriages is that the marriage has ended, i.e., that it has broken down irretrievably. The divorce decree does not require the consent of both parties nor does it require the proof of any element of fault on the part of one or other party.

 

Petition denied.

 

Legislation cited:

Palestine Order in Council, 1922, arts. 46, 47.

Penal Law, 5737-1977, s. 177.

Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, ss. 1, 2, 3.

Spouses’ Property Relations Law, 5733-1973.

Women’s Equal Rights Law, 5711-1951.

 

Israeli Supreme Court cases cited:

[1]      HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1963] IsrSC 17 225.

[2]      HCJ 80/63 Garfinkel v. Minister of Interior [1963] IsrSC 17 2048.

[3]      HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

[4]      HCJ 2888/92 Goldstein v. Minister of Interior [1996] IsrSC 50(5) 89.

[5]      HCJ 51/80 Cohen v. Rehovot Regional Rabbinical Court [1981] IsrSC 35(2) 8.

[6]      HCJ 592/83 Fourer v. Fourer [1984] IsrSC 38(3) 561.

[7]      LCA 8256/99 A v. B [2004] IsrSC 58(2) 213.

[8]      CA 191/51 Skornik v. Skornik [1954] IsrSC 8 141; IsrSJ 2 327.

[9]      CA 373/72 Tapper v. State of Israel [1974] IsrSC 28(2) 7.

[10]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[11]    HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(1) 449.

[12]    HCJ 148/84 Shemuel v. Tel-Aviv Regional Rabbinical Court [1985] IsrSC 39(4) 393.

[13]    CA 4590/92 Kahana v. Kahana (unreported).

[14]    HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[15]    HCJ 6334/96 Eliyahu v. Tel-Aviv Regional Rabbinical Court (unreported).

[16]    HCJ 5679/03 A v. State of Israel (not yet reported).

[17]    LCA 120/69 Shragai v. Shragai [1969] IsrSC 23(2) 171.

[18]    CA 22/70 Ze’ira v. Ze’ira [1970] IsrSC 24(1) 475.

[19]    CA 328/67 Scharfsky v. Scharfsky [1968] IsrSC 22(2) 277.

[20]    CA 5258/98 A v. B [2004] IsrSC 58(6) 209; [2004] IsrLR 327.

[21]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[22]    HCJ 9476/96 Sargovy v. Jerusalem Regional Rabbinical Court (not yet reported).

[23]    CA 571/69 Kahana v. Kahana [1970] IsrSC 24(2) 549.

[24]    CA 1915/91 Yaakovi v. Yaakovi [1995] IsrSC 49(3) 529.

 

For the petitioner — M. Barshilton, Y. Barshilton.

For the first and second respondents — S. Yaacobi.

For the third respondent — G. Schneider, H. Schneider.

For the Attorney-General — Dr H. Sandberg.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

A Jewish man and woman, Israeli residents and citizens, who are competent to marry according to Jewish religious law, married in a civil ceremony in Cyprus. Subsequently the relationship between the spouses broke down. The question before us is how the civil marriage of the spouses should be dissolved.

A.    Background and proceedings

1.    The petitioner and the third respondent (hereafter — the respondent) are Jews and residents and citizens of Israel. They are competent to marry in accordance with Jewish law. They married in a civil marriage in Cyprus in 1987. When they returned to Israel, on the basis of the Cypriot marriage certificate, they were registered at the Population Registry as married. Later they held in Israel a ‘private wedding ceremony,’ which was conducted by a Reform rabbi. In 1990 a daughter was born. Over the years the marriage foundered. They began proceedings with regard to separation, property matters, financial support and the custody of their daughter before the Family Court. On 20 August 2000 the wife, who is the petitioner, filed a claim for reconciliation in the Tel-Aviv Regional Rabbinical Court. A year later she filed an application to cancel the claim, because of a further deterioration in the breakdown of the relationship between the spouses. Her application was granted and on 25 July 2001 the claim for reconciliation was struck out. Within a short time, on 3 September 2001, the husband, who is the respondent, filed a claim in the Rabbinical Court for a declaratory judgment ‘that the parties are not married according to Jewish law, or alternatively for divorce.’ The Rabbinical Court was also asked to declare that the respondent was not liable to support the petitioner financially under Jewish law. In his claim, the respondent argued that the dispute between the parties continued to deteriorate and that the relationship between them ‘had come to an end.’ He applied to divorce the petitioner. He also stated in the action that the petitioner herself ‘was not prepared to be divorced from the plaintiff but was also not prepared to live with the plaintiff.’

2.    The Regional Rabbinical Court granted the respondent’s claim. In its judgment on 7 April 2002 it held that the spouses had married in a civil marriage with the deliberate intention of not marrying in accordance with Jewish law, and that they not be constrained to do so. In such circumstances, the Rabbinical Court held that there were no grounds for concern that the parties were married under Jewish law, and there was no need for a Get.[1] The ‘private marriage ceremony,’ which did not satisfy the requirements of Jewish law for a marriage ceremony, also led the Rabbinical Court to the conclusion that the parties had not intended to marry in accordance with Jewish law. In view of these conclusions, the Rabbinical Court said:

     ‘The court holds in a declaratory judgment that the parties are not married under Jewish law.’

3.    Subsequently, for the purpose of the proceedings between the spouses in the Family Court, the respondent applied to the Regional Rabbinical Court and asked for a written confirmation that pursuant to the judgment he was entitled to remarry. The following was the decision of the Rabbinical Court:

     ‘In view of the aforesaid judgment, he is entitled to marry as a bachelor in accordance with Jewish law.’

The respondent applied once again to the Rabbinical Court in an application to clarify the judgment also with regard to the petitioner’s status. Once again the Regional Rabbinical Court ruled:

     ‘If the parties are not married to one another in accordance with Jewish law, there is no need for a clarification and the woman may marry as a spinster in the spirit of what was held in the judgment.’

4.         On 30 July 2002 the petitioner appealed these clarifying decisions to the Great Rabbinical Court. In her appeal she argued that the judgment of the Regional Rabbinical Court held only that the spouses were not married in accordance with Jewish law. This ruling did not, in her opinion, address the validity of the civil marriage. Therefore the Rabbinical Regional Court was not entitled to determine that the parties were free to marry, since the civil marriage was still valid. The petitioner further argued in her appeal that in order to bring the civil marriage to and end, a judicial act was required, and this should address whether there were any grounds for divorce and what rights were involved in the divorce. A determination that the parties were not married according to Jewish law was insufficient to dissolve the civil marriage.

5.         The Great Rabbinical Court allowed the petitioner’s appeal. In its judgment on 5 February 2003 it held that the Rabbinical Court was competent to dissolve the marriages of Jewish couples in Israel, whether by means of a Get or, when Jewish law does not require a Get, by means of a divorce decree. For this purpose a positive act of the Rabbinical Court was required to dissolve the marriage. The judgment of the Regional Rabbinical Court did not constitute such an act. The Great Rabbinical Court said:

     ‘In this case, the Rabbinical Court chose to give a declaratory judgment only, without adding to it a decree dissolving the marriage… The Regional Rabbinical Court satisfied itself with the first part of the claim, and gave a declaratory judgment that the parties were not married in accordance with Jewish law. The problem, however, is that from the viewpoint of civil law the parties married in a civil ceremony and they are considered married throughout the world, including in the State of Israel. There is a simple remedy to this. The Regional Rabbinical Court could have added one line to its judgment and said in it that the Rabbinical Court hereby dissolves the marriage. This single line is sufficient to make the parties unmarried even in accordance with civil law. The Regional Rabbinical Court chose to ignore the operative decision to dissolve the marriage and satisfied itself with a declaratory judgment in accordance with Jewish law, which gives rise to an intolerable result. The parties are not considered married under Jewish law, but their civil marriage has not been dissolved. This is the outcome that confronts the parties. Therefore we have no alternative other than to allow the appeal. The way to resolve the matter is to apply once again to the Regional Rabbinical Court in an application to dissolve the parties’ civil marriage.’

6.    When the judgment of the Great Rabbinical Court was brought before it, the Regional Rabbinical Court gave an additional judgment on 12 February 2003. In this judgment the Regional Rabbinical Court did what it needed to do according to the judgment in the appeal, and made the following decision:

     ‘In the appeal to the Great Rabbinical Court the court was required to add to the judgment that the court hereby dissolves the marriage, and therefore the court reiterates the judgment “that the parties did not marry one another in accordance with Jewish law and the court hereby dissolves the marriage and the parties may marry in accordance with Jewish law as unmarried persons.’

7.    Following the additional judgment of the Regional Rabbinical Court, the petitioner filed the petition in this court. In her petition she requested that we order the judgment of the Regional Rabbinical Court of 12 February 2003 to be set aside, and we also set aside the guideline appearing in the judgment of the Great Rabbinical Court according to which adding the missing line was sufficient to dissolve the marriage. The petitioner focused on the argument that without the consent of both parties, the mere fact that a Jewish couple married in a civil marriage that took place outside Israel and did not marry in accordance with Jewish law cannot in itself constitute grounds for dissolving the civil marriage. It follows that the decision to dissolve the marriage without consent, which is based on the actual civil marriage, is unlawful and should be set aside. We heard the petition on 9 July 2003. At the end of the hearing, in accordance with the proposal of Advocate S. Yaacobi, the legal adviser to the Rabbinical Courts, we referred a request to the Great Rabbinical Court to set out in full the reasoning underlying its judgment, before we continued to hear the petition. The following is what we said in our decision:

     ‘Before we continue to hear the petition, and in accordance with the proposal of Advocate S. Yaacobi, we would ask the Great Rabbinical Court to set out in full the reasoning for its judgment in so far as its remarks at the end of the judgment are concerned… according to which “the way to resolve the matter is to apply once again to the Regional Rabbinical Court in an application to dissolve the parties’ civil marriage.” In the course of reading the petition and the reply to it — which were also sent to the Great Rabbinical Court — several questions arose, such as: according to which law was the marriage dissolved? What are the grounds for this? Is the application of one party sufficient? When we receive the supplementary decision of the Great Rabbinical Court we will continue to hear the petition.’

B.    The supplementary judgment of the Great Rabbinical Court

8.    The Great Rabbinical Court (Rabbis S. Dichovsky, S. Ben-Shimon and A. Sherman) responded to our request. On 11 November 2003 it gave a supplementary judgment, per Rabbi S. Dichovsky, in which it addressed our questions (hereafter — the supplementary judgment of the Great Rabbinical Court). The first question addressed was: according to what law was the civil marriage dissolved? In the course of answering this question, the Great Rabbinical Court addressed the question of the validity of a civil marriage between an Israeli Jewish couple. The following is what it said:

     ‘The question of the validity of a civil marriage between an Israeli Jewish couple has, in essence, two aspects. One aspect concerns the reciprocal obligations of the parties. Does the law in the State of Israel recognize this marriage as creating an ordinary set of obligations of “status”? Does an obligation of financial support arise? Does the spouse have a right to inheritance? The other aspect concerns the ramifications of this marriage vis-à-vis third parties: does this marriage prevent the parties from marrying third parties until the marriage is ended, or in our expression “dissolved” (from the expression “to dissolve a union”), according to law? The first aspect, the validity of a civil marriage that took place abroad between Jews who are citizens of Israel vis-à-vis the reciprocal obligations of the parties, was thoroughly, analytically and profoundly considered by the late Prof. Menashe Shava… Prof. Shava’s conclusion is:

     “When the civil court considers the validity of a civil marriage that took place abroad between a Jewish couple who are citizens of Israel, it is required to examine its validity under Jewish law, as the ‘personal law’ of the spouses within the meaning thereof in art. 47 of the Palestine Order in Council, without taking into account the law of the place where the marriage took place.”

     This conclusion has been adopted, inter alia, by the Tel-Aviv District Court… In that case, a claim for financial support that was filed by a wife who marriage her husband in a “Paraguayan marriage” was denied. The court held that at the time of the marriage, the couple were both residents and citizens of the State of Israel, and therefore their personal law at the time of the marriage was Jewish religious (Torah) law. Since they did not marry in accordance with Torah law, it was not possible to recognize the woman as married for the purpose of an obligation of financial support.

     Indeed, we agree with Prof. Shava’s opinion, that it is necessary under Israeli law to examine the validity of the marriage under Jewish law. We also agree with the position of the District Court with regard to the husband not being liable to support the wife financially. In our opinion, the same law ought to apply with regard to the spouse’s statutory right of inheritance, but of course that is not the issue in this appeal’ (p. 3 of the supplementary judgment of the Great Rabbinical Court).

9.    The main issue that was addressed by the Great Rabbinical Court was the ramifications of the marriage on third parties. In this regard, the Great Rabbinical Court held, with regard to the offence of ‘bigamy’ in the Penal Law, the following:

‘… It is sufficient that a civil marriage is valid under the internal law that prevails in the place where it is contracted — in our case, in Cyprus — in order that this should prevent a Jew who is an Israeli citizen, as long as the marriage has not been dissolved, from marrying another person. … In view of the position that was described above, we held that a positive order should be added to the effect that the rabbinical court “dissolves the marriage.” Thereby the rabbinical court terminates in Israel the legal validity of the civil marriage with regard to the criminal aspect of bigamy, and each of the parties may marry another person… Under section [177 of the Penal Law, 5737-1977], a judgment of the competent religious court that cancels or terminates the marriage changes the spouses into unmarried persons, from the time when the judgment is given’ (pp. 4-5 of the supplementary judgment of the Great Rabbinical Court.

10. The Great Rabbinical Court emphasized that the only competent court to dissolve the marriage is the rabbinical court (s. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953). The law that the rabbinical courts will apply is Torah law. Therefore the Great Rabbinical Court was required to examine the position of Jewish religious law with regard to civil marriages and the means of dissolving them. The Great Rabbinical court said that there is a long-standing difference of opinion between the arbiters of Jewish law with regard to the validity of civil marriages under Jewish law. The accepted approach in the Rabbinical Court is that a civil marriage that takes place where there is no alternative is treated strictly from the viewpoint of Jewish religious law. The assumption is that the couple wish to marry lawfully and they are living like a husband and wife in order to conduct a family life in accordance with Jewish law. The significance is that should they wish to continue their marriage, a Jewish religious marriage ceremony should be arranged for them. If one of the parties wishes to end the marriage, it is possible to allow them to separate with some degree of leniency. On rare occasions it is even possible to dissolve the marriage without a Get.

11. By contrast, a civil marriage that is contracted by choice and out of a desire to marry other than in accordance with Jewish religious law is regarded as a marriage that is contrary to Jewish law. Since such a couple reject Jewish law, the marital relations between them are intended to create a family other than in accordance with Jewish law. In such a situation, a husband is not required to give his wife a Get. The marriage may be dissolved by making a divorce decree. The Rabbinical Court clarified that there is a possibility in Jewish law of dissolving a marriage without a Get. It reviewed the Jewish law sources, in which Jewish law recognized the possibility of dissolving a marriage union without a Get. These also mention the custom in the rabbinical courts of dissolving civil marriages by way of a decree. The court said:

     ‘Jewish law requires a Get to dissolve a marriage. As we have said, Jewish law allows a marriage to be dissolved in another way in the case stated above. The rabbinical courts have also added to this list cases of civil marriages that were contracted in a manner that is not according to Jewish law, as stated above. The marriage is dissolved by means of a divorce decree, according to the accepted practice of civil law in many countries. The dissolution of the marriage has the same significance as a divorce in every respect, without a need to use a Get. It is hard to say when the rabbinical courts began to dissolve civil marriages by making divorce decrees, but today this is a widespread practice of the rabbinical courts’ (p. 8 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court further said that in such a situation where it is the rabbinical court that dissolves the marriage by means of a decree, the consent of the husband, which is required for a Get, is also not needed:

     ‘These divorces are effected by the rabbinical court by means of a divorce decree. Therefore the rabbinical court is its own master and can dissolve the marriage without consent’ (p. 9 of the supplementary judgment of the Great Rabbinical Court).

12. The Great Rabbinical Court found the basis in Jewish law for giving a divorce judgment in the ‘Noahide laws.’[2] This relies on the approach that even though when the Torah was given special laws of marriage and divorce were imposed on the Jewish people, they were not exempted from the Noahide laws of marriage and divorce. According to Jewish law, the Children of Noah also have their own laws of marriage and divorce. The Children of Noah do not have a law of the sanctity of marriage (kiddushin) but they do have a law of marriage (insulin). The Great Rabbinical Court said:

     ‘The concept of the sanctity of marriage (kiddushin) is unique to the Jewish people, whereas the concept of marriage (insulin) is universal (and see Avudraham’s Prayer Book on the betrothal blessing). The “divorce” of a Jew is associated with the sanctity of marriage (kiddushin), so that anyone who is not subject to the laws of kiddushin that are unique to the Jewish people is not subject to the Jewish laws of divorce. In other words, he is not subject to the special Jewish laws of divorce’ (p. 9 of the supplementary judgment of the Great Rabbinical Court).

The original position of Jewish law was that couples who married in accordance with the Noahide laws could divorce without any grounds whatsoever; it was sufficient for one to leave the other in order that both should be permitted to remarry. But over the years a custom of registering marriage and divorce arose also among the Children of Noah, and with it a requirement for a formal process of divorce. This requirement is recognized today by Jewish law. Thus the Great Rabbinical Court held:

     ‘Over the years all civilized countries have introduced marriage and divorce procedures, which involve a government authority. It can be said that in principle Jewish law also recognizes the binding validity of these procedures. With regard to divorce, the universal custom today is that the competent court in each country is the body that decrees parties to be divorced, and a physical separation between the spouses is insufficient. According to the approach of Maimonides it can therefore be said that divorces of the Children of Noah are today effected, in accordance with the custom of the nations of the world, by means of a decree of the competent religious or secular court that the parties have parted from one another. This custom has binding validity under Jewish law’ (p. 11 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court went on to hold that:

     ‘Jewish law admittedly refuses to give full recognition to “civil marriages,” and it requires Jewish couples to complete the relationship between them by means of a marriage in accordance with Jewish law. At the same time, Jewish law recognizes these marriages as Noahide marriages’ (p. 11 of the supplementary judgment of the Great Rabbinical Court).

These civil marriages of Jewish are, according to Jewish law, ‘marriages for the purpose of divorce according to the Noahide law.’ Since Jewish law recognizes civil marriages of Jews as ‘Noahide marriages,’ it should also follow the rules concerning the divorces of such couples. In order for them to divorce, in accordance with the universal custom of the Children of Noah, a decree of the rabbinical court is required:

     ‘According to the original law of the Children of Noah, a physical separation between the couple was sufficient in order that the law should regard them as divorced from one another. Today, in accordance with the universal custom of all the Children of Noah, there is a need for the court to make a decree to this effect. Especially with regard to Jews this is not an insignificant matter. According to the practice of the rabbinical courts, the court examines in each case of a couple who entered into a civil marriage whether the specific couple can be regarded as married in accordance with the Jewish laws of marriage (and not merely as “Children of Noah”). This examination is made in order that couple may not become available to remarry unlawfully, with all of the serious ramifications that this entails under Jewish law. Indeed, once the rabbinical court has arrived at the conclusion that the parties are not married in accordance with Jewish law, the court has not completed its task. Since the parties are prohibited from remarrying until their civil marriage has been cancelled or annulled, the court decrees the “dissolution” of the civil marriage’ (pp. 11-12 of the supplementary judgment of the Great Rabbinical Court).

The Great Rabbinical Court clarified that this decree does not annul the marriage ab initio. The termination of the marriage has prospective effect:

     ‘By doing this, the rabbinical court does not decree that the marriage was void ab initio… These marriages are valid like all marriages of the Children of Noah, and the Jewish people are also a part of the Children of Noah. By decreeing the dissolution of the marriage, the rabbinical court terminates the civil marriage from that moment onward’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

13. Thus the Great Rabbinical Court arrived at the second question addressed to it, namely the question of the grounds for dissolving the civil marriage. The Great Rabbinical Court held that in a divorce not requiring a Get, there is no need for any Jewish law grounds for compelling a Get. The court need only examine the circumstances and the absence of any chance of a reconciliation between the parties:

     ‘When the court finds that there is no possibility of a reconciliation between the couple, then the court can arrive at the conclusion that they should separate, and the divorce is effected by means of a divorce decree. Even in these marriages[3] the rabbinical court makes efforts to reconcile the parties and to persuade them to marry in accordance with Jewish law’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

With regard to the third question — whether an application of one party is sufficient in order to dissolve the civil marriage — the Great Rabbinical answers that it is. It holds that the rabbinical court may decree the dissolution of the marriage without consent, when it transpires that there is no possibility of the parties living in harmony, even if there are no grounds for divorce under Jewish law.

14. With regard to the specific case, the Great Rabbinical Court said that the parties deliberately chose not to be bound by Jewish law, and they contracted a civil marriage in Cyprus. It became clear to the court that the couple could not be reconciled. The husband strongly objected to continue the formal state of marriage, and there was no reason why the parties should continue to be related on paper only. The ground for determining that the parties should divorce was ‘the end of the marriage.’ The marriage had ended and their relationship was far from harmonious. In such circumstances, since there was no chance of a reconciliation, the marriage was dissolved by the rabbinical court. The court went on to say that even in a case of a Jewish law marriage, a situation of an absolute separation and the absence of any chance of a change constitutes a ground for ordering a divorce.

15. In summary, the Great Rabbinical Court set out its specific answers to our questions as follows:

‘a. The civil marriage was dissolved in accordance with Jewish (Torah) law, by means of a decree that dissolves the marriage of the parties.

b.  A decree that dissolves a civil marriage will be made when there are substantial reasons why it is not possible for the parties to live harmoniously. The rabbinical court will consider these reasons, and after it reaches a conclusion that there is no hope of a reconciliation and that there is no alternative to terminating the marriage, then a decree will be made to dissolve the marriage.

c.  The rabbinical court will examine the possibility of arranging a Get both from the viewpoint of Jewish law and from a practical viewpoint. Should it not be possible to arrange a Get from these viewpoints, then the marriage will be dissolved by means of a decree.

d.  There is no need for the consent of the two parties to dissolve the marriage; only one of them need apply for divorce, stating the appropriate grounds as aforesaid.’

C.    The positions of the parties

16. At our request, the parties stated their positions with regard to the supplementary judgment of the Great Rabbinical Court. The petitioner remained unchanged in her position that the ruling of the rabbinical court and the divorce decree should be set aside. The supplementary judgment of the Great Rabbinical Court shows, in her opinion, that civil marriage is considered ‘inferior’ by the rabbinical court and it will dissolve it without hesitation, even without any objective reason, as soon as it is asked to do so by one of the parties. The petitioner further argues that the supplementary judgment of the Great Rabbinical Court has no basis in the facts of the case. Before the Great Rabbinical Court and the Regional Rabbinical Court there was no factual basis concerning the nature of the parties’ married life and concerning the ‘end of the marriage.’ No investigation was made, in practice, with regard to any substantial reasons why a reconciliation could not be made between the parties. The Regional Rabbinical Court heard evidence solely on the question of which marriage ceremony the parties originally underwent. It is therefore unclear how the Great Rabbinical Court reached the conclusion that the parties should divorce immediately. The petitioner deduces from this that we are dealing merely with a concealment of the fundamental position of the rabbinical court with regard to civil marriages. From a factual viewpoint, the petitioner claims that recently the parties have actually become closer and the chance of a reconciliation has increased.

17. The petitioner also attacks the legal rulings in the supplementary judgment of the Great Rabbinical Court. She complains that although the rabbinical court regards the marriage as a ‘marriage of the Children of Noah,’ the criteria that are used to dissolve it are not the criteria of the ‘Children of Noah.’ The rabbinical court examines the marriage with Jewish law parameters and has a tendency to dissolve it easily. The petitioner argues that one cannot adopt the criteria of the ‘Children of Noah’ solely for the purpose of separating the spouses. One should adopt the whole legal framework, including the right to financial support after the divorce (alimony). The petitioner raises the possibility that the rabbinical court might apply to the couple the laws of divorce in the place where the marriage took place. Alternatively, Jewish law should be applied to the whole framework of the divorce, including to the question of the existence of a Jewish law ground for divorce. Otherwise any husband who contracts a civil marriage may apply to the rabbinical court in a divorce claim and automatically obtain a decree that divorces the wife and abandons her to the ignominy of starvation, without a proper economic arrangement between the spouses. This constitutes a serious violation of the wife’s dignity, her rights under the Women’s Equal Rights Law and her right to live with dignity.

18. The respondent for his part raises a host of arguments. In the procedural sphere the respondent argues that the proper way to challenge a decision of the Regional Rabbinical Court is to appeal to the Great Rabbinical Court, before applying to the High Court of Justice. The respondent adds that the petitioner has violated the procedural arrangement that was made in the Regional Rabbinical Court, according to which the hearing of the claim would be split into two parts and it was agreed that ‘if the rabbinical court would decide that the parties were not married in accordance with Jewish law, the case would be closed with the consent of both parties.’ The petitioner’s revised position is in fact tantamount to a change of direction in the petition from a petition that argues a lack of jurisdiction to a petition that argues a lack of a sufficient factual basis. On the merits, the respondent says that there is no doubt that the parties’ life together ended a long time ago and there is no chance of a reconciliation. The parties live apart. Their joint apartment was sold within the framework of a receivership that was ordered by the Family Court. The true purpose of the petition is to obligate the respondent to pay financial support for as long a time as possible. In any case, in so far as the petitioner has any arguments against the application of the law to the facts of the case, these should be pleaded in the Great Rabbinical Court in an appeal. Moreover, the factual basis before the Regional Rabbinical Court was that there was no chance of a reconciliation. What was before the rabbinical court was the petitioner’s application to cancel the reconciliation claim, the reconciliation claim itself with its contents and the respondent’s divorce claim, in which it was made clear that he was no longer interested in the marriage. There are also welfare reports (which were filed in the Family Court in the custody proceedings) according to which there was no chance of rehabilitating the relationship and it was important to bring about a quick separation of the couple.

D.    The Attorney-General’s position

19. After we received the supplementary judgment of the Great Rabbinical Court, we were of the opinion that the petition before us prima facie raises important questions with regard to which we ought to hear the Attorney-General’s position. We therefore directed the attention of the Attorney-General to the petition, in order that he might consider whether he wished to attend and address, inter alia, the question of the legal validity of ‘Cypriot marriages’ that are contracted by Jews who are citizens and residents of Israel, and the laws that apply to a divorce claim in such circumstances (our decision of 13 December 2005).

20. The Attorney-General decided to join the proceeding. In his notice (on 20 March 2006) he set out his position on the question of what should be the law that governs the dissolution of a marriage in the rabbinical court with regard to a Jewish couple who are citizens and residents of Israel and contracted a civil marriage in Cyprus. In this matter the Attorney-General supports what is stated in the supplementary judgment of the Great Rabbinical Court, in every respect. The Attorney-General does not accept the petitioner’s argument that because the marriage was valid in the place where it was contracted (Cyprus) and was registered at the Ministry of the Interior in Israel, the rabbinical court should apply to it the strict laws of divorce that apply to parties that married in accordance with Jewish religious law. The Attorney-General did not express any opinion on the question whether the civil marriage in Cyprus is a valid marriage. He merely states the fact that the registration of the marriage (at the Israeli Ministry of the Interior) does not constitute evidence that what is stated in the registration is correct. The Attorney-General focuses on substantive reasons why the approach of the rabbinical court to the dissolution of the marriage on the ground that ‘the marriage has ended’ is a proper one, even in the absence of consent and in the absence of any ground for divorce under Jewish (religious) law. According to him, the approach of the Great Rabbinical Court gives the rabbinical court or the civil court tools to dissolve the marriage and thereby stop one party from ‘imposing a veto’ on the divorce and preventing the other party from remarrying. The ground for divorce used by the rabbinical court — the ground that ‘the marriage has ended’ — is today an accepted and proper ground in many countries where civil divorces are practised. An ‘irreversible breakdown of the relationship’ between the couple is an objective and recognized ground for divorce. The approach of the Great Rabbinical Court is consistent with accepted liberal positions, while adopting a cautious approach to them. The Attorney-General adds, however, that the relative simplicity with which civil marriages that were contracted outside Israel are dissolved does not necessarily mean that the property rights of either of the spouses are violated. It is certainly possible that the parties will be entitled to property rights, usually on the basis of contractual constructions.

E. The questions to be decided

21. What lies at the heart of the petition is the legal question concerning the dissolution of civil marriages between Jews who are Israeli residents and citizens, who, although they were Israeli citizens or residents, married outside Israel, even though they were competent to marry in accordance with Jewish law. In order to arrive at a solution to this question, we need to consider four issues. The first issue concerns the validity of the civil marriage under Israeli law. The question here is whether marriages between Jews who are citizens or residents of Israel, who are competent to marry under Jewish law and who marry outside Israel in a ceremony that is recognized in the country where it took place, are valid in Israel. If it is found that the marriage is valid, a second issue arises; this concerns the jurisdiction to dissolve the civil marriage. The question here is which court (the rabbinical court or the civil court) should try the question of the divorce. The third issue concerns the grounds for dissolving the civil marriage. The question here is on what grounds should a court bring the marriage to an end. A fourth issue concerns the reciprocal rights of the couple that entered into a civil marriage. The question here is whether the spouses have rights against one another, and if so what is their source and content. Let us consider these four issues in order.

F.    The validity of civil marriages

22. The petitioner and the respondent — Jews who are residents and citizens of Israel — married in a civil ceremony outside Israel. They were competent to marry in accordance with Jewish law. They were registered at the Population Registry in Israel as married. The registration of the marriage was made on the basis of the well-established case law ruling that the Ministry of the Interior is obliged to register a marriage that appears to be valid in the absence of any evidence to the contrary (HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]; HCJ 80/63 Garfinkel v. Minister of Interior [2]; HCJ 58/68 Shalit v. Minister of Interior [3]). Since the decision in Funk-Schlesinger v. Minister of Interior [1], the registration official at the Population Registry registers civil marriages on the basis of a public certificate attesting the marriage that is submitted to him (HCJ 2888/92 Goldstein v. Minister of Interior [4]). The registration does not attest to the substantive validity of the marriage. The registration is for statistical purposes only. The question whether a civil marriage that took place abroad between Jews who are Israeli residents and citizens gives the couple a personal status of being married has arisen from time to time in the case law of this court. Although it has been discussed in several obiter statements, it has not been decided (HCJ 51/80 Cohen v. Rehovot Regional Rabbinical Court [5]; HCJ 592/83 Fourer v. Fourer [6]; LCA 8256/99 A v. B [7]). The question of the validity of the marriage arises once again in the petition before us.

23. ‘Marriages and divorces of Jews shall take place in Israel in accordance with Torah law’ (s. 2 of Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953). But what is the law concerning marriages between Jews that take place outside Israel? It is universally agreed that if the marriage outside Israel is in accordance with Jewish law, it is valid in Israel (CA 191/51 Skornik v. Skornik [8]; A. Levontin, On Marriages and Divorces that are Contracted Outside Israel (1957), at p. 18; M. Silberg, Personal Status in Israel (1965), at p. 251). But what is the law if the marriage that took place outside Israel is not a marriage in accordance with Jewish law? No problem arises, from the viewpoint of civil law and the civil courts, if at the time of the marriage the spouses were not Israeli citizens or residents. In such a case, the validity of the marriage is determined in accordance with the rules of Israeli private international law. According to these, if the personal law of the couple at the time when the marriage was contracted recognizes the validity of the marriage, Israeli civil law also recognizes the marriage (Skornik v. Skornik [8], at pp. 167-168 {360-361}). ‘The law at the time of the act is what determines the validity or the invalidity of the act’ (Silberg, Personal Status in Israel, supra, at p. 222). ‘When the parties have acquired, for example, a status of a married couple under their national law, any change that will occur in their personal law subsequently as a result of a change in their nationality is incapable of denying them the status of a married couple’ (M. Shava, Personal Law in Israel (vol. 1, fourth expanded edition, 2001), at p. 80).

24. But what is the law if at the time of the civil marriage outside Israel both spouses were Israeli citizens or residents? In this matter it was possible in the past to identify two possible approaches. According to one approach, when examining the validity of a marriage that contains a foreign element we should refer to the rules of private international law (Justice Witkon in Skornik v. Skornik [8], at p. 179 {376-377}; cf. the position of Justice Olshan, ibid. [8], at pp. 159-161 {351-353}). The rules of English private international law, which were absorbed into Israeli law by means of art. 46 of the Palestine Order in Council, 1922, distinguish between the formal validity of a marriage, which concerns the propriety of the marriage ceremony, and the essential validity of a marriage, which concerns the competence of the parties to marry. Questions concerning formal validity are governed by the law of the place where the marriage was contracted (lex loci celebrationis). The question of the competence of the parties is governed by the law of their domicile at the time of contracting the marriage (lex domicilii) or the law of the place where the marriage is intended to be realized (Dicey & Morris, Conflict of Laws (thirteenth edition, 2000), at pp. 651, 675). When we are dealing with a civil marriage between Jews who are competent to marry one another, the formal validity of the marriage (the civil ceremony) will be examined in accordance with the law of the place where the marriage was contracted. Assuming that the civil marriage ceremony is a valid form of marriage in the place where the marriage was contracted, the marriage is recognized by Israeli law, since the couple are competent to marry under their personal law. It should be noted that we are speaking of a civil marriage at which the parties are present in person. We are expressing no position with regard to marriage by proxy (such as ‘Paraguayan marriages’ or ‘Mexican marriages’).

25. The second approach to examining a civil marriage rejects the application of the rules of English private international law (with their distinction between content and form) in favour of personal law. With regard to Israeli residents and citizens, the validity of the marriage will be determined by applying their personal laws at the time when the marriage was contracted (Shava, Personal Law in Israel, supra, at p. 554); see also Levontin, On Marriages and Divorces that are Contracted Outside Israel, supra, at p. 17; cf. P. Shifman, Family Law in Israel (vol. 1, second edition, 1995), at p. 352). Those who espouse this approach regard the provisions of art. 47 of the Palestine Order in Council as requiring the civil courts to apply the personal law of the parties. With regard to Israeli citizens, this is their religious law, even if a foreign element is involved in the marriage (Shava, Personal Law in Israel, supra, at p. 131; see also Silberg, Personal Status in Israel, supra, at p. 212). Those who support this approach add that in so far as Jews are concerned, their personal law, which is Jewish religious law, does not distinguish between the content and the form of the marriage, so there is no basis for the distinction that exists in the rules of English private international law (see Levontin, On Marriages and Divorces that are Contracted Outside Israel, supra, at pp. 34-36; Shava, Personal Law in Israel, supra, at p. 558). According to this approach, the validity of the marriage of an Israeli citizen that took place outside Israel will be determined in accordance with the religious law of the Israeli citizen, precisely as if the marriage had taken place in Israel. If the religious law does not recognize the marriage, then it has no validity under Israeli law.

26. Deciding between these two approaches is difficult (see LCA 8256/99 A v. B [7], at p. 230). But we cannot avoid adopting a position on this question. The Great Rabbinical Court adopted a position when it held that:

     ‘… from the viewpoint of civil law the parties married in a civil ceremony and they are considered married throughout the world, including in the State of Israel’ (the decision of 5 February 2003).

I agree with this. The recognition of the validity of the marriage is required under the rules of private international law, which constitute an integral part of Israeli law. They were absorbed in the past from English law. Now they are independent. They develop as Israeli law develops. They therefore constitute an integral part of Israeli common law. According to these rules of private international law, when there is a foreign element in a marriage, it should be taken into account. The provisions of the Palestine Order in Council, which apply religious law as the personal law of a local citizen, are subject to the rules of private international law. Indeed, ‘the rules of private international law take precedence in their application to any law that is merely municipal or internal’ (per Justice Witkon in Skornik v. Skornik [8], at p. 179 {376-377}). Even the provisions of art. 47 of the Palestine Order in Council, which applies religious law as the personal law of a local citizen, is a ‘merely municipal or internal’ law. The provisions of the article are subject to the rules of private international law. It follows that the validity of a marriage that was contracted by a Jewish couple outside Israel, even if the two spouses were at that time residents and citizens of Israel, will be determined while taking into account the rules of the conflict of laws as practised in Israel. According to these, the marriage has formal validity (under the foreign law) and it has essential validity (under Jewish law), and therefore the marriage is valid in Israel (both from the viewpoint of the external aspect and from the viewpoint of the internal aspect). This result is also required in view of the reality of life in Israel. Thousands of Jews who are citizens and residents of Israel wish to marry by means of a civil marriage that takes place outside Israel. This is a social phenomenon that the law should take into account. This was discussed by Justices Sussman and Witkon in the past, when they expressed the opinion in obiter remarks that with regard to the validity of marriages that take place outside Israel between Israeli citizens or residents, it is sufficient that they are valid according to the law of the place where they were contracted, even if the spouses are not competent to marry under their personal law (see Funk-Schlesinger v. Minister of Interior [1], at pp. 253-254; CA 373/72 Tapper v. State of Israel [9], at p. 9). Within the framework of the petition before us, we do not need to make a decision with regard to this position, and we need only adopt the more moderate position that the marriage is valid if the couple are competent to marry under their personal law and the marriage ceremony took place within the framework of a foreign legal system that recognizes it. This conclusion is strengthened by our outlook on the human dignity of each of the spouses. The willingness to recognize the validity of a status acquired by Jews who are Israeli citizens or residents by virtue of a foreign law which is not contrary to public policy in Israel is strengthened in view of the recognition of the status of the right to marry and to have a family life and in view of the duty to respect the family unit. Indeed, ‘One of the most basic elements of human dignity is the ability of a person to shape his family life in accordance with the autonomy of his free will… The family unit is a clear expression of a person’s self-realization’ (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [10], at para. 32 of my opinion; see also P. Shifman, ‘On Divorce Substitutes Created by the Civil Court,’ Landau Book (vol. 3, 1995) 1607, at p. 1608).

27. The rabbinical court recognized a civil marriage between Jews, who are Israeli citizens or residents, that was contracted outside Israel — a civil marriage that is not in accordance with Jewish law — in its external aspect. The supplementary judgment of the Great Rabbinical Court distinguishes between a ‘marriage in accordance with Jewish law’ and a ‘marriage of the Children of Noah.’ It classifies the civil marriage as a ‘marriage of the Children of Noah.’ It does not deny their validity. Admittedly, the rabbinical court emphasizes that Jewish law does not regard the couple as married in accordance with Jewish law. Notwithstanding, Jewish law recognizes the marriage as a ‘marriage of the Children of Noah.’ The marriage is not null and void ab initio even from the viewpoint of Jewish law. From the viewpoint of status vis-à-vis the whole world, the civil marriage has far-reaching ramifications. The spouses are not considered unmarried. Without a dissolution of the marriage, the couple are not permitted to remarry, and if they remarry, this constitutes bigamy which is prohibited by the law (see p. 4 of the supplementary judgment of the Great Rabbinical Court). This civil marriage between Jews is, according to Jewish law, ‘a marriage for the purpose of divorce according to the law of the Children of Noah.’ Moreover, a dissolution of the marriage also does not annul the marriage ab initio but merely terminates it from that time onward. The Great Rabbinical Court does not deny the existence of the marriage. It considers whether to dissolve it. The marriage exists, in its opinion, in the sense that it has legal ramifications under Jewish law with regard to its external aspect.

28. I agree with this. I regard the supplementary judgment of the Great Rabbinical Court as an important contribution to the development of matrimonial law in Israel. The supplementary judgment reduces the conflict between the two approaches for examining the validity of a civil marriage outside Israel between Jews who are citizens and residents of Israel. According to both approaches, such a marriage is recognized in Israel, and it is necessary for an act of divorce in order to sever the bond of marriage. The difference between the two approaches concerns the internal relations between the spouses. In this matter, the Great Rabbinical Court held that for the purpose of ‘the validity of a civil marriage that took place abroad between Jews who are Israeli citizens with regard to the reciprocal obligations between the parties… it is necessary under the law in Israel to examine the validity of the marriage in accordance with Jewish law’ (p. 3 of the supplementary judgment of the Great Rabbinical Court). This does not rule out the existence of a civil relationship between the parties by virtue of the application of private international law. According to this, the civil marriage that took place outside Israel between a Jewish couple who are Israeli residents or citizens is recognized as creating a status of marriage in Israel.

G.    The jurisdiction to dissolve a civil marriage

29. How does an Israeli couple, who are Jews and citizens or residents of Israel and contracted a civil marriage outside Israel, become divorced? The answer to this question can be found in s. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, which provides that ‘Matters of marriage and divorce of Jews in Israel who are citizens or residents of the state shall be in the sole jurisdiction of rabbinical courts.’ ‘Matters of divorce’ of Jews also includes divorces other than by way of a Get. This was discussed by Rabbi S. Dichovsky in the Great Rabbinical Court, where he said:

     ‘The dissolution of the marriage is effected by way of a decree of divorce, as customary in the civil law of many countries. The significance of the dissolution of the marriage is a divorce in every respect, without any need to use a Get’ (p. 8 of the supplementary judgment of the Great Rabbinical Court).

Indeed —

     ‘When we are speaking of a Jewish couple in Israel who are residents or citizens of Israel, whether they married in Israel or abroad, and whether they married in a religious or civil marriage, the jurisdiction in a divorce claim between them in Israel lies solely with the rabbinical court. This jurisdiction extends to a certain class of litigants, as defined in the law — Jews, citizens or residents of the state, who are present in Israel — and it is not affected by what the couple have done or have not done previously outside Israel’ (per Justice Z. Berinson in HCJ 3/73 Kahanoff v. Tel-Aviv Regional Rabbinical Court [11], at p. 452; see also Cohen v. Rehovot Regional Rabbinical Court [5]; Fourer v. Fourer [6]).

‘There is no dispute on this matter; everyone agrees that wherever the marriage was contracted, the rabbinical court is competent to consider the question of the divorce’ (my opinion in HCJ 148/84 Shemuel v. Tel-Aviv Regional Rabbinical Court [12], at p. 398). In Cohen v. Rehovot Regional Rabbinical Court [5] it was argued that the rabbinical court is not competent to try a divorce claim between Jewish spouses (a kohen[4] and a divorcee) who married outside Israel in a civil marriage, since the rabbinical court does not recognize the civil marriage. President M. Landau rejected this argument because of ‘the possibility that a rabbinical court will decide in such a case that a Get is required as a stringency because the parties might be married… Even a Get required as a stringency is a Get and therefore it is a matter of divorce within the scope of s. 1 of the law’ (ibid. [5], at pp. 11, 12). Does it not follow from this that where a Jewish couple does not need a Get even as a stringency, as in the case before us, the rabbinical court does not have jurisdiction to consider their divorce? In the past, this question was a difficult one. Now, in view of the position of the Great Rabbinical Court that a Jewish couple who married outside Israel, are considered married (from an external viewpoint) under Jewish law, it does not give rise to any difficulty at all. Such couples are admittedly not married in accordance with Jewish law and they do not require a Get. Notwithstanding, they are married under the laws of the Children of Noah, which are a part of Torah law, and they require a divorce decree. A Get and a divorce are not the same. For this reason there is also no basis to the argument that an application to the rabbinical court in a divorce action, which is based on the claim that the civil marriage is null and void under Jewish law is ‘prima facie lacking in good faith and sincerity’ (CA 4590/92 Kahana v. Kahana [13]; see also HCJ 301/63 Streit v. Chief Rabbi [14], at p. 630).

30. It should be noted that recognition of the jurisdiction of the rabbinical court in ‘matters of divorce’ ensures the effectiveness of the dissolution of marriages. The decision on the question of the validity of the marriage and the need for a Get as a stringency depends upon the circumstances of each case. A Get or a divorce decree from the rabbinical court ensures that the Jewish couple ‘… may not become available to remarry unlawfully, with all of the serious ramifications that this entails under Jewish law’ (p. 11 of the supplementary judgment of the Great Rabbinical Court). The decision of the rabbinical court also ensures that the parties can remarry in the future in accordance with Jewish law, if they so wish. The civil court system has no good and effective civil alternative for dissolving a marriage between a Jewish couple. In view of the individual examination that is required in each case with regard to the validity of the civil marriage under Jewish law, giving the rabbinical court sole jurisdiction ensures that as a result of the divorce decree each of the parties will be regarded as single under his personal law.

31. Does the jurisdiction of the rabbinical courts to decide divorce cases of Israeli Jews who married outside Israel in a civil marriage extend also to the property aspects of the divorce? The answer to this question is no. The jurisdiction of the rabbinical courts to decide property matters relating to the divorce claim is set out in s. 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law. According to this:

     ‘… the rabbinical court shall have sole jurisdiction with regard to any matter that is included in the divorce claim, including financial support for the wife and the children of the couple.’

In order for an inclusion of an ancillary matter in a divorce claim to exclude the jurisdiction of the civil matter over that included matter, the litigant who relies on the inclusion must satisfy three conditions (HCJ 6334/96 Eliyahu v. Tel-Aviv Regional Rabbinical Court [15]): he must sincerely petition for divorce; he must lawfully include the ancillary matter; and he must sincerely include the ancillary matter. The three tests were intended to prevent an abuse of the inclusion arrangement by one of the spouses. ‘Their purpose is to prevent an abuse of the inclusions section by establishing an artificial impediment to an application to the civil court’ (HCJ 5679/03 A v. State of Israel [16]). It has been held in a whole host of judgments that the inclusion must be ‘sincere’ (see, inter alia, LCA 120/69 Shragai v. Shragai [17]; CA 22/70 Ze’ira v. Ze’ira [18]; CA 328/67 Scharfsky v. Scharfsky [19]). According to the supplementary judgment of the Great Rabbinical Court, the recognition of a marriage under the laws of the Children of Noah refers only to the ‘external aspect’ of the marriage that concerns the ramifications of the marriage on third parties. It does not refer to the ‘internal aspect,’ which concerns the reciprocal obligations between the spouses. In this spirit it was held in the supplementary judgment of the Great Rabbinical Court that the marriage does not create an obligation to provide financial support. In such circumstances, including property matters in a divorce claim is not a ‘sincere inclusion’; it is an inclusion whose whole purpose is merely to negate the existence of a property obligation. A Jewish spouse who chose to marry in a civil ceremony outside Israel and applies to the rabbinical court that does not recognize aspects of the marital status that concern the obligations between the parties does not act ‘sincerely’ if he also seeks to bring the financial and property matters before the rabbinical court. In such circumstances, including property matters involves an abuse of the legal tool of ‘inclusion.’ The spouse who includes property matters cannot sincerely intend to litigate before the rabbinical court on a matter that the rabbinical court does not recognize at all. Compelling the other spouse to litigate in a forum that does not recognize the property aspects of the marital status is contrary to the principles of justice. In such circumstances, an inclusion which has the purpose of giving the rabbinical court sole jurisdiction cannot be considered a ‘sincere’ inclusion. Moreover, since the Great Rabbinical Court limited its recognition of a civil marriage between Jews who are citizens and residents of Israel solely to the external aspect, it should be considered whether the issue of custody of the spouses’ children — which is a purely ‘internal’ matter — should also fall within the jurisdiction of the civil courts, and whether there should be no basis for including them ‘inherently and naturally’ with the divorce, which is only intended to regulate the external aspect of the parties’ relationship.

H.    The grounds for dissolving the marriage

(1) Possible grounds

32. What are the grounds according to which the rabbinical court will decide an action for a divorce or for the dissolution of a civil marriage? There are several possibilities with regard to the grounds for the divorce. One possibility is that the mere fact that the marriage was not contracted in accordance with Jewish law gives rise to a ground to dissolve the marriage. A second possibility is that a Jewish law ground for a Get is required, as if the parties were married in accordance with Jewish law. A third possibility is that the rabbinical court will only decide upon a divorce in accordance with the grounds for divorce that exist in the law of the place where the marriage ceremony took place. According to a fourth approach, the ground for divorce is based on the realities of the actual relationship between the parties. The ground for divorce, according to this last approach, is mainly the fact of an irretrievable breakdown of the relationship between the parties, which has de facto brought the marriage to an end. Let us briefly discuss each of the possibilities.

(2) Civil marriage as a ground for divorce?

33. Does the mere fact that the marriage was not contracted in accordance with Jewish law give rise to a ground to dissolve the marriage? The answer is no. The fact that the marriage is a civil one cannot in itself constitute a ground for divorce. This is inconsistent with the recognition of the validity of the marriage in Israeli law and with respect for the right to family life. The negative attitude of the religious law to civil marriages cannot lead to a dissolution of a marriage that took place under the auspices of civil law. A recognition of such a ground for divorce does not properly take into account the law under whose auspices the civil marriage was contracted. Moreover, a civil marriage should not be regarded, simply because of the manner in which it is contracted, as a framework that gives each of the parties an immediate and automatic right to dissolve it. It would appear that this is also the approach of the rabbinical court. In the supplementary judgment of the Great Rabbinical Court, it is expressly stated that the mere fact that the marriage is a civil one is not a ground for divorce. Indeed, the rabbinical court should make an effort to reconcile the parties. A civil marriage should not be regarded merely as a marriage for the sake of divorce. Therefore the fact that a marriage is a ‘civil’ one and was not contracted in accordance with Jewish law is not a ground for divorce.

(3) Divorce in accordance with Jewish law grounds?

34. The petitioner argues that the divorce decree of the rabbinical court should be based on the grounds for divorce in Jewish religious law, just like the law of divorce that applies to spouses who married in accordance with Jewish law. According to her, reference should be made to the grounds of divorce under Jewish law, on the basis of the assumption that the spouses married in accordance with Jewish law. This position is unacceptable to the rabbinical court. It was emphasized that ‘When according to the rules of Jewish law there is no basis for requiring a Get because of a doubt or as a stringency, it is not right to arrange a Get in accordance with Jewish law in order to dissolve such a marriage… In the case of a divorce not requiring a Get, there is no need for any Jewish law grounds for compelling a Get’ (pp. 8, 12 of the supplementary judgment of the Great Rabbinical Court). I agree with the Great Rabbinical Court. There is no reason why the divorce laws for someone who married in accordance with Jewish law should be imported and applied to someone who of his own free will contracted a civil marriage and is not married in accordance with Jewish law. An argument that Jewish law should be imported in this way sounds strange when it is made by someone who did not want to marry in accordance with Jewish law, even though he could have done so, and it is an argument that is not made in good faith. Moreover, in a marriage in accordance with Jewish law, the rabbinical court is bound by the restrictions of religious law. The grounds for divorce under Jewish law are limited. Sometimes these requirements give rise to great difficulties, create an inequality and cause serious distress to spouses and their children (see A. Rosen-Zvi, Family Law in Israel — Between Holy and Profane (1990), at p. 136 et seq.; S. Lifschitz, ‘I Want a Divorce Now! On the Civil Regulation of Divorce,’ 28 Tel-Aviv University Law Review (Iyyunei Mishpat) (2005) 671, at p. 678). By contrast, dissolving a civil marriage by means of a divorce decree, and not by means of a Get, is done by the rabbinical court itself, which can make a divorce decree — in accordance with its judicial discretion — without finding ‘fault’ and even without the consent of the non-consenting spouse. No-one is required to buy his freedom by waiving property or other rights. Of course, the discretion of the rabbinical court, like any judicial discretion, is never absolute. It is exercised within the framework of the purposes that the law is designed to realize.

(4) Divorce in accordance with the place where the marriage ceremony was held?

35. Another possibility proposed by the petitioner is that the rabbinical court is limited to the grounds for divorce recognized under the law of the place where the civil marriage ceremony took place. I cannot accept this position either. The rules of private international law oblige us to respect a foreign status, but they do not direct us to recognize all the aspects of that status under the foreign law (Shifman, Family Law in Israel, supra, at p. 373). The recognition of the status that the civil marriage creates does not mean that the court is bound by the attitudes of the foreign law with regard to the right to divorce (P. Shifman, ‘On the Right to Convert, on the Right to Divorce and on the Duty to Decide,’ 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 212, at p. 241). The recognition of the foreign status means, for the purpose of its legal aspects, that it is as if it were a local status (A.V. Levontin, Choice of Law and Conflict of Laws (1976), at pp. 26-27, 31). If the centre of the spouses’ lives is in Israel, there is nothing wrong in their being subjected to the outlooks of Israeli society with regard to the right to divorce and the manner of effecting it in practice.

(5) Divorce because of the breakdown of the marital relationship

36. The supplementary judgment of the Great Rabbinical Court adopts a position whereby the ground for divorce is the ‘end of the marriage.’ This ground is based on the realities of the relationship that exists de facto between the parties. The rabbinical court saw fit to decree the divorce after it realized that there was no possibility of reconciling the spouses and they would not live together in harmony. The supplementary judgment of the Great Rabbinical Court held:

     ‘In a divorce without a Get, there is no need for Jewish law grounds for compelling a Get. The rabbinical court satisfies itself by examining the position, and the absence of any chance for harmony between the parties. When the court finds that there is no possibility of a reconciliation between the couple, then the court can arrive at the conclusion that they should separate, and the divorce is effected by means of a divorce decree. Even in these marriages the rabbinical court makes efforts to reconcile the parties and to persuade them to marry in accordance with Jewish law. The RaMA in the Shulhan Aruch, Even HaEzer (chapter 177, para. 5) holds that it is a meritorious deed to marry a couple who have had sexual relations consensually. When it transpires that there is no possibility of living harmoniously, even if there are no Jewish law grounds for divorce, the religious court is likely to reach the conclusion that there is no reason to keep the parties within a formal civil framework, and the rabbinical court decrees the dissolution of the marriage, even without consent’ (p. 12 of the supplementary judgment of the Great Rabbinical Court).

The ‘ground of divorce’ on which the rabbinical court relied is based on an irretrievable breakdown of the marriage. I agree with this approach. It is consistent with modern approaches with regard to the grounds for divorce, which are not based solely on fault nor are they limited to cases where there is consent (see Shifman, ‘On the Right to Convert, on the Right to Divorce and on the Duty to Decide,’ supra, at p. 225; Shifman, Family Law in Israel, supra, at p. 374; S. Lifschitz, Recognized Cohabitees in Light of the Civil Theory of Matrimonial Law (2005), at pp. 303-313; Lifschitz, ‘I Want a Divorce Now! On the Civil Regulation of Divorce,’ supra, at pp. 680 et seq.). The approach of the Great Rabbinical Court does not make a civil marriage in itself a tool to obtain an immediate and automatic divorce. The breakdown of the marriage is a ‘ground for divorce’ that stands on its own. It does not derive its force from the civil marriage ceremony. It is not the civil character of the marriage that is the ground for the divorce, but the relationship of the spouses that has irretrievably broken down. The ground for the divorce is based on the realities of the spouses’ lives. Indeed, we agree in principle with the outlook that when a relationship between a couple has broken down, the parties should be allowed to escape from the bonds of a failed marriage. A person who has lived for a long time apart from his or her spouse, after the relationship broke down, should be allowed to leave the framework of the marriage. At the same time, a just and fair arrangement should be ensured with regard to the division of property and financial support between the spouses. This was discussed by Prof. Shifman, who said:

     ‘… The actual idea of no-fault divorce, which is conquering the western world more and more, lies in an outlook that gives preference to the realistic side of marriage over the symbolic side of marriage, since according to this approach, when the marriage has irretrievably broken down, it is better to make a divorce decree because the court does not have the power to change the fact that the spouses de facto live apart. The approach that makes a right to divorce conditional upon the existence of an irretrievable breakdown of the marriage irrespective of the relative fault of the parties in the failure of the marriage is therefore characterized by a functional approach that seeks to reduce the gaps between reality and legal norms’ (P. Shifman, ‘On the New Family: Subjects for Discussion,’ 28 Tel-Aviv University Law Review (Iyyunei Mishpat) (2005) 643, at p. 655).

37. The petitioner expresses a concern that this policy will lead to a perfunctory dissolution of the marital relationship. Indeed, a practice whereby the relationship is dissolved immediately, without any examination of the relationship and without trying to reconcile the spouses, is unacceptable. It is not sufficient merely to try and persuade the parties to marry in accordance with Jewish law. We cannot accept the approach that a civil marriage is merely a marriage for the sake of divorce. Every attempt should be made to continue the civil marriage between the parties. The marriage enjoys legal support whose purpose is to protect the stability of the marriage. This is clearly expressed in divorce law. A civil marriage de facto creates a family unit that deserves the support and protection of the legal system. ‘Social interests support stable marriages. The institution of marriage is central to our society’ (CA 5258/98 A v. B [20], at p. 223 {340}; see also HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [21], at p. 783). Indeed, the social and public interest requires protection of the family unit, and this includes a unit that is based on a civil marriage between Jewish spouses. Efforts should also be made in divorce proceedings to restore harmony, reconcile the parties and rehabilitate the family unit. An immediate dissolution of the family unit, without any attempt to effect a reconciliation, is usually inconsistent with the best interests of the children (see HCJ 9476/96 Sargovy v. Jerusalem Regional Rabbinical Court [22], at para. 30).

38. A liberal divorce regime also seeks to prevent perfunctory and hasty divorces (Shifman, Family Law in Israel, supra, at p. 161). The relationship between spouses is a complex and sensitive matter. It is characterized by ups and downs. Passing ill winds may assault it. Crises in family life may lead the spouses to initiate legal proceedings against one another. These do not always indicate a final and absolute breakdown of the marriage. Care should be taken not to exacerbate the crisis. Not every deterioration in a marital relationship leads necessarily to a breakdown of the family unit. It would appear that the need for the participation of the state, through the courts, in the dissolution of a marriage acts as a check or restraint upon hasty and rash decisions. But this is not enough. Dissolving the marriage cannot be done as a matter of course, immediately and automatically. It is the nature of disputes between spouses that they are for the most part hidden and only the surface is visible. The rabbinical court should make an effort to discover the details of the case. It should obtain a full picture of the family relationship. It should examine whether the breakdown between the spouses is indeed irretrievable, to the point where the marriage has come to an end. The seriousness of the crisis should be examined. The parties should not simply be directed towards a dissolution of the marriage. The possibilities of reconciling the spouses should be exhausted, in the manner accepted in divorce claims between spouses who married in accordance with Jewish law. The interim period during which the rabbinical court examines the case may in itself, in certain cases, cool the temper of the spouse seeking a dissolution of the marriage. The interim period may also allow the spouse who opposes the divorce a period to recover and adapt to the new situation.

39. Ultimately, the institution of marriage will not be protected by anchoring spouses to a marriage that in practice has broken down. Justice Kister rightly said that:

     ‘The modern approach is based on the fact that if a marriage of a certain couple has in practice broken down, either of the spouses who so desires should be allowed to remarry lawfully and raise a family. Admittedly, the courts and public institutions should aim to preserve the stability of the family, but when this is impossible, one or both of the spouses should not be anchored to it’ (CA 571/69 Kahana v. Kahana [23], at p. 556).

These remarks, which were made with regard to marriage in accordance with Jewish law, apply also to civil marriage. It is not the civil marriage that leads to the divorce claim but the deterioration in the marital relationship that leads to the divorce claim. Usually a refusal to grant a relief of divorce does not reconcile the spouses. Parties should be allowed to escape relationships that have broken down. An ‘irretrievable breakdown of a marriage’ should be regarded as a situation in which the marriage has de facto come to an end (per Justice T. Strasberg-Cohen in CA 1915/91 Yaakovi v. Yaakovi [24], at p. 628). A divorce at the request of one of the spouses should not be regarded as wrong when the family unit has de facto broken down and the marriage has become an empty shell. This approach properly balances the need to protect the stability of the marriage on the one hand and the freedom of the individual to shape his personal life on the other.

40. The petitioner further argues that the policy of the rabbinical courts with regard to the dissolution of civil marriages results in an infringement of economic rights. Her concern is that a hasty dissolution of the marriage, upon an application of one party and without the consent of the other party, may have serious results. Indeed, often the argument is made that in the prevailing socio-economic climate, the system of ‘no-fault divorces’ that allows divorces without consent may cause serious economic harm to the spouse who is economically weaker, which is usually the wife (see, for example, E. Shochetman, ‘Women’s Status in Matrimonial and Divorce Law,’ Women’s Status in Society and Law (F. Raday, ed., 1995) 380, at p. 434). The argument is that a divorce regime that allows each of the spouses to be released from the marriage unilaterally, without any grounds and without any continuing financial commitment exposes the weaker spouse to abandonment and gives rise to a serious concern of opportunistic conduct (Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 334). Remarks in this vein were also uttered by Prof. Shifman:

     ‘… A civil marriage has a huge advantage. The fact that no marriage was contracted by the parties in accordance with Jewish law gives each of the parties a right to request a divorce without providing special grounds that are founded on the traditional concepts of fault. A person does not need to buy his freedom to remarry by means of financial and other waivers. There is no possibility of obtaining advantages with regard to the terms of the divorce by opposing it. On the other hand, it is precisely this desirable and praiseworthy phenomenon that exposes a serious legal problem which is diminished in divorces that are the result of an agreement between the parties. I am referring to the need to compensate fairly the party who suffers financially as a result of the termination of the marriage that is forced on him and who does not have any say in the terms of the divorce. As we said, this need is more pronounced in those cases in which the property rights that are given to that party are not sufficient to allow him to change over from financial dependence to complete independence’ (Shifman, Family Law in Israel, supra, at p. 381).

Prof. Rosen-Zvi said in this regard:

     ‘In recent years it has been proved that in the no-fault divorce system the bargaining power of a wife who, in the style of years past could be said to be innocent of any fault, has decreased. The husband does not need to make economic concessions in return for his freedom to remarry at will’ (Rosen-Zvi, Family Law in Israel — Between Holy and Profane, supra, at p. 148).

Dr Lifschitz has also addressed this issue:

     ‘… It would appear that even in the modern world the basic weakness at the heart of married life arises: the concern that the party who has invested in the family at the expense of his personal development will be exposes to the abandonment of the other spouse, when his talents are no longer required. The economic analysis in this regard shows therefore that because of the distribution of roles between the parties and its timing, the model of marriage as a contract that can be dissolved immediately, as is customary in modern matrimonial law, gives rise to a serious concern of opportunistic conduct. By contrast, and in accordance with the above analysis, establishing restrictions and determining a price for divorce may contend better with the concern of opportunism’ (Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 334).

41. In so far as ‘no-fault divorce’ laws can be criticized for leaving the ‘weaker’ spouse without economic protection after divorce, this does not necessarily lead to a conclusion that these laws should be rejected. The financial interests of the weaker spouse should be protected in other ways. Protection of the ‘weaker party’ in a marriage does not need to be effected by means of anchoring the spouse to a formal marriage that has broken down de facto. If one spouse has become financially or socially dependent on the other, the solution is not to anchor the ‘strong’ spouse to the marriage. The solution to problems of this kind will be found in the sphere of the financial arrangements between the spouses and not in restricting the actual possibility of divorcing (Shifman, Family Law in Israel, supra, at p. 382; Lifschitz, Publically Recognized Partners in Light of the Civil Theory of Matrimonial Law, supra, at p. 336). Indeed, the rabbinical court’s decree that divorces the parties does not end the relationship between them. What is this relationship?

I.     The reciprocal rights of the spouses

42. The reciprocal rights of the parties — the internal status of the marriage — are decided by the civil court. What is the law according to which the civil court will decide these? The answer to this question is complex. The civil courts will need to develop this civil family law. The problem does not arise in our case. It is sufficient if we say that civil law in Israel has legal tools that can be used to develop this law. The main tool is that of contracts in general, and the principle of good faith in particular. In LCA 8256/99 A v. B [7] I said:

     ‘… where one party needs the support of the other — whether in financial support or in other ways — he is entitled to receive this support. The spouses are not passers-by who were brought together by a road accident. The spouses wanted to live their lives together. The requirements of equity, the considerations of fairness and the sentiments of justice in Israeli society lead to a conclusion that there should be a duty to pay financial support’ (ibid. [7], at pp. 233-234).

The payment of civil financial support will safeguard the lifestyle of the ‘weaker’ spouse and allow his rehabilitation after the divorce. The presumption of joint ownership — in so far as it applies in a marriage in accordance with Jewish law — will also apply, of course, according to its conditions, to someone who contracted a civil marriage, and it, together with the provisions of the Spouses’ Property Relations Law, 5733-1973, will contribute to the protection of the weaker party in the life of the family, promote equality between the spouses and ensure financial independence after the divorce.

J.     From general principles to the specific case

43. The petitioner and the respondent, who are Jews and citizens and residents of Israel, contracted a civil marriage in Cyprus. The husband applied to the rabbinical court after the petitioner cancelled her action for a reconciliation, a claim that was tried in the rabbinical court for approximately a year. He sought to divorce the petitioner since, according to him, the conflict between the parties was becoming worse and the relationship between them had come to an end. The rabbinical court granted the husband’s claim and declared that the parties were not married in accordance with Jewish law. Subsequently, in view of the guidelines of the Great Rabbinical Court, a supplementary decree was made in which the Regional Rabbinical Court dissolved the marriage, notwithstanding the petitioner’s objections. We have seen that the rabbinical court was of the opinion that there remained no hope of a reconciliation between the parties and it arrived at the conclusion that there was no reason to leave the parties within the framework of a civil marriage. In the proceedings that took place before the rabbinical court there is no defect that justifies our intervention. The difficult relationship of the spouses was brought before the rabbinical court. It transpired that the relationship had irretrievably broken down. The life of the family had been undermined irreparably. The petitioner herself had lost hope that the parties would once again have a proper marital relationship. These circumstances of a prolonged separation that was clear to everyone require a legal arrangement that is consistent with the realities of the relationship between the parties — a situation of profound conflict and a breakdown of the family framework. In order to make such a legal arrangement, the rabbinical court acted by way of dissolving the civil marriage. The proceedings in the rabbinical court were limited to the question of the divorce. Against this background, we are of the opinion that the rabbinical court acted within the scope of its jurisdiction and properly exercised its discretion.

Conclusion

44. The recognition in Israel of civil marriages between Jews who are Israeli citizens or residents, which were contracted under the auspices of a foreign law, gives rise to serious problems. A situation in which thousands of Jewish couples who are citizens or residents of the state do not marry in Israel in accordance with Jewish law but contract civil marriages outside Israel creates a reality with which Israeli law is obliged to contend. The matter lies mainly within the province of the legislature. It is without doubt a very heavy burden. Notwithstanding, the supplementary judgment of the Great Rabbinical Court and our judgment, which reflect the prevailing law, can form a normative basis on which the Knesset can establish the proper solution to these civil marriages, which are contracted by Israeli Jews outside Israel. As long as the legislature has not had its say, there is no alternative to a judicial solution of the problems that life presents. I regard the supplementary judgment of the Great Rabbinical Court as a proper premise for formulating judicial law in this sphere. The ‘external’ recognition that the Great Rabbinical Court affords civil marriages between Jews from the viewpoint of Jewish law itself is of great importance. Even though it does not involve a recognition of a full status of civil marriage, it make a contribution to preventing a rift between civil law and religious law; it allows civil law to recognize the jurisdiction of the rabbinical courts to determine the question of divorces of Jewish couples who contracted civil marriages outside Israel; it guarantees that the dissolution of the relationship between Jewish couples who married outside Israel will release each of them, both under Jewish law and under civil law —whether by means of a Get (where a Get is required) or by means of a divorce decree that is not a Get (where a Get is not required) — from the matrimonial relationship where there is a proper justification for doing so. Thereby each of the spouses, the husband and the wife, obtains the possibility of remarrying, if they so wish, without there being any problem that they may not be competent to remarry under Jewish law. But notwithstanding the importance of the supplementary judgment of the Great Rabbinical Court, it cannot be denied that it is limited to the ‘external’ aspect of the marriage. It does not recognize reciprocal obligations and rights of the spouses inter se. The solution to these will be found in the civil court, which recognizes civil marriages that took place outside Israel between Jewish spouses who are Israeli citizens or residents as creating a full status of marriage. This recognition — in so far as it concerns the internal relationship between the spouses — supplements the religious law.

The petition is therefore denied. In the circumstances of the case, there is no order for costs.

 

 

Justice E. Hayut

I agree.

 

 

Justice M. Naor

1.    My colleague President Emeritus A. Barak has presented a wide-ranging analysis, and I agree with his opinion in every respect.

2.    With regard to the couple before us, from the oral hearing it has become clear that the real question in dispute concerns the grounds on which the rabbinical court may dissolve the marriage of the parties. The petitioner and the respondent, for their own reasons, chose to contract a civil marriage. There was nothing to prevent them from marrying in accordance with Jewish law. As my colleague showed, the law respects their choice. The parties’ marriage has broken down. It is not possible, at this stage, to turn back the clock and request that the marriage should be dissolved ‘as if’ it were a marriage in accordance with Jewish law. This request is inconsistent with the joint intentions of the parties when they contracted the marriage. The different ways in which a couple may live together — marriage in accordance with Jewish law, civil marriage, recognized cohabitees — are likely to have different results in the event of a separation. Those who choose to live together in a particular way should reflect upon this.

 

 

Petition denied.

30 Heshvan 5767.

21 November 2006.

 

 

[1]   A Get is a document given by a husband to his wife under Jewish law to effect a divorce.

[2]   The laws which, according to Torah law, govern all the Children of Noah, i.e., all human beings.

[3]   I.e., civil marriages between Jews.

[4]   A kohen, a member of the priestly family descended patrilineally from Aaron, is prohibited under Jewish law from marrying a divorcee (see Leviticus 21, 7).