Rabbinical Courts

 

HCJ 4602/13 HCJ 9780/17
A.	Petitioner:
v.

 

Haifa Regional Rabbinical Court Attorney General Israel Bar Association B.	1. 2. 3. 4.	Respondents in HCJ 4602/13:
Great Rabbinical Court Haifa Regional Rabbinical Court B.	1. 2. 3.	Respondents in HCJ 9780/17:

The Supreme Court sitting as High Court of Justice

(November 18, 2018)

Before: Justices I. Amit, D. Mintz, A. Stein

Petitions for an order nisi

 

 

Israeli Supreme Court cases cited:

[1]                   CA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. (Aug. 11, 2011).

[2]                   LFA 1398/11 A. v. B. (Dec. 26, 2012).

[3]                    HCJ 8928/06 A. v. Great Rabbinical Court of Appeals in Jerusalem, IsrSC 63(1) 271 (2008).

[4]                   HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221 (1994).

[5]                   LCA 8672/00 Abu Rumi v. Abu Rumi, IsrSC 56(6) 175 (2002).

[6]                   HCJ 9812/17 A. v. Great Rabbinical Court (May 29, 2018).

[7]                   HCJ 2617/18 A. v. Great Rabbinical Court (April 30, 2018).

[8]                   HCJ 7940/17 A. v. Netanya Regional Rabbinical Court (Jan. 8, 2018).

[9]                   HCJ 609/92 Beham v. Great Rabbinical Court of Appeals, IsrSC  47(3) 288 (1993).

[10]                 LCA 8791/00 Shalem v. Twenco Ltd., IsrSC 62(1) 165 (2006).

[11]                  HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court, IsrSC 12(2) 1528 (1958).

[12]      CA 253/65 Bricker v. Bricker, IsrSC 20(1) 589, 596 (1966).

[13]      HCJ 185/72 Gur v. Jerusalem Regional Rabbinical Court, IsrSC 26(2) 765 (1972).

[14]      CA 384/88 Zisserman v. Zisserman, IsrSC 43(3) 205 (1989).

[15]      HCJ 3995/00 A. v. Great Rabbinical Court, IsrSC 56(6) 883 (2002).

[16]      CA 264/77 Dror v. Dror, IsrSC 32(1) 829 (1978).

[17]      CA 819/94 Levi v Levi, IsrSC 50(1) 300 (1996).

[18]     HCJ 1135/02 Wasgael v. Great Rabbinical Court, IsrSC 56(6) 14 (2002).

[19]      LFA 7272/10 A. v. B. (2014).

[20]      LFA 2948/07 A. v. B. (April 18, 2007).

[21]      CA 1915/91 Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995).

[22]      HCJ 2642/08 A. v. Great Rabbinical Court Jerusalem (April 8, 2008).

[23]     LFA 2045/15 A. v. B. (May 21, 2015).

[24]      CA 300/64 Berger v. Director of Estate Tax, IsrSC 19(2) 240 (1965).

[25]      CA 135/68 Barelli v. Director of Estate Tax Jerusalem, [1969] IsrSC 23(1) 393 (1969).

[26]      CA 595/69 Efta v. Efta, IsrSC 25(1) 561(1971).

[27]      HCJ 1727/07 A. v. Great Rabbinical Court (March 19, 2007).

[28]      LFA 4545/09 A. v. B. (Jan. 7, 2010).

[29]      LFA 10734/06 A. v. B. (14.3.2007).

[30]      CA 8128/06 Levinson v. Arnon (Feb. 3, 2009).

[31]      LFA 2991/13 A. v. B. (Aug. 21, 2013).

[32]      LFA 7181/12 A. v. B. (Nov. 9, 2012).

[33]      LFA 5939/04 A. v. B., IsrSC 56(1) 664 (2004).

[34]      LFA 1477/13 A. v. B. (Aug. 6, 2013).

[35]      CA 806/93 Hadari v. Hadari, IsrSC 48(3) 685 (1994).

[36]      CA 3002/93 Ben-Zvi v. Siton, IsrSC 49(3) 5 (1995).

[37]      CA 741/82 Fichtenbaum v. Fichtenbaum, IsrSC 38(3) 22 (1984).

[38]      CA 4306/12 A. v. Bank Leumi Israel Ltd.  (July 15,2018).

[39]      HCJ 9734/03 A. v. Great Rabbinical Court, IsrSC 59(2) 295 (2005).

[40]      HCJ 1996/16 A. v. Great Rabbinical Court (June 21,2016).

[41]      HCJ 3689/15 A. v. Tel Aviv Regional Rabbinical Court (May 17, 2016).

[42]      HCJ 3394/18 A. v. Great Rabbinical Court Jerusalem (May 2, 2018).

[43]      HCJ 3042/18 A. v. Regional Rabbinical Court (May 1, 2018).

[44]      HCJ 4091/18 A. v. Great Rabbinical Court (March 25, 2018).

[45]     HCJ 7/83 Bayers v. Haifa Regional Rabbinical Court, IsrSC 38(1) 673 (1984).

[46]      HCJ 187/54 Barriya v Kadi of the Sharia Moslem Court, Akko, IsrSC 9 1193 (1955).

[47]      HCJ 8638/03 Amir v. Great Rabbinical Court Jerusalem, IsrSC 61(1) 259 (2006).

[48]      HCJ 3467/14 A. v. Haifa Regional Rabbinical Court (Sept. 21, 2015).

[49]     HCJ 2443/15 A. v. Great Rabbinical Court Jerusalem (April 12, 2015).

[50]      HCJ 5416/09 A. v. B., IsrSC 63(3) 484 (2010).

[51]      HCJ 323/81 Vilozny v. Great Rabbinical Court Jerusalem, IsrSC 36(2) 733 (1982).

[52]      CA 630/79 Lieberman v. Lieberman, IsrSC 35(4) 359 (1981).

 

Other Israeli cases cited:

[53]                 FA (Tel Aviv District) 13313-12-11 N.A.E.R. v. A.E. (26.2.2014)

[54 ]    FA (Haifa) 740/08 A. v. B. (19.11.2008)

 

 

JUDGMENT

(Nov. 18, 2018)

 

Justice I. Amit

The petition before us treats of the matter of specific co-ownership[1] in the residential home. The petition raises the question of whether there are grounds for intervention by this Court in the judgment of the Great Rabbinical Court in light of weight having been accorded to the alleged infidelity of the wife.

Background

1.         Following is a précis of the essential facts pertaining to the case. The couple married towards the end of 1982, and they have three adult children. In February 2013, after more than thirty years of marriage, Respondent no. 3 (hereinafter: the husband or the Respondent) filed for divorce in the Rabbinical Court, and he incorporated property matters in the suit. In section 2 of the form, “Divorce Suit and Ancillary Matters,” the husband specified three grounds for divorce, namely: The wife is rebellious in that she has not engaged in marital relations for several years; “The wife has been unfaithful for several months with …”; “She does not attend to cleaning nor to meals, and she is not concerned with unifying the family …” (emphasis added – I.A.).

Following a hearing held on June 26, 2013, Respondent no. 2 (hereinafter: the Regional Rabbinical Court) ordered the Petitioner to divorce. When she refused to do so, and in light of the verbal exchanges that took place in the courtroom between her attorney and the panel of judges, the Regional Rabbinical Court ordered that the Petitioner be arrested and that her attorney be dismissed, and it imposed personal costs of NIS 15,000 upon the attorney. The Petitioner filed a petition with this Court (HCJ 4602/13). Following a hearing held before me, the parties came to an agreement, and a consent decree was issued, as follows:

The Parties: After having heard the Court and after having heard the comments of Adv. Jacoby, and in order to restore calm after matters digressed from appropriate proportions, and taking into account that the matter involves a couple who have been married for thirty years with three adult children, and since we wish to conduct the dispute between us in a cordial manner, we have come to the following agreements:

1.       The wife is willing, without any implication whatsoever of an admission to the claims and the grounds raised against her in the past, to divorce.

2.       The husband is prepared to accept the wife’s consent, and to divorce on the basis of said consent.

3.       Both parties declare in this courtroom that they are willing to divorce and to arrange a get [Jewish bill of divorce – ed.] in the near future in a rabbinical court. This obviates the need to impose constraints of various types on the wife.

4.      The willingness of the parties to divorce, and the actual divorce itself, will have no ramifications for the subject of property, which will be adjudicated in accordance with statutory and case law.

5.       In light of the divorce of the parties, and in that light only, the wife is prepared to leave the home, without this implying in any way whatsoever any waiver of her claim to rights in the home (whether by virtue of the presumption of specific co-ownership or any other claim).

6.       In light of the above, and without any implication of an obligation on the part of the husband, the husband is prepared, until the end of the litigation in the property dispute, to participate in the wife’s rental payments in the monthly amount of NIS 2000, as a substitute for an appropriate user fee for the home had she continued to live there.

7.       The husband requests on his own initiative to cancel the protection order and the restraining order issued against the wife.

8.       Each party maintains its claims in relation to the ketubah [Jewish marriage contract – ed.].

9.       The parties will jointly enter into a process of mediation in an attempt to settle both the property matter and the entire familial relationship. The children will be asked to participate in the mediation process insofar as they agree to do so. The two parties express their will and their consent to expedite the mediation proceedings and the determination of the subject of property.

10.       …

11.       …

Indeed, following this agreement, the parties quickly divorced, but the question of the distribution of property was not settled, and the litigation between the parties continued.

2.         On the basis of an actuarial opinion, the Petitioner was obligated to pay the husband the sum of NIS 341,000. The husband owned various real-property assets that had been acquired or that he inherited prior to the marriage, and which the parties agree belong to the husband (namely, two shops and half the rights in two apartments occupied by protected tenants). In addition, the parties own real property that was acquired jointly in the course of their marital life, and it is agreed that each of them is entitled to half the rights (a shop and three store-rooms, an additional commercial property, and an additional 25% of the ownership rights in two apartments that are leased under protected tenancies. According to the Petitioner’s attorney, the assets are encumbered, such that their realized value is not high).

The main disagreement between the parties turned on the residential home. The husband brought into the marriage a plot of land that he had inherited in 1982, several months before the couple married. In 1988, the husband signed a “combination agreement” with a contractor, in the framework of which he transferred three-quarters of the plot to the contractor in exchange for the construction of a residential home on the other quarter (and an additional payment by the contractor in the amount of $30,000). The couple lived in that house for more than twenty years, until the marital breakdown in 2013.

The issue that was brought before the Regional Rabbinical Court was whether specific co-ownership of the residential home should be recognized. Several judgments have been handed down on this question by this Court, and I will mention two of them (CAA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. (hereinafter: Ben Giat [1]); LFA 1398/11 A. v. B.  (hereinafter: A. v. B. [2]).

3.         In its judgment of Feb. 29, 2016, the Regional Rabbinical Court ruled that specific co-ownership in the residential home should be recognized, and the Petitioner is therefore entitled to half the value of the rights in the residential home registered in the husband’s name. In its decision, the Court relied, inter alia, on the husband’s statements in the framework of the litigation in the aforementioned HCJ 4602/13, from which it inferred an intention of co-ownership, such as: “Since I understood that there is a problem with the house, I suggested that the house be registered in the names of the children, and I said, Heaven protect us, the house will be there for me or for her in old age, if we should need hospitalization, we could sell it … I raised the problem of the residence, but I am not prepared for her boyfriend to live off the fruit of our labor of thirty years” (emphasis added – I.A.). The Regional Rabbinical Court also attached importance to the renovations and investments that had been made in the residential home. At the end of its judgment, the Regional Rabbinical Court summarized its conclusion, as follows:

Indeed, it appears that in the present circumstances, the conditions and the parameters specified in the above case law [the case of A v. B. [2] – I.A.] have been met. As stated above, the parties closed off a playroom, including painting and piping in the room, when the oldest son was a soldier, they closed off a space with a plasterboard wall, and they broke down the stairs and the pipes. The parties also replaced tiles and plumbing, and they built a kitchen at their expense. Thus, it seems that the renovation that was done was not minor and routine, and it would seem to comply with what the case law requires. It would appear that the renovation that was carried out, which from a factual point of view was agreed to by the two parties, and as described above, proves co-ownership.

We would add to this the long period of time, twenty years, during which the parties lived together in the said residential home.

Moreover, the Rabbinical Court finds reason to assume that an atmosphere of co-ownership with respect to the home prevailed between the parties, in light of what the plaintiff said in this case, as quoted above, from which it appears that he regarded the house as a joint potential asset, as stated at that time, which would serve both parties equally. This statement appears to be an intention of co-ownership. His words, “I am not prepared for her boyfriend to live off the fruit of our labor of thirty years” also give a similar impression.

Furthermore, in the present case we are not dealing with a house that the husband owned prior to the marriage, but with a house that was built by both parties in the course of their life, and possibly at the initiative of them both and with mutual assistance from the logistical aspect –  even though it was built in a "combination deal from the land that the husband had owned previously – and therefore there is more than a reasonable chance that in building the present house, the residential home, the parties were co-owners.

In light of all the above, and in light of the latest case law on this issue of distribution of an asset registered in the name of one of the parties, the court does not find grounds, nor the possibility, for not dividing the residential home between the parties, and in light of all the above, the court has decided to deviate from section 5(a)(1) of the Spouses (Property Relations) Law, whereby an asset that was owned by one of the spouses prior to the marriage is not included in the aggregate joint property and will not be included in the balancing of resources arrangement.

Consequently, the Rabbinical Court granted the Petitioner half the rights in the residential home.

 

Judgment of the Great Rabbinical Court

4.         The husband appealed to the Great Rabbinical Court. In its judgment of July 27, 2017, the Great Rabbinical Court (Judges Amos, Nahari and Almaliah) allowed the appeal on the decision of the Regional Rabbinical Court. According to the majority opinion, the wife was not entitled to any share, neither of the land nor of the house that was built upon it. According to the minority opinion, the wife was not entitled to a share in the land, but she was entitled to a share of only 20% of the structure (the house). Below I will review the main points of the judgment.

            In his written opinion, Judge Amos emphasized that we are dealing with an asset that the Respondent had acquired prior to the marriage and which remained registered in his name. In these circumstances, in order to prove specific co-ownership in the dwelling, some additional supporting evidence was required to show an intention of co-ownership. Judge Amos referred to what I wrote in the A. v. B. [2] case, to the effect that some flexibility is required in this regard when co-ownership of a residential home is concerned, but he nevertheless decided that “in this case it is difficult to say that it was indeed proved that there was some extra evidentiary support, other than the fact that the parties lived together, and at very least we could not dispel the doubt as to whether there was any additional supporting evidence.” This conclusion was explained by the fact that the indications noted by the Regional Rabbinical Court to prove a specific co-ownership were not sufficiently significant: the renovation of the house was not significant, and it is doubtful whether the Petitioner participated in paying for it, since she did not work at that time; the Petitioner did not present documents supporting her claim; the utterances of the Respondent concerning “the fruit of our labor” did not necessarily refer to the dwelling in dispute; “the atmosphere of co-ownership” in itself is not sufficient proof. In addition, it was noted that the Petitioner is leaving the marriage with property and in a good economic situation as compared to the Respondent. Given the starting point in sec. 5(a)(1) of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law), to which the case law concerning specific co-ownership constitutes an exception, and given that the Respondent is in possession of the house, it was ruled that the doubt that remained does not allow for recognition of the rights of the Petitioner in the house, and “how can we, on the basis of a doubt, take money away from a person who with absolute certainty owns the land which he undisputedly inherited from his forbears?”

Judge Amos did not stop there, noting:

To this it must be added that in the present case, the wife was unfaithful to her husband, she was ordered to accept a get, and restraining orders were issued against her, and only after much argument did she agree to accept her get. In this case, the question arises: Must it be assumed that also in the case of a wife who was unfaithful, a partnership was intended….?

Judge Amos opined that this point was important for the purpose of the conclusion regarding the intention of partnership, since:

We see that he [the spouse] had no intention to include as a partner in the property that was in his name alone the one who had harmed, destroyed and uprooted all the family life, and even if from his actions it was evident that he intended that there be a partnership, all of this was done mistakenly, and it is an umdana d’mukhah [2] that he was deceived and misled, and therefore this intention is void ab initio.

Judge Amos noted the rule under Jewish law that “a person is not punished retroactively for infidelity by taking away his rights in the common property” (HCJ 8928/06 A. v. Great Rabbinical Court of Appeals in Jerusalem [3] (hereinafter: HCJ 8928/06), but he held that a distinction must be made between penalization “in respect of rights that had already vested in one of the parties,” and consideration of the question of infidelity for the purpose of negating rights in an asset by virtue of the intention of co-ownership. In support of his position, Judge Amos referred to the judgment in FA (Tel Aviv District) 13313-12-11 N.A.E.R. v. A.E. [53], where the court said that “it is difficult to attribute an intention to a spouse to be partners in an ‘external asset’ with the other spouse, when the other does not maintain loyalty to his spouse [and] is unfaithful to her with other women.”

Subsequently, and under the heading of “And now to the halakhic aspect,” Judge Amos further emphasized that “the whole concept of the intention of co-ownership is contrary to the halakha,” and that consideration of the intention of co-ownership is a creature of the case law, which crystallizes in accordance with the circumstances of each case. As long as this is not anchored by statute, it cannot be said that the “intention of co-ownership” is part of state custom. It was further stated that the Rabbinical Court’s interpretation “is of equal value to the interpretation of any other judicial instance,” and must be effected in accordance with Jewish law. Moreover, it was noted that the intention of co-ownership cannot be accorded the force of “a well-known custom” since the condition for this is the husband’s knowledge of this rule, and intention on his part to be in partnership with his wife in respect of the property. In our case, this was not proved, and “when there is a doubt, the property must be deemed to belong to the one who possesses it.”

However, Judge Amos drew a distinction between the land and the building that had been erected on it. With respect to the building, it was noted that “there may possibly be a lesser partnership in it,” and therefore the Petitioner is entitled to 20% of its value, “since this was an dwelling that was built in the course of the marriage and in partnership with the wife in the course of the construction,  and it is possible that she even invested financially in it.”

Judge Nahari concurred in the conclusion of Judge Amos, and added that in his view, a narrow approach must be adopted in proving an intention of partnership, “a fortiori when the case also includes the ground of unfaithfulness, with respect to which an intention of co-ownership on the part of the betrayed appellant may certainly not be presumed.” Judge Nahari compared the intention of co-ownership to the laws of gifts, and concluded that the serious harm to the fabric of the marriage amounts to disgraceful behavior that justifies retraction of the intention of co-ownership, even if such an intention had been proved. According to him, this also applies in the present case in which “the act of infidelity creates an intention on the part of the owner of the property not to be in partnership with the person who betrayed him.”

Judge Almaliah agreed that the Petitioner had no rights in the land, since an intention of co-ownership had not been proved, but he expressed a different position regarding the Petitioner’s rights in the house itself. Judge Almaliah pointed out that the house was built as part of a combination deal, so that the Respondent had in fact financed the construction. In addition, the renovation of the house does not confer rights on the Petitioner, since the money came from the Respondent’s pockets. Moreover, the house was registered in his name alone, from which it may be inferred that there was no intention of co-ownership. Judge Almaliah added that he does not accept the comparison between the intention of co-ownership and the laws of gifts.

At the end of the judgment, Judge Nahari added that he retracts his position, and agrees with the conclusion that the Petitioner has no rights in the house. Judge Nahari reiterated his position that there is a similarity between the intention of co-ownership and the laws of gifts, and “it makes sense that there is no intention of co-ownership in respect of the person who betrayed the marital relationship.”

It was therefore decided by majority opinion that the Petitioner is not entitled to any share of the land or the house.

The petition before us turns on this. In brief, according to the Petitioner, the Great Rabbinical Court accorded weight to the claim of infidelity, and applied religious law to the matter of specific co-ownership in the residential home, thereby acting ultra vires.

 

Deliberation and Decision

 5.        I will begin by saying that I find that it would be proper to intervene in the judgment of the Great Rabbinical Court in that both the content of the judgment and the rhetoric it employs take us back to the days prior to the Bavli decision (HCJ 1000/92 Bavli v. Great Rabbinical Court [4]).  I will explain my conclusion below.

6.         The couple married in 1982, and there is no dispute that the Property Relations Law applies to their relationship. However, the case law has recognized that the provisions of sec. 5 of the Property Relations Law do not prevent the creation of partnership in a specific asset under the general law, including an asset that was acquired or received by one of the parties prior to the marriage, and that this applies in particular to an asset that serves as the residential home of the couple (see: A. v. B [2], Ben Giat [1] and the references there).

The question of whether specific co-ownership in the residential home should apply in a particular case is a mixed question of fact and law. In the case of A. v. B., I attempted to identify the markers and to understand what “additional supporting evidence” was required in order to recognize specific co-ownership in the residential home. Personally, in the present case, I would emphasize the fact that this is a first marriage with common children, the length of the marriage, harmonious relations while running a common household, at least for most of the marriage of thirty-one years, with the couple living in the residential home for twenty years, and the absence of any hint or external expression on the part of the husband, throughout all the years, that he intended to deny the application of co-ownership in the residential home. To this must be added the husband’s utterances in the course of the hearing in HCJ 4602/13, as quoted in the judgment of the Regional Rabbinical Court, as well as the renovation of the home. All these, in my opinion, give rise prima facie to specific co-ownership in their shared residential home – “the jewel in the crown of the community property presumption” – also with respect to couples who are subject to the Property Relations Law, the tendency being to “be lenient with the spouse who claims co-ownership of the residential home when this is registered in the name of only one of them” (LCA 8672/00 Abu Rumi v. Abu Rumi [5], 183).

At the same time, there is a wide range of views and approaches on the subject of specific co-ownership in a residential home. There are those who are lenient, and those who are strict as to the amount of evidence they require (see: Shahar Lifshitz, Marital Property, 172-82 (5776-2016) (Heb.) (hereinafter: Marital Property); Hanoch Dagan, Property at a Crossroad, 489 (2005) (Heb.)). The difference between the approaches can be explained by the starting point: the strict view regards the regime of co-ownership of property as based on a contractual model, whereas those who are lenient regard the co-ownership regime as based on a normative model, which for its part is based on principles and considerations of justice, fairness and equality. From this model, the path to recognition of the connective model –  a model that takes into consideration the special nature of spousal relationships – as requiring broad recognition of co-ownership between spouses, including its application to assets that were brought into the marriage, is short (Shahar Lifshitz,  On Past Assets and Future Assets and the Philosophy of Marital Property Law, 34(3) Mishpatim 627 (2004) (Heb.) (hereinafter: Lifshitz)).

7.         As stated, the Regional Rabbinical Court held that specific co-ownership of the marital home should be recognized, whereas the Great Rabbinical Court held that it should not. Normally – and although in my opinion the Regional Rabbinical Court was correct in its conclusion – I would not find grounds to intervene in the judgment of the Great Rabbinical Court. This is because this Court does not sit as a court of appeals over the rabbinical courts, and its intervention is confined to cases of ultra vires action, breach of the principles of natural justice, departure from the provisions of the law, or in exceptional cases in which an equitable remedy is required and the matter is not within the competence of any other court or tribunal (see, inter alia, HCJ 9812/17 A. v. Great Rabbinical Court [6]  and the references there; HCJ 2617/18 A. v. Great Rabbinical Court  [7] and the references there). This means that even if, in the opinion of this Court, there was some mistake or other in the application of the religious or secular law to a given set of facts, that would not be grounds for the intervention of this Court sitting as High Court of Justice.

In the present case, however, I have decided to intervene in the judgment of the Great Rabbinical Court. This is because a reading of the judgment in its entirety leads to the conclusion that it was the Petitioner’s act of infidelity that tipped the scales against her. In this, the Great Rabbinical Court presumed to apply religious law to matters of property, contrary to the case law, and in this it acted ultra vires.

8.         The Legal Advisor of the Rabbinical Court argued that a careful reading of the judgment reveals that, ultimately, the judgment is based upon secular law that relates to specific co-ownership in the residential home, applying markers specified in the A. v. B. case, and that everything that was said about the Petitioner and religious law was simply over and above what was required.

I do not share that opinion. First, Judge Nahari based his opinion explicitly on the analogy between the intention of specific co-ownership and the laws of gifts, and on section 5(c) of the Gift Law, 5728-1968, which permits the retraction of a gift due to disgraceful behavior. And what is the disgraceful behavior? The infidelity attributed to the Petitioner! Judge Nahari’s opinion, which is based entirely on the weight attached to the wife’s infidelity, is sufficient in order to shatter the basis of the judgment and to justify the intervention of this Court in the judgment of the Great Rabbinical Court (in this the present case differs from HCJ 7940/17 A. v. Netanya Regional Rabbinical Court [8], in which the halakhic discussion was “over and above what was necessary”).

I will mention that in my view, the analogy drawn by Judge Nahari between the intention of specific co-ownership and the promise to give a gift is incorrect. Indeed, in HCJ 609/92 Beham v. Great Rabbinical Court [9], the Court considered a gift given by the husband to his wife, which he wished to retract after finding out that she was unfaithful to him. The Great Rabbinical Court ruled that the gift was given by the husband to the wife on condition that she not be unfaithful to him, and when this condition was not fulfilled, the gift was revoked. The High Court of Justice denied the petition, with Justice Elon expressing his opinion that the Rabbinical Court was authorized to rule in accordance with Jewish law, in that “the law follows the judge.” However, the judgment in Beham was handed down prior to the judgment in Bavli, and it cannot serve as a precedent for our case. And the main thing is this: a distinction must be drawn between a commitment to give a gift, which may be retracted if certain conditions are met, and the application of the community property rule or specific co-ownership in an asset. The assumption is that community property, similar to co-ownership of a specific asset, crystallizes at a certain point over the course of married life (LCA 8791/00 Shalem v. Twenco Ltd. [10], 171-173; Ben Giat [1], at para. 24 of my opinion; Marital Property, at pp. 209-219), and the rationale for recognizing co-ownership is not the intention of the spouse to grant a gift to his spouse, but something else (Lifshitz, supra). However, even assuming that the co-ownership regime is based on a contractual rationale, such as a contract or a gift, the gift must be regarded as completed at a certain point in the course of marital life, and it is not possible to retract a completed gift. I do not wish to elaborate on this subject, since as I mentioned above, my intervention in the judgment of the Great Rabbinical Court does not stem only from an error in the application of the law, but also from the application of religious law to matters of property by taking the wife’s infidelity into consideration.

9.         In the written opinion of Judge Amos, too, we find that it was religious law that was determinant in the matter, with weight being given to the wife’s infidelity. Even prior to examining the matter from the halakhic aspect, Judge Amos saw fit to give weight to the Petitioner’s infidelity as negating the intention of co-ownership, and he quoted from the judgment of Judge Shohet in FA (TA) 13313-12-11 [53] that “[I]t is difficult to attribute to a spouse the intention of partnership in an external asset with the other spouse when that other spouse is not loyal to his spouse, is unfaithful to her with other women.” No distinction was made between the time at which the specific co-ownership crystallized, if at all, in the course of the marriage, and the time of the infidelity. Thus we find that the Rabbinical Court regards the act of infidelity as retroactively nullifying the partnership, on the assumption that had the husband known that the Petitioner would betray him one day, he would not have agreed initially to the partnership. In my opinion, the Rabbinical Court thus punished the wife retroactively for her infidelity.

On this point, after examining the matter from the perspective of the secular law, Judge Amos embarked on a broad review of the religious law, in the framework of which he regarded, for the purpose of the religious law, the case law on the subject of specific co-ownership in a residential home as a “custom” which had not been proved.

Since the discussion of this subject was conducted under the heading, “And now to the halakhic aspect,” it must be assumed that Judge Amos wished to emphasize that from a halakhic perspective, as long as no secular statute had been enacted that recognized specific co-ownership, the halakhah does not regard this as a custom of the land on the basis of which it is possible to take away a material asset from the person who is deemed to be its owner.  However, it should be stressed here that from the secular perspective, too, the community property presumption is not anchored in legislation; rather, it is the creature of the case-law, and has been a feature of Israeli law for decades. I would mention that in the Bavli case [4], the Great Rabbinical Court  distinguished between the Property Relations Law, which is grounded in statute, and the community property doctrine which originates in the case law. It ruled that “the case law of the courts does not in any way obligate the rabbinical court, and the rabbinical court decides only in accordance with Jewish law, in which the concept of co-ownership of property does not exist, and the only rights to which a wife is entitled are by virtue of the conditions of the ketubah and the halakhah.” The distinction made by the Great Rabbinical Court between a statutory provision and case law was rejected, and rightly so, by the Supreme Court in the Bavli case. And as stated by Professor Shifman following the judgment: “It is clear that the distinction between the word of the legislator and the word of the judge is untenable. From a secular point of view, they are regarded as one unit for the purpose of expressing the legal situation” (Pinhas Shifman, The Rabbinical Courts - Whereto?  2 Mishpat uMimshal 523, 527, at note 4 (5755-1995) (Heb.)). In short, for the purpose of the secular aspect, the judgments of the Supreme Court on matters of marital property do not fall within the rubric of custom that requires proof, but within the rubric of case law that obligates the parties and also obligates the rabbinical courts. I take this opportunity to reiterate and emphasize the distinction between the secular aspect and the halakhic aspect, and to clearly caution against regressing to what was said in the past and overturned in the Bavli case.

 

Religious Law and Secular Law in Family Law

10.       As we know, in the arena of Israeli family law we find religious law and the rabbinical judge, the secular law and the secular court dwelling together, in the sense of “And the children struggled within her” (Genesis 25:22). Division of jurisdiction between religious law and secular law, and division of jurisdiction and the “race for jurisdiction” between the religious court and the District Court is a sensitive, complex subject, to the extent that there are those who regard family law as laws of warfare, the battle being waged between the secular and the religious judicial instances (Ruth Halperin Kaddari, Towards Concluding Civil Family Law – Israel Style, 17 Mehkerei Mishpat 105, 108 (2002) (Heb.)). Family law is therefore seen as a struggle between the religious law and the secular law (Pinhas Shifman, Religious Language and Civil Language in Family Law, 10 Mishpat ve-Asakim 423, 426 (2009) (Heb.), and on this subject, there is abundant academic literature (and see, inter alia, Menashe Shawa, On “Ancillary” and “Sincerity” – Will the “Jurisdictions Race” between the District Court and the Rabbinical Court on Matters of Maintenance End?  2 Iyunei Mishpat 719 (1982) (Heb.); Pinhas Shifman, Forty Years of Family Law – The Struggle between Religious Law and Secular Law, 19 Mishpatim 847 (1990) (Heb.); Shahar Lifshitz, The Future of Secular Family Law in Israel: Classical Liberalism versus Communitarian Liberalism 17 Bar-Ilan L. Stud. 159 (2002) (Heb.); Berachyahu Lifshitz, The Garden of Delusion of “Matters of Marriage and Divorce”, 2 Mishpaha ba-Mishpat 107 (2009) (Heb.); Shlomo Dichovsky, The Rabbinical Courts and the Civil Courts – On the Friction Between Them in Family Matters, 4 Moznei Mishpat 261 (2005) (Heb.); Ruth Zafran, The Jurisdictions Race is Alive and Kicking: Rabbinical Courts Gain Power over Secular Family Courts, 43 Mishpatim 571 (2013) (Heb.)).

Religious law is at the helm in matters of marriage and divorce, but in all matters of distribution of marital property, secular law is binding. Even prior to the enactment of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, the Israeli legislature enacted the Women’s Equal Rights Law, 5711-1951. Against the backdrop of this Law, the case law intervened in unequal arrangements relating to property matters between spouses that originated in the religious law (thus, for example, in light of the provision of sec. 2 of the said law, the husband’s right to the usufruct of the wife’s estate was denied – HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court [11]; and in light of this provision, the Court recognized community property – CA 253/65 Bricker v. Bricker [12], 596). Against the backdrop of the provisions of that law, the case law distinguished, over the years, between matters of marriage and divorce, and matters of marital property to which the secular law must be applied, and it gradually and consistently removed the subject of property relations between spouses from the ambit of the term “matters of marriage” (HCJ 185/72 Gur v. Jerusalem Regional Rabbinical Court [13]; CA 384/88 Zisserman v. Zisserman, 207-208, at para. 6 (hereinafter: Zisserman [14]); Lifshitz, at 678). Prof. Shifman summarized the matter: “The rights of the husband in the wife’s property have left the framework of ‘matters of marriage’ due to their essential rescission in the Women’s Equal Rights Law, 5713-1951, as interpreted by the Supreme Court” (Pinhas Shifman, Family Law in Israel vol. 1, 30-32 (1974) (Heb.)).

12.       This is the situation with respect to property in general, and to the subject of partnership in property in particular, and as stated by (then) Justice Barak in the Bavli case [4]: “The laws of partnership in property which were developed by the Supreme Court are not derived from the act of marriage, and they are not included in matters of marriage.”

The Bavli decision is a cornerstone of our law, and it continues to apply even after a quarter of a century. I would mention that in that case, the Rabbinical Court ruled that the judgments of the civil courts do not bind the rabbinical courts, which judge according to Jewish law, which does not recognize the concept of co-ownership of property. The High Court of Justice set aside the judgment, and without discussing all the reasons, the bottom line is that the community property doctrine applies in the rabbinical courts as part of the general secular law, and in matters of marital property, secular law must be applied by the rabbinical courts.

The laws of community property are the law in Israel. They are part of the law of the State. They therefore apply in every judicial tribunal in Israel. They also apply in the rabbinical courts. Make no mistake: these laws apply in the rabbinical court not because a law of the Knesset states this explicitly. These laws apply in all judicial tribunals – including religious courts – because the case law of the Supreme Court is law in Israel. In order to nullify their application in a particular judicial instance, a special legislative act that states this expressly is required. Such legislation does not exist in Israel (Bavli, at 246).

[As an aside: for our purposes, the narrow interpretation given to the ruling in Bavli and its application to the laws relating to community property is sufficient. The broad interpretation holds that a default position may be inferred from the judgment whereby the rabbinical court must apply the secular law in any matter that is not one of “personal status,” as a matter of normative coherence of a uniform, comprehensive arrangement in the various courts (for an opinion supporting a broad reading of the ruling in Bavli, see Ruth Halperin-Kaddari, Legal Pluralism in Israel: The High Court and the Rabbinical Courts Following Bavli and Lev, 20 Iyunei Mishpat 683 (1997) (Heb.) (hereinafter: Halperin-Kaddari). For criticism of the ruling in Bavli, see Berachyahu Lifshitz, Contents and Outer Shell in the Doctrine of Partnership in Property Following Bavli, 3 HaMishpat 239 (1996) (Heb.) (hereinafter: Berachyahu Lifshitz). The author also observes that the Bavli ruling can be interpreted narrowly and broadly (ibid., at 240)).

 

The Effect of Moral Fault on the Property Dispute

13.       The importance of removing the marital property dispute from matters of “marriage and divorce,” while applying the secular law, manifests itself in the subject of fault. The tendency in secular law is to sever the fault of one of the spouses from the subject of distribution of property, possibly as part of the wider trend towards no-fault divorce (on the regime of no-fault divorce when the marital bond has broken down, see: Shahar Lifshitz, I Want to Get a Divorce Now! On Civil Regulation of Divorce Law, 28 Tel Aviv U. Law Rev. 671 (2005) (Heb.); Shahar Lifshitz, Changes in Family Regulation – An Analytical and Prospective Look at the Effects of the Civil Revolution in Israeli Law, 10 L. & Business 447 (2010) (Heb.)). It seems that Amendment no. 4 to the Property Relations Law, which after many years of struggles severed the distribution of property from the termination of the marriage, only reinforces this trend. This is not so in the religious law, in which fault in general, and sexual infidelity of one of the spouses in particular, have ramifications for property matters as well. Religious law regards intimate relations outside of marriage as extremely serious, and Jewish law has invoked property rights and obligations in order to punish the one responsible for the failure of the marriage (Berachyahu Lifshitz, at 256); Yitzhak Cohen & Amal Jabarin, Relations Outside of Marriage as a Consideration in Distribution of the Family Property – A New Look at Israeli Law, 16 L. & Business 465 (2014) (Heb.) (hereinafter: Cohen & Jabarin). The authors support exacting an economic cost from the spouse guilty of extra-marital relations and in their article they review the situation in the United States on this subject; and see also Lior Mishali-Shlomai, Moral Judgment of Behavior in Laws of Marriage and Dismissal, 121-125, 211 (PhD Thesis, 2014) (Heb.)).

As stated, the trend in secular law is to sever the matter of the sexual conduct of the parties from all that concerns the property dispute between the parties, thus “saving” the parties superfluous expenses involved in hiring private investigators to prove marital infidelity. As I have had occasion to say, albeit in a different context, “naturally, the attempt to prove guilt in order to ‘gain points’ in the battle over maintenance and property matters entails invasive action that breaches the privacy of the spouses” (FA (Haifa) 740/08 A.  v. B. [54]).

Deputy President E. Rivlin discussed this in HCJ 8928/06 [3], cited in the opinion of Judge Amos:

A person should not be punished for his part in the breakdown of the relations through economic sanctions in the framework of the distribution of property between the spouses. Dissolution of the family unit is an extremely difficult, painful event. In certain cases, one of the spouses can be regarded as having greater responsibility for the breakdown of the relationship than the other spouse. However, the difficulty of the dissolution, and the fault of either of the parties, should not be addressed by way of economic sanction in the framework of distribution of the marital property. Furthermore, it is often difficult to speak in terms of “fault” in this context. Dissolution of the marriage is the result of complex circumstances, and unfaithfulness per se does not place the entire fault on one spouse alone.

14.       Let us be clear: I am not saying that the question of infidelity can never have ramifications for the property dispute between spouses, but that the matter must be examined from the perspective of the secular law for the purpose of determining whether there are grounds for applying the community property presumption or specific co-ownership in the asset. Thus, I do not rule out the possibility of cases in which long-standing infidelity will attest to the absence of a partnership between the spouses (see HCJ 3995/00 A. v. Great Rabbinical Court  [15]. That was a case involving an extra-marital affair that had lasted for 12 of the 17 years of the marriage, and the Rabbinical Court denied the claim of the wife to specific co-ownership in the apartment that had belonged to the husband prior to the marriage; and also compare the abovementioned HCJ 7940/17 [8], in which the Rabbinical Court emphasized the “short window of time in the course of which the partnership could have been created […] At the time there were already difficulties in the marital relations”). However, in the present case, it was the husband who wrote in the divorce claim, after 31 years of marriage, that “in recent months” the Petitioner has another partner. The parties also agreed that the time of the break-up for the purposes of the actuarial calculation would be the year 2013, and not prior to that.

In a long line of judgments, it was held that infidelity is liable to put an end to partnership, “but one is not punished for it retroactively by having rights in the marital property taken away” (CA 264/77 Dror v. Dror [16]. And see, similarly, Bavli [4]¸ at 255; Zisserman [14]; CA 819/94 Levi v. Levi [17], 304; HCJ 1135/02 Wasgael v. Jerusalem Great Rabbinical Court [18], 24; and also LFA 7272/10 A. v. B. [19], at para. 24 per Justice Barak-Erez, at para. 3 per Justice Hendel, and at para. 5 per Justice Melcer, which dealt with fault in the form of violent behavior on the part of the spouse, as distinct from fault in the form of an extra-marital sexual liaison). This Court reiterated this principle in the above-mentioned HCJ 8928/06, when it intervened in the judgment of the Great Rabbinical Court, which attributed weight to the infidelity of one of the spouses during the time of the marriage in order to justify departure from the rule of equal distribution of marital property as specified in the Property Relations Law.

Judge Amos mentioned the judgment in HCJ 8928/06 [3] in his opinion, citing the rule whereby “one is not punished for infidelity retroactively by having rights in the marital property taken away,” but in his view there is a difference between penalization relating to “rights which one of the parties had already acquired,” and taking into consideration the question of infidelity for the purpose of depriving rights in an asset by virtue of the intention of co-ownership. As stated, in support of his position Judge Amos referred to the judgment in LFA (TA) 13313-12-11 [53], but a careful reading of that judgment reveals that as opposed to the present case, in which the claim of infidelity relates to the last few months preceding the outbreak of the dispute, in that case the court emphasized, alongside other reasons indicating the absence of intention of co-ownership on the economic plane, that:

…there is no dispute that the respondent had not been faithful to the appellant for years. He was unfaithful to her with other women, he was registered on dating sites, and he had relationships with other women at different periods of their life together, including during the period of the renovation of the apartment. The appellant was aware of this. She held back, came to terms and forgave. The respondent promised that he would change his ways, but he relapsed.

In these circumstances, Judge Shohet found that:

…it is difficult to attribute to a spouse an intention of co-ownership with the other spouse in an “external asset”, when that other spouse does not remain faithful to his spouse, betrays her with other women and attempts to hide from her not only external assets but also joint assets, and he breaks his promise each time anew to change his ways, despite the willingness of his wife to forgive him and accept him.

Make no mistake: we have discussed the fact that general co-ownership, as well as specific co-ownership in an asset, crystallizes at a certain point in the course of marital life. Even those who hold that weight should be attributed to the guilt of a spouse in matters of property will agree that the infidelity of the spouse takes effect from that point onward, as a point in time that attests to a crisis in the spousal relations, and therefore a distinction must be drawn between property that accumulated prior to the act of betrayal and property that accumulated from the time of the betrayal and until the actual dissolution of the marriage. A severe crisis in the relationship will put an end to the partnership from that time onward and apply only to property that exists at that time” (Cohen & Jabarin, at 481, emphasis added – I.A.).

15.       Thus, contrary to the judgment in HCJ 8928/06, the Great Rabbinical Court decided to invoke religious law and to explain why, in its view, the infidelity of the Petitioner affects the present issue. This would appear to illustrate that even though the Rabbinical Court paid lip service to the secular law, the deciding factor was the wife’s infidelity, and after 30 years of marriage, it retroactively denied her the right to specific co-ownership in the residential home. In doing so, the Rabbinical Court introduced the element of fault into property matters through the front door, or at least, through the window, while actually rejecting, in practice, the doctrine of specific co-ownership in the residential home.

16.       A comment prior to concluding. 

As a rule, the ideal situation is one of harmony between the courts, in order to minimize, insofar as possible, what may be regarded as a brawl between the secular court and the religious court. It is this very aspiration for harmony that ought to lead to uniformity in decision-making with respect to property matters, to prevent a situation in which the substantive law in property matters is determined by the identity of the judge. This has undesirable consequences, such as dishonest incorporation of the subject of property in the divorce suit, and providing an incentive for the undesirable phenomenon of forum shopping.

The intervention of this Court in the judgments of the Great Rabbinical Court is no trivial matter. As we noted, such intervention is reserved for exceptional cases. This derives, inter alia, from the principle of comity between the courts. This Court is careful not to trespass on the domain of the rabbinical courts in halakhic matters. The rabbinical courts, too, ought not trespass on the domain of the secular law in matters of property.

17.       Finally, if my opinion is accepted, we will reverse the judgment of the Great Rabbinical Court, which would mean that the judgment of the Regional Rabbinical Court would again stand, and the Petitioner would be entitled to half the rights in the residential home. I would again emphasize that the question facing us is not whether specific co-ownership should be applied to the residential home, since opinions may differ on this matter of fact and law (see and compare LFA 2948/07 A. v. B. [20], at para. 6). The relevant question here is whether the Great Rabbinical Court applied the religious law by attributing weight to the wife’s infidelity on what was purely a question of property. In my view, the answer to this is yes, and the judgment of the Great Rabbinical Court displays a clear retreat to the situation that pertained prior to the Bavli case. Therefore, our intervention is justified.

Finally, I would point out that I am not unaware of the claim of laches in submitting the petition. In the circumstances of the case, I do not think that there is sufficient reason for dismissing the petition in limine, but I would suggest that the Petitioner not be awarded costs.

And another concluding remark: at the request of the husband and for the purpose of current execution proceedings between the parties, it is hereby clarified that for the purpose of the payment of NIS 2000 per month, as provided in an agreement between the parties in HCJ 4602/13, the date of the judgment of the Regional Rabbinical Court on Feb. 29, 2016, is the date that constitutes “the end of the proceedings in the property dispute”.

18.       After having read the opinions of my colleagues Justices D. Mintz and A. Stein, I would add some brief comments:

            a.         In response to the opening comment of my colleague Justice Stein, I would explain that my judgment does not represent any erosion of the law pertaining to the scope of the intervention of this Court in the judgments of the rabbinical courts. The law remains as it was, and my judgment is merely its application to the circumstances of this particular case.

            b.         I completely agree with my colleague Justice Stein that the Bavli case did not introduce anything new with respect to the application of the community property presumption, and that its innovation lay in the fact that following that ruling, it became clear that the rabbinical courts must decide according to the secular law on property matters. I will again refer the reader to para. 12 of my opinion, where I quoted from the Bavli case and referred to articles addressing the question of whether the judgment should be given a narrow or a broad interpretation.

            c.         In para. 8 of my opinion, I mentioned the judgment in the Beham case. The quotation brought by my colleague from the Bavli case (para. 12, near the end of his opinion) only explains how then Deputy President Barak decided to deal with this case by distinguishing it, through the determination that underlying the judgment in Beham was the agreement of the parties,  which may also be interpreted as agreement to the application of Jewish law (and see Halperin-Kaddari, at 685, note 4).

            d.         As I emphasized in para. 7 of my opinion, in normal circumstances, even if I thought that the Great Rabbinical Court was mistaken in its application of the law applying to specific co-ownership in the residential home, I would not tend to intervene in its judgment. However, in the present case, according to the approach of the husband, too, the alleged infidelity of the Petitioner occurred in the last months of the 31 years of their marriage. Therefore, it is hard to understand how this infidelity can be included in the basket of indicators and facts that the court examines in deciding whether specific co-ownership in the residential home had been created over the years. The weight given by the Great Rabbinical Court to the wife’s infidelity in the present case (in the category of “shameful conduct”, in the words of Judge Nahari), is therefore incompatible with the ruling of this Court, whereby rights cannot be nullified retroactively. But this is what the Rabbinical Court did in the present case, ignoring the ruling that it is secular law that is binding in the matter of the distribution of property. In this, the Rabbinical Court acted contrary to the ruling in Bavli, and thus overstepped its authority.

e.  There are those who hold that specific co-ownership in the residential home that was brought into the marriage is not based solely on the intention of the spouse, and I refer to the connective model mentioned in para. 6 of my opinion and Lifshitz’s article mentioned there.

f.   In all events, even if we analyze the doctrine of specific co-ownership from the perspective of the intention of co-ownership, I would clarify that I too am prepared to assume that in certain cases, infidelity on the part of one of the spouses could be one of the relevant facts when the court is assessing whether specific co-ownership has been created in the residential home that was brought into the marriage (see para. 14 of my opinion). Therefore, I cannot be accused of ignoring the wish of the spouse who brought the asset into the marriage that his spouse not be a partner in the asset in the event of infidelity.

Like my colleague, I too am of the opinion that as a rule, where it has been proved that the “betrayed” spouse did not intend from the outset to share his property with the “betraying” spouse (whether in general, or in the case of infidelity), this intention must be respected. On the other hand, it is not possible to carry out a “retooling” and to say that once the spouse committed an adulterous act, we must assume that the “betrayed” spouse did not intend, from the outset, to share his property with her. Such a determination is flawed in that it begs the question.

In the present case, there is no indication that the husband wished not to share his property with the Petitioner in the case of infidelity (I would mention that the Regional Rabbinical Court reached a completely different conclusion with respect to the husband’s intention, as reflected in his own statements).    The practical ruling of the Great Rabbinical Court is that in any case of infidelity, it may be determined that there was no intention of partnership. My colleague Justice Stein wishes to maintain neutrality in the attitude of the Court on this subject, however, the practical significance of his opinion is that whenever a rabbinical court deals with the issue of specific co-ownership in an asset, it will be possible to introduce the element of infidelity as proof of the lack of intention of partnership. From here, it is only a short step to the phenomenon – which even my colleague rejects – of bringing evidence about acts of infidelity and adultery of one of the spouses in the framework of a dispute concerning property, and where would this land us?!

           

Justice D. Mintz

Although I accept fairly substantial parts of the opinion of my colleague Justice I. Amit, I cannot concur in the result, and in my opinion the petition must be denied.

1.         A study of the judgment of the Great Rabbinical Court – with its three opinions of the members of the panel – reveals that it was based on factual determinations whereby co-ownership of the asset that was the object of the petition (hereinafter: the asset) was not proved. The Great Rabbinical Court reached this conclusion due to the absence of “additional supporting evidence” to prove the partnership (per Judge Amos); or due to the absence of an “assessment of an intention for co-ownership or giving” (per Judge Nahari); or due to the absence of “any intention of co-ownership” (per Judge Almaliah). Indeed, the matter of the alleged infidelity of the Petitioner was manifest in the opinions of Judges Amos and Nahari, and Judge Nahari even ruled expressly that “the act of infidelity creates an intention of non-partnership of the owner of the asset vis-à-vis the person who was unfaithful to him, and from this a conclusion may be derived in respect of our matter.” However, this is not sufficient in order to justify the intervention of this Court in the judgment. I will explain.

2.         There is no dispute that in this case, the property relations regime that applies to the couple is that of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law or the Law). According to this regime, during the course of the marriage, there is separation between the assets of the spouses, whereas upon the termination of the marriage, the couple becomes subject to an obligation to balance the value of the assets between them, or in other words – to carry out a “balancing of resources” (CA 1915/91 Yaacobi v. Yaacobi [21], 550 (hereinafter: Yaacobi); LCA 8672/00 Abu Rumi v. Abu Rumi [5], 179 (hereinafter: Abu Rumi)).

3.         Section 5(a) of the Property Relations Law provides that upon the dissolution of the marriage (including its termination due to the death of one of the spouses), each spouse is entitled to half the value of the total assets of the couple. Under sec. 8 of the Law, the court may set a different date for executing the balancing (a date which is sometimes called “the date of the breach”; and see: HCJ 2642/08 A. v. Great Rabbinical Court Jerusalem [22]; LFA 2045/15 A. v. B. [23]). However, one of the assets that is excepted from the balancing of resources under sec. 5(a)(1) of the Law is an asset that one of the spouses owned on the eve of the marriage, or that he received as a gift or as an inheritance during the marriage. Section 5(a) of the Law must be read together with sec. 4, which provides that contracting the marriage or its existence per se does not affect the property of the spouses by conferring upon one of them rights in the property of the other, or by imposing upon him liability for the obligations of the other (LFA 1398/11 A. v. B. ) (hereinafter: LFA 1398/11 [2])).

4.         In Yaacobi [21], there was disagreement in this Court on the question of whether the community property presumption applied to a couple who married after the entry into force of the Property Relations Law. The prevailing view was that just as spouses who married prior to the effective date of the Law (Jan.1, 1974) are subject to the single, special property relations regime of “the community property presumption” (which means that when a couple leads a normal life-style that reflects joint effort, the property that has accumulated in the course of the marriage will be owned jointly. This partnership is inferred from the circumstances of their life together and from the intentions attributed to the couple. The presumption relies on a contractual construction relating to an implied agreement between the parties, whereby they are equal partners in rights. And see: CA 300/64 Berger v. Director of Estate Tax [24]; CA 253/65 Bricker v. Bricker [12]; CA 135/68 Barelli v. Director of Estate Tax Jerusalem [25]; CA 595/69 Efta v. Efta [26]). Couples who married after the effective date, are governed only by the resource balancing arrangement, and the community property presumption does not apply to their affairs (HCJ 1727/07 A. v. Great Rabbinical Court, para. 6 (hereinafter: HCJ 1727/07 [27])).  Accordingly, as a rule, a spouse who is subject to the resource balancing arrangement may not claim ownership in any of the property of the other spouse, or in a particular asset, on the contention that the community property applies to the property or to the particular asset.

5.         Notwithstanding the above, it has been ruled that the spouses are not barred from claiming ownership of assets by virtue of the general law, i.e. regular property law and contract law. For this purpose, and for the purpose of recognition of co-ownership of a particular asset, including the residential home that was brought into the marriage by one of the partners, one must bring evidence of factual circumstances additional to the very existence of extended marital life together (Abu Rumi [5], at 183). The question of whether the intention of specific co-ownership was proved, as stated, is a factual question which must be proved by the person claiming it, and it depends on the circumstances (LFA 4545/09 A.  v. B. [28], para. 6; LFA 2948/07 A. v. B. [20]; LFA 10734/06 A. v. B. [29]; CA 8128/06 Levinson v. Arnon [30], para. 23; LFA 2991/13 A. v. B. [31]; LFA 7181/12 A. v. B. [32]; LFA 5939/04 A. v. B. [33]). It will be examined in accordance with an assessment of the wishes of the parties, their express or implied agreement and their life circumstances in relation to the specific asset. In this framework it was ruled that one of the considerations must be whether the asset is registered in the name of one of the spouses, and that in view of the maxim that “the burden of proof is on the claimant,” the burden falls upon the other spouse to prove that he is entitled to rights in that asset. The existence of a long marriage per se is insufficient, and in this context one must take into account, inter alia, the conduct of the parties and the nature of the monetary investments of the unregistered spouse in the asset (LFA 1477/13 A. v. B. [34]).

6.         The residential home is said to be the “jewel in the crown of the community property presumption” (CA 806/93 Hadari v. Hadari [35], 690), and the nature of the asset itself affects the evidentiary base that is required to ground the community property presumption (CA 3002/93 Ben-Zvi v. Siton [36], 13). This is true today as well, after the “community property presumption” regime has almost disappeared and we are now almost entirely under a regime of “resource balancing” under the Law. Accordingly, it has been ruled that a lesser amount of proof is required to prove co-ownership of family assets in general, and of the residential home in particular, which is the main asset of the family (CA 741/82 Fichtenbaum v. Fichtenbaum [37], 26; for an extended discussion, see: CA 4306/12 A. v. Bank Leumi Israel Ltd.  [38]).

7.         And now to the matter at hand. My colleague Justice Amit is also of the view that extended infidelity of either of the spouses may well attest to the lack of partnership between the two, including in their joint residential home (para. 14 of his opinion). Infidelity can constitute a circumstance that undermines the community property presumption between spouses (and see: CA 264/77 Dror v. Dror (hereinafter: Dror [16]), which is very logical. However, as my colleague pointed out, just as the crystallization of the partnership is assessed along the timeline of married life, so too, the circumstances that indicate the absence of partnership are examined along the timeline of married life, and “one is not punished for them retroactively” (see Dror, ibid., at 832 and see: HCJ 9734/03 A. v. Great Rabbinical Court [39]). In other words, the infidelity of one of the spouses is not sufficient to nullify the partnership that crystallized in the assets, if it crystallized prior to the infidelity.

8.         Prima facie, in the present case the spouses lived in harmony for many years, and under the law there is no justification for allowing the alleged, later infidelity of the Petitioner to nullify the partnership in assets that had crystallized previously. In this case, however, I cannot agree with the position of my colleague Justice Amit that the three Judges of the Great Rabbinical Court included infidelity among the aggregate considerations for denying co-ownership of the asset, and that it was, in fact, this consideration that tipped the scales against the Petitioner. In my view, from the words of Judges Amos and Almaliah and their reasons, we learn that this conclusion was reached independent of the infidelity. Thus, although Judge Amos discussed Jewish law, he concluded that co-ownership of the asset had not crystallized even before he discussed the Petitioner’s infidelity. In his written opinion he even stressed that reference to the infidelity was in addition to and beyond what was required, and the discussion of the “halakhic aspect”, as he defined it, was incidental. Judge Almaliah, too, ruled in accordance with the secular law, and in his opinion he makes no mention at all of the Petitioner’s infidelity among his considerations for denying co-ownership of the asset. Therefore, although Judge Nahari ruled that the act of infidelity creates “an intention of non-partnership of the owner of the asset vis-à-vis the one who was unfaithful to him” (reasoning a fortiori), it cannot be said that the conclusion of the majority in the Rabbinical Court is tainted by the consideration of circumstances that are not relevant to the matter, or that the Rabbinical Court applied religious law to existing financial relations between the couple. Therefore, the Rabbinical Court did not act ultra vires in its judgment.

9.         Since the Rabbinical Court did not act ultra vires, and given the limited scope of the intervention of this Court, when sitting as the High Court of Justice, in the decisions of the rabbinical courts (see: sections 15(c) and 15(d)(4) of Basic Law: The Judiciary; HCJ 9812/17 A. v. Great Rabbinical Court [6]; HCJ 2617/18 A. v. Great Rabbinical Court [7]; HCJ 1996/16 A. v. Great Rabbinical Court [40]; HCJ 3689/15 A. v. Tel Aviv Regional Rabbinical Court [41]; HCJ 3394/18 A. v. Great Rabbinical Court Jerusalem [42]; HCJ 3042/18 A. v. Regional Rabbinical Court [43]; HCJ 4091/18 A. v. Great Rabbinical Court [44]), even if I assume that the Rabbinical Court erred in its application of the law, this case does not fall within the scope of those cases that justify the intervention of this Court.

10.       Parenthetically, though not necessarily of marginal importance: When Judge Amos turned to a discussion of the halakhic aspect, he ruled that the validity of the interpretation of the Rabbinical Court in relation to co-ownership of property under the Property Relations Law and the existing case law of the Court, is of equal value to that of any other judicial instance. No one, I believe, would dispute this. However, Judge Amos went on, perhaps beyond what was necessary, and ruled that the Rabbinical Court must provide substance for its interpretation according to Jewish law and not according to the general law. He would appear to be mistaken in this (see: HCJ 1000/92 Bavli v. Great Rabbinical Court [4]). Nevertheless, I will briefly address the position of Jewish law as discussed in the opinion of Judge Amos.

11.       Under Jewish law, the financial obligation resulting from one spouse being a partner in the property of the other spouse must be based on a “known custom” by which the spouse undertook the obligation. In support of this, Judge Amos cited Maimonides (Mishneh Torah, Laws of Marital Relations 16:7-9), and also quoted from Responsa of R. Eliahu Mizrahi 16 (Constantinople, 1450-1526, also famous for his commentary on Rashi’s commentary on the Bible). Due to their importance, the full text quoted by Judge Amos from the said responsum appears below:

For it is not within the power of custom to bind someone in a monetary matter if he objects in principle to that custom. We will not compel someone to surrender money that is in his possession on the basis of a contested custom. This is in contrast to matters of ritual law, in relation to which no one can object to a valid custom, and they will be bound by that custom, regardless of their wishes on the matter …. This, as we examine whether that local custom is clear and unambiguous to all the residents, and then we find that the transaction was made on the condition that it would comport with local custom, and it is as if he had expressly stipulated to that effect, and he must carry out that condition, and not by reason of it being the custom observed by others. Hence, even if one of the parties now strenuously objects and says “I never had any such intention and never agreed to that”,  we nevertheless rule that the transaction was made in accordance with the custom, … However, if the custom in question was not clear and unambiguous to all the townspeople, then we say that he may never have heard of the custom, or had heard of it but never agreed to abide by it. Therefore we are concerned with a doubt, and we do not remove money from a person’s possession on the basis of a doubt.

What this means is that if there is a custom that is well-known to all the inhabitants of the town, this custom may not be refuted, and there is a type of conclusive presumption that everyone acts in accordance with custom, and a person may be required to pay out money if the custom so demands in those circumstances. As opposed to this, in the case of a custom that is not familiar to all the people of the town, the assumption is that the person might not have heard about it, or alternatively, that he heard about it but did not act according to it. It is a matter of doubt, and we do not take away a person’s money on the basis of a doubt.

12.       In view of the above, Judge Amos ruled that even if we decide that money is to be taken away by virtue of “state custom,” there must be a clear intention of partnership, and the burden of proof falls on the other spouse by virtue of the maxim, “the burden of proof is on the claimant.” This is because state custom only raises a doubt, and where there is a doubt, the asset should be deemed to be owned by the person in possession of it. In our case, therefore, according to Judge Amos’s approach, there was no justification, under Jewish law, to determine that the asset was co-owned, and to deprive Respondent 3 – the Petitioner’s ex-husband – of his half of the property for her benefit.

13.       First, allow me to say that from the above it may be inferred that it was not the infidelity that underlay the main thrust of the decision of Judge Amos according to Jewish law, but rather the power of “state custom” – in the form of the financial regime under the Law or under the “community property presumption” – to determine the question of ownership of the asset. Secondly, the present case is not similar to the proof that was adduced, inasmuch as the decision in the present case is not based on “state custom,” as expressed in the community property presumption, against which Judge Amos spoke out, but rather it is a decision based on the general law and an examination of the evidence on the merits.

14.       As stated above, the applicable property relations regime between the Petitioner and Respondent no. 3 in the present case is that of resource balancing under the Property Relations Law. As such, co-ownership in the asset does not derive from the community property presumption, but from the general law (and see the different view of my colleague Justice Amit in CA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. [45]. This, as stated above, involves determining the intention of specific co-ownership of the spouse in the asset, with the Petitioner bearing the burden of showing the existence of the partnership. In other words, according to both the general law and Jewish law, it is the Petitioner who bears the burden of proving the existence of an intention of co-ownership of the asset, and in the case of a doubt, the entire asset should be assigned to Respondent no. 3. It would be different, indeed, if the Petitioner’s rights in the asset derived from the community property presumption, for then the paths of the two legal systems might diverge (on the force of civil legislation according to Jewish law, see: R. Mordekhai Eliahu, The Attitude of Halakhah to the Law of the State, 3 Tehumin 242 (5742-1982) (Heb.); R. Dr. Ron Kleinman, Secular Law in the State – ‘State Custom’? 32 Tehumin 261 (5772-2012) (Heb.); R. Asher Weiss, Are State Laws Valid by Virtue of Local Custom? 34 Tehumin 171 (5774-2014) (Heb.); on the adoption of laws and regulations according to the doctrine of “The King’s Law”, see: “Dina de-Malkhuta Dina” and “Community Regulations” in  Ido Rechnitz, Medina ke-Halakhah 190 (2018) (Heb)).

15.       Moreover, the above also emerges from what Maimonides writes (Mishneh Torah, Laws of Marital Relations 16:9), quoted by Judge Amos, as follows:

But if this stipulation was not included in the text of the ketubah, but they simply married, if the husband knew of this ordinance of the Geonim, the woman may collect. If he did not, or we are unsure of it, we deliberate at length concerning this matter. For an ordinance of the Geonim does not have force when it was not explicitly stated in the conditions of the ketubah… (emphasis added – D.M.).

In other words, if there is a doubt as to whether the custom has become widespread, and as to the husband’s knowledge of the custom, the rabbis “deliberate at length,” i.e., they investigate the circumstances of the case thoroughly (and see: R. Adin Even Israel Steinsaltz,  Maimonides with Commentary (2^nd edition, 2017) (Heb.)). This is also the decided law in the general law, i.e., that the circumstances of the case are investigated thoroughly as to whether in fact, despite the apparent ownership of the disputed asset by one of the spouses, the other spouse also has rights in it. Indeed, in the case cited by Maimonides, too, the reference is to a custom of which the spouse may not be aware. However, when in the present case we refer to proving the existence of co-ownership in accordance with the general law and the laws of evidence, it would seems that Jewish law and general law lead to the same place, where the burden of proof falls upon the one who claims co-ownership of the asset that is the property of the other spouse.

I will comment, parenthetically, that Maimonides’ above-cited position was not adopted in practice (Shulhan Arukh, Even ha-Ezer 100:1; and see Beit Shmuel, ad loc.).

In conclusion, therefore, I do not find that the Rabbinical Court acted ultra vires, or that it concluded purely on the basis of Jewish law that the Petitioner did not prove co-ownership of the asset as claimed. Therefore, if my opinion be accepted, the petition will be denied.

 

Justice A. Stein

1.         In the disagreement between my colleagues Justices I. Amit and D. Mintz, I find myself concurring with Justice Mintz. My disagreement with the opinion of Justice Amit stems from the reasons specified below. In practice, Justice Amit is seeking to change our long-standing rule of not intervening in the judgments of the rabbinical court except in limited, defined cases, when one of the following flaws is involved: (1) ultra vires; (2) clear departure from provisions of law that are directed at the religious court, which can be seen as acting ultra vires, or as an error of law that is clear and evident on the face of the judgment, which is equivalent to acting ultra vires (see: HCJ 7/83 Bayers v. Haifa Regional Rabbinical Court [45; HCJ 187/54 Barriya v Kadi of the Moslem Sharia Court, Akko [46]; HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court [11]; and the article by the late Professor Menashe Shawa, Is the Religious Court’s Deviation from or Disregard of the Provisions of Secular Law Directed at it in Particular Equivalent to Acting “Ultra Vires”? 25 Hapraklit 299 (1972-1973) (Heb.)); (3) breach of the principles of natural justice; and (4) this Court reaches the conclusion that a Petitioner ought to be given equitable relief that is not within the authority of another court. This last norm is based on the provision of sec. 15(d)(4) of Basic Law: The Judiciary (hereinafter: the Law), which vests in us the power “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 [….]”, and on the provisions of sec. 15(c) of the Law, which provides that the High Court of Justice “[…] shall hear matters in which it deems it necessary to grant relief for the sake of justice […].”  The supra-legislature that enacted Basic Law: The Judiciary did not grant us the power to interfere in the substance of the judgments and decisions of the religious courts, and we have reiterated this principle countless times (see, e.g., HCJ 8638/03 Amir v. Great Rabbinical Court Jerusalem [47], para. 10 and the references there; HCJ 3467/14 A. v. Haifa Regional Rabbinical Court [48]; HCJ 2443/15 A. v. Great Rabbinical Court Jerusalem [49], para. 7 and the references there; HCJ 9812/17 A. v. Great Rabbinical Court [6], para. 13 and the references there; and HCJ 2617/18 A. v. Great Rabbinical Court [7], para. 10 and the references there). This is a fundamentally important principle by which we preserve the balance sought by the legislature between the general law and the religious law on matters of marriage, divorce and their monetary ramifications. This balance should be maintained and preserved unchanged. I will already emphasize that our case turns on the two first exceptions to the rule against intervention, and therefore I will discuss them alone.

2.         In my view, applying this basic rule in the present case presents no difficulty. Clearly, Respondent no. 1 in HCJ 9780/17, the Great Rabbinical Court, did not exceed its authority in deciding on the appeal of the judgment of the Haifa Regional Rabbinical Court as it saw fit in the circumstances of the case. This power was vested in the rabbinical courts – the regional courts and the Great Rabbinical Court – after the Petitioner and Respondent no. 3 in the above case before the High Court, a wife and husband who divorced by agreement (hereinafter: the wife, the husband or the couple, as relevant), agreed to settle their financial affairs in the rabbinical court (as preserved in the agreement on which this Court issued a consent decree: see the decision of March 3, 2013 given in the framework of HCJ 4602/13). Similarly, I found no clearly evident, facial legal error in the judgment of the Great Rabbinical Court (hereinafter: the Rabbinical Court) that would require our intervention.

3.         The judgment of the Rabbinical Court dealt with the house in which the couple had lived with their children over the course of many years of marriage (hereinafter: the house). The plot of land and the funds to construct the house were brought into the marriage by the husband, as determined by the Rabbinical Court, and the ownership remained registered in his name alone. The wife claimed the existence of an equal partnership in the rights in the house. The husband argued that the house was and remained entirely his, and the Rabbinical Court agreed with the husband. Among the considerations negating the existence of an equal-rights partnership in the house, the Rabbinical Court included the fact that the wife, while still married to the husband, had an affair with another man. Justice Amit believes that such a consideration represents a departure from the provisions of the law and is ultra vires.  My opinion is different. I believe that consideration of this fact as part of the entire set of facts relevant to the question of implied partnership is not a clear, evident mistake on the face of the judgment, and it certainly does not constitute an ultra vires act. In the absence of an explicit agreement, the question of whether co-ownership of the asset exists in any particular case is a factual one (as explained in the opinion of my colleague Justice Mintz), and it is possible to view it as a mixed question of law and fact. In order to answer this question either positively or negatively, the judge  must establish factual findings concerning the existence or absence of an equal-rights partnership between the couple in the specific asset under discussion – and we do not intervene in such findings. In the present case, the Rabbinical Court ruled as a matter of law and a matter of fact that the couple had not established an equal-rights partnership in the house. I will freely admit that I am not comfortable with this ruling, as the evidence shows that the husband and wife lived in this house for many years, raised their children in it, and that their family life was, for the most part, unremarkable (though not without friction). But the point is that my opinion on this is not what matters, since the authority to determine the facts of the case and to decide whether these establish an equal-rights partnership in relation to the house is not vested in me. Such authority lies in the hands of the Regional Rabbinical Court, as the first instance, and with the Great Rabbinical Court, as the final instance. This Court only examines whether the boundaries of this authority were breached, and once it finds that that is not the case, it must end the task assigned to it in section 15(d)(4) of Basic Law: The Judiciary. All that remains for me is to concur in the opinion of my colleague Justice Mintz, confirm the judgment of the Rabbinical Court, and deny the petition.

4.         Another matter on which I do not agree with Justice Amit is the ramifications of HCJ 100/92 Bavli v. Great Rabbinical Court [4] (hereinafter: the Bavli case) for the law regulating the property relations between spouses. In my opinion, the Bavli case does not help the Petitioner. That ruling did not introduce any great innovation concerning the application of the community property presumption to specific assets that are not defined in the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law) as being subject to balancing, and in respect of which there is no explicit agreement between the spouses. On this subject, the Bavli case only reiterated the principles that had already been established in several judgments (see: CA 253/65 Bricker v. Bricker [12] ; CA 300/64 Berger v. Director of Estate Tax [24]; CA 135/68 Barelli v. Director of Estate Tax, Jerusalem [25]). These judgments recognized the existence of an equal-rights partnership in assets by virtue of an implied agreement between the spouses, and such an agreement – like every agreement – might relate to the entire property of the spouses, or it might relate to full or partial partnership in only one asset. The Property Relations Law established its rules for balancing in relation to the property accumulated in the course of the couple’s marriage, as part of their joint life’s enterprise (see secs. 5-10 of the Property Relations Law). In doing so, the law limited in practice the scope of application of the community property presumption: this presumption could no longer apply to property subject to balancing, the rights in which are regulated by the law. The application of the presumption was confined, therefore, to other assets, those which could not be balanced, as long as an implied partnership agreement could be proved in respect of them. The Bavli case and other judgments that followed it (see LCA 8672/00 Abu Rumi v. Abu Rumi [5]; HCJ 5416/09 A. v. B. [50], para. 13 and the references there (2010); and Prof. Shahar Lifshitz’s article, Family and Property Relations: Challenges and Tasks Subsequent to the 4th Amendment of Property Relations Law, 1 Hukim 227 (2009) (Heb.) ratified this change in the community property presumption.

5.         The great change wrought by the Bavli ruling was the repeal of the old rule whereby “the law follows the judge” (see: HCJ 323/81 Vilozny v. Great Rabbinical Court Jerusalem [51]). This rule allowed a rabbinical court to decide on property matters that were properly brought before it in accordance with religious law, disregarding the general law (see: Benzion Schereschewsky and Michael Corinaldi, Family Law vol. 1, 426-37 (New Edition, 2015) (Heb.)). The Bavli ruling turned this rule on its head in establishing that it is the judge who must follow the law. Accordingly, it was ruled that the rabbinical courts must rule on property matters in accordance with the community property presumption as defined in the general law and its contractual foundations. This ruling completed the revolution in the financial regime of the laws of marriage and divorce. Prior to the Bavli case, significant parts of this subject were governed by the laws of the person’s personal status, which dictated the financial consequences of marriage and divorce for a couple. The Bavli case transferred the entire financial aspect of the laws of marriage and divorce from a regime of status to a regime of contract that allows a couple to act as an autonomous unit and determine the financial consequences of marriage and divorce by themselves and for themselves, subject to the protections against abuse provided in the Property Relations Law and in the general laws of contract (see secs. 5A(d), 22 and 12 of the Property Relations Law; and secs. 12, 15, 17, 18, 39, and 61(b) of the Contracts (General Part) Law, 5733-1973).

6.         This transition found expression in the rules that apply in the absence of a written property agreement between couples. The first and most fundamental of these rules was laid down in sec. 4 of the Property Relations Law, according to which: “The contraction or existence of the marriage shall not by itself affect any ownership rights of the spouses, confer on one of them rights in property of the other or impose on one of them liability for debts of the other.” Accordingly, sec. 5(a)(1) of the law provides that “property which they had immediately before the marriage or received by way of gift or inheritance during the marriage” will be excepted from the resource balancing that applies to property accumulated during the time of the marriage. I will call this rule the “preservation of rights in past assets.” The second rule states that a spouse may waive the preservation of his past rights and make his spouse a partner in those assets. This rule requires the court to identify and enforce the unwritten and unarticulated agreements concerning partnership in assets that the couple formulated between themselves and on which they acted in the course of their life together. In applying this rule, the courts usually decide according to the principle that “where a positive plea is met by an uncertain one, the positive plea prevails”” (see: TB Bava Kama  118a): in the absence of evidence that clearly shows that the spouse in possession of the past asset agreed to include his spouse as an equal-rights partner in that asset, the asset will remain entirely in the hands of its original owner. This rule has been applied, in most cases, in relation to real property (a house or an apartment) in which the couple lived and maintained a common household until their relationship broke down, as happened in the present case. In such cases, as determined elsewhere by my colleague Justice Amit, long years of marital life in the residential home registered on the name of one of the spouses is not sufficient: the spouse who claims co-ownership of property that is not his must present evidence of the intention of partnership that constitutes “additional supporting evidence” (see: LFA 1398/11 A. v. B.[2]; and LFA 1477/13 A. v. B. [34]).

7.         The transition from a regime of status to one of contract established an important principle that did not receive sufficient emphasis in the opinion of my colleague Justice Amit. I am referring to the autonomy of the spousal relationship (a value that is of prime importance, and that sometimes clashes unavoidably with social equality: see James S. Fishkin, Justice, Equal Opportunity and the Family 30-43, 64-65 (1984)). Spousal relationships are an individual matter, not only on the emotional and intimate plane, but also regarding property. Every spousal relationship exists by virtue of the practices and agreements that the spouses establish between themselves on the basis of their beliefs in regard to their desired way of life. Agreements between spouses concerning their individual personal property, and the extent to which the other spouse may share in that property are not, therefore, uniform. Agreements on property matters established in a relationship between one particular couple are not similar – and need not be similar – to the agreements that are formed in another couple’s relationship. Couples are permitted to live their lives together in a religious, secular, patriarchal, or feminist format, or some other format that incorporates values and world views of all types. Similarly, they may adopt whatever model of conjugal relations they may desire, which may or may not include sexual freedom. All these are private matters that are not our concern. Autonomy of the relationship between couples requires us to adopt a neutral, equal attitude to all lifestyles between couples, and all property arrangements, as long as no unlawful exploitation is involved.

8.         As such, the question whether the registered, sole owner of a particular asset, who brought that asset into the marriage, waived the rule concerning preservation of past assets and made his spouse an equal-rights partner in the asset, is an individual question, the answer to which (in the absence of explicit acquisition) is found in the lifestyle and the beliefs of the couple. This is, therefore, a question regarding which which it is not possible – nor desirable – to lay down  comprehensive rules that are oblivious to the beliefs, values and circumstances of the intimate relations of the couple. Every couple may act in accordance with its beliefs, and it is in accordance with those beliefs that it will distribute – or not distribute – the personal property of each of the spouses. We will not replace a spouse’s beliefs with our own. When considering the question of partnership, secular and rabbinical courts are therefore obliged to infer the existence or absence of an equal-rights partnership in a disputed asset from the patterns of the couple’s lives and their mutual expectations. These expectations may certainly include the condition of sexual fidelity between the couple as a sine qua non for the agreement of one spouse to share his property equally with the other. Such a condition, insofar as it exists, must be respected and enforced by the secular and religious courts.

9.         Justice Amit now suggests that we lay down a comprehensive rule according to which acts of “infidelity” cannot serve as a consideration in decisions concerning the partnership of one spouse in the property of the other. He is of the opinion that the fact that one spouse was not faithful to the marital bond and was found to engage in “infidelity” is not relevant to the question of co-ownership. Justice Amit explains that acts of “infidelity” may be taken into account only in extreme cases, when their frequency attests to the destruction of the spousal unit, which could – in other circumstances – have served as a basis for implied co-ownership of the disputed property. In his opinion, this rule is necessary so that considerations of moral guilt will not feature in decisions that are intended to settle property disputes between couples, including decisions regarding the question of co-ownership such as that which we now confront. The reason for this is simple: the “unfaithful” or “adulterous” spouse should not be punished by deprivation of his property.

10.       I agree with Justice Amit that our law does not permit depriving property from a spouse who has been “unfaithful” to the other spouse. There is no dispute about this principle. For this reason, I would not permit evidence to be brought about acts of “unfaithfulness,” “adultery” and so forth, in the framework of a discussion of a monetary dispute that turns on property that is recognized as being subject to balancing under the Property Relations Law. Property and rights belonging to either of the couple – the husband and the wife, in the present case – are his, whether he remained faithful to his spouse or whether he committed an act of “betrayal.” His property cannot be taken away from him in any case, and his property includes conclusive, unconditional partnership in an asset that formerly belonged in full to his spouse. But the problem is that this is not the question that faced this Court in the present case. The question facing us turned on giving and not on taking. The question that was decided, as it was decided by the Rabbinical Court, is only this: can one infer from the conduct of this couple in the course of their marital life that the husband agreed to make his wife a partner, unconditionally, in the rights in the house, where the plot on which it was built and the funds for its construction were brought by him into the marriage, and which remains registered in his name as owner? This is therefore a matter of examining the existence of a grant of a right that the wife did not acquire for herself due to her marriage to the husband per se (see, again, secs. 4 and 5(a)(1) of the Property Relations Law), and not with taking away the wife’s property due to an act of “betrayal” or “adultery.” Whether such a right has or has not been granted is a matter of empirical fact, and not of guilt, punishment, justice or other consideration in the realm of norms, as distinct from facts. On this matter, the intention of the spouse who owns the asset is of the utmost importance (see CA 595/69 Efta v. Efta [26]; and CA 630/79 Lieberman v. Lieberman [52]). This intention might indicate a lack of desire to make the “betraying” spouse a partner in the asset, and we are obliged respect and enforce these intentions, too. As stated, this obligation exists by virtue of the transition to a contractual regime and the principle of autonomy of the relationship between couples, which may, as we have said, be religious, secular, patriarchal, feminist, puritan or liberal according to the couple’s choice.

11.       And note: a court (or rabbinical tribunal) that reaches the conclusion that the intention of partnership was nullified due to an act of “betrayal” or “adultery” of the other spouse is not punishing that other spouse. In these cases, the court decides that the intention of partnership was nullified as a matter of fact and not as a matter of guilt and punishment. In so deciding, the court is maintaining neutrality in its attitude to the different patterns of marital life and relationships as required by the principle of autonomy. The principle that Justice Amit proposes that we adopt does not maintain neutrality, for it negates the wishes of the owner of the property not to share his property with his spouse in any case of infidelity. Such a rule would accord priority to one model of faithfulness and property relations between couples over other models, and I cannot concur in this.

12.       I would like to add that an implied agreement, which as we have said, is derived from the way of life chosen by the couple, may also provide that a grant of an equal-rights partnership in the property of one spouse will be void in the event of “betrayal.” This transpires from the words of (then) Deputy President A. Barak in the Bavli case [4] (at 250-51) concerning the significance of another important judgment, handed down in HCJ 609/92 Beham v. Great Rabbinical Court of Appeals [9]. In that case, the husband sought to cancel half the ownership rights in the apartment that his parents had given his wife, after they bought the apartment with their money in order that the couple should live in it, and registered the other half of the rights in his name. The reason for this was the sexual relations that the wife had with another man while still married to the husband. The apartment itself was sold, and the couple used the consideration in order to purchase another apartment, which was also registered in the names of the husband and the wife in equal shares. The Great Rabbinical Court, to which the parties turned by virtue of a jurisdiction agreement, ruled in favor of the husband. The wife petitioned the High Court of Justice, and her petition was denied. This Court ruled that on the basis of an assessment of the wishes of the parties, the wife received from the husband’s parents a conditional gift, and the condition was that she should be faithful to her husband (see ibid. at 293-94). (Then) Deputy President Barak justified this outcome, saying as follows:

It appears to me that underlying the Beham case lies the fact that the parties turned to the Rabbinical Court by agreement.  […] Such agreement may possibly be interpreted as agreement to the application of Jewish law to the gift. Moreover, Justice Elon treated the entire dispute as a dispute over the interpretation of a contract, noting that under the secular law, too, the assessment of the intentions of the parties may well be interpreted as indicating a conditional gift.

13.       It is time to move from the general to the specific. As my colleague Justice Mintz explained in paras. 1 and 8 of his opinion, two of the three judges of the Rabbinical Court decided against the wife on the question of co-ownership of the house, after examining the whole set of relations between the couple from the aspect of an implied agreement. This set included the act of “infidelity” of the wife as a consideration acting to negate or nullify the intention of the husband to include her as an equal-rights partner in the house, which as we have said, was built on a plot owned by the husband prior to the marriage and from funds that he brought into the marriage. For the reasons I have elaborated above, and by virtue of the rule “where a positive plea is met by an uncertain one, the positive plea prevails”, the Rabbinical Court was authorized to include this matter among its considerations. I fear that the Rabbinical Court gave the matter too much weight, but this fear has no bearing, as judicial review of the judgments of the religious courts by the High Court of Justice is confined in principle to the question of competence and to correcting fundamental errors in the process. The Rabbinical Court ruled as it saw fit, within the boundaries of its authority. Its decision does not display any facial error in law, let alone a clear, evident error that would be the equivalent of acting ultra vires. 

14.       Therefore, like by colleague Justice Mintz, I am of the opinion that this petition should be denied.

 

Decided in accordance with the opinions of Justices D. Mintz and A. Stein, Justice I. Amit dissenting.

Given this day, 10 Kislev 5779 (Nov. 18, 2018).

 

 

 

 

 

HCJ 8213/14

 

 

Petitioners:                  1. Batya Kahana Dror

                                    2. "Mavoi Satum" Association

                                    3. Na'amat Movement of Working Women and Volunteers

                                    4. WIZO Women's International Zionist Organization

 

v.

 

Respondents:              1. Minister of Religious Services

                                    2. President of the Great Rabbinical Court

 

 

The Supreme Court sitting as High Court of Justice

(Aug. 15, 2017)

Before: Deputy President (Emeritus) E. Rubinstein, Justice U. Shoham, Justice M. Mazuz

 

                                               Petition for a decree nisi

 

Israeli Supreme Court cases cited:

[1]       HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs, IsrSC 52(3) 630 (1998).

[2]       HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz (Jan. 29, 2012).

[3]       HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance (2007).

[4]       HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221 (1998).

[5]       HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309 (1988).

[6]       HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal (2013).

[7]       HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security (June 13, 2017).

[8]       HCJ 453/94 Israel Women's Network v. Government of Israel, IsrSC 48(5) 501 (1994).

 

Attorneys for the Petitioners:  Adv. Gali Etzion; Adv. Irit Gazit, Adv. Batya Kahana-Dror

Attorneys for the Respondents: Adv. Avinoam Segal-Elad; Adv. Yonatan Zion-Mozes

 

 

 

J U D G M E N T

 

Deputy President (Emeritus) E. Rubinstein:

 

1. The petition before us addresses the procedure for selecting the Director of the Rabbinical Courts, while focusing on the possibility that a woman be appointed to the position.

 

Background and Chain of Events

 

2. In recent years, this Court has addressed the issue of the procedure for appointing the Director of the Rabbinical Courts in a series of petitions that requested one thing: Permitting the selection of a woman to the position, either by interpreting sec. 13 of the Dayanim Law, 5715-1955[1] (hereinafter: the Dayanim Law or the Law), under which the Director of the Rabbinical Courts is appointed, as permitting women to apply for the position, or by overturning that section of the Law for alleged unlawful infringement of a woman’s constitutional right to equality.

 

3. Section 13 of the Dayanim Law states:

(a)        The Minister shall, with the consent of the President of the Great Rabbinical Court, prescribe in regulations or in administrative rules, as applicable, the administrative procedures of the Rabbinical Courts, and shall appoint one of the dayanim or a person who is qualified to be elected as a Municipal Rabbi, to be responsible for their performance; the appointment under this subsection of a person who is qualified to be elected as a Municipal Rabbi is subject to the approval of the Appointments Committee.

(b) The appointment of a Director of the Rabbinical Courts who is not a dayan shall not require a public tender, and he shall be regarded, for the purposes of section 17 and the Holders of Public Office (Benefits) Law, 5729-1969, as a dayan.

 

Thus, the section provides that the Director of the Rabbinical Courts can be one of two: a dayan of a Rabbinical Court, or a person who is qualified to be elected as a Municipal Rabbi whose appointment was approved by the Committee for the Selection of Dayanim. The qualifications for election to the position of a Municipal Rabbi are set out in regs. 4 and 5 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007 (hereinafter: the Regulations or the Religious Services Regulations), which state as follows in this regard:

 

4. The following are qualified to be elected as a Municipal Rabbi:

(1)       A person who presides or presided as a dayan or a person who possesses a valid certificate of ordination pursuant to the Dayanim (Conditions for Ordination and Procedures) Regulations, 5716-1955, and is qualified to be appointed as a dayan;

(2)       A person serving or who served as Chief Rabbi of the Israel Defense Forces;

(3)       A person serving or who served as a Military Rabbi of a Command or a Corps, and was ordained as a rabbi by the two Chief Rabbis of Israel, and the Chief Rabbinate Council decided that he is qualified to serve as a Municipal Rabbi;

(4)       A person who has a valid certificate from the Chief Rabbinate Council attesting that he is qualified to preside as a Municipal Rabbi (hereinafter: a "Certificate of Qualification)".

5.         (a) The Chief Rabbinate Council shall grant a Certificate of Qualification to a person who meets the following requirements:

1. His lifestyle and character befit, in its opinion, his status as a rabbi in Israel;
2. He passed examinations in Talmud and Jewish law decisors. These examinations shall be prepared in writing, by a committee of three or more rabbis appointed by the Chief Rabbinate Council;
3. He signed an affidavit that he shall fulfill any decision of the Chief Rabbinate Council.

(b)       If the Chief Rabbinate Council is convinced that a person is an outstanding scholar who is proficient, inter alia, in all of the Jewish laws related to the fulfillment of the position of Municipal Rabbi, it may exempt him from the examinations stated in sub-regulation (a)(2), provided that the Chief Rabbis of Israel were among those who voted in favor of the exemption…

 

The proper interpretation of these legislative provisions, and its implications for the possibility of women standing for the position of Director of the Rabbinical Courts are the focus of the petition. We shall now summarize the relevant facts and the proceedings before this court.

4.         Resolution 1154 of the 32^nd Government regarding "Limiting the Tenure of Senior Officials in the State Service" was adopted on December 27, 2009. The resolution set a four-year term limit upon the Director of the Rabbinical Courts, with an option of a four-year extension. Thereafter, on June 11, 2010, the Dayanim Appointment Committee decided that Rabbi Eliyahu Ben Dahan – who had then served as the Director of the Rabbinical Courts for 21 years – would finish his term in office on August 11, 2010 (hereinafter: the Committee's Decision).

 

5.         Following the Committee's Decision, a petition was filed with this Court on July 29, 2010 (HCJ 5720/10 Ruth and Emanuel Center for the Advancement of the Status of Women v. Minister of Justice), that petitioned for remedies in regard to the procedure for appointing the Director of the Rabbinical Courts, and primarily that this Court construe sec. 13 of the Dayanim Law as permitting a woman to be appointed to the position, or alternatively, that it declare the provision void due to its alleged unconstitutionality. On August 17, 2010, the petition was denied in limine (Justices A. Grunis, M. Naor, and U. Vogelman) as premature, because the ramifications of sec. 13 for the appointment of a woman as Director of the Rabbinical Courts had not yet been addressed by the appointing authorities.

 

6.         In the interim, on August 15, 2010, the then presiding Minister of Justice – who was then responsible for appointing the Director of the Rabbinical Courts – appointed former Great Rabbinical Court Dayan Rabbi Shlomo Dichovsky as the acting Director of the Rabbinical Courts. On March 1, 2011, with the consent of the President of the Great Rabbinical Court, and with the approval of the Dayanim Appointment Committee, Rabbi Dichovsky was appointed permanent Director of the Rabbinical Courts, until August 15, 2014, and he held that position for that period.

 

7.         On January 6, 2011, an additional petition was filed with the Court (HCJ 151/11 Ruth and Emanuel Rackman Center for the Advancement of the Status of Women v. Minister of Justice), arguing that the procedure for appointing Rabbi Dichovsky suffered material defects that justified its cancellation. The petitioners reiterated their requests for the same remedies in regard to sec. 13 of the Dayanim Law, with the purpose of promoting the appointment of a woman to the position of Director of the Rabbinical Courts. The petition was denied on December 27, 2011 (Justice (Emer.) E. Levy, and Justices H. Melcer and Y. Danziger), primarily on the grounds that in view of Rabbi Dichovsky's appointment as permanent Director of the Rabbinical Courts, the petition had become theoretical. There was no dispute as to his suitability to the position and no material flaws were found in the procedure for his appointment.

 

8.         On May 8, 2014, towards the end of Rabbi Dichovsky's term as Director of the Rabbinical Courts, Petitioner 1 – the Director General of the Mavoi Satum Association, which addresses the matter of Israeli women who are denied a get [Jewish writ of divorce] and agunot – submitted her candidacy for the position of Director of the Rabbinical Courts. On August 14, 2014, after no consensus candidate had been found to replace Rabbi Dichovsky, the Minister of Justice charged the Director General of the Ministry of Justice, Adv. Emi Palmor, with the administrative responsibility for the administration of the Rabbinical Courts.

 

9.         The present petition was filed on December 2, 2014, requesting that the Court to instruct the Respondents to refrain from appointing a permanent Director General of the Rabbinical Courts until sec. 13 of the Dayanim Law is amended in a manner that will permit women to contend for the position. Alternatively, identical remedies to those requested in the two previous petitions with regard to sec. 13 of the Law were requested, so that women, including Petitioner 1, would be allowed to "genuinely contend" for the position of Director of the Rabbinical Courts. An interim order instructing to refrain from appointing a Director of the Rabbinical Courts pending the judgment in the petition, was also requested. A few days later, before the procedure of appointing a permanent Director of the Rabbinical Courts was completed, the Knesset dispersed (see: Dissolution of the Nineteenth Knesset Law, 5775-2014). Elections for the twentieth Knesset were held a few months thereafter.

10.       Following the elections, the 34^th Government adopted Resolution no. 180 (hereinafter: the Resolution) on July 5, 2015, in the framework of which the responsibility for the Rabbinical Courts was transferred from the Ministry of Justice to the Ministry of Religious Services. Additionally, authority under the Dayanim Law, including the appointment of the Director of the Rabbinical Courts, was also transferred to the responsibility of the Minister of Religious Services (hereinafter also: the Minister). Three days after the Resolution, on July 8, 2015, the Minister of Religious Services appointed Adv. Rabbi Shimon Ya'acobi, who had served as legal advisor to the Rabbinical Courts for many years, as Director of the Rabbinical Courts by a temporary appointment for a period of three months. At this point it should be noted, with no offence intended to Rabbi Ya'acobi, that his appointment violated the State's undertaking to the Court of December 15, 2014, that the Court would be notified of any intention to appoint a Director of the Rabbinical Courts (see the decision of Justice D. Barak-Erez of December 16, 2014). In light of the procedural defects in Rabbi Ya'acobi's appointment, the State informed the Court, on July 23, 2015, that his appointment is to be deemed void. However, eventually, and with Court's consent and encouragement, as shall be explained below, the State retroactively ratified the acting appointment for a period of four months, with the approval of the Dayanim Appointment Committee. In practice, due to the prolongation of the proceedings, Rabbi Ya'acobi continues to serve as acting Director of the Rabbinical Courts, with the Court's consent, until the present day.

11.       Returning to the matter at hand, we held four hearings on the petition. Prior to the first hearing, which took place on July 27, 2015, the State gave notice that, in light of the sensitivity of the matter, it has not yet succeeded in formulating its position regarding the Petitioners' arguments. In our decision at the end of the hearing, we instructed the State to inform us as to its position by September 20, 2015. We also suggested to its representatives that given the need for an appointment, and in view of the prolongation of the proceeding and the absence of a Director of the Rabbinical Courts, it consider appointing Rabbi Ya'acobi as a temporary Director of the Rabbinical Courts, subject to a conflict of interest arrangement. As noted, this suggestion was adopted by the State. It should further be noted that the case was addressed, in part, together with HCJ 6691/14, in the different context of appointing dayanim to the Great Rabbinical Court, however on August 1, 2016, that petition was dismissed by consent as its objectives were exhausted.

12.       In its response, which was filed – following postponements – on November 12, 2015, the State argued that the petition should be dismissed. It explained that, in the opinion of the Attorney General, sec. 13 of the Dayanim Law can be construed as allowing the appointment of a woman as Director of the Rabbinical Courts. According to the Attorney General, women can also be included in the scope of the term "a person qualified to be elected as a Municipal Rabbi" for the purpose of candidacy for the position of Director of the Rabbinical Courts, provided they pass the Municipal Rabbi examinations in Talmud and religious law decisors, or their equivalent, in accordance with reg. 5(a)(2) of the Religious Services Regulations. In order to give that interpretation practical effect, the Attorney General instructed the Ministry of Religious Services and the Chief Rabbinate to hold such Jewish law examinations – for both men and women – so that all will be able to contend for the position of Director of the Rabbinical Courts. The Attorney General's position was – and continues to be – based on the presumption that a person serving as Director of the Rabbinical Courts must not only have managerial capabilities, but also "must have deep familiarity with the substantive law under which cases are adjudicated in the Rabbinical Courts", even though, in his opinion, "this is not a position that is intrinsically a religious position, but is rather a strictly administrative position". A position taking exception to appointing a woman was presented on behalf of the Chief Rabbis, including the President of the Great Rabbinical Court, and on behalf of the Minister of Religious Services, arguing that what is concerned is a religious position that is, therefore, subject to the exception under sec. 7(c) of the Equal Rights for Women Law, 5711-1951, that the provisions of that law shall not apply to an appointment to a religious position in accordance with religious law.

13.       In response, the Petitioners argued that, for all practical purposes, the Attorney General's interpretation of sec. 13 of the Law frustrates the possibility of appointing a woman to the position of Director of the Rabbinical Courts, in light of the demand to pass examinations in Jewish law that require many years of study in religious institutions, which is not ordinarily available to women, and in light of the fact that the Certificate of Qualification that would allow a woman to apply for the position would be issued by the Chief Rabbinate, which already expressed its reservations regarding women vying for the position of Director of the Rabbinical Courts.

14.       On December 31, 2015, the Respondents informed us of their consent that the petition be heard as though an order nisi had been granted. On January 7, 2016, the second hearing of the petition was held. In our decision following the hearing, we stated: "We have no doubt, in principle … that the position of Director of the Rabbinical Courts should be perceived… as an administrative position that a woman can perform, of course after meeting certain threshold conditions that include a proper understanding of the subject of the Rabbinical Courts and their work.” We clarified that we do not see the position of Director of the Rabbinical Courts as being a religious or judicial position, and therefore sec. 7(c) of the Equal Rights for Women Law does not apply to the present case. As for the option of administering examinations in Talmud and decisors for women similar to those held for serving as a Municipal Rabbi, we stated that based on reasons of practicality and fairness, the Attorney General must examine an option of a different format of examinations, so that they would also be appropriate for women who did not have a yeshiva education. We also raised the option of adding an additional track to the four Municipal Rabbi qualification tracks appearing in reg. 4 of the Religious Services Regulations that would treat only of qualification for the purpose of sec. 13 of the Dayanim Law, and would prescribe qualifying conditions that would apply to both men and women. We instructed the Attorney General to state his opinion of the proper track within 30 days. We also noted that under the circumstances, and in light of the anticipated expiration Rabbi Ya'acobi's temporary appointment, we see no impediment to his continuing to serve as temporary Director of the Rabbinical Courts.

15.       On February 28, 2016, the Attorney General informed us that in accordance with the Court's recommendation, the Minister of Religious Services decided to promulgate regulations by virtue of the Dayanim Law, in the framework of which an additional qualification track will be added for the purpose of sec. 13 of the Law. It was also noted that a draft of the said regulations was already distributed to all the relevant entities at the various government offices, and that it is expected that the text of the regulations will be presented for discussion by the Knesset's Constitution, Law and Justice Committee (hereinafter also the Constitution Committee or the Committee) – for its approval pursuant to sec. 27(b) of the Dayanim Law – "in the coming weeks". That discussion eventually took place many months after the notice.

16.       Only on May 11, 2016, was a draft of the regulations sent to the Constitution Committee, and concurrently to the Petitioners. We shall now present its original version:

 

Dayanim (Qualification of the Director of the Rabbinical Courts) Regulations, 5776-2016

 

By virtue of the power and authority vested in me under sec. 27 of the Dayanim Law, 5716-1955, and with the approval of the Knesset's Constitution, Law and Justice Committee, I promulgate these regulations:

 

Qualification

 

1. Notwithstanding what is stated in reg. 4 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007, for the purpose of the qualification of a Director of the Rabbinical Courts, a person shall be deemed qualified to serve as a Municipal Rabbi also if all of the following terms and conditions are met:

1. He is a resident of Israel;
2. He is a lawyer, and in addition holds one of the following: a license as a rabbinical pleader or a master’s degree in Jewish law.
3. He passed the examination administered by the Ministry of Religious Services by an examining committee appointed by the Minister of Religious Services, with the consent of the President of the Great Rabbinical Court, including an examination in the practical field of the profession;
4. He has at least 5 years of experience in appearing before the Rabbinical Courts;
5. In terms of his character and lifestyle, he is worthy of serving in the position of Director of the Rabbinical Courts.

 

17.       The essence of the arguments in the Petitioners' response to the draft regulations was that they incorporate obstacles and stumbling blocks that could prevent any real possibility for women to compete for the position of Director of the Rabbinical Courts, inter alia, in light of the threshold requirements that relate to the candidate's education and the need for an examination in the "practical field of the profession", the nature of which is ambiguous.

18.       On February 15, 2017, following adjournments, the Constitution Committee held its first discussion of the draft regulations. As emerges from the State's response (no minutes of the discussion were prepared), the Committee discussed various reservations that were raised with respect to each of the proposed regulations, except that which requires that the Director of the Rabbinical Courts be a resident of Israel. However, prior to the Committee's second meeting, which was held on May 10, 2017, reg. 1(2) was amended, with the apparent intention that it would also allow persons with a master’s degree in Talmud or Oral Law to apply for the position of Director of the Rabbinical Courts (in the words of the proposed regulation: "He is a lawyer, and in addition he has one of the following: a license as a rabbinical pleader or a master’s degree in the field of Jewish law in the framework of legal, Talmud or Oral Law studies”; and see in this regard, Minutes no. 378 of the Twentieth Knesset's Constitution, Law and Justice Committee, dated May 10, 2017, page 3 (hereinafter: the Committee's Minutes)). The issue of the threshold requirements for submitting candidacy for the position of Director of the Rabbinical Courts was discussed by the Committee, at the end of which the Chairperson pro tempore of the Committee, Knesset Member Revital Swid, concluded that the amendment to the draft regulations that was prepared in preparation for the discussion "is not an amendment that in any way or form materially changes the fact and the difficulties placed before a woman to be appointed to the position" (Committee's Minutes, p. 36). It was concluded that the Respondents would consider additional changes to the regulations, in accordance with the Knesset Members' remarks in the discussion, and particularly in all that relates to the conditions of education and professional training required of the candidates.

19.       An additional Committee meeting was held on June 6, 2017, but the Respondents did not submit an updated version of the draft of the regulations. Again, the Committee did not reach a decision, and no vote on the draft regulations was held. The Chairperson of the Constitution Committee, Knesset Member Nissan Slomiansky, announced that he would act within approximately two weeks vis-à-vis the government representatives in an attempt to formulate an agreed version of the regulations, which would be presented for the Committee's approval. On June 26, 2017, the State informed us that Knesset Member Solmiansky's attempts were unsuccessful. In our decision dated July 2, 2017, we instructed the State to once again provide an update as to the status of the Committee's approval of the draft regulations, and we clarified that following the update, a judgment on the petition would be delivered. A notice submitted on behalf of the State on July 24, 2017, reported that no significant progress had been made regarding the approval of the draft regulations by the Constitution Committee. The State reiterated that in light of the Attorney General's interpretation of sec. 13 of the Dayanim Law, the petition should be dismissed.

 

Prior to Ruling: Incidentally – The Appointment of a Female Deputy Director General of the Rabbinical Courts

20.       Before ruling on the issue at the focus of the present matter, we will briefly address a subsidiary issue – which is important to the this matter – that arose while addressing the petition, and which concerns the appointment of a female Deputy Director General of the Rabbinical Courts. During the first hearing of the petition, on January 7, 2016, the Director General of the Ministry of Religious Services informed us that he would act to appoint a woman to the position of Deputy Director General of the Rabbinical Courts, as suggested by this Court. As stated in our decision of September 19, 2016:

 

The Rabbinical Courts system, in which inequality is deeply embedded due to the fact – which we are not addressing at the moment – that there are no women dayanot, while it is undisputed that 50% of those who require the services of the Rabbinical Courts are women… It is clear that a woman's presence in the Rabbinical Courts' senior administration is vital to enhancing the trust of the women who turn to the Rabbinical Court.

 

We are not concerned here with any particular gender ideology, nor even with equality in its basic format.

We will not set out the details of the State’s responses to this matter in the months following the hearing. We will but note that on several occasions we were informed that despite the declaration of the Director General of the Ministry of Religious Services, it had not succeeded in appointing a female Deputy Director General for various reasons related to appointment procedures in the public service. In these circumstances, we were required to issue a large number of decisions in order to promote that which was desired. Later update notices filed by the State informed us of attempts to facilitate such an appointment procedure in various ways, whether by upgrading a slot already staffed by a woman in the Rabbinical Courts system to the level of deputy director general, or by adding a deputy director general position by virtue of a Government resolution in accordance with sec. 15A(b)(2) of the State Service Law, or by means of an inter-ministerial transfer through which a woman who is serving as a deputy director general at another governmental agency would be appointed as Deputy Director General of the Rabbinical Courts. When these attempts failed and no solution appeared on the horizon despite the said promise, on April 3, 2017 – after we held an additional hearing on the petition – an decree nisi was granted instructing the Respondents to explain "why a woman will not be appointed to the position of Deputy Director General of the Rabbinical Courts".

21.       On May 1, 2017, following lengthy – and it must be said, with all due respect, excessively so, given the scope of the matter – exchanges between the Court and the State, we were informed that after consultations among the senior echelons of the Public Service Commission, the Attorney General, the Ministry of Religious Services and the administration of the Rabbinical Courts, it was decided to effect an inter-ministerial transfer in accordance with sec. 15A(b)(1) of the State Service (Appointments) Law, 5719-1959 (hereinafter: the State Service Law), and sec. 10.232D(d) of the State Service Regulations. On June 29, 2017, after a number of update notices in the matter, the State informed us that the appointment of Ms. Michal Goldstein to the position of Deputy Director General of the Rabbinical Courts was approved on June 15, 2017. On July 24, 2017, the State informed us that Ms. Goldstein is scheduled to take up her position as Deputy Director General of the Rabbinical Courts on September 1, 2017, and the matter was resolved. The outcome, of course, should be commended, and we have already noted that this may be significant both in the interface with the world of the Rabbinical Court judges and in the interface with the public that needs the Rabbinical Courts. Therefore, the order nisi in this regard, dated April 3, 2017, is rescinded. We wish Ms. Goldstein every success and godspeed. We will now address the primary issue raised by the petition – that of the appointment of the Director of the Rabbinical Courts, which is the main issue, although some of our statements regarding the matter of the deputy director general are, of course, a fortiori, relevant to the matter of appointing a director general.

 

Decision

22.       In the hearings before us in the course of the ongoing handling of the case, we encouraged and urged the State to find a solution that would make our decision superfluous. However, when there was no significant progress for too long in the sensitive matter on the agenda, and when it became clear that the decision makers do not deem addressing the matter as particularly urgent, and that no further date had even been set for discussing the draft  regulations – in one version or another – in the Constitution Committee, we are left with no choice but to rule on the petition, as we stated in the past. After review, we have concluded that the Petitioners are correct in principle. We therefore make the order nisi absolute, in accordance with the outline that will be set out below.

23.       As stated, we view the position of Director of the Rabbinical Courts as one that is essentially an administrative management position. The Attorney General is also of the opinion that it is a "clearly administrative" position and not a religious one. Therefore, in light of the fundamental principles of Israeli law, and primarily the principle of equality, which is a "fundamental principle of governance – standing head and shoulders above all other principles " (HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs [1], 650 per Justice M. Cheshin (hereinafter: the Israel Women's Network case)), and the provisions of sec. 6C of the Women’s Equal Rights Law, which requires that "in a public body… there shall be proper representation of women, given the circumstances of the matter, in the types of positions and the various levels among the employees, the management…" (emphasis added – E.R.), and of sec. 15A(a) of the State Service Law, which prescribes that "Among the employees in the State service, at all levels in all professions, in any office and any auxiliary unit, proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes…", we are of the opinion that there is no legal impediment to appointing a woman as Director of the Rabbinical Courts, if and to the extent she is be found suitable for the position in accordance with the terms and conditions that will be specified. This conclusion is consistent with various legislative acts, including the Basic Laws regarding human rights, the Women’s Equal Rights Law, and the Employment (Equal Opportunities) Law, 5748-1988, and with the need for proper representation of women in the public sector in general, and in the administration of the Rabbinical Courts in particular, as we will be set out below.

24.       We will reiterate fundamental principles: When considering candidates for the position of Director of the Rabbinical Courts, the Minister of Religious Services acts as a public trustee, and he is subject to the entire scope of rules of administrative discretion. He must reach his decision reasonably, after weighing all of the relevant material considerations on the question of the candidate's personal and professional suitability to the position, while striking a proper balance among them (compare with HCJ 8134/11 HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz [2], para. 12 of the opinion of Deputy President E. Rivlin; HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance [3], para. 6 of the opinion of Justice E. Arbel and the supporting references there). The fact that a candidate is a woman, in and of itself, is a foreign, irrelevant consideration in the matter of her suitability to the position, and the Minister may not take it into consideration as a disqualifying criterion of candidates for the appointment. The words of Deputy President M. Elon, in a context similar to the case at hand, regarding the possibility of electing a woman as a member of a Religious Council, are appropriate::

… the exclusion of a female candidate from appointment to a religious council because she is a woman, clearly contradicts a fundamental principle of Israeli law that prohibits discrimination on grounds of sex. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation (HCJ 153/87 Shakdiel v. Minister of Religious Affairs [4], 240).

            It is well-known that religious systems are conservative, especially in all that concerns the status of women. However, over the years these obstacles have been overcome (see for example the Shakdiel case; HCJ 953/87 Poraz v.  Mayor of Tel-Aviv-Jaffa [5]; HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal [6] ).

25.       I will not deny that in the present case,  the high road might have been for the legislature to have amended sec. 13 of the Dayanim Law, such that it would be crystal clear that the position of Director of the Rabbinical Courts is open to all. Amendment of the Regulations could also have been possible. However, once we have concluded – as did the Attorney General – that sec. 13 of the Law should be interpreted as allowing a woman to be appointed to the position, we no longer deem it necessary to address the amendment of the Regulations, and leave that as an aspiration for the future. In light of the above, and in accordance with our proposal from January 7, 2016, to which the Minister of Religious Services agreed in principle, we thus instruct, as a matter of purposive interpretation of sec. 13, the objective of which is to find the preferred Director of the Rabbinical Courts, that an additional qualification track be added under sec. 13 of the Dayanim Law that will apply to both men and women. The outline of the said qualification track will be in the spirit of the draft of the regulations, with certain modifications that we believe are required due to the nature and substance of the position of Director of the Rabbinical Courts, and due to the need to be certain that a woman's candidacy to the position be considered by those concerned with an open heart and mind, all as will be specified below. We will add that we also decided to wait no longer because the position of Director of the Rabbinical Courts has not been filled by a full appointment for some three years, and we say this with no offence intended to the acting Director of the Rabbinical Courts, Adv. Rabbi Ya'acobi, but rather as a normative matter.

26.       After considering the matter, we have concluded that for the purpose of sec. 13 of the Dayanim Law – and in the matter at hand, for the purpose of being appointed as Director of the Rabbinical Courts –  a person can be deemed qualified to serve as a Municipal Rabbi if they meet all of the following conditions:

1. He is a resident of Israel;
2. He has a license as a rabbinical pleader, or is a lawyer with a master’s degree in Jewish law or Talmud; preference to be given to a lawyer who is also a rabbinical pleader;
3. He has at least 7 years of experience appearing before the Rabbinical Courts;
4. In terms of his character and lifestyle, he is worthy to serve in the position of Director of the Rabbinical Courts.

 

Clearly, and to allay any doubt, the conditions are directed to both females and males. Attention should also be drawn to the fact that the said conditions are the result of our interpretation of sec. 13 of the Dayanim Law, and the Minister of Religious Services must examine candidates for the position of Director of the Rabbinical Courts in accordance with them. It is the authority's obligation to act within its authority within a reasonable period of time, a fortiori when what is at issue is a fundamental right that has been unlawfully infringed, and the lack of proper representation in the Rabbinical Courts system has been extremely conspicuous for some time (compare with HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [7], para. 119 of my opinion), and where an important position has not been filled by way of an ordinary appointment.

            We will now briefly address the reasons why we deemed it fit to prescribe threshold conditions that are slightly different from the last version of the draft regulations that was submitted to the Constitution Committee.

27.       As for the education condition, and considering the nature of the position of Director of the Rabbinical Courts, we are of the opinion that it is inappropriate to prevent a licensed rabbinical pleader who is not a lawyer from submitting candidacy for the position. It is reasonable to assume that a person who met the threshold conditions for such a license – which include studies at a yeshiva or an educational institution recognized by the Great Rabbinical Court, alongside examinations, including in the practical field of the profession (see sec. 2 of the Rabbinical Pleaders Regulations, 5761-2001) – is sufficiently familiar with religious law to vie for the position of Director of the Rabbinical Courts. However, a rabbinical pleader who is also a lawyer will have an advantage. Additionally, we agree with the State that a lawyer who wishes to submit candidacy for the position must possess "something more", in the form of relevant religious education. To this end, we deemed it appropriate to state explicitly that a master’s degree in Jewish law or Talmud are sufficient, however it is clear that this is not a closed list and the Respondents, of course, may consider candidates with other degrees that in their view meet the required familiarity with religious law (regarding the education condition, see our decision dated August 3, 2016, where we stated with respect to the original draft regulations, that "in our opinion, there are matters that require clarification (such as the question whether it is not appropriate to have the qualification alternatives be a lawyer or rabbinical pleader, with the lawyers (and not pleaders) being required to take examinations…"). Having said that, it is clear that the candidates must have a real familiarity with the Rabbinical Courts system, and therefore, after taking the Petitioners' proposal in this matter into consideration, we deemed it fit to prescribe that they must have at least 7 years of experience in appearing before the Rabbinical Courts, and not to suffice with five years as appeared in the draft regulations. It should be noted in this context that similar preconditions that can attest to a candidate's familiarity with the legal system are also prescribed for the appointment of judges (see secs. 2-4 of the Courts [Consolidated Version] Law, 5744-1984). Having said that, we do not find any reason to set a threshold condition regarding passing examinations – both theoretical and practical – in order to qualify to serve as Director of the Rabbinical Courts. Such examinations do not exist in corresponding positions in the public service. The Director of the Rabbinical Courts does not make decisions on the basis of religious law and is not required to have extraordinary knowledge of Halakha that needs to be put to a test. It is presumed that candidates who meet the education condition, and who have significant professional experience of more than a few years in appearing before the Rabbinical Courts, will bring the necessary expertise to the position of Director of the Rabbinical Courts, even without examinations on Halakha, which, as noted, by their nature place women at a disadvantage. It should be noted in this regard that there are no threshold requirements regarding knowledge of religious law in the religious courts of other religious communities (see sec. 16 of the Druze Religious Courts Law, 5723-1962, and sec. 10(a) of the Qadis Law, 5721-1961). Moreover, in the civil courts system, the law requires the appointment of a Director of the Courts "who may or may not be a judge" (see sec. 82(a) of the Courts [Consolidated Version] Law, 5744-1984). Given the appointing body and its position on the matter of women's qualification to serve in this position, we also found it appropriate to instruct, without casting suspicion or aspersion on anyone, that the procedure of appointing a Director of the Rabbinical Courts be accompanied by the Attorney General, who will be able to confirm a person’s administrative qualification, if necessary. We will further add, without derogating from this ruling as it stands, that for the sake of good order and transparency, it would be appropriate for the Minister of Religious Services to consider grounding this ruling in regulations.

28.       In our view, the said qualification conditions reflect the kind of professional skills that are required of the candidates for the position of Director of the Rabbinical Courts, including the necessary familiarity with the entire Rabbinical Courts system. These conditions also facially grant equal opportunity to women and men to vie for the position, and what we stated in para. 20 above and are a fortiori relevant here.

29.       Therefore, and considering the "inherent inequality" in the Rabbinical Courts system, it seems to me that it is appropriate to also mention and emphasize sec. 6C of the aforementioned Women’s Equal Rights Law, which provides that "in a public body … there shall be proper representation of women, given the circumstances of the matter … provided that if for the purpose of effecting this provision it is necessary to prefer a woman, such preference shall be given if the candidates of both sexes have similar qualifications" (emphasis added – E.R.), as well as the aforementioned sec. 15A(a) of the State Service Law, which provides that "among the employees in the State service … proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes …" (and see the words of Justice Cheshin in the Israel Women's Network case [1]: "… in attempting to achieve proper representation of women in public entities, a real duty is imposed on the competent authority to search for suitable female candidates" (ibid., at p. 668)). Below are the words of Justice E. Mazza, which concern the interpretation of sec. 18A of the Government Companies Law, and which are relevant, mutatis mutandis, to the case at hand:

… the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question … This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a “formal” search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. (HCJ 453/94 Israel Women's Network v. Government of Israel [8], 529; and compare with the Israel Women's Network case [1], para. 52 of Justice Cheshin's opinion).

 

30.       At this (fortunate) time when women have a respectable presence in a variety of positions in the public service, it is unreasonable that women should not be given proper representation in the administration of the Rabbinical Courts. As noted, opening the gates of the Rabbinical Courts to women to serve in administrative positions is of great value not only to women , but also for the sake of reinforcing the Rabbinical Courts' status, given that public trust is vital for its proper functioning. We would note that while Ms. Goldstein's appointment to the position of Deputy Director General of the Rabbinical Courts should be applauded, the possibility of there being a woman at the head of the administrative pyramid, as the Director of the Rabbinical Courts, in a system in which the central administrative positions comprise a large male majority, is important in and of itself, and realizes the value of equality in its material sense. Of course, in stating this we do not mean to express an opinion regarding any candidacy for the position.

31.       In conclusion, we therefore order that the qualification defined as qualification to serve as a Municipal Rabbi for the purpose of sec. 13 of the Dayanim Law, can also be in accordance with the conditions set out above in para. 26. If the Minister of Religious Services choose to appoint a "person qualified to be elected as a Municipal Rabbi" (as opposed to a Dayan), he has a duty to consider candidates in accordance with these conditions, in addition to the conditions prescribed in regs. 4 and 5 of the Religious Services Regulations. As stated, in this sense the order is made absolute. The Respondents will pay the Petitioners’ costs in the amount of NIS 15,000 (inclusive).

 

 

Justice M. Mazuz:

            I concur.

 

Justice U. Shoham:

            I concur in the clear, comprehensive judgment of my colleague Deputy President (Emer.) E. Rubinstein, and I am also of the opinion that an order absolute should be granted as proposed.

            Due to the importance of the matter, I will add the following. First and foremost, I wish to join in congratulating Ms. Michal Goldstein on her appointment as Deputy Director General of the Rabbinical Courts, and I wish her every success in her new position.

As my colleague made clear in para. 26 of his opinion, the necessary qualifications for the appointment of a male or female Director of the Rabbinical Courts must be established by the interpretation of sec. 13 of the Dayanim Law, 5729-1969. However, it would be preferable if the Minister of Religious Services would attend to grounding those qualification conditions in regulations, without derogating therefrom or adding anything thereto, as my colleague stated "for the sake of good order and transparency".

                                                                         

Decided as stated in the opinion of Deputy President (emer.) E. Rubinstein.

 

Given this 23^rd day of Av 5777 (August 15, 2017).

 

 

HCJ 5444/13

 

Petitioners:                  1.  Yonit (Yoneleh) Erez

                                    2.  A.

                                    3.  Center for Women’s Justice

                                                            v.

Respondents:              1.  The Special Conversion Court

                                    2.  Great Rabbinical Court of Appeals

                                    3.  Rabbinical Courts Administration

                                    4.  Chief Rabbi Shlomo Amar

 

The Supreme Court Sitting as High Court of Justice

 (Dec. 17, 2014)

Before: Deputy President M. Naor, Justice E. Hayut, Justice N. Hendel

Petition for an order nisi

 

Israeli Supreme Court cases cited:

[1]       CA 4682/92 Estate of Salim Ezra Shaya, Deceased v. Beit Taltash Ltd., IsrSC 57(3) 366

(2003).

[2]       CA 254/58 Ingster v. Langfus, IsrSC 13, 449 (1959).

[3]       CFH 4546/96 Hof Gai v. Mekorot Ltd. (May 14, 1997).

[4]       CA 9369/12 Ivi v. Z.A.M.A. Gas Transport Ltd. (July 7, 2014).

 

Judgment

Justice N. Hendel:

1.         Are there situations in which the Special Conversion Court can revoke the conversion of a person who was converted by that court? That is the question raised by the Petitioner in the present matter.

2.         The Petitioner was born to a Christian family in Romania, and converted to Judaism in Israel before Respondent 1 (hereinafter: the Special Court). Two years later, the Special Court revoked the conversion. This was primarily due to doubts that arose concerning the sincerity of the Petitioner’s intention at the time of her conversion. This is the basis for the present petition that argues that the Special Court lacks authority to revoke a conversion, and that its decision infringes the rules of natural justice. As opposed to this, the State is of the opinion that the revocation was within the Special Court’s authority, and was also justified on the merits.

3.         In the civil law, a court has inherent power to set aside its own final judgment, in exceptional cases. The case law clearly states that setting aside a judgment – the practical meaning of which is the conducting of a quasi-appeal before that same instance – constitutes a conspicuous deviation from the principle of finality. It must, therefore, be done sparingly and with discretion. The causes for setting aside a judgment are very limited. Foremost among them is fraud, i.e., where the court is convinced that its original decision was based upon an act of deceit – for example, the presenting of incorrect information by one of the litigants (see: CA 4682/92 Estate of Shaya, Deceased v. Beit Taltash Ltd. [1], 371; CA 254/58 Ingster v. Langfus [2], 453-456; CA 9369/12 Ivi v. Z.A.M.A. Gas Transport Ltd. [4]). It should be noted, for the sake of comparison, that the legislature arranged for the possibility of a retrial in criminal cases, inter alia, if it be found “that any of the evidence produced in the matter was based on a falsehood or forgery and that there is reason to believe that the absence of such evidence might have altered the outcome of the case in favour of the sentenced person” (sec. 31(a)(1) of the Courts Law (Consolidated Version), 5744-1984).[1]

            Our starting point in the present case is that the Special Court was competent, in the first place, to determine the question of the Petitioner’s conversion. The question is whether it was competent to revoke the conversion thereafter. At the relevant time, neither the law nor the regulations established rules governing this authority. However, we are of the opinion that we may be assisted in this regard by the aforesaid rule in civil proceedings. In other words: just as a civil court holds inherent power to set aside a final judgment– in rare, exceptional cases – so does the Special Conversion Court. Were we to say otherwise, we would find ourselves permitting a fundamentally flawed judgment to stand for eternity. As Prof. Zaltzman states in regard to civil proceedings: “There is no doubt that the legal system will not willingly accept the continued existence of a judgment that is so severely tainted, while permitting a litigant to benefit from his wrongdoing” (Nina Zaltzman, Res Judicata, 598-600 (1991) (Hebrew). Indeed, it would appear that the even the Petitioner agrees that an exceptional case of fraud can justify returning to the Special Court (sec. 101 of the petition).

            We do not think it appropriate, in the present procedural framework, to establish a list of concrete causes for which the Special Court might revoke a conversion. It should suffice to say that in the present case, the Special Court found – as a matter of fact – that the Petitioner dramatically changed her lifestyle very soon after her conversion, such that in practice “nothing remained of the religious observance that she [the Petitioner] had assumed”. The Special Court concluded from this that the Petitioner had originally made a false declaration before the court in the course of the conversion proceedings, and that she actually had never intended to undertake religious observance. The Special Court reached its factual findings after examining the pleadings and conducting a hearing in the presence of both parties. It should also be noted that the Petitioner was represented by a rabbinical pleader in the Special Court proceedings. Under these circumstances, in which the Special Court acted in fundamental good faith in reaching its factual conclusion that the original judgment – the Petitioner’s conversion – was granted on the basis of misrepresentation, the Special Court’s authority to revoke its judgment should not be denied.

            To complete the picture, it should be noted that the Chief Rabbi at the time, Rabbi Shlomo Amar, established the procedural rules for conversion requests. Those rules regulate the work of the special conversion courts. The rules provide, inter alia, that “in exceptional cases in which the court is of the opinion that there is reason to consider annulling of the conversion of a convert”, the court may summon the convert’s appearance in order to examine the question of annulment. The rules further set out the manner for conducting the hearing on the matter of annulling a conversion, as well as the appeal process. It should be emphasized that these rules post-dated the decisions of the Special Court that are the subject of this petition, and are mentioned only to complete the picture.

4.         Before concluding, we would note that the chain of events in these proceedings is somewhat problematic. In the same judgment in which the Special Court ordered the annulment of the Petitioner’s conversion, it added that “we establish her [the Petitioner] status as a dubitable convert”. An appeal was filed in the Great Rabbinical Court, which noted that “the judgment of the said court should be deemed as not final, and whose substance is in doubt”. The Great Rabbinical Court ordered the Special Court to conduct a further hearing, before a panel of five judges, in the hope that “in the expanded hearing, the question of the fitness of the conversion will be clarified, and that the judgment that will be rendered will be absolute and not in doubt”. Pursuant to that, in January 2004, there was also a hearing of oral arguments in the Great Rabbinical Court in the matter of the Petitioner. Since that time, no expanded panel has been convened, the Special Court has not issued a judgment, and the Great Rabbinical Court has not handed down a final judgment on the appeal.

            This chain of events raises a question. One would have expected that the issue of the Petitioner’s status – after her conversion was declared void – would have been decided one way or the other. Nevertheless, we have chosen not to address the issue, inasmuch as the Petitioner emphasized that she “does not request a hearing before an expanded panel of five judges, and does not even seek the remedy of a judgment in her matter after a decade” (sec. 55 of the petition). In other words, the Petitioner chose to focus her arguments specifically on the authority of the Special Court to revoke the conversion, and refrained from requesting operative remedies for the purpose of conducting a hearing before an expanded panel or obtaining a final judgment in her matter. That is, of course, her right.

5.         In light of the above, the petition is denied. We make no order for costs in the circumstances of the present proceedings.

 

Deputy President M. Naor:

            I concur.

            I wish to emphasize that this decision relates only to a conversion obtained by fraud. It should not be concluded from this judgment that the authority of the Special Conversion Court to revoke conversions extends to other cases.

 

Justice E. Hayut:

I concur, and join the comment of Deputy President M. Naor.

 

Decided in accordance with the opinion of Justice N. Hendel.

Given this day, 25 Kislev 5775 (Dec. 17, 2014).

 

 

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)

 

 

 

 

 

Special Tribunal 1/50

 

           

ESTHER SEEDIS

v.

CHIEF EXECUTION OFFICER AND SHMUEL SEEDIS

 

 

In the Supreme Court sitting as a Special Tribunal under Article 55

of the Palestine Order in Council, 1922.

[July 28,1954]

Before Agranat J., Landau J., and Rabbi  Y. Hochman ¹⁾

 

 

Family Law - Husband and wife - Income from wife's property during marriage - "Matter of marriage" - "Suits regarding marriage" - Palestine Order in Council, 1922, Articles 51 and 53 - Jurisdiction - Rabbinical Courts.

 

 

 

            In a suit between husband and wife before a Rabbinical Court, it was held that the husband by virtue of a usufruct accorded to the husband by Jewish law, was entitled to receive the rent of a certain property registered in the Lands Registry in the wife's name. The Rabbinical Court had purported to exercise jurisdiction under Article 51 and 53 of the Palestine Order in Council, 1922, in terms of which "suits regarding marriage" or "matters of marriage" are within the exclusive jurisdiction of the religious courts. The wife petitioned the High Court of Justice to restrain the levy of execution on the property referred to, and as the matter related to the jurisdiction of the religious courts, it was referred by the High Court of Justice to the Special Tribunal constituted under s. 55 of the Order in Council.

           

            It was held by the Special Tribunal that the expressions "suits regarding marriage" and "matters of marriage" referred to above are not restricted to suits or matters concerning the existence of the marriage tie, but also cover claims for the enforcement of rights, including rights to property, which are derived from the status of marriage, and that the Rabbinical Court, therefore, had correctly assumed jurisdiction in the present case.

           

Palestine cases referred to:

 

(1)   S.T. 1/28 - Hayeh Sarah Alpert v. Chief Execution Officer, Jerusalem and Others ; (1920-1933), 1 P.L.R. 395.

(2)   C.A. 240/37 - Palestine Mercantile Bank Ltd. v. Jacob Fryman and Another ; (1938), 5 P.L.R. 159.

(3)   C.A. 72/31 - Ibrahim Elias Nasr v. Nijmeh Elias Nasr; (1920-1933), 1 P.L.R. 648.

           

Israel cases referred to :

 

(4)   H.C. 116/49 - Esther Seedis v. Chief Execution Officer, District Court, Jerusalem ; (1950). 4 P.D. 266.

(5) C.A. 376/46 - Aharon Rosenboim v. Yona Miriam Rosenboim; (1950), 2 P.E. 5.

(6) C.A. 16/45 - Yosef Albrance v. Yohanan Shmeterling ; (1950), 4 P.D. 573.

(7) C.A. 26/51 - Shimon Cotik v. Tsila (Tsipa) Wolfson ; (1951), 5 P.D. 1341.

(8) S.T. 1/49 - Aharon Rosenbaum v. Sheina Miriam Rosenbaum ; (1953), 7 P.D. 1037.

(9)   C.C. 367/49 - Malka Zilbershtein v. Yohan (Yohanan) Zilbershtein ; (1950/51), 3 P.M. 137.

 

English cases referred to:

 

(10) Parapano and Others v. Happaz and Others ; [1894] A.C. 165.

(11) In re Martin, Loustalan v. Loustalan ; [1900] P. 211.

 

Cyprus case referred to :

 

(12) Despinou Theophilo v. Haralamba Abraam ; (1895), 3 C.L.R. 236.

           

Levitsky and Mack for the petitioner.

Mizrahi for the respondents.

 

AGRANAT, J. giving the judgment of the court. The question we have to answer is whether the Rabbinical Court, at the time it heard this case, had exclusive jurisdiction to determine the claim of a husband to compel his wife to hand over to him the income of her property of the kind known in Jewish law as nichsei melog1⁾. We say "at the time" because counsel for both parties agreed that in view of section 2 of the Women's Equal Rights Law, 1951, the institution of "nichsei melog" has no further place in Israel substantive law.

 

            This question has been referred to us for consideration by the High Court of Justice after it had been petitioned by the wife in the case of Esther Seedis v. Chief Execution Officer, Jerusalem (4), for an order restraining the Chief Execution Officer from enforcing the judgment of the Rabbinical Court which was given on June 22, 1947. This judgment was to the effect that the wife's property and its income were charged according to Jewish religious law in favour of the husband ; that the husband was entitled to collect from the tenants the rent of a house at 16, Ben Yehuda Street, Jerusalem, which was registered at the Land Registry, Jerusalem, in the name of the wife: and that "the wife could do nothing to prevent him".

 

            We should note at once, however - and counsel for the husband has not contested this - that the judgment of the Rabbinical Court cannot be made effective because of the provisions of Section 10 of the Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953. There are two reasons for this:

           

(a) The judgment was given before the State came into existence ;

 

(b) The judgment was given in the wife's absence.

 

            For the purpose of our decision we assume - and counsel for the parties have not claimed otherwise - that at the time the claim was entered the parties were members of the Jewish Community and Palestinian citizens.

           

            The High Court in its judgment (4) summarised the contentions of the parties with regard to jurisdiction as follows : -

           

            "Counsel for the husband claimed that enjoyment of the income of nichsei melog was one of four things to which a husband became entitled on marriage, that this right was therefore the result of the marriage tie and that consequently the claim to enforce it was the same kind of claim as was included in Article 53(1) of the Palestine Order in Council, 1922, under the term 'matters of marriage' ; that, furthermore, the Rabbinical Court gave to its judgment the heading of 'Disputes in a matter of marriage'. To this the answer of counsel for the wife was that Article 53(1) mentioned 'matters of marriage' and not 'matters resulting from marriage' nor 'matters connected with marriage'. This meant that if it were correct to consider the right of a husband to the income of nichsei melog as a matter resulting from marriage, then a claim to enforce this right was not the same as 'a matter of marriage' but a matter which came under the law of property - and as far as personal status was concerned, it was neither important nor essential but of secondary consideration, and for that reason Article 53 (l) did not apply to such a claim at all."

 

            Counsel for the parties again repeated these arguments in this court. Mr. Levitsky for the wife, however, added a new point. He said that even if this kind of claim must be considered in law to belong to "matters of personal status", although it was not included in the definition contained in Article 51 of the Order in Council, still it was not a "matter of marriage" nor was it one of the matters which were subject to the sole jurisdiction of the Rabbinical Courts as provided in Article 53(1), in which case it might be that the Rabbinical Courts would have jurisdiction to deal with the husband's claim to the income of nichsei melog but that this jurisdiction was subject to the consent of the parties and consequently was not exclusive.

           

            Further, Mr. Levitsky relied on three judgments : -

(a) that of Cheshin, J. in Rosenboim v. Rosenboim (5) ;

(b) that of Olshan, J. in Albrance v. Shmeterling (6) ; and

(c) that of Kennet, J. in Zilbershtein v. Zilbershtein (9).

 

            We should like, first of all, to discuss the problem whether, for the purpose of deciding the question of jurisdiction, it is necessary to consider this kind of claim as a matter of personal status, assuming that the institution of nichsei melog was not one of the matters that was included in the definition in Article 51. This question was referred to by Silberg, J. in the case of Cotik v. Wolfson (7), but was not decided as it was not necessary to do so. In our opinion the clear language of the second sentence of Article 51(1) of the Palestine Order in Council, 1922 - and particularly the word "means" - leaves no doubt that with regard to status the provisions of this section create a numerus clausus, as Silberg J. aptly puts it.

           

            Also in Article 47, where the legislator conferred jurisdiction on the civil courts in matters of personal status, he emphasised the words "as defined in Article 51". Hence when the legislator apportioned, in the Palestine Order in Council, the jurisdiction of the courts in matters of personal status between the civil courts on the one hand and the religious courts on the other, he meant this to be only in respect of those matters which were set out in Article 51 and no others.

 

            The conclusion, therefore, is that if it is at all possible to consider the claim for the income of nichsei melog as a matter of personal status, then this is only because it is included in the term "suits regarding marriage" in Article 51(1) or in the term "matters of marriage" in Article 53(1).

           

            But before we answer the question whether these terms would also cover matters connected with nichsei melog, it would be as well to explain shortly the nature of this institution. When a man marries he becomes entitled, according to Jewish law, to the income of two kinds of property belonging to his wife, (a) nichsei tzon barzel and (b) nichsei melog. Nichsei tson barzel comprise property which the wife brings as dowry to her husband and for the safety of the capital of which he remains responsible. As the Shulhan Aruh puts it: "If they are lost, it is his loss - and if they increase, it is his increase. Similarly if they depreciate or are stolen - the loss is his." (Shulhan Aruh, Even Ha-Ezer, 85, B.) Property which the wife brings to the husband does not become nichsei tson barzel so as to make the husband liable for it "unless its value had been assessed in a definite sum of money or he had expressly assumed responsibility for it" (ibid., C.). Nichsei melog, on the other hand, comprise property for which the husband is not responsible and the income of which he is entitled to enjoy. Should the capital decrease or increase, the loss or the profit will be that of the wife. ("Should they be lost, or increase, or depreciate or be stolen - it is she who benefits or loses, as the husband is entitled to receive only the income" (ibid., B).)

           

            With regard to claims from third parties to the income of either kind of property, the husband is entitled to institute the same even without the express authority of his wife. (Tur, Even Ha-Ezer, 85.)

           

            And finally one has to distinguish, of course, between property which the wife brings to her husband as explained above and property which she keeps under her sole control in consequence of arrangements to that effect made between herself and her husband.

           

            As we have already indicated, the problem before us is reduced to the question whether the claim of the husband to the income of his wife's nichsei melog should be considered in law as a "suit regarding marriage" or as a "matter of marriage". If that was the intention of the legislator, he would have done well had he given a separate heading to the definition in Article 51(1) as for instance "effects of the marriage" or "matrimonial property" - expressions usually used for the purpose of classification in private international law (see Wolff, Private International Law, 2nd Edition, p. 146, Lorenzen, Selected Papers on Conflict of Laws, p. 88) - or, as counsel for the wife suggested, "matters arising from marriage" or "connected with marriage" or the like.

 

            While this is a consideration which weighs heavily with us in favour of the wife, we do not consider it decisive. For it is inconceivable that the legislator also intended to exclude from the general connotation of the expression "matters of marriage" claims for restitution of conjugal rights and such claims are certainly in respect of rights resulting from or connected with marriage.

           

            The truth of the matter is that the interpretation of the term "matter of marriage" which is found in Article 53(1) must not be so restricted as to exclude a claim for a right resulting from the status of marriage, that is to say, it must not be restricted to matters that concern the one and only question, namely, the existence or nonexistence of the marriage tie. In other words we must conclude that the term "matter of marriage" has a wider and more comprehensive meaning than that conveyed by the sole word "marriage" and that it also covers claims for rights which certainly come into being as a result of the marriage tie and which give content and significance to the status of marriage.

           

            When we put the problem in this light to Mr. Levitsky, he gave us a twofold answer: (a) That one cannot consider rights which are created by the marriage tie and which have a direct bearing on the married life of the couple, such as conjugal and maintenance rights, as being the same as rights which are essentially in respect of claims for money or property pure and simple even though they too are the result of the marriage status ; (b) that in any event when the legislator intended to grant jurisdiction in a matter of money to the Rabbinical Courts, he gave a separate heading to it and used the word "alimony", therefore it must be presumed that he, the legislator, did not intend to grant jurisdiction to these courts in other matters relating to money or property.

           

            We are of the opinion that neither of these answers solves our problem. As to the first one has to remember that on the one hand it is possible to consider even rights to money or property as having a direct influence on the marriage and it was for just this very reason that these rights were granted by various laws either to the husband or to the wife according to the particular point of view of the legislator of the law applicable ; and this is also the view of Jewish law. The Levush. 85, 17. (Rabbi Mordechai Yaffe) says as follows: -

           

"Should the husband wish to part with (literally : sell) land which belongs to the nichsei melog of the wife, for several years at a yearly income all of which he proposes to receive in advance, he will not be permitted to do so..... 'because of the welfare of her home'. This means that her interests are better served by the land remaining with him and that he should receive a small income yearly in order that the expenses of the home should be adequately provided for.... "

            (See also Tur, Even Ha-Ezer, 85.)

           

            On the other hand, the payment of alimony to a wife, during her husband's desertion, whilst she is living apart from him, need not necessarily have any influence on the married life of the couple.

           

            From the point of view of jurisdiction therefore it is difficult to find a logical basis for the distinction between the right to payment of money such as in the nature of alimony and the right to payment of money or to property on a different claim which arises in favour of a husband or wife from the marriage itself. The common feature is that both are claims for the fulfillment of obligations arising from the status of marriage.

           

            The second answer which was suggested by counsel for the wife is more weighty, but again it is not sufficient to turn the scales in her favour. This is because it may well be said that the special emphasis on the term "alimony" was made in the wording of the Article so as to distinguish payments due on account of alimony from those due on account of maintenance. Indeed even if the legislator had not specifically used the term "alimony" we would have been obliged, in the words of Assaf, J. in the case of Rosenboim v. Rosenboim (5), "to consider as a matter of marriage the money which a husband is bound to give to his wife for her upkeep..... because it is one of the main obligations resulting from marriage". To this Olshan, J. also agreed in the case of Albrance v. Shmeterling (6).

 

            Similarly in the case of Alpert v. Chief Execution Officer (l), the Special Tribunal held that the claim of a widow for maintenance from the husband's estate was a "matter of marriage" because her right to "maintenance" resulted from the marriage "and that it was therefore within the exclusive jurisdiction of the Rabbinical Court." Clearly, this interpretation completely contradicts the contention of Mr. Levitsky that monetary rights cannot be included amongst the claims that are within the exclusive jurisdiction of the Rabbinical Court because they were not specifically mentioned in the Order in Council. Indeed, Mr. Levitsky was not unaware of this contradiction and has therefore suggested that we ignore altogether the rule established in Alpert's case (l), as the only way of overcoming the difficulty. But we are of the opinion that this is no way at all, especially as counsel for the wife has given no special reason which would justify our refusal to follow a rule has been valid for many years.

           

            Let us now examine this problem in another light. When the Mandatory legislator divided the jurisdiction in matters of personal status between the courts, his general purpose was to preserve the position as it was during Turkish rule. For this too is one of the tests that we have to consider - in accordance with the opinion which was expressed in the case of Rosenbaum v. Rosenbaum (8). In this connection, what Young has to say (in Corps de Droit Ottoman, Vol. II, p. 2) is important. As translated by Smoira, P. in the case of Rosenboim v. Rosenboim (5), it is as follows :

           

"The various communities of non-Moslem Ottoman subjects have complete jurisdiction to decide all questions which concern each community. . . . . in matters of marriage, including dowers, mohar, maintenance as between husband and wife (nafaka) and divorce".

           

            The importance of these words is twofold. First, Young includes in the word "marriage", dowers, mohar, and maintenance, that is to say, all the range of monetary rights resulting from the marriage tie. Second, the inclusion of suits for dower and mohar within the jurisdiction of non-Moslem religious courts means that, as far as Jews are concerned, the Rabbinical Courts do have jurisdiction to deal with claims concerning properties of the wife which are nichsei tson barzel and nichsei melog. For as regards jurisdiction, there is no difference in principle between the rights of a husband in these two kinds of property of his wife and the right to "dower" and "mohar".

 

            At the end of the chapter from which the above quotation was taken, Young gives the text of Hatti Humaioun of 1856. This is a political declaration which was made by the Sultan, in paragraph 12 of which he confirmed once more the privileges in juridical matters which the non-Moslem communities had enjoyed from time immemorial in the Ottoman Empire.

           

            And in the case of Parapano v. Happaz (10), the Privy Council relied, inter alia, on this declaration by the Sultan, when it held that matters of "marriage, divorce, alimony and dower" were in the Ottoman Empire within the jurisdiction of the religious courts of the non-Moslem communities which, it was presumed from the start, would apply in such cases the religious law of each community.

           

            It is true that the question that had to be decided in the Para-pano case (10) by the Privy Council was regarding the law that had to be applied. But in order to come to the conclusion that it was the canon law of the Roman Catholic Church that had to be applied (on a question of legitimacy of an Ottoman subject who was a member of that Church) the Privy Council proceeded from the fact that in the Ottoman Empire the juridical jurisdiction in these matters was in the tribunals of these communities.

           

            But, generally speaking, choosing which law to apply is one thing and deciding which court has jurisdiction is another. Only here both these problems have become tied up together because of the historical background just mentioned.

           

            And following this rule, the Supreme Court of Cyprus held in the case of Theophilo v. Abraam (12) that the canon law of the Eastern Church applied to a claim for the return of a dower. In so doing the court defined the term "dower" as understood in that law as follows :

           

"..... the object of the dower is to provide a fund for the purposes of defraying the burdens and obligations arising from the existence of the marriage ; that the husband has the control of the property given as dower ; that the property is the property of the wife and must be handed back by the husband on the dissolution of the marriage to the person giving the dower, in those cases where the dower-giver has stipulated this to be done, or to the wife. The husband is only liable for loss or damage to the property, where such loss or damage arises from his own fraud or his own negligence. The husband will not be liable for any loss or damage, provided he had shown such care as he ordinarily takes in the management of his own property."

 

            It seems to us that any one who examines this definition of "dower" will notice at once the similarities in essentials that exist between this institution of the canon law of the Eastern Church on the one hand and the rights according to Jewish law of the husband in the property which the wife brings to him on marriage as above described, on the other hand. And does this not make it clear that in the days of Ottoman rule suits concerning the latter as well as the former were within the jurisdiction of the non-Moslem religious courts?

           

            We have found further support for this view - that is that the jurisdiction of the Rabbinical courts was equal in extent to that of the courts of the various Christian communities in this field - in the Firman of August 21, 1854, which the Sultan Abdul Majeed issued to Mr. Albert Cohen, the emissary of the Central Organization of French Jewry (Consistoire Central des Israelites de France). This reads as follows :

           

            "All the rights, the privileges and all the immunities which had been granted or which will be granted in the future to any Christian community whatsoever shall apply at one and the same time to the Jews as well, for the paternal heart of His Majesty the Emperor will never permit that there should be the slightest discrimination amongst his non-Moslem subjects."

 

            (Extract from Monatsschrift fur Geschichte und Wissenschaft des Judentums, 1854, Vol. 3, p. 346 ; see also Jewish Encyclopaedia, Vol. 4, p. 156, under Albert Cohen ; also Young, Vol. 2, p. 153, note 5).

           

            Also Mr. Goadby, in his book on International and Inter-religious Private Law in Palestine, lays down that according to Article 51 of the Palestine Order in Council, suits regarding marriage include suits regarding "dowry" because "this was the Turkish practice" and "consequently such suits are within the 'exclusive jurisdiction' of religious courts according to Articles 53 and 54 of the Order in Council" (ibid.

pp. 116, 158, 159, note 2).

 

            In short, the examination of the problem in the light of the general tendency of the Mandatory legislator to leave the position in this field as it was during Ottoman rule, leads us to the conclusion - although this must not be taken yet as absolute proof - that a claim by a husband for the income of nichsei melog is a matter of marriage which was within the exclusive jurisdiction of the Rabbinical Court.

 

            Let us try to solve this problem in the light of the answer to the question, to which particular branch of the law does the right of the husband to the income of his wife's property belong? It seems to us that if we are bound in law to consider this right as coming under the matrimonial law and not under that relating to property, we will be bound to conclude - for the reason given below - that indeed only the Rabbinical Court had jurisdiction to deal with a claim of this nature. Because we are dealing with laws which were promulgated by an English legislator, we will have to rely on English jurisprudence to find our answer. This means that we would have to ask ourselves the question, to which branch of the law would an English court consider a claim to belong, which resembled in essentials a suit for the income of property like nichsei melog ? We have to remember in this connection that according to the common law the husband became entitled on marriage to his wife's movable property and the income of her immovable property was also subject to his absolute control so long as she was married to him (Lush on Husband and Wife pp. 5, 7). It is true that this law was altered by the Married Women's Property Act, 1882. The common law further provided, in its time, that a will made by a woman when she was unmarried, became null and void on her marriage and this rule was adopted by the English legislator in s. 18 of the Wills Act, 1837, which is still valid today. In the case of In re Martin (11), the Court of Appeal held that the rule which made a woman's will null and void on her marriage, when applied to a will whereby she disposed of movable property, was part of the matrimonial law. The reason for this is due to the provision of the common law that the movable property of the wife passes on her marriage to her husband and on marrying she loses the power to dispose of it or to leave it by will to another person. As Vaughan-Williams, L.J. put it (at pp. 239-240) :

 

"And I think that his wife's property in the movables having thereby ceased, it follows, quite independently of the eighteenth section of the Wills Act, that this loss of the power of disposition put an end to her will while it was still ambulatory...   for I think that the rule of English law which makes a woman's will null and void on her marriage is part of the matrimonial law, and not of the testamentary law."

           

            It should be noted, in parenthesis, that in the above case, the marriage which made the will null and void took place before 1882 and thus the judgment shows the position as it was before the enactment of the Married Women's Property Act, 1882.

           

            We learn from this English judgment, therefore, that the general rule of the common law to the effect that the movable property of the wife passes to her husband on her marriage is also part of the matrimonial law. This means that the right of the husband to the income of nichsei melog, which he has claimed in the case before us, belongs to this same branch of the law.

           

            If this is correct, it is reasonable to conclude that, at the time, the Mandatory legislator intended that a claim of the kind described above should be determined, in the absence of a general matrimonial law, according to the law of each respective community as far as members of a recognized religious community and Palestine citizens were concerned. And Goadby (at p. 159, ibid.) lays it down that "the effect of marriage upon the property of the spouses in Palestine, whether movable or immovable, will be governed by the personal law." But if the rules of the personal law apply in such a suit, then there is no escaping the conclusion that only a religious court has jurisdiction to entertain it and this for the following reason : let us suppose for one moment that the contrary was the correct conclusion, that is to say that it was the District Court which had jurisdiction in this matter. In that event it would be unable to apply the personal law as required by Article 47 of the Order in Council, in as much as the District Court can apply this law only in matters of personal status as defined in Article 51 and the very grant to the District Court of jurisdiction is based on the assumption that the claim here was not one relating to "marriage" and therefore was not one of the matters included in the definition of personal status which was given in Article 51(1). The conclusion is that the only possible source of the hypothetical authority of the District Court to determine a claim for the income of nichsei melog is to be found in Article 38 of the Order in Council, 1922, and at the hearing the provisions of Article 46 of the Order would have to be applied by the court. It follows also that, as there is no local matrimonial law and as the right of a husband in his wife's property must be decided according to the matrimonial law, the court would have to apply those very rules of the common law which the English legislator had found it necessary to do away with more than 70 years previously. The District Court would also have to act in accordance with the principle which was laid down in the case of Palestine Mercantile Bank Ltd. v. Fryman (2), to the effect that where there was no Ottoman provision dealing with any particular branch of the law, the relevant rule of the common law must be resorted to. Now in other branches of the law as well, the prospect also exists in this country of having to resort to certain rules of the common law which are no longer applicable at all in England itself and it is most difficult to believe that the Mandatory legislator intended at the time that this should be the case in connection with the matrimonial law in so far as it would be applicable to members of the recognised communities who were Palestinian citizens.

 

            Further it is very doubtful in our opinion - also because of the judgment in the Mercantile Bank case - whether the District Court would have the right to apply the rules of the common law at all to a matter of this kind, and this is because of the proviso at the end of Article 46 of the Order in Council to the effect that these rules apply "so far only as the circumstances of Palestine and its inhabitants . . . . . permit".

           

            For instance, according to the law of her community, the Moslem wife had unfettered control over her property. (Fyzee, Outline of Muhammadan Law (1949) at p. 99 ; also Wilson, Muhammadan Law, 6th edition, at p. 126.) It is inconceivable that the Mandatory legislator intended to impose on her the disabilities of the common law on this subject which we have mentioned.

           

            In such a case, therefore, the District Court would be faced with a lacuna in the local law. It might then be said as was said by Kennet J. in Zilbershtein v. Zilbershtein (9), at p. 140, that, "as there was no provision in the civil law to the contrary, the rights of the wife were equal to those of the husband and the marriage had not deprived her of these rights". Should the District Court be of this opinion and decide the issue in such a case along these lines, then our answer would be that there was nothing in that argument that could weaken the conclusion which must follow from the view - and there can be no other view - that at the time the Mandatory legislator was not willing that there should be a lacuna in connection with the matrimonial law applicable to a married couple who were Palestinian citizens belonging to a recognised community with regard to the relations between them not in connection with the rules regulating the rights which such had in the property of the other. We have to add further that Kennet J. cited Article 1771 of the Mejelle and section 82 of the Ottoman Law of Civil Procedure as authority for saying that the Ottoman Law contained a positive provision to the effect that the wife "had the right to own separate property without any limitation" and that this law had remained unchanged "till now". With all respect, we are not at all convinced by these citations. Article 1771 of the Mejelle concerns the onus of proof when husband and wife "disagree as to the things in the house in which they dwell". It owes its origin no doubt to the rule in Islamic law that a married women has full control over her property. (Vide supra.) For as is well known, the "provisions of the Mejelle are based on the substance of Islamic law". (See the introduction of Frumkin J. to his Hebrew translation of the Mejelle). As regards the second Law that was cited, section 82 is to the effect that the provisions of section 80 of this same Law were not to apply "when the contracting parties are husband and wife". It is obvious that the section concerns only the case where one spouse desires to prove against the other the existence of rights which had been acquired through an oral agreement between them. This is clear also from the judgment of Nasr v. Nasr (3), on which Kennet J. relied. For a claim to enforce a right derived from such an agreement does not come under the matrimonial law at all. Consequently it should certainly surprise no one to find that in the course of the hearing of that case "no one disputed nor doubted the fact that the wife had the right to possess separate property without any limit" and we must not conclude from this case that, before the enactment of the Women's Equal Rights Law, such a rule existed in the civil law.

 

            The inevitable conclusion therefore is that the claim which we have been considering for the income of nirchsei melog did not come within the jurisdiction of the District Court but that it came within the term "a matter of marriage" and was within the exclusive jurisdiction of the Rabbinical Court. For the sake of clarity it is as well to summarise the reasons which have led us to this conclusion as follows:

 

(a) If the claim in question has to be considered at all as a matter of personal status according to the definition contained in Article 51(1) of the Order in Council, then this is because of the terms "suits regarding marriage" and "matters of marriage" which are used in that article and in Article 53(1);

 

(b) These terms should not be restricted only to suits that are concerned with the existence or not of the marriage tie. They should also cover claims for enforcing certain rights which spring from the marriage status as, for example, restitution of conjugal rights. From the point of view of jurisdiction, there is no logical basis for differentiating claims in respect of these rights and claims in respect of rights in property or money which are also derived from the marriage status;

 

(c) In the case of Alpert (1), too, the claim of the widow for maintenance out of her husband's estate until she received what was due to her under the Ketuba was held to be a "matter of marriage" which was within the exclusive jurisdiction of the Rabbinical Court;

 

(d) But for the specific use of the term "alimony" in the Order in Council, as already mentioned, it would have been possible to consider as a "matter of marriage" also the claim of a wife for maintenance during the lifetime of the husband;

 

(e) But because this term was specifically used by the Mandatory legislator in the Order in Council, it does not necessarily follow that when this is not the case we should come to a different conclusion. For it is quite possible that the intention of the legislator was to stress the differences which he had emphasised regarding the kind of claim in connection with alimony and maintenance when he divided the jurisdiction between the civil and the religious courts;

 

(f) During the period of Turkish rule, the claim of a Jewish husband to rights in his wife's property was considered as a matter of marriage which was within the jurisdiction of the Rabbinical Court. This fact may serve as a pointer to the intention of the legislator of the Order in Council in view of his well known desire not to make changes, generally speaking, with regard to the jurisdiction which the religious courts of the communities had at that time in matters of personal status;

 

(g) The provisions of a law which grant to a husband, on his marriage, rights in his wife's property, belong to the matrimonial law. It is logical to suppose that at the time the Mandatory legislator intended that the personal law should apply in the case of a married couple who were members of a recognised community and Palestinian citizens, whereas, according to Article 47, the District Court could not apply the personal law of the parties unless the dispute concerned one of the specified matters of personal status;

 

(h) We must not ascribe to the Mandatory legislator an intention that the District Court should apply the rules of the common law regarding marriage when deciding on a claim by a husband for rights which he had in his wife's property in a dispute of a married couple of the kind mentioned above. Nor is the common law applicable in such a case as if there were a lacuna in this branch of the local civil law. The inevitable conclusion therefore is that jurisdiction to hear such a case was not given to the District Court but that it was given exclusively to the religious court.

 

            We should like to consider another point. We noted above, where we explained the nature of the institution of nichsei melog, that the husband was entitled to claim from third parties the income from this kind of property without the necessity of receiving authority from his wife, that is to say in his own name. In his judgment in Albrance v. Shmeterling (6), Olshan J. was of the opinion that the personal law does not apply in a dispute between the husband and a third party. At p. 295, the learned judge says as follows: -

           

"Even if we were to suppose that their personal law was Jewish religious law, and even if according to this law every promissory note given to the wife for rent must be considered as 'income' belonging to the husband – it does not yet follow from this, that commercial relations between a married woman and a third party are subject to the personal law applicable to husband and wife in their relations with such other. If the position was as claimed by counsel for the respondent, we would reach a conclusion which was unreasonable".

 

And at p. 296, Olshan J. added:

 

            " 'A suit regarding marriage', as set out in Article 51, is a suit between two parties to a marriage... The fact that according to Article 47 a dispute in such a case has to be determined according to the personal law of the parties is no evidence that any other person in his commercial dealings with a married woman is, according to the Order in Council, subject to the personal law applicable to a matter of marriage between herself and her husband and according to which each acquires certain concrete rights by virtue of the marriage. The interpretation given to Article 51 by counsel for the husband... is likely to bring choas to the commercial and economic life of the country. It would make every commercial transaction with a married woman dangerous and insecure and this state of affairs would not be confined to just Jewish married women, for Articles 47 and 51... apply to the whole population of the State".

 

            There is no conflict between this view and what we are deciding in this case, because rights which result from the relationship between husband and wife are one thing and the husband's standing vis-a-vis rights acquired by his wife in transactions with third parties is another. The fact that a certain law regulates the relations between husband and wife does not necessarily mean that the same law also regulates the relations between the husband and third parties as regards rights which the wife acquired thereby (compare Wolff, ibid., p. 355). In other words it is not impossible to consider as "a matter of marriage" the husband's claim to the income of his wife's nichsei melog when it is made against the wife and to regard the husband's claim to the income of the same property as "a matter which is subject to the law of property" when made against a third party.

           

            We therefore hold that the Rabbinical Court did have jurisdiction to determine the claim which was made by the husband for the income of nichsei melog of his wife and to give the judgment it delivered on June 22, 1947.

           

Judgment given on July 28,1954.

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.

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

 

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

Date of Hearing: 21 Shvat 5774 (January 22, 2014)

 

On behalf of Petitioners:           Adv. Eli Axelrod

On behalf of Respondents 1,3: Adv. Ran Rosenberg

On behalf of Respondent 2:     Adv. Dr. Gur Bleigh

 

Judgment

 

President A. Grunis and Vice President M. Naor:

1.         This petition seeks to bring before this Court again a difficult and painful problem. This problem pertains to citizens of Israel, many thousands of them, who cannot marry in this Country because they are not members of one of the recognized religious groups, or one of them is not a member of one of those groups. In addition the petition relates to those who can marry in Israel, but do not wish to do so in a religious ceremony.

2.         The stated problem has been presented to this Court in several petitions argued in the last few years: HCJ 7127/11 Center for Jewish Pluralism v. Government of Israel (Dec. 5, 2011); HCJ 1143/11 Jerusalem Institute for Justice v. The Knesset (Oct. 18, 2012). The first petition was deleted and the second was denied, in both cases after the petitioners accepted the recommendations of the different panels hearing the cases to retract the petitions. There is nothing novel in the current petition in comparison to the previous ones. Clearly, the solution to the difficult problem has to be by way of Knesset legislation. However, the Court cannot order the legislature to legislate. There is a dramatic distinction between striking down a law due to a constitutional defect, and ordering the legislature to regulate a certain issue in legislation. The additional claims raised by the petitioners, including the one pertaining to the Marriage and Divorce (Registration) Ordinance and its treatment of civil marriage, do not substantiate a cause of action.

3.         Regrettably, we do not see a basis for the Court’s involvement.

 

President, Vice President

 

Justice E. Rubinstein:

A.        I join my colleagues’ judgment. I would like to note that, sadly, the problem invoked by the petitioners is very old, and has worsened with the wave of immigration from the Commonwealth of Independent States (former Soviet Union) from the late 1980’s, as it is undisputable that large numbers of those entitled to Shvut in a family’s two generations are not Jewish according to Halacha; even though they are of Israel seed, through father, grandfather, or grandmother.

            I would be the last to support intermarriage; however a solution to citizens seeking to marry must be given to them within their country. In my opinion in LFA 9607/03 Ploni v. Plonit (2006), paragraphs J-K, I said about them:

“Intermarriage, a painful issue since ancient days (see, during the first return to Zion – Ezra 9 1-2, 12 and chapter 10, and Nehemia 9 31), makes my heart cringe, due to its meaning in the historical respect and its impact on the state of the Jewish people and its size, to an existential degree … (But) I doubt that closing our eyes to the fact of these difficulties is the way to deal with intermarriage, given the factual and legal reality that has evolved over the years … It seems that the wave of intermarriage, which appears with great force within a big part of the Jewish diaspora and exists among our people as well since the waves of immigration of the previous decades – is not going to be stopped in this way, and attending to the larger matter is beyond the judicial scope … The place for decision is the legislature … the Legislature ought to consider an arrangement that would be suitable to those Israelis who cannot marry in Israel (emphasis in original – E.R.); I dare say, that if it were possible to persuade each and every Jewish man and woman, for many good reasons, to marry members of the Jewish people, there would be no-one happier than me, certainly so after a third of the People was decimated in the Holocaust. But since this is not the reality, the state should provide the suitable solutions, of course while accounting for its Jewish and democratic character – as well as for the slippery slope that can ensue.”

 

The son of a Jewish father and a non-Jewish mother – Petitioner 1 did nothing wrong. He is an Israeli citizen, as good as any of us, subject to duties and entitled to rights, including the right to marry. Since the 1970 amendment to the Law of Return, 1950, and the addition of Section 4A, the right to marry applies also to citizens entitled to Shvut and to their offspring. The Law on Matrimonial Partnership for People without Religion, 2010, does not apply to the Petitioner, since he seeks to marry a Jewish woman. He apparently chose not to convert into Judaism although he considers himself Jewish; to me this would have been a practical and commendable solution, but it is up to him and his personal decision. Therefore the state should devise a fair solution to those like him, one that would not make any of its citizens feel as if they are “second rate.” Indeed, the difficulty in this is clear and for that reason the Law on Matrimonial Partnership was dedicated to those without a religion, as its name suggests; however a solution to the complex question is required, while reserving marriage to the religious groups within themselves; the issue is clearly in the purview of the legislature.

 

Justice

 

The petition is denied. Given the circumstance no fees will be assessed.

 

Entered today, 25 Shvat 5774 (Jan. 26, 2014)

 

President                             Vice President                             Justice