On the uncertainty regarding jurisdiction in child support claims
Adv. Yonathan Kanir and Adv. Dana Galanti || 18.4.17
The prevailing new practice created in the field of family law enables a child support claim to be included in the divorce petition filed in the Rabbinical Court, even though the Shragai Rule [1] established in LA 120/69 (hereinafter: "the Shragai rule") has not been expressly annulled.
Despite the legal rule, that an entrenched law followed by all must be annulled in a clear and explicit manner [2], the Rabbinical Court nowadays considers itself authorized to adjudicate a child support claim which was included in the divorce petition by one of the parents.
Let's go back for a moment
The Rabbinical Courts have exclusive jurisdiction in all matters relating to marriage and divorce between Jewish couples.
Section 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Law") vests exclusive jurisdiction in the Rabbinical Court to adjudicate a child support claim which is ancillary to a divorce petition.
Despite the provisions of the Law, for over 45 years the Shragai Rule created an absolute distinction between the Rabbinical Court's authority to adjudicate a claim for "reimbursement of child support expenses" filed by one of the parents within the framework of the divorce petition and settlement of the relationship between them, and an independent "maintenance claim" of the child, whether he was represented by the mother or another guardian, which was never within the sole jurisdiction of the Rabbinical Court and could not be "ancillary" to a divorce petition (hereinafter: "the independent claim") [3].
In reality, the institution of the independent claim was used to defy the Rabbinical Courts and to try and neuter their child support rulings, while the debate over which court had jurisdiction in child support claims, based on the principle of preserving the minor's independent status in the litigation, actually became purely theoretical, since child support in both types of claim was only ever adjudicated in the Family Court (and prior to the advent of the Family Court in the District Court).
The Honorable Supreme Court's ruling was intended to override the provisions of the Law, to circumvent the jurisdiction of the Rabbinical Court and to ensure that child support claims would only be adjudicated by the civil court, since there is in effect no real difference between the two types of claims mentioned above, and in both cases the parents are the litigants [4].
The courts and many scholars have justified the Shragai Rule out of concern that if the child support issue was linked to a divorce petition adjudicated by the Rabbinical Court, it might be used as a means of exerting the severest pressure in order to obtain good or bad divorce terms (depending on the circumstances), at the minors' expense. In addition, one of the advantages of the independent claim, is protection of the mother's interest, given the concern that in order to obtain her bill of divorce, the mother might be willing to pay "hard currency" in the form of a significant reduction in the amounts of maintenance awarded in the children's favor within the framework of the divorce claim [5].
Given these circumstances, based on the hallowed social values of justice and fairness and out of concern that a situation could arise in which the welfare of the minor would be compromised and absorbed within the legal struggle between his parents, case law established the independent minors' claim rule.
What has changed? Has the Shragai Rule been abolished?
If the litigants in family matters have not been satiated by lengthy and difficult battles over the jurisdiction race between the courts, during the last four years the floodgate established by the Shragai Rule has gradually been breached and the rivers of ink have accumulated and spilled, while the litigants and especially their children have again found themselves in the straits between the jurisdiction struggles of the courts.
The drizzle began with the judgment given in March 2013 in HCJ 6929/10, which held that the Rabbinical Court had jurisdiction to adjudicated child support claims which were lawfully connected to a divorce petition filed in the Court [6]. Did this ruling annul the Shragai Rule? It's a moot point.
In the judgment given in June 2014 in HCJ 8533/13 [7], it was held on the one hand that child support can be included in a divorce petition [8] if the claim is for reimbursement of expenses which a parent incurred in providing for the children, however, a claim for child support filed in the children's names cannot be included in a divorce petition [9].
In the judgment which he gave in September 2014 in HCJ 5933/14, His Honor Justice Hendel expressly held that child support is a matter which may be included according to the Law and that in the case in question it had initially been lawfully included by the husband in the divorce petition which he filed in the Rabbinical Court, from which the Court acquired its jurisdiction [10].
In the judgment given in December 2014 in HCJ (Additional Hearing) 5933/14 it was held that His Honor Justice Hendel's ruling did not contradict the earlier rulings. His Honor Chief Justice (as he was then known) A. Grunis reiterated the same dichotomy which had been established in the Shragai Rule, between reimbursement of expenses incurred in raising the children and an independent maintenance claim by the minor in court [11].[11].
In the judgment given in October 2015 in HCJ 787/14 it was held that the joining of a child support claim in a divorce petition was invalid due to the lack of sincerity of both the divorce petition and the child maintenance claim, but not because inclusion of child maintenance in a divorce petition is not permitted [12]. [12].
The drizzle has become a deluge – Who has the authority to adjudicate child maintenance claims?
In the wake of the aforementioned judgments, the courts have been inundated (having regard to the short period of time which has elapsed) with conflicting judgments, between the Rabbinical Courts and the Family Courts, which have been at loggerheads on the question of who has the authority to adjudicate child support cases.
The Family Courts have continued to maintain that the voices gnawing at the Shragai Rule, do not constitute an alteration of the existing law, but merely obiter dictum, at the most [13].
And to the festivity must be added a bevy of new rulings by the Rabbinical Courts which state that according to both the law and interpretation of the latest Supreme Court judgments, the Rabbinical Court has exclusive jurisdiction in a child support claim which is lawfully included in the divorce petition [14].
It should be mentioned that the Shifman Commission Report [15] did not take into account the possibility of the Rabbinical Court having authority to adjudicate child support by virtue of its inclusion in the divorce petition, since the amounts of child support awarded in the Rabbinical Courts are less than the accepted minimum [16].
Also in the judgment in HCJ 6598/16, which was given very recently, the issue of joining child support in the divorce petition was not addressed in principle. The Honorable Supreme Court repeated the Shragai Rule and continued to speak in terms of separation between the types of claim – a claim for reimbursement of maintenance being within the jurisdiction of the Rabbinical Court, and an independent claim, within the jurisdiction of the Family Court [17] – at a time when we see that the convoy has long since travelled on its way.
According to the latest ruling of the Supreme Court, it appears that the Shragai Rule has not yet been annulled, but in practice the two claims are filed by the parents and both address the awarding of maintenance for the parties' children, with each of the courts, the Rabbinical Court and the Family Court, seeing themselves as competent to adjudicate both of them.
How much longer shall the legislator see the suffering of litigants and abdicate responsibility?
It is evident from reading the facts in HCJ 6929/10 that the parties in that case spent years conducting proceedings in every possible court, solely over the issue of jurisdiction!
Litigants are suffering and shall continue to suffer, the litigants' children shall suffer, and the legislator, which has the responsibility to bring stability and certainty, has refrained from taking action.
With outrageous irresponsibility, even when there appears to be a desire and good intention to minimize disputes and unnecessary pain to the divorcing parties [18], the legislator grievously errs while deliberately declining to resolve the jurisdiction issue and leaving the stage for the courts to quarrel, wasting valuable judicial time and refraining from solving real legal and human problems.
We believe it is time for the legislator to clearly make its voice heard, one way or another, and not to let the two courts lock horns with each other over the issue of child support, otherwise, the acrimony, time wasting and instability shall increase. Until the legislator has its say, the Shragai Rule should be explicitly reinstated.
[1] LA 120/69 Shragai v. Shragai, IsrSC 23(2) 171 (1969).
[2] For the way in which a previous common law rule can be abrogated, in clear and precise language, c.f. LCA 8301/13 Tal Trading Corp. v. Bank Leumi LeIsrael Ltd (judgment given on 24.11.15), in paragraph 28 per His Honor Justice N. Hendel.
[3] The Shragai Rule, see footnote 1, pp.175-176 paragraph 5.
[4] CA 118/80 Givoli v. Givoli, in paragraph 6 per His Honor Justice (Ret.) M. Shamgar.
[5] HCJ 4407/12 Ploni v. The Supreme Rabbinical Court of Appeals, in paragraph 16 per His Honor Justice Y. Amit.
[6] HCJ 6929/10 Plonit v. The Rabbinical Court, in paragraph 13 per Deputy Chief Justice (as she was then known) M. Naor.
[7] HCJ 8533/13 Plonit v. The Supreme Rabbinical Court.
[8] Ibid., paragraph 29 per Deputy Chief Justice (as she was then known) M. Naor.
[9] Ibid., paragraph 30.
[10] HCJ 5933/14 Plonit v. Plonit, in paragraph 3 per His Honor Justice N. Hendel.
[11] HCJ (Additional Hearing) 6454/14 Plonit v. Ploni, in paragraph 4, per His Honor Chief Justice (as he was then known) A. Grunis.
[12] HCJ 787/14 Plonit v. Ploni, in paragraph 10 per His Honor N. Hendel.
[13] Family Case 58090-06-13 Paloni v. Almonim, paragraphs 12-14 per Deputy Court President His Honor Justice Gabizon.
See also similar rulings of the Family Court in light of HCJ 6929/10 – Family Case 25034-11-14 Almonit et al v. Ploni [His Honor Justice Eliyahu], Family Case 45590-09-14 R.A.T. V. A.A [His Honor Justice Fisher], Family Case 23140-09-15 A.M. v. A.M, paragraph 32 per His Honor Justice M. Levi, Family Case 28170-10-15 R.S.H. et al v. Y.H, paragraph 13 per Her Honor Justice S. Glick.
[14] Be'er Sheva Rabbinical Court Case 1060275/1 Ploni v. Plonit, Be'er Sheva Rabbinical Court Case 109261/4 Ploni v. Plonit, Jerusalem Rabbinical Court Case 1089594/3 Ploni v. Plonit, Jerusalem Rabbinical Court Case 1089054/2 Ploni v. Plonit.
[15] The Shifman Commission Report – Report Examining the Subject of Child Support in Israel, October 2012.
[16] Ibid., see pp.14-15.
[17] HCJ 6598/16 Plonit v. The Supreme Rabbinical Court (His Honor Justice A. Baron).
[18] Family Dispute Settlement (Temporary Provision) Law, 5775-2014.