In about two months, the Family Dispute Settlement Law is due to come into force. In reality, the law was born out of a lack of governance and a continuing inability to contend with the peculiar and unacceptable situation which exists in Israel.
Adv. Yonathan Kanir and Adv. Adva Lev || 18.05.16
According to those who drafted it, the purpose of the Family Dispute Settlement (Temporary Provision) Law, 5775-2014, which is due to come into force on 17.7.2016, is to curtail as much as possible the waging of multi-system court battles leading to mandatory mediation before the conduct of proceedings, thereby minimizing the damage and (financial and emotional) price paid by families, and especially children, who have become embroiled in the conflict.
The truth is that the law was born out of a lack of governance, a continuing inability to deal with the peculiar and unacceptable situation that exists in Israel – the jurisdictions race between the Family Courts and the Rabbinical Courts. It is evident from an examination of the Law's provisions taken in conjunction with the reality amongst the divorcing public, that we are on a sure path to the exacerbation of disputes in the field of family and personal status law.
The unique situation in the field of family and personal status law in Israel, which is unparalleled in the world and in any other area of law in Israel (for example, there are not two separate traffic law or labor law courts), is one in which the Family Courts and the Rabbinical Courts have coinciding jurisdictions – two fundamentally different courts, both of which adjudicate family and personal status law disputes, while the issue of which of them shall adjudicate the case is decided as in a race – "the winner" being first party to submit his claim, who then chooses which court shall have the authority to adjudicate it.
In a nutshell, we shall explain that the root of the jurisdictions race lies in section 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953joinder, which provides that a Rabbinical Court has jurisdiction in any matter which is ancillary to the divorce claim.
Over the years, the courts have established threshold tests which are designed to prevent the joinder of claims arrangement being abused by one of the spouses. Accordingly, the HJC has repeatedly held that the authority of the Rabbinical Court shall be annulled in cases where the joinder did not pass the tests for the integrity of the divorce claim, the integrity of the joinder, and the legality of the joinder.
The Law which ostensibly seeks to solve the problem of superfluous family litigation, will in practice exacerbate the jurisdictions race, precisely at the most sensitive breaking point in the couple's life.
As of now – before the Law has come into force – the Rabbinical Court has no jurisdiction to hear any ancillary matter which is not joined in a divorce claim. Thus, a party suing for domestic harmony cannot join any ancillary matter in his claim. A party who hastily filed a divorce claim with the Rabbinical Court the only purpose of which is to grant it jurisdiction is required to pass three joinder tests.
And here comes before us section 3 of the Law, which stipulates that a person wishing to file a family dispute claim, must first submit a dispute resolution request which shall not include assertions or facts relating to the dispute or the jurisdiction of the court."
We should add here the wording of section 2 of the Family Dispute Settlement (Temporary Provision) Regulations, 5776-2016 which the Honorable Minister of Justice presented in the Constitution, Law and Justice Committee on 17.5.16, according to which a complete procedure of dissolving a spousal relationship shall begin with filling out a one-page, standard form ("The applicant or his attorney shall submit a dispute resolution request drawn up in accordance with Form 1 in the Appendix …").
The same two courts are still at loggerheads with each other, except from now on there are no joinder tests, there is no need for an express joinder, there is no need to specify anything, and there is no requirement of good faith, in order for one of the courts to have full and exclusive authority over all the couple's affairs, and it is enough for Ploni/Almonit to turn up in the morning and fill out a form, on the strength of which it shall be determined which of the parallel courts has jurisdiction.
Section 4 of the law goes on to stipulate that upon expiry of the period prescribed in the Law, during which the parties to the dispute are required to conduct a mediation proceeding, the party who filed the dispute resolution request may file a claim in whichever court – the Family Court or the Rabbinical Court, so that filing the dispute resolution request confers on the party who filed it an absolute discretion to choose which court to go to at the end of the day.
The new situation created by the Law is absurd: through a simple and laconic form, which prohibits giving details about the dispute and its substance, either party can acquire "jurisdiction" and in the second stage hold a preemptive right to choose, after the failure of mediation proceeding, in which court to file his claims, which he had a long time to prepare (the entire duration of the mediation).
Section 6 of the Law is worded as follows: "Nothing in the provisions of this Law shall prejudice the laws of marriage and divorce and they are not intended to supplement or derogate from the jurisdictions of the courts." In practice, these are empty words, since from now on the rules of the game have been changed – the jurisdictions race shall effervesce without any precondition or initial test. The law abolishes, and emasculates the joinder tests, which were not only established in an explicit ruling of the Supreme Court but have hitherto constituted the only obstacle to the cynical abuse of the jurisdictions race.
Briefly, other difficulties rooted in the Law are the absence of assistance units attached to Family Courts and the Rabbinical Court. It is inconceivable that the assistance unit "attached" to the Family Court in the Tel Aviv District shall remain located in Ramat Gan, in the former Family Court building. Thus, there is a lack of assistance units next to some of the Rabbinical Courts.
Another difficulty is the handover of legal discretion to the assistance unit's representatives, who are social workers by education and have no legal knowledge. The stipulation in the Law that the assistance units shall serve as the mediating body is unreasonable, since not only are they already in any case collapsing under their existing burden, but it is doubtful whether they have the manpower and/or the resources and professional infrastructure required in order to function as such a body.
We would also mention denial of the right to have a representative present throughout the stages of the assistance unit process (see section 5(b) of the Regulations).
While the attempt to reduce litigation in the area of family law and encourage peaceful dispute resolution is certainly praiseworthy, with typical recalcitrance the legislator has again chosen not to confront the obligation to end the jurisdictions race, and in one fell swoop do away with the need to file lawsuits in one of two courts.
A solution such as the one produced by the Law, without neutralizing the jurisdictions race, is not a solution, and is even going to substantially exacerbate the existing misery. Referring mediation to a party which is not equipped to deal with it, combined with the emasculation of the joinder tests, creates fertile ground for the escalation of the chaos and distress which litigants in the field of family law in Israel have to contend with.