The problematic race for jurisdiction between the Civil Court and the Rabbinical Court is known to all, and despite the inherent difficulties created by the legislature, the matter has been going on for years. The time has come to make changes that will restore sanity to this warped legal situation.

Adv. Pesach Kanir and Adv. Yonathan Kanir || June 2013

In family law an abnormal, strange and even unseemly situation has existed for many years, for which the legislator, since it granted parallel jurisdiction to adjudicate disputes between Jewish couples to two separate courts, is entirely to blame.

The cases in question are claims for maintenance, housing, child support [HCJ 6929/10 dated 20.3.13], property claims, coownership, financial relationship, child custody, visitation arrangements and rights, education, place of residence and prevention of domestic violence (which shall hereinafter be collectively referred to as family matters), and all of them are proceedings which fall within the jurisdiction of both the Family Court and the Rabbinical Court. 

And in the words of the legislator, in section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953: "Matters of marriage and divorce of Jews… shall be under the exclusive jurisdiction of the Rabbinical Courts" (the emphases here and hereinafter have been added by the writers), and in section 3: "Where a divorce claim has been filed in a Rabbinical Court … the Rabbinical Court shall have exclusive jurisdiction in any matter ancillary to the divorce claim".
And in section 3(a) of the Family Court Law, 5755-1995: "Family matters… shall be adjudicated in the Family Court" (formerly in the District Court), and: "The court may adjudicate a matter within the parallel jurisdiction of a religious court, as long as the religious court has not adjudicated it" (section 25(b)). 

According to current practice, two different tribunals have parallel jurisdiction and the power and authority to adjudicate family matters. Thus a situation has been created of grab whatever you can; each of the two courts having the competence and authority to adjudicate family matters, and so begins the jurisdiction race – which court shall lay hold of jurisdiction first.

Is it conceivable that jurisdiction is acquired by relay race, according to whichever spouse is the first to file his statement of claim in his preferred court? Is it conceivable that the legislator did not understand that by establishing the jurisdiction race, the need has been created for the litigants to grab jurisdiction, while in a proper legal world, it is right and reasonable for the spouses to sit together and settle their affairs before initiating legal proceedings which may thereby be rendered superfluous? Is it conceivable that the prevailing law actually compels the parties' attorneys to tell their clients that they should file a lawsuit first and thereby vest authority in the court which will give them the best result?

While it's easy to put the blame on the lawyers for the failures of the legal world, in discharging their duty they are forced to give the correct and best advice, which given the untenable and bizarre legal situation is to grab jurisdiction by filing a statement of claim in the Family Court or in the Rabbinical Court, and the one who files first wins. We are not engaging here in aesthetics but in substance. The laws in the Rabbinical Courts are different from those in the Family Courts and as a rule (although there are exceptions to the rule) the Rabbinical Court bases its rulings on religious law, whereas the Family Court's judgments are based on civil norms. For this reason, the substantive difference between the courts, it is obviously really important which of them acquires the authority to adjudicate the couple's disputes.

The dichotomy in legal norms between the Rabbinical Court and the Family Court manifests itself, for example, in an order to accept a bill of divorce (adultery) by the Rabbinical Court which deprives the wife utterly of her rights to maintenance money, while the Civil Court has ordered that she be paid maintenance on the basis of equality (Personal Status Case (Tel Aviv) 5534/92, Judge Saviona Rotlevi) as rehabilitative maintenance for reasons of justice or on account of the property (Family Case (Haifa) 09-12-7282, Judge Esperanza Alon), and recently, following an order to accept a bill of divorce, pursuant to an implied contractual obligation between Jews who were married in accordance with Jewish law (Family Appeal 12-01-034167, Family Appeal 4867/12 Supreme (left for further consideration)). 

It should be mentioned that over the years the Supreme Court has applied the provisions of civil law to proceedings in the Rabbinical Court, for example HCJ 3914/92 Lev – legal procedures; HCJ 1000/92 Bavli – division of matrimonial assets; HCJ 1135/02 Vazgiel – Prohibition on wiretapping; HCJ 6650/04 Plonit – protection of privacy. 

However, the difference between the legal norms continues, as demonstrated for example by the ruling of the Supreme Rabbinical Court that "there is no concept of separate privacy between spouses" (Case 1-21-055417661), compared to the ruling of the HCJ that "each spouse is entitled to privacy against the other" (HCJ 6650/04) and an HCJ ruling, directed against the Rabbinical Court, that rights in matrimonial assets cannot be abrogated as a punishment for infidelity (HCJ 8928/06).
In the struggle between the judicial forums, there are a few Rabbinical Courts which ignore HCJ rulings, some which procrastinate in the matter, and others which honor the civil norms, unless they directly contravene Jewish law, in which case Jewish law takes precedence. 

In light of all the foregoing, the importance of determining which court shall have the authority to adjudicate the case – the Family Court or the Rabbinical Court, is self-evident.

Reasons for abolishing the parallel jurisdiction

Loss of judicial time. Each party argues that the tribunal dearest to his heart has jurisdiction, and a broad hearing takes place, including cross-examinations on the question of who was first, who is acting in good faith or unconscionably, whether joinder of the ancillary claim is genuine, whether it was done lawfully, who filed his claim first and which tribunal first began the hearing on the question of jurisdiction. And of course, appeals against the rulings of the Family Court and the Rabbinical Court are filed in the District Court or the Supreme Rabbinical Court, and instead of debating the substantive matter, the litigants stand dumbfounded before the spectacle of the jurisdiction dispute. 

Lack of familiarity with the law. A large section of the public is completely unfamiliar with the religious law. For the secular public it is a foreign law which it is unwilling to subordinate itself to.
The unity of the law principle. The law applying in Israel is discriminatory, since in contrast to a couple who were married in accordance with Jewish law, only civil law in family matters applies to a Jewish couple who are residents and citizens of Israel, as shown by a Supreme Court ruling (Chief Justice Aharon Barak) that a spouse "would not be acting "honestly" if he asked to bring financial and proprietary matters before the Rabbinical Court", and that "in these circumstances inclusion of an ancillary claim with the aim of granting the Rabbinical Court exclusive jurisdiction cannot be considered as an "honest" joinder" (HCJ 2232/03 (end of paragraph 31) , judgment given on 21.11.06). 

Thus with regard to civil marriages the Rabbinical Court can adjudicate the question of implementation of the divorce (bill of divorce or dissolution of marriage), but has no authority ("the non-recognition theory") to adjudicate ancillary matters involved in divorce, maintenance, property and children. 

The change required

For many years the Rabbinical Court heard and adjudicated disputes between Jewish litigants who appeared before it and signed an arbitration agreement empowering the Court and granting it jurisdiction to do so. Thus for years the Rabbinical Court presided over a judicial system that decided disputes between the Jewish public, until 6.4.06, when the HCJ changed the world order (8638 – Sima Amir) by ruling that the Rabbinical Courts must act according to and within the confines of the jurisdiction granted to them by law and cannot adjudicate disputes between third parties who are not spouses or sit as arbitrators.

The proposed arrangement

On the one hand, an extension of the Rabbinical Courts' jurisdiction – by an amendment to the Rabbinical Courts Jurisdiction Law (applying to Jewish residents or citizens of Israel, section 1 of the Jurisdiction Law) – to any civil matter on the strength of a written agreement signed by all the litigants. Examples of granting jurisdiction by agreement pursuant to a specific statutory provision can be found in section 9 of the Rabbinical Courts Jurisdiction Law, and in section 155(a) of the Inheritance Law, pursuant to which the Rabbinical Court is authorized to issue an inheritance order naming a deceased's heirs, where all the parties concerned in the matter under that Law "have expressed their agreement thereto" (HCJ 2621/00).

The amendment to the Law may include empowering the Rabbinical Courts to serve as arbitrators, subject to the written consent of all the litigants for a hearing (according to our approach) before a judge as a sole arbitrator whose judgment shall be appealable to the Supreme Rabbinical Court, and all the proceedings shall be subject to HCJ review (for example, on questions of ultra vires and violation of the principles of natural justice), in keeping with the prevailing practice. 

On the other hand, abolition of the Rabbinical Court's authority to adjudicate any matter ancillary to a divorce claim. With the substantial enhancement of the Rabbinical Court's jurisdiction, the adjudication of ancillary claims in the Jurisdiction Law shall be repealed and the words "in any matter ancillary to the divorce claim including maintenance for the wife and for the couple's children" and section 4 of the Rabbinical Courts Jurisdiction Law, shall be deleted. 

Should the arrangement be adopted, the Rabbinical Court's authority in proceedings between couples who were married in accordance with Jewish law shall be confined to matters of marriage and divorce, that is, the rebellious spouse, ordering bills of divorce to be given and accepted, marriage contracts, matrimonial harmony suits (while annulling the Rabbinical Court's authority to issue a specific housing order pursuant to the matrimonial harmony law), and the couple shall have the power to agree in writing to an extension of the Rabbinical Court's subject-matter jurisdiction beyond matters of marriage and divorce, an agreement which shall be made in order to prevent extraneous postnuptial influences, shortly before or after the outbreak of the crisis between the couple. 

Conclusion

Our legal lives shall be better once the jurisdiction race has been abolished and the dash between the courts has ended. We would emphasize that the proposed arrangement does not entail any confrontation with religious law and the Rabbinical Court shall retain the exclusive right to adjudicate matters of marriage and divorce; moreover, the Rabbinical Court shall be granted the authority to hear any civil case which the parties have agreed in writing that it should hear and adjudicate, while the Family Court shall have exclusive jurisdiction to adjudicate the family matters, and the joinder of ancillary claims issue, which has blackened our lives, shall be removed and vanish from our legal world.