In another blow to Jewish law's jurisdiction in secular Israel, the High Court of Justice ruled Monday that rabbinical courts were not empowered by law to divorce a Jew who is married to a non-Jew, even if both partners agree.
Shimon Ya'acobi, legal advisor to the Rabbinic Courts, said in response that the decision would create unnecessary bureaucratic delays for mixed couples.
"The rabbinic courts offered a quick, efficient solution that side stepped a lot of unnecessary bureaucracy," said Ya'acobi, who argued that the state of Israel had an interest in reducing the number of mixed couples by simplifying the divorce process for them.
The Israel Religious Action Center of the Israel Movement for Progressive Judaism (Reform), praised Monday's decision while Orthodoxy lamented it.
Both agreed that the decision was part of a larger High Court trend toward curtailing rabbinic courts' powers over the past 15 years.
The first step was a High Court order that Rabbinical Courts apply secular law to property disputes in divorce cases. This year the court ruled that after divorce is finalized the rabbinical court was not authorized to arbitrate in disputes over the implementation of property, alimony and child care payment agreements.
Monday's decision was the latest blow.
"We decree that the 1953 Rabbinical Court Adjudication Law (Marriage and Divorce) does not authorize the rabbinical courts to consider requests to dissolve marriages if one (or both) of the partners is not Jewish," outgoing Supreme Court President Aharon Barak wrote at the end of a 20-page ruling. Justices Miriam Naor and Salim Joubran concurred in the unanimous decision.
Ya'acobi said that one more case involving rabbinic court jurisdiction awaits Barak's decision. It involves a case of a Jewish couple married in a civil ceremony. Barak must decide whether the couple falls under rabbinic court jurisdiction, as the court claims, or whether only religious marriages are the rabbinic court's responsibility.
The mixed couple petition was submitted 10 years ago by Jerusalem attorney Meir Saragovi. Saragovi told The Jerusalem Post
that the practice of going to rabbinical courts became far more widespread after the wave of immigration from the Former Soviet Union in the 1990s.
In Monday's decision, the issue at stake was whether or not the rabbinical court could decide on a divorce request when only one of the two partners was Jewish. "The answer is negative," wrote Barak. "The authority of the religious courts [i.e. not only the Rabbinical Courts di], whether it is an exclusive prerogative or one that has an equivalent in the civil court, is conditional on the fact that both parties belong to the same religious or communal group. If one of the parties does not belong to the same religion or community as the court, the court is not authorized to deal with the matter."
Although Barak ruled that the legal situation was sufficient basis to accept Saragovi's petition, he presented several reasons to justify the law. According to Barak, by granting divorces, the Rabbinical Courts might create a situation where the couple's divorce is recognized by one court but not by another court or by civil law.
Secondly, the Rabbinical Courts deal not only with the divorce itself, but also with the material arrangements involved in the separation.
In these circumstances, the rights of the non-Jew might be injured when it comes to custody of the children or alimony. Since the Rabbinical Courts do not recognize mixed marriages involving a Jew, they might choose to annul the marriage rather than grant a divorce. This could have various adverse repercussions including regarding the status of the children born of the marriage. Barak also pointed out that a rabbinical court would not make any effort to reconcile the couple since it is opposes mixed marriages in principle.
Jerusalem Attorney Michael Corinaldi said the ruling should be regarded as complementing the one prohibiting the rabbinical courts from arbitrating the disputes of divorced couples over the implementation of the divorce agreement. "The first ruling dealt with the substantive limitations of the rabbinical courts," said Corinaldi. "The current one deals with the personnel limitations." He agreed with the High Court ruling, saying the law was perfectly clear on the matter that the rabbinical court could only deal with divorce actions where both partners were Jewish.
According to Barak, the reason that it took 10 years to complete the case was because the respondents kept asking for deferrals in the hope that they could pass a law explicitly granting the rabbinical courts the right to hear divorce actions of mixed marriages. The Knesset passed legislation last year, but, in the end, did not address this issue.
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