A race to the courthouse

The “race to the courthouse” in the context of divorce proceedings is wrecking people’s lives, Kochav Avital Shahar recently told The Jerusalem Post, sharing her personal story with the public for the first time.

The “race,” as Shahar describes it, has to do with whether a couple’s divorce proceedings get heard by the rabbinical courts, the family courts or a combination of the two.

But the best illustration is Shahar’s painful personal story, a rare look (women are generally too afraid of backlash to come forward publicly) into the life of a secular woman whose life was turned upside down by the religious and legal technicalities plaguing Israel’s divorce proceedings.

Kochav Avital Shahar was married in 1991. She had four children with her husband. They separated in 2001, but didn’t start divorce proceedings until 2004.

First, Shahar filed the economic and child custody aspects of her case in the family courts.

According to many lawyers, the family courts have a reputation for being more sympathetic to women. Men tend to rush to the rabbinical courts and women try to race to the family courts.

But Shahar didn’t know that her husband had already filed to open a case in the rabbinical courts in earlier 2004.

The rabbinical courts always deal with granting a get (a halachic divorce decree), but economic and child-custody issues can be decided by either the family, or the rabbinical courts. However, which one of the two it turns out to be depends on where the case is filed first.

Ultimately, it was found that Shahar’s husband misfiled his case in the rabbinical courts. His case was thrown out and she was able to have the economic and childcustody issues heard in family court.

However, that was only after languishing for three years with no progress, due to the issue of which court should hear the case.

For two of the three years, Shahar was simply waiting for the Rabbinical High Court to intervene and eventually reject her husband’s appeal. The lower rabbinical court had thrown out his complaint and agreed to Shahar’s request to send the case to family court.

The husband appealed, but the Rabbinical High Court upheld the lower court’s decision.

The case appears even more bizarre when the grounds for which the court eventually threw out Shahar’s husband’s rabbinical court pleading were obvious technical deficiencies which could have been immediately noticed and acted on.

In other words, there was no specific substantive reason, or missing information that would have prevented the court from moving the case forward to family court at a much earlier date.

The rabbinical court had already correctly identified defects in the husband’s court pleading, but with the mere act of appealing and because the Rabbinical High Court was slow to hear the case, the husband successfully dragged the case out for an additional two years.

In fact the only issue he raised in his appeal was the race to the courthouse argument that Shahar had not raised her objection to having the case heard in the rabbinical courts at the first 2006 hearing.

The court quickly dismissed this argument stating that Shahar had immediately raised her objection – hardly a difficult issue that required two years of consideration.

During this period, Shahar was unable get a final ruling regarding alimony and child support, because she was still waiting for a decision on which of the two courts would decide in her case.

She and her four kids lived in cramped quarters, with her parents during that time, unable to afford their own place.

“Why do I need to fight to get a divorce?” asked Shahar exasperated.

The picture is even more jarring when considering that she is secular and does not believe in the authority of the rabbinical court, but has no choice under current Israeli law.

Shahar was eventually aided in her case by the Rackman Center for the Advancement of the Status of Women at Bar Ilan University.

Director-General Atara Kenigsberg of the Center said that too many cases start in the rabbinical courts, whereas the family courts could easily take on more cases and are not being optimally used.

The Rackman Center was founded 11 years ago by Professor Ruth Halperin-Kadori and presents its mission as to “eradicate discrimination against women and strengthen their status in Israeli society by translating academic knowledge and research into practical steps and activities.”

The Center helps women with divorce proceeding issues by providing expert advice and sometimes helps locate counsel.

The center is also involved in legislative initiatives to improve and change the system itself for women and families.

One of the center’s attorneys, Adi Blotner, said that in other countries there is one judge for one family and that the judge addresses all issues holistically.

In contrast, she said, what she characterized as the broken “race to the courthouse” system in Israel, allows the rabbinical court judge, or even the family court judge to feel absolved because neither of them has complete responsibility for the case and its overall impact on the family.

Blotner also said that the system creates incentives to rush litigation instead of pursuing mediation, cooperation and other methods that might lead to a quicker, more amicable resolution of the divorce and be less damaging for any children involved.

In June 2010, a commission was formed by Justice Minister Yaakov Ne’eman, which initially appeared ready to endorse a change in the balance of power between the court regarding divorce: All issues would go to family courts automatically, except for getting the divorce decree itself.

Both sides would have had 30 days to make efforts to switch any issue to the rabbinical courts, but even in that case, a strict leash would have been kept on the time for any final decisions on which court would hear the issue.

This new initiative would also encourage cooperation and discourage rushing to litigation, as the case would already be in family court as soon as either party took any legal action.

Also, the family court could decide quickly regarding alimony and child support, removing issues that the husband could conceivably hold over his wife before he agrees to grant her a halachic divorce.

The phenomenon of “get-extortion” (where a recalcitrant husband delays granting a divorce to pressure the wife on alimony/child support issues) is well-known.

Under the law applying to Jews in Israel, a Jew cannot remarry without first obtaining a divorce with the husband’s consent.

But various political pressures were brought to bear on Ne’eman and the proposal, at least for the time being, was tabled.

Sources indicate that there are some rabbinical court judges who have tried to improve the situation on their own, but that others are far more concerned that if they move too fast, or appear to favor women, they will be attacked by right-wing haredi rabbis.

These rabbis allegedly worry more about these attacks than the impact on families of delays in cases they are hearing.

The proposed new law is still a possibility. But until it gets passed, women like Shahar may continue to suffer for years without a divorce, for no other reason than confusing jurisdictional procedures.