High Court curtails rabbinic authority

HCJ: Rabbinical courts can't rule on disputes between divorced couples.

By DAN IZENBERG
April 9, 2006 00:56
4 minute read.
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demo get 298. (photo credit: Ariel Jerozolimski)

Rabbinical courts are not authorized to rule on material or financial disputes between couples once they are divorced, even if the couple agreed to this in a divorce settlement, nor can they act as arbitrators in such a dispute, the High Court of Justice has ruled. The High Court ruled on the issue in the case of a petition by Sima Amir against a Supreme Rabbinical Court ruling that the religious court was, indeed, empowered by law to deal with a financial dispute between a couple after their divorce had been finalized. The significance of the High Court's unanimous decision is that the Rabbinical Courts, which arbitrate many financial disputes between divorced couples, will have to cease this practice. Their powers will be significantly curtailed. Amir and her former husband, Yoseph, signed a divorce agreement in 1992. According to the terms, the husband agreed to pay NIS 1,000 per month in alimony and give up his share of the couple's apartment while continuing to pay the mortgage. In return, Sima Amir pledged not to demand higher alimony in the future or to seek an court order preventing him from leaving the country. Should Sima break her pledge, according to the agreement, Yoseph could regain ownership of half of the apartment and other possessions that he had agreed to forfeit in the divorce agreement. According to Paragraph 11 of the agreement, "If after the divorce, there should be disagreements between the couple, both parties promise to file suit solely in the Rabbinical Court." Several years later, Sima's children did, indeed, file suit for higher alimony in the Jerusalem Family Court, saying that Yoseph had failed to make his mortgage payments. Sima also tried to prevent her ex-husband from leaving the country. In return, Yoseph sued in the Jerusalem District Rabbinical Court for half the apartment and other compensation, on the grounds that his former wife had violated the divorce agreement. The Rabbinical Court asked its legal adviser for an opinion on Yoseph's suit. The adviser told them that in accordance with a High Court decision issued several years earlier, the court could not hear the suit. However, on the basis of Paragraph 11 of the divorce agreement, given that both parties had agreed to intervention by the Rabbinical Court, the court could serve as arbitrator. Not long afterward, the Religious Court reversed its position and declared that it had the right to hear the case as a court and not as arbitrator, because both parties had consented to such adjudication in a divorce agreement that the court itself had approved. After the Supreme Rabbinical Court rejected the woman's appeal of the lower court decision, she petitioned the High Court of Justice, arguing that the rabbinical courts did not have the right to hear the case, whether as court or arbitrator, even though she and her ex-husband had agreed to this in the divorce agreement. The panel of three judges, including Deputy Supreme Court President (Ret.) Mishael Cheshin and Justices Ayala Procaccia and Salim Jubran, accepted her petition, ruling that there was no legal basis for allowing the Rabbinical Court to hear the ex-husband's petition. The High Court had already ruled several years earlier that once a couple divorced, all further disputes over fulfillment of the divorce agreement must be brought before a civil court. Procaccia, who wrote the current decision, relied on the earlier High Court decision to reject the Rabbinical Court's claim that it was empowered to hear the case as a court. She took the matter a step further by addressing the Rabbinical Court's opinion that it could deal with the matter as an arbitrator, even though the court had changed its mind a few days later and dropped that argument. "The Rabbinical Court does not have the power or prerogative to rule as an arbitrator, [even] if there is an arbitration agreement between the two parties, on a matter that is not in the realm of its authority according to the law," wrote Procaccia. "The law does not give it the power to decide disputes as an arbitrator and the consent of the parties to the dispute to allow it to serve as such does nothing to grant it that power." Dr. Ruth Halperin Kadari, Director of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, said the impact of the decision on the problem of agunot, or women who cannot remarry because their husbands refuse to grant them divorces, was minimal. "It might lessen the work load of the Rabbinical Courts by reducing the arbitration cases. Therefore, this decision could be helpful for agunot because the courts will have more time and energy to devote to solving divorce cases." However, Kadari also felt the decision missed the mark with regard to agunot. "The real problem for agunot is that the husband makes the divorce conditional on his wife compromising her child custody and monetary rights. And this is done with the consent, and sometimes even the encouragement, of the rabbinical courts. Kadari added that the decision appeared to be a direct attack on the rabbinical courts. "Procaccia could have side-stepped the entire issue of state rabbinical courts' jurisdiction in arbitration," said Kadari. "The High Court has purposely avoiding deciding on the issue for about 15 years. Thursday's decision restricts the state rabbinical courts' powers to determining whether a woman is divorced or not and leaves them out of monetary issues," she said. Matthew Wagner contributed to this report.


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