Gender discrimination in child support: Who decides, Supreme Court or Rabbinical Court?

Back in 2015, I wrote a paper arguing that Jewish Law is not discriminatory as the courts claim, at least from when the children are 6 years old.

 ACCORDING TO most rabbinical poskim, including Rav Ovadia Yosef, both parents should share financial responsibility for the children based on their respective resources. (photo credit: YONATAN SINDEL/FLASH90)
ACCORDING TO most rabbinical poskim, including Rav Ovadia Yosef, both parents should share financial responsibility for the children based on their respective resources.
(photo credit: YONATAN SINDEL/FLASH90)

In Israel’s ongoing balancing act as the world’s only Jewish democracy, family law is often particularly challenging. Child support in Israel is determined according to the religious law of the parents. This is irrespective of whether the case is dealt with in Family Court or in the Rabbinical Court. For decades it has been held by both the secular and religious courts that Jewish law primarily imposes the duty of child support on the father, whereas the mother has marginal, if any, responsibility for the children’s financial care.

In countless cases where both parents had similar incomes, courts compelled the father to pay the mother significant child support. They decided this even when the mother was earning significantly more than the father, and when there were equal parenting time arrangements – wherein children divide their time between two homes.

These decisions reflected the fact that the responsibility for the financial needs of the children in both homes was imposed on the father alone just because of his gender. This is, simply put, sex discrimination.

Back in 2015, I wrote a paper arguing that Jewish Law is not discriminatory as the courts claim, at least from when the children are 6 years old. In fact, according to most rabbinical poskim – including Rav Ovadia Yosef, Rav Yosef Shalom Elyashiv and many other prominent rabbinical legal authorities – both parents should share financial responsibility for the children, based on their respective resources.

Fortunately, in 2017 the Supreme Court unanimously accepted my analysis. Enhanced by an expanded quorum of 7 judges, the Court held that for constitutional reasons courts should apply the non-discriminatory interpretation of Jewish Law. Since then, decisions concerning child support of children above the age of six have been gender neutral, analyzing the financial responsibilities of both parents.

 AN AERIAL view of the Supreme Court building in Jerusalem. (credit: Wikimedia Commons) AN AERIAL view of the Supreme Court building in Jerusalem. (credit: Wikimedia Commons)

This paradigm shift is the most significant evolution in Israeli Family Law over the past decade. As a result, family courts began to impose child support based on the parents’ respective financial abilities and their level of parental involvement. When parents earn equally and share the parenting time evenly, neither must pay child support to the other.

Instead, they are required to share medical, educational expenses and the like. The impact of this ruling in family courts was dramatic. In cases of equal (or nearly equal) parenting, time arrangements and judgments of child support dropped up to 90% from the norm prior to the Supreme Court ruling.

Nevertheless, rabbinical courts rejected the Supreme Court’s judgment. The High Rabbinical Court explicitly stated numerous times that the Rabbinical Courts are not subject to the rulings of the Supreme Court made in appeals over decisions of district courts.

Functions of the courts

THE ISRAELI Supreme Court has two functions. It functions as an appellate court overseeing District Court decisions. It also functions as the High Court of Justice (Bagatz), judging petitions against governmental agencies. In that role, the Supreme Court also hears petitions against the High Rabbinical Court’s decision.

The Rabbinical Court, therefore, claimed that it is not subject to the Supreme Court’s judgments in its former function (as an appellate court), but only in its latter function as the High Court of Justice. Since the Supreme Court’s 2017 decision on child support – functioning as an appellate court over a family court decision – the Rabbinical Courts have claimed this decision does not bind them.

The Rabbinical Court’s claim is outrageous. It means that every Supreme Court judgment should be given twice, once as an appellate court decision and once when the Court sits as the High Court of Justice. If that proposition were to be accepted, it would also apply to other tribunals, such as Labor Courts and Military Courts.

I therefore recently joined (as amicus curiae) a petition of a father opposing a child support ruling of the High Rabbinical Court – a decision that again ignored the requirement to apply a gender-neutral approach to child support cases.

In my application, I claimed that accepting the view that the Rabbinical Court is not bound by the decisions of the Supreme Court in its appellate function, undermines the Israeli legal system’s legitimacy. I also claimed that Israeli constitutional law could not prevail if the Rabbinical Courts would be allowed to exempt themselves from it by claiming autonomy in interpreting and implementing the Jewish law.

In the future, I argued, they could hold that according to Jewish law, women are unqualified to testify and the day after they would hold the same attitudes regarding people who do not observe the Sabbath in public.

The decision on this petition is yet to be given. But from what the judges sitting in the panel have said during the court hearing, it appears that they accepted both of our claims. The first is that Rabbinical Courts should remain bound by the Supreme Court’s judgment. The second is that constitutional law, as interpreted by the Supreme Court, is compelling even if the Rabbinical Courts think that the religious law says otherwise.

If the judges act as indicated, this wise judgment will affect the lives of thousands of families who are going through a divorce. More broadly, such a fair ruling would reinforce the stability of the legal system at large, maintaining the correct balance between traditional religious law and Israel’s Jewish-democratic legal system.

The writer holds a D.Phil (Oxford) in law and is the head of a law firm specializing in family law (www.mazeh.co.il). He is a fellow at Kohelet Policy Forum. His studies have been cited numerous times by the courts and have affected family law in Israel.