By: Ariel Finkelstain, Arieh Ulman
Assisted: Roy Yellinek, Daniel Wildlansky
The first chapter of this position paper will present the legal background, the current situation, and the implications of the issue commonly known as the “race for jurisdiction.” The existing legal situation in Israel has the rabbinical courts as the only system authorized to settle divorce cases and the giving of a get. The attendant issues in the divorce (property division, custody, and alimony) can be decided in either the rabbinical or the family courts. The crucial element in deciding which legal system will resolve disputes on these matters is a chronological test: the system in which the first claim was made is the system which will hear the case.
The second chapter of the position paper presents the different ideas which have been proposed to untangle this complicated situation, testing the advantages and disadvantages of each.
The main section of the position paper is the third chapter, which presents a new idea for ending the race for jurisdiction based on the points raised in the first two chapters. The main idea in the proposal is that when registering for marriage the couple would jointly decide their preferred legal system in case of future divorce proceedings. In case of a divorce, the attendant issues would be decided in the chosen system unless the couple jointly prefers the other system. This would preclude a race between the partners and would prevent unnecessary conflict and complications.
In addition, in line with the Shenhav Commission conclusions the proposal suggests that hearings on matters of family law only be scheduled after a request for settlement of conflicts. After the request, the conflicting sides will be summoned to a meeting and will have to decide if they agree to continue with conflict resolution or if they would prefer a legal court hearing.
Similarly, two sections of the proposal refer to a specific change in the process of rabbinical court hearings
First, in keeping with the conclusions of the Dikovsky Commission and the Gavison-Medan Covenant, it is suggested that when, in the course of a divorce, the couple agrees that the rabbinical court will conduct the hearing based on the laws of the Torah – the rabbinical court will have the authority to hear the case. It is also suggested that if a couple agreed, when registering for marriage, that the rabbinical court will hear any future divorce case, they will be asked again at the start of divorce proceedings to refine their choice: the rabbinical courts using the Torah’s system of laws with a further obligation to civil law and precedent (the current situation) or the rabbinical courts based solely on the laws of the Torah (as arbitrator).
This proposal has five main advantages:
1. The main advantage: The end of the sad state of an race for jurisdiction. The proposal suggests a way for divorce cases to be handled properly and not based in suspicion and distrust between the couple. The proposal recognizes that during divorce proceedings the couple finds it difficult to agree, since each would prefer the legal system which gives them a current advantage. When the choice is taken at the stage of marriage, the couple can reach an agreement based on their true life style and values. The proposal would also halt the lengthy legal discussions about which system is qualified to discuss which cases; the legal system will save a great deal of money and the process of divorce will be quicker and easier.
2. Competition and efficiency: The proposal would create competition between the two systems and thus force efficiency measures upon them both. If the family court or the rabbinical court creates complications or uses irrelevant criteria for its discussions, it will find its reputation damaged and couples getting married will choose the other system.
3. The end of religious coercion: According to the proposal, there will be an end to the widespread phenomenon of a person who does not see himself as obligated by religious law being forced to go to the religious courts because the other side “dragged” him there, thinking that legal system would be to their advantage. Similarly, a person who does see himself obligated to religious law will no longer find himself required to conduct divorce proceedings in the secular courts.
4. Limitation of the coercion of the religious courts: The proposal would partially free the religious courts from the Bavli ruling (1992) which mandated the rabbinical courts act in accord with the principles of egalitarianism and civil law even when that would contradict religious law. The religious public who so wished could have their case heard according to the Torah’s laws without anyone being under coercion.
5. Halachic preference: One of the reasons why the race for jurisdiction is heating up is the rabbinical court opinion that proceedings in the family court are forbidden under the religious rule against going to secular/civil courts. According to some religious opinions, making the decision about a preferred legal system at the stage of marriage solves this problem, as those opinions see no halachic prohibition against stating an advance preference for a civil court.
This proposal solves the race for jurisdiction problem for couples yet to marry but not for couple who have already married. However, as the Central Bureau of Statistics reports that about 50% of couples who divorce do so within the first ten years of marriage, within a few years this proposal will have provided a solution for most divorcing couples.
The proposal also suggests an intermediate step appropriate for those already married. Because of political expediency, this proposal is a compromise which does not fully satisfy either side. In this proposal rabbinical courts will be granted the power to decide monetary issues (without connection to divorce proceedings) which private courts were granted under the authority of the Arbitration Law. This was the policy in place until 2006, when the High Court of Justice ruled that until the rabbinical courts’ legal authority to do so was explicit in law, they had no right to settle monetary disputes as arbitrators. On the other hand, as a way of solving the race for jurisdiction it is proposed that when a claim is made to the rabbinical courts the other side will be allowed thirty days to transfer the case to the family courts, in whole or in any part.