Introduction to Family Law in the Holy Land
With the establishment of the State of Israel, it was determined that the law that existed in Palestine on May 14, 1948 would remain in force (to the extent that it does not contradict the other laws that will be issued by the State).
In matters of personal status, Article 51 of the King's Order-in- Council 1922-1947 remains in effect:
Article 51 of the King's Order-in-Council “ ... for the purpose of these provisions matters of personal status mean suits regarding marriage or divorce, alimony, maintenance, guardianship " ...
Meaning, that matters of personal status (marriage and divorce) are judged according to religious affiliation of each individual and the dissolution of marriage is within the EXCLUSIVE domain of religious courts.
In other words, marriage and divorce in Israel fall under the authority of the citizen’s religion.
Marriage and Divorce
- The Marriage ceremony in Israel is religious, no civil ceremonies for either marriage or divorce
- Every few years, an attempt is made to legalize civil and non-Orthodox marriages (2009, 2011).
- The Interior Ministry must officially recognize marriages contracted abroad by recording them in the Population Registry (HCJ 143/62).
- However, divorce resulting from civil marriages abroad still must go through the religious courts.
- Each recognized religious community in Israel has a system of religious courts that are authorized by the state.
- The religious courts have jurisdiction only when both spouses are affiliated with the same.
Family (Civil) courts in Israel
- Civil divorce proceedings can only be started where the parties are affiliated with different religious communities or not affiliated with any recognized religious communities.
- Unmarried couples and same-sex couples can litigate only in the civil courts.
Separate court systems
Separate court systems exist for overseeing personal law:
The first – as mentioned before – is the religious court, which is the exclusive authority in matters of marriage and divorce.
The second court systems is the civil court, which handles matters of custody, inheritance, guardianship and alimony but only with parallel authority to the religious courts.
Religious Courts Systems
A court of law, an appeal court and management
Jews - 13 Rabbinical courts
Muslims - 9 Sharia courts.
Established at days of the Ottoman Empire
Druze - 3 Religious courts
Catholic - 3 Religious courts (absolute autonomy)
And other christens (no data)
High Court of Justice
- The religious & civil courts exist on parallel paths including separate appellate levels.
- The Supreme Court in Israel, sitting in its capacity as the High Court of Justice, can void decisions made by supreme religious courts.
- The Supreme Court can intercede when the religious courts have exceeded their jurisdiction, diverged from the rules of natural justice or fail to comply with legislation that specifically binds them.
Religious Divorce for Jews
- The Get must be granted willingly by the husband and accepted by the wife.
- A divorce (The Get) is legal only if the husband grants one to his wife from his own free will without coercion.
- Grounds for divorce in the Rabbinical Courts are very narrow and therefore are mostly granted by consent of both parties.
- If the husband refuses to grant the Get and the wife cannot prove one of the grounds for divorce, she may remain married indefinitely.
- If the wife refuses to accept the Get the husband can seek a special permeation in order to marry another woman.
- This is called “permission from 100 rabbis” because it requires the approval of 100 Rabbis and is rarely granted. Still, even without it, the husband can have children with an unmarried Jewish woman.
- No such possibility exists for a Jewish woman.
Having children while being married to another
- Under Orthodox law any children born from a union of a married woman a man who is not her husband are considered illegitimate.
- A man who has children with a woman not his wife may be considered immoral, but his children are nit illegitimate, while a married woman who has children with a man not her husband has bastards in the eyes of the law.
Marriage in the Arab Sector
The Arab population in Israel is represented by various religions:
- Muslim, Christian and Druze.
- Marriage according to Islam is a contract.
- Within the Christian community a priest preforms the religious marriage ceremony.
- Sharia gives the husband the right to divorce his wife, when he likes and why he likes, with no consideration for his life.
- The wife, on her part, has no power to oppose.
- There is a legal possibility for the woman to leave the husband, id the husband at the time of the marriage, has given her the legal power to do so and this agreement was done in writing in the marriage contract.
- The Sharia court also has the right to allow the wife a divorce in cases of the husband’s prolong absence, irreconcilable differences, etc.
Druze Divorce - The Druze divorce law is identical to Islamic law, except for one detail: A Druze man cannot under any circumstances return his wife to the marriage after he has divorced her.
Although the religious courts have jurisdiction in matters of marriage and divorce, in parallel there is a civil court system that can deal with all of matters related to family conflict (such as Child support and property distribution), but cannot perform a marriage ceremony or issue a divorce decree (Get), because marriage and divorce ceremonies in Israel are state recognized only if they are performed by recognized religious authorities.
Meaning: no religious ceremony = no divorce/marriage.
The legal term for this situation is called in Israel concurrent Jurisdiction.
The meaning of concurrent Jurisdiction for the parties:
Since the applicable law in each court system varies in some aspects, and the laws applicable for both systems vary due to different judicial methods and a different world view, mainly in the question of fault: In the Civil Family Court there is a no-fault divorce approach but in most religious court systems – if the parties do not agree to end the marriage – than the party that wants to end the marriage must prove that the other party is to blame in the ending of the relationship. Therefore, both parties are anxious to establish jurisdiction in the court most favorable to their position.
- In the Rabbinical Court, it is possible to petition for special remedies which derive from the religious law and the civil court has no authority to grant them: To force the couple to seek couples therapy, talk, go out together, and make efforts to restore the relationship. This order cannot be given by the civil family court.
- In the Rabbinical Court a woman may petition an order requiring the husband to allow her to continue to live in the specific residence in which the couple lives together - so that they can restore their relationship - thus effectively preventing the sale and the of house and the Separation of property. This order cannot be given by the civil family court.
- On the hand, if a woman was Unfaithful and there is proof of that- than she is in serious trouble in the Rabbinical Court and in fact can lose everything - from parts of the joint property to child custody. But in the Civil Family Court this will not have any meaning at all due to a system of no-fault divorce.
Civil Family Courts
- People that are not affiliated with the same religion or with any of the listed religious communities are subject to civil law.
- When litigating in family courts the applicable law applied is based on the religious affiliation of the party = religious law in civil courts.
- The Family Court Act 1995 established a system of family courts for all matters involving family members.
Characteristics of Family Courts in Israel
- The Family Court is the legal instance that deals with any dispute arising from the family relationship of the parties.
- The court also has jurisdiction over the estate of a person, guardianship and adoption.
- The Family Court has parallel authority to the Rabbinical Court in all claims, with the exception of claims dealing with matters of marriage and divorce between Jewish spouses, in which the Rabbinical Court is given exclusive jurisdiction.
- The Family Court Law, 5751-1995, is based on the rule of "one family - one judge." The entirety of the legal disputes of that family will be heard before the same judge in that court.
- The Judges of the civil family courts are experts in the field of family law and the decisions of the court are supposed to be made in accordance with the special circumstances of the family.
- In addition to the family court, the aid unit is composed of psychologists and social workers.
- One of the most prominent characteristics of family courts in Israel is the scope of discretion given by the legislature to the family judges - both in terms of substantive law and in terms of the rules of evidence, with the aim of doing justice to the specific family.
One of the results of the broad discretion given to family judges in Israel is extreme legal uncertainty - every judge does what he/she wants.
To make a long story short:
- The family and religious court differs in the substantive law that are particularly evident in regard to issues of guilt, betrayal & homosexuality that may cost the party that betrayed a great deal of property.
- In the Civil Court we argue for non-fault divorce and there are no economic consequences for the betrayal of a spouse or sexual orientation.
“Race to the Authorities”
In order to avoid contradictory decisions and to make sure both courts systems will respect each other Jurisdiction and according to doctrine of "case law" it was determined by the Israeli Supreme Court of Justice that: the court in which the first law suit was submitted will be the court that will decide on the concurrent issues.
Example: Say, the wife filed a law suit to the family court on Monday and the husband filed his law suit to the rabbinical court on Thursday, than the jurisdiction was determined by the wife. Meaning, the family court will proceed with the trail and the Rabbinical Court may only decide about the divorce itself but not in the additional matters such as child support joint property.
Therefore, every person that is even beginning to think about the possibility of - maybe at some point there will be an interest in divorce - must be aware of this and be advised by a lawyer which court system is better under those specific circumstances and then race for it ("run for your life"). The legal term for this situation is named: “Race to the Authorities” (HCJ, 1000/92).
Regulating Legal Proceedings in Family Conflicts Law (Temporary Provision), 2014
From the explanatory notes to the regulations:
"The law requires the litigants to resort to a process of structured negotiations, state inspection and supervision, before submitting belligerent and offensive statements of claim, which after their submission, the ability to continue to communicate and cooperate as parents is irreversibly damaged."
How does it work?
Anyone wishing to file a motion with a judicial court in the matter of a family dispute shall first submit a “petition for dispute resolution”, in other words a “motion to settle”.
The motion shall not include arguments or facts relating to the conflict or relating to the judicial authority of the judicial court.
In the structured form, only identifying particulars will be specified, in accordance with the spirit of the law, which is intended to prevent any detailing of the conflict in order to allow for the optimal existence of a dispute resolution procedure.
Legal Proceedings Postponement Period (hereinafter: LPP)
During the 60 day period from the submission of the motion to settle, the parties are not be able to file an action in the matter of a family conflict with any judicial court, and no judicial court shall discuss an action in the matter of the family conflict between the parties, including in the matter of the judicial authority of the judicial court.
LPP: Mandatory Time-Out
The law does not force the resolution of the conflict, but creates a "time out" - a "tough" period during which the parties are prevented from filing claims.
Preserving the existing situation during the period of delay of proceedings
During the period of “stay of proceedings” one can appeal for temporary remedies to maintain an existing situation. The list of remedies is open - according to circumstances of the case, including: Prevention in leaving the country order Foreclosure order.
IFC Meeting - The parties to the petition shall be summoned to (up to) 4 meetings for Information, Familiarization and Coordination (IFC).
According to the law, at the IFC meetings, the parties will be given information on:
Implications of conducting legal proceedings on parties and their children
Other ways to resolve family disputes outside the court
Coping with difficulties arising from the family crisis