Frustrations of a Dual System

The following is an abbreviated version of a talk I gave at the Israel Alliance at Harvard Law School in October 2010. For those of you who are interested, the Supreme Court decision referred to in the talk may be found (in Hebrew) here.

I will open with a little background and a brief explanation as to the world of parallel, often conflicting jurisdictions between the Family Court and the Rabbinic Court, the Beit Din. At the outset, a disclaimer: what I’m about to describe is a simplistic overview of a complicated system, and my time this evening does not allow me to do more than give you a rough outline of this issue of jurisdiction, and my apologies at the outset for not getting into the nuances and the details as to how various rulings over the years have had an impact on this issue.

In the period of Ottoman rule, subsequently, during the British Mandate over Palestine-Eretz Yisrael, the prominent religious groups in the region – Moslems, Jews and major Christian sects – were granted judicial autonomy regarding personal status issues – marriage, divorce, inheritance. With the establishment of the State of Israel in 1948 and the development of the court system, the District Courts were granted what was basically parallel jurisdiction with the Beit Din over matters relating to child and spousal support, custody and visitation, and division of property. To further complicate matters, the Magistrate’s Court had jurisdiction over the dissolution of co-ownership of real estate. Over the years various legal rulings attempted to mitigate the effects of what was called the “race over jurisdictions” and create clear guidelines as to under what circumstances each system has jurisdiction.

In 1995 the Family Courts were established, as the branch of the civil court system to adjudicate all inter-family conflicts in civil courts. Before I go any farther, I’d like to point out that ecclesiastical courts in Israel retain sole jurisdiction over the actual divorce, the dissolution of the marriage, between couples belonging to the same religious community, so that the Beit Din is the only court system that can rule on the issue of divorce per se for Jewish couples, and delivery of the “get” the writ of divorce. In my comments today I am not going to dedicate myself to a discussion of the “get” issue, since I want to focus on other areas, but there is a bounty of information available on this subject from any number of reliable sources.

The term “the race for jurisdictions”, which some of you may have heard, developed, because in a very crude way, the party which files first – whether in Beit Din or Family Court – stakes out which court will have jurisdiction over the matters under dispute which require adjudication during the divorce proceedings – spousal support, custody and division of property.

There have always existed a tension and struggle for power between the civil court and the Beit Din. Having said that however, it seems to me that since the 90’s the tension has been exacerbated, and I would attribute that to three factors – first, the legislation of Basic Laws, most particularly the Basic Law: Human Dignity and Freedom, Basic Laws which as a conglomerate, are considered by many to make up Israel’s constitution; second, the establishment of the Family Courts; and finally, political currents in Israel which have made it increasingly difficult to appoint rabbinic judges, dayanim, from a religious-zionist orientation, and a religious leadership constantly looking over their shoulders to make sure they are not offending various rabbinic leaders in the ultra-orthodox world. I am not going to focus on all three of these factors; each one alone is probably worthy of a seminar.

There can be no question that a great deal of this is resentment on the part of the dayanim in the Beit Din at the success of the Family Court; like any judicial system the Family Court has its flaws, however, it’s relatively user-friendly, most of the judges care, and by and large, the system works. In addition, the broad nature of the Basic Law: Human Dignity and Freedom, and the judicial activism of Justice Barak’s court which trickled down through the entire court system, gives the courts in Israel, including the Family Court, a kind of interpretive freedom which many in the Beit Din would say they use to chip away at their jurisdiction. Similarly, the trend throughout the world to grant children greater rights and roles in judicial proceedings which impact them has also allowed to Family Court to claim certain cases as their own.

After this rather lengthy introduction, I would like to use the case I recently completed in order to illustrate the problematic nature of the system, and the frustrations for the lawyer working within this system. To some extent, the fact that the Beit Din chose this particular case behind which to throw its prestige, indicates something about the extent to which they are angered and threatened by litigants going to the Family Court. By this I mean the following: occasionally there is a case before the Beit Din which challenges its values and belief system. This however was not a case where there was a principle of Jewish Law involved; for example, it wasn’t a custody battle where one parent was religious and the other wasn’t, or it wasn’t a case where Jewish Law obligates a ruling in a different direction that civil law would. That is what makes the behavior of the Beit Din so irrational in this case, and therefore a perfect example of the problematic nature of the system.

So, let’s tell the story and I tell the story with the permission of my client. My client was born in the States, made aliya after college, married shortly thereafter and left her extremely abusive husband in 2004, when she had three children. We found a place for her and the children in a women’s shelter and together with my colleague attorney Ya’akov Katzin, opened custody and child support proceedings in the Family Court. Unfortunately, at that time she, as with many women who have been in a systematically abusive relationship, did not have the strength to leave, and she went back to her husband. Once again in 2006 she left her husband and they actually divorced. At that time, we were before a panel of dayanim in the Beit Din who were wonderful, who very quickly grasped how problematic the husband was, and they brought a great deal of pressure to bear to ensure that we made a divorce agreement in record time. However, once again my client could not sustain her belief in her ability to separate from this creature who had controlled every moment of her life for ten years and she went back to him.

Fortunately, in 2009 she did find the emotional energy and wherewithal to leave, and managed to make a clean break from him. I petitioned the Family Court in Jerusalem for a visitation order, so that the visits would be supervised by social services. My client expressed a desire to relocate with the children and start her life again in the United States. I filed a suit with the Family Court to permit the children to relocate to the United States. At a hearing in November 2009 the judge issued a judgment with the agreement of the parties regarding visitation, and in May of 2010, the judge, well aware of the abuse the father visited on both the mother and the children, accepted the mother’s suit and granted permission for the children to leave the country.

Therefore, in 2010, the first thing I did when I received the judgment from the Family Court was to ask the Beit Din to remove injunctions placed against the children leaving the country during the proceedings there in 2006. Unfortunately the father had smelt the trouble brewing for him, and two months earlier asked the Rabbinic Court for an order regarding child visitation during a hearing on a technical issue unrelated to visitation. The Rabbinic Court informed the father that if he would but file a petition for visitation, they would deal with it. This, despite the fact that the mother made clear and submitted substantiating documents, that there was already a court judgment regarding visitation and that supervised visits were taking place and being monitored by a welfare office of the social services.

Here is where the situation moved from slightly problematic to outrageous. The Beit Din simply did not acknowledge nor even relate vaguely to the facts, and in an almost lackadaisical manner, set a hearing, during which, the mother once again presented the documents showing that orders had already been issued by the Family Court, and these documents were once again ignored. The Beit Din, in a magnanimous gesture that it had no right to make, made the point that since the father had filed a petition, it was his “right” to a full proceeding. The Beit Din then went on to explain to the father that if he so desired, they would appoint a psychologist to assess the parenting capabilities of each parent, and give recommendations to the Beit Din, who could then give an order regarding visitation.

Shortly after this hearing, we received the judgment from the Family Court allowing the mother and children to emigrate to the United States. The problem was, we could not implement the decision immediately since, as I said, there were injunctions against the children leaving the country which had been issued by the Beit Din in proceedings in 2006. I submitted the Family Court decision to the Beit Din and asked them to cancel the injunctions; until this day I have never received a reasoned decision from the Beit Din regarding this request. Without relating specifically to the Family Court decision regarding relocation, they basically said that until such time as the psychologist’s evaluation was complete, the injunctions would remain.

In response, I asked for and received permission to appeal to the Rabbinic Appeals Court. The Rabbinic Appeals Court granted us a hearing relatively quickly, but their decision in the appeal actually exacerbated the severity of my client’s situation. In its decision the Appeals Court ruled that the Beit Din had jurisdiction to deal with any and all issues relating to the children, including emigration, and that it was incumbent upon the judge in the Family Court to have questioned the father as to whether or not he understood the ramifications regarding jurisdiction when he “agreed” as it were, to the proceedings in Family Court! I won’t go into the other egregious violations of decades of Supreme Court precedents regarding rules of jurisdiction, or of statute law, including the rights of the children themselves to decide which jurisdiction they prefer, but suffice to say that the extreme nature of this decision made a petition to the Supreme Court inevitable. Leaving the decision of the Rabbinic Appeals Court as a precedent would have meant that anyone who had ever had any proceedings in the Beit Din would, by the internal logic – if we can be so kind as to use that word – of the Beit Din, be under the jurisdiction of the Beit Din. Worse, this would be the case even if there had been proceedings in the Family Court, proceedings during which the litigant had never questioned the jurisdiction of the Family Court, and in which a judgment had been delivered which was never challenged in an appeal to the District Court of appeals. Effectively, what the both levels of the Rabbinic Court did was to turn itself into an alternate route by which to evade Family Court decisions, potentially absolving displeased litigants of their obligation to fulfill court judgments or at the very least, make use of the civil appeals process.

The Supreme Court heard the case of September 15th, right before Yom Kippur and delivered its decision on October 4th, right after the Sukkot holiday. Those of you familiar with what happens in Israel during the period known that “the chagim” – with capital letters – will understand that this was lightening speed. The Supreme Court cancelled the decisions of both instances of the Rabbinical Court, ruled that the Beit Din had no jurisdiction to deal with the issues of the children and declared that the injunctions against them leaving the country were void.

It was then that yet another drama erupted, and I must say that even in my more cynical moments, I did not see this coming. I won’t get into all of the details, but it turned out that for technical reasons having to do with how the computer system of the border police is set up, the decision from the Supreme Court was not sufficient in order to actually remove the injunctions from the computer of the border police; in order to remove them from the computer, we required an order from the judicial body that originally ordered them, i.e. the Beit Din. This, the Beit Din categorically refused to do. The message the particular dayan was sending me was simple: your friends at the Supreme Court ruled we had no jurisdiction over the children, let your friends at the Supreme Court solve your problem for you. We at the Beit Din are not going to lift a finger to support a decision that tells us we are irrelevant.

I spent 2 or 3 very intense days contacting officials in the police, writing letters to the legal counsel of the Beit Din. Finally a senior police official examined the relevant decisions and told me that if my client and her children got to the airport, he would see that they would be allowed to leave the country despite the injunctions still registered in the computer of the border police. They police kept their word, and the children were able to leave the country.

Now, I am well aware that every justice system is unpredictable to some extent. However, the “rule of law” should be precisely that – rules by which we all play, and which, when deviated from, can be corrected without recourse to endless costly proceedings. Again, we are not discussing a fine point of law here which is subject to multiple interpretations; we are dealing with a clear cut case where a woman holds in her hands two judgments from the qualified court in the state of Israel – and these are simply ignored by the parallel system.

The question then is, how to put this in perspective, and is it possible to give it a theoretical frame? For people like Prof. Ruth Halperin-Kedari of Bar-Ilan University and my colleague Susan Weiss, a feminist critique is sufficient. I certainly give credence to the feminist critique, however believe that it is insufficient, that the situation is far more complex. The some extent I think that the justice system in general and certainly the Surpeme Court, is aware of the complexity.

So what I want to say is the following: I think that what we need to remember is that Israel is a young state, and among young states, it is sui generis. On one hand, we didn’t have full autonomy and we weren’t in our own land for 2000 years. One the other hand, during 2000 of years of exile we had a vibrant existence and what’s important for our purposes is that in many areas of judicial rulings, particularly those dealing with monetary and family matters within the community, a great deal of autonomy and extremely sophisticated and highly developed system of legal rulings.

The question then becomes, what happen to all of that when Jews establish a state? In the larger context, what happens to all of that within the confines of a secular state which is, by definition, both Jewish and democratic? For all my moments of rage in which I say the Beit Din should be shut down, and believe me, there are many, what are the rights of citizens of the state who want to appear in front of a Beit Din, and what credit do we ascribe to those dayanim who do take the centuries of accumulated wisdom along with their own humanity and deal well with litigants, treat them with dignity and wisdom.

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3 Responses to Frustrations of a Dual System

  1. slowly making our way to Israel, BH says:

    very frustrating. my heart goes out to the victims of the systems and have great respect for what you do, Esther.

    what is the answer? perhaps to include others, perhaps more religious zionists, in the beit din? in america, the courts have embraced secular humanism. family values held by religious people are not always respected.

    without the beit din, don’t you think in time the secular Israeli courts would rule similar to american courts?

    i don’t know…

  2. shaananlaw says:

    Hard to know what the answer is on the systemic level. The most recent set of appointments to the Beit Din included some from the religious-Zionist camp, so we’ll see how they do.

    I don’t think that the Beit Din really has an impact on the substantive rulings of the Family Court here. By and large, I think that the judges respect cultural and religious differences. I also think that the approach in the Family Courts is one of problem-solving, so from my impression of what goes on in US courts there is less formalism which can be useful.

  3. slowly making our way to israel, BH :) says:

    the problem solving element in Israel sounds more hopeful. it will be interesting to see
    how the new beit din develops. thanks for clarifying.

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