Supremely Appalled

The Supreme Court in Israel recently delivered a decision which strikes a blow to unfettered jurisdiction by the Beit Din –the Rabbinical Court – and to the notion that any document entitled “divorce agreement” does in fact lay within the parameters of what is to be considered a divorce agreement. My hope is that the dayanim throughout the Beit Din system will take notice of this decision, and apply standards of civility, fairness and good faith the divorce agreements that come before them.

The facts as they appear in the Supreme Court decision describe seven years which appear to have been wasted on legal battles.

Way back in 2005 the couple submitted a divorce agreement and mutual petition for divorce to the Rabbinical Court in Petach Tikva.  In this erstwhile agreement, the wife agreed that the children would stay with the father and relinquished all of her property rights. Further,  the agreement – which, let’s remember by definition is supposed to be a voluntary document reflecting the meeting of the minds of the parties – contained several choice passages describing the wife’s behaviour. To give you a taste, here are a couple of gems:

Inasmuch as the wife is apathetic, lacks any initiative in the marriage, is a liar and unfaithful (not sexually), has had two abortions and committed acts of  infidelity and lied incessantly throughout the marriage…..

Inasmuch as the wife counterfeited checks…..

There was never a hearing in the Beit Din to authorize the agreement or for the couple to divorce, since a few days after the agreement was filed, the wife left the marital home for a battered women’s shelter. She quickly filed property, child support and custody suits against the husband in the Family Court and petitioned the Beit Din to dismiss the petition to authorize the divorce agreement, and argued that the Beit Din had no jurisdiction to deal with the property and other matters under dispute. On the same day she filed in the Family Court, the husband filed a divorce suit in the Beit Din, in which he linked the issue of property. In terms of a regular “race for jurisdiction” which is unfortunately a dominant feature of Family Law in Israel, the fact that he filed at a later hour than the wife means that she filed first, and therefore the Family Court should have had jurisdiction.

(For an earlier post discussing  the system of parallel jurisdiction for religious tribunals and the Family Court in Israel, see here .)

The Beit Din rejected the petition regarding jurisdiction, arguing that simply by filing the divorce agreement and mutual petition for divorce, the Beit Din had acquired ongoing jurisdiction, since the agreement effectively “bound” the issue of property, among others, to the divorce suit. As a result, he Family Court, in light of a very problematic decision by the Supreme Court a number of years ago, known as “The Felman Rule” which says that either tribunal must honour the ruling of the  first tribunal to decide that it has jurisdiction, in other than exceptional circumstances, dismissed the woman’s suits.

The wife appealed the decision of the Petach Tivka Beit Din to the Rabbinical Appeals Court, but the majority rejected her appeal, upholding the decision of the Beit Din in Petach Tivka.

However, there was a significant minority opinion in the Rabbinic Appeals Court by Rabbi Shlomo Dichovsky (a wonderful dayan and unfortunately, now retired from the Beit Din), who condemned the so-called agreement in the strongest terms, calling it a “shocking document” both in terms of its content and the background of the couple, since it was clear that the wife had suffered tremendous abuse at the hands of her husband. Therefore, ruled Rav Dichovsky, if the lower Rabbinic Court was of the opinion that their jurisdiction was a function of this agreement, they were wrong.

Parenthetically, even as bold and intellectually honest a dayan as Rav Dichovsky could not bring himself to rule that the Beit Din did not have jurisdiction, but only that the case be referred back to the Petach Tivka Beit Din, so that they could re-examine the issue of jurisdiction. The fact that he took this approach, rather than categorically state that the Beit Din had no jurisdiction, is a sad commentary on the ongoing tension and outright conflict between the Rabbinical Court system and the Family Courts.

Judge Elyakim Rubenstein, who wrote the unanimous opinion in the Supreme Court, argued that the only way the Beit Din could potentially have jurisdiction over property (the issue in dispute) was based on the divorce agreement filed together with a  joint petition for divorce, and not the divorce suit which “bound” the property issues which was filed after the wife left the house.

However, since the agreement and petition were fundamentally  neither an “agreement” nor a “joint” petition for divorce these too do not provide a basis for jurisdiction. How, asks Judge Rubenstein, can one begin to speak of a joint petition for divorce, when one of the sections in the petition stated:

“The petitioner (wife) is unfaithful, a liar, had two abortions without  the knowledge of the petitioner (husband), is a rebellious wife, runs away from the home…..”

The Court was unequivocal in its view that because of this kind of language, the petition for divorce cannot be viewed as a joint petition, since no one would write such words about themselves unless forced to do so. Moreover, the harsh and abusive language of the husband was not limited to the petition for divorce, but extended to the agreement itself, which, in addition to the section quoted above, included more gems:

“The wife doesn’t function as an educator, a mother, and prefers her own desires and self-centeredness to the care of the children….”

The Court went on to say that based on Article 30 of the Law of Contracts (General Section), 5743-1973, the agreement is void since it is both unethical and violates the public policy of the State of Israel.

The position of the legal counsel of the Rabbinic Court system was that even if the divorce agreement was one which ultimately could never be authorized by the Beit Din because the conditions were patently unfair and one-sided (though he himself was not willing to concur with that description of the conditions), the very act of filing the petition for divorce and the agreement were sufficient to grant jurisdiction to the Beit Din. Suffice to say that the argument was rejected by the Supreme Court.

Judge Rubenstein used an interesting analogy to make his point that agreement could not be used to grant jurisdiction to the Beit Din. What would have happened, he asks in his opinion, if hypothetically it was proven that the wife never signed the agreement, that in fact, her signature was forged? In that case, the Beit Din would never relate to the agreement as a document which can grant jurisdiction. The actual situation, says Judge Rubenstein, is actually worse than a counterfeit signature and the agreement itself  may very well be an agreement signed under coercion,

An interesting legal question raised in the decision is what’s the line between an agreement that can’t be authorized because, for example, it deprives one party of their rights in a patently unfair way, but even so, the actual filing does grant jurisdiction? In other words, in which cases does filing an agreement that can’t be authorized because of its content, still give jurisdiction to the Beit Din?

Judge Rubenstein uses the “good faith” test of binding a particular issue – such as property – to the divorce suit as a way of navigating this issue. In order for the Beit Din to acquire jurisdiction for matters of property, one of the rules developed over the decades by Supreme Court rulings, is that the person filing the petition must be shown to have good faith, and even a higher level of good faith than in other legal proceedings. In an agreement as extreme as the one before the court, there can be no doubt that the husband acted in bad faith.

Ultimately, the Court ruled, the agreement is like the “dust of the earth” meaning, without value, and gave the wife had thirty days to file her suits before the Family Court.

Amidst the main arguments laid out in Judge Rubenstein’s decision, was a rather minor observation, but one which is important for my work. I have often written (or at least complained) about the failure of the Family Law system to take sufficient account of emotional abuse and the impact on power relations. In his decision, he accepted the view that the agreement constitutes emotional abuse. I welcome this recognition, and salute him for acknowledging the role court filings and proceedings can take in being a weapon with which to further the debasement and disempowerment of an abused partner.

I look forward to judges and social workers in the Family Court system taking notice as well.

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