The Jurisdiction of the Rabbinical Court
Under Israeli legislation, the Rabbinical Courts have exclusive jurisdiction by law to determine issues of divorce. In other words, the Rabbinical Courts have the exclusive jurisdiction to divorce couples, even when all other matters in dispute are not heard by the Rabbinical Courts.
On other matters, that is to say alimony and child support, custody and division of assets, the Rabbinical Courts have jurisdiction concurrently with the Family Affairs Court.
The existence of two concurrent legal instances in Israel which deal in parallel with issues of property division, custody and child support, creates highly complex legal situations relating to competition of jurisdictions, and even at times conflicting judgements.
How Does the Rabbinical Court Gain Jurisdiction to Hear These Other Matters?
The proceedings by which jurisdiction to hear the issues ancillary to a divorce is gained are so complex, that it has been given the name “A Race of Jurisdictions” between the Rabbinical Court and the Family Affairs Court.
The guiding rule is that the party that moves early to appeal to the Rabbinical Court, will grant it jurisdiction as on a The Early Bird Gets the Worm basis. But that is not enough. For the purposes of gaining jurisdiction, the question of the bona fides and sincerity of the filing of the action for divorce will be raised, and whether it was filed only to grant jurisdiction and so as to block the other side from appealing to the Family Affairs Court.
In This Regard Several Issues Must be Borne in Mind
First, at law, minors have an independent right to file an action for child support with the Family Affairs Court. Thus, even if the Rabbinical Court lawfully gains jurisdiction, that fact cannot prevent an action for child support before the Family Affairs Court.
Second, for the other issues arising from divorce to be heard by the Rabbinical Court, a “Binding” must be performed. For the Binding to be lawful and not be disqualified by the courts, expertise are required. Independently appealing to the Rabbinical Court may cause significant damages and infringement of rights if it is not done correctly. For this reason, it is advisable to seek legal advice before filing an action.
It is not always preferable to appeal to the Rabbinical Court, despite the, erroneous, widely-held belief amongst many fathers and husbands.
Even though it is a tribunal that adjudicates according to Jewish Law, it is yet an organ of the State and operates under civil law (the Rabbinical Courts Jurisdiction (Marriage and Divorce) Act 1953-5713). For this reason, in matters of property, the Rabbinical Court is obliged to adjudicate according to the Property Relations Between Spouses Act 1973-5733, and is also bound by civil laws pertaining to custody and legal capacity and equality between the sexes. For the most part, the Rabbinical Court’s judgements correspond to civil law and the courts’ interpretation of the law and the principle of equality. Jewish Law is also more egalitarian that most seem to believe. In rare cases, the Rabbinical Court forwards a different interpretation of the Property Relations Between Spouses Act.
It is important to remember, that the Rabbinical Court is the sole arbiter of divorce between a Jewish couple. It is a commonly held mistaken belief, that a civil marriage will preclude the couple from having to appeal to the Rabbinical Court for the purposes of them divorcing. Tough it is true that the law recognises a foreign marriage certificate for the purpose of registering a couple as married, but divorce is still within the exclusive jurisdiction of the Rabbinical Court, and a Jewish couple cannot avoid divorcing by means of the Rabbinical Court.