Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law*
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In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.
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35)
Elinson, “Talumdic restrictions in divorce,” 37 n.2. Rabbi Bleich explains: “In Judaism both the establishment of the matrimonial bond and its dissolution through divorce have always been seen as flowing from the acts of the parties and not from rabbinic judicial authority.” - J.D. Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Enforcement,” Connecticut Law Review 16 (1984), 219.
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76)
See S. Daikhovsky, “A Critique of Rabbinical Court Decisions,” Dine Israel 13-14 (1986-1988): 7, 12 [in Hebrew].
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84)
Until 1995 (5755), when imprisonment was the only measure of enforcement of divorce judgment explicitly mentioned in legislation, consideration of the possibility of ruling in favor of compelled divorce was generally based on the assumption that it was preferable that the get be given without having to resort to the drastic measure of imprisonment. The Minister of Religious Affairs during that period wrote: “The hesitations of the Rabbinical courts are many, and the reluctance to use coercive measures is still very great. Sometimes the judgment does not fit the legal arguments, as if at the last minute the court refrained from using the authority granted to it. … Even in cases where there is justification for considering compelling divorce, the Rabbinical courts prefer to exert moral or monetary pressure, for example, ordering a large award of maintenance to the woman. Only in the most extreme cases do they resort to orders of imprisonment.” Warhaftig, “Coercion,” supra note 42, 210. See also E. Magen, “Personal liberty and debtors in the Execution Office,” Hapraklit 40 (1992), 390-393 [in Hebrew]; and Shifman, Family Law, supra note 77, 297-298. In light of the legal practice with respect to the enforcement of divorce judgments prior to 1995, one scholar has concluded: “Divorce is almost never compelled today in the State of Israel, despite the legal authority that rests in the hands of the Rabbinical Courts.” Shochetman, “Women’s status,” supra note 42, 421, n.211.
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113)
See A. Barak, The Judge in a Democratic Society (Haifa: Nevo, Keter, Haifa University Press, 2004), 262 [in Hebrew].
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121)
A. Sherman, “The Principles of the Basic Human Rights Law, in the Light of the Principles of Jewish Law”, Human Rights in Judaism, 305 (G. Frishtik, ed. 1992) [in Hebrew].
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Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law*
In: Middle East Law and GovernanceSearch for other papers by Yehiel S. Kaplan in
Current site
Google Scholar
PubMed
In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 791 | 111 | 20 |
| Full Text Views | 98 | 7 | 0 |
| PDF Views & Downloads | 105 | 20 | 0 |
