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Israel: Supreme Court Prohibits Third Party Appeal over Legitimacy of Divorce

(Apr. 28, 2017) On March 30, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, accepted an appeal against a Rabbinical Court of Appeals decision to review an appeal submitted by an unrelated third party against the legitimacy of a get (Jewish divorce document) recognized by the regional rabbinical court. (HJC 9261/16 Anonymous v. Rabbinical Court of Appeals (Mar. 30, 2017), TAKDIN LEGAL DATABASE (by subscription, in Hebrew).)

In accordance with the Rabbinical Courts Jurisdiction (Marriage and Divorce Law) 5713-1953 “[m]atters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.” (Rabbinical Courts Jurisdiction (Marriage and Divorce Law) 5713-1953, SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] No. 134 p. 165, as amended, § 1.) The Law specifies that marriage and divorce of Jewish residents and citizens of Israel “shall be performed in Israel in accordance with Jewish religious law.” (Id. §§ 2 & 4). While the rabbinical courts enjoy exclusive jurisdiction over matters of marriage and divorce and adjudicate pursuant to Jewish law, they must comply with the laws of the state. Decisions of rabbinical courts have therefore been subjected to judicial review by the Supreme Court not on appeal but as petitions to that Court as a High Court of Justice. The recent decision, summarized below, voided a rabbinical court decision that the Supreme Court found was made in violation of state constitutional principles and legal procedures established by law.

Facts of the Case

The petitioner and her husband married in 2002 under Jewish law and had a baby girl born a year later. In 2007, the husband was involved in a serious traffic accident, and he has been in a coma for seven years with a very poor prognosis of improvement. (Id. Justice Elyakim Rubinstein opinion, ¶ 2.)

In 2012, five years after the accident, the petitioner filed for divorce at the Tsfat regional rabbinical court to allow her to remarry. In consideration of the husband’s condition, the court appointed a guardian for him. The judges visited the husband in the hospital and concluded that he was not competent to give his wife a get. (Id. ¶ 3.)

Regional Rabbinical Court Decision

Judges of the regional court, however, continued to look for a solution that would help the petitioner but would also comply with the requirements for divorce under Jewish law. Based on a comprehensive decision by Rabbi Lavie, who is the president of the regional court, the petitioner was allowed to receive a “get zikui.” (Id. ¶ 7.) Get zikui is a procedure according to which a court may permit the wife to obtain a get on behalf of her husband, even without his expressed consent. Get zikui is said to be based on a well-known Jewish law rule that a legal action conducted by one person on behalf of another person will be deemed valid, even in the absence of knowledge of the action on the part of the person for whom it is conducted, if the implications of the action are good for that person who cannot act. (Id. ¶ 7.)

The get was arranged and delivered to the petitioner by a person appointed by the regional rabbinical court as the comatose husband’s agent, with the husband’s guardian announcing that under the special circumstances of the case he found no reason to object. (Id.) The day after the get was delivered to and accepted by the petitioner, on March 14, 2014, the regional rabbinical court issued a judgment determining that the spouses were divorced and granting official documents making the divorce final. (Id. ¶ 8.)

In its decision allowing the get zikui, the regional court held that had the husband been aware of his condition, he would have wished to give his wife a get and not leave her in a situation where there was no possibility for continuation of their spousal relationship. Recognizing the novelty of its decision, the regional court stressed that the decision was nevertheless grounded in established principles under Jewish law. (Id. ¶ 9.)

On June 24, 2014, a little over three months after the regional court issued its decision, an appeal was filed against the judgment for being “completely erroneous.” The appeal was purportedly registered on behalf of the comatose husband and a third party who had not been previously a party to the proceedings and who had no personal link to the parties (third respondent). (Id. ¶ 10.) Although the regional court had decided not to allow the third respondent to join as a party on appeal, the President of the Rabbinical Court of Appeals was ultimately ordered to conduct a full-day special hearing, by an extended bench that would include all but one of Rabbinical Court of Appeals judges (in order to have an odd number), to review the legitimacy of the appeal. (Id. ¶¶ 11-14.)

The Supreme Court Decision

Justice Elyakim Rubinstein, with Justices Hanan Melcer and Yoram Danziger assenting, rendered the main decision of the Supreme Court on the legitimacy of the Rabbinical Court of Appeals’ reviewing the regional rabbinical court decision.

1. Scope of Supreme Court Judicial Review

According to Rubinstein, the question of releasing the petitioner from her aginut (marriage bondage) is complex and subject to different opinions. Rubinstein noted that in fact, the President of the Rabbinical Court of Appeals had already published a different Halachik (Jewish law) opinion in which he concluded that in the absence of any hint from the comatose husband of his willingness to divorce her, the wife should not receive a get. Instead, the President of the Rabbinical Court of Appeals  proposed other possible grounds that may be examined for  releasing the wife from the aginut, such as a defect in the marriage or nonlegitimacy of the witnesses. (Id. ¶ 24.)

Rubinstein emphasized that the Supreme Court had no intention of intervening and determining if the Halachik doctrine that had been adopted by the regional court was correct or not. The Supreme Court review, Rubinstein determined, would only apply to the procedural aspects, namely, whether the Rabbinical Court of Appeals was authorized to conduct a hearing on the appeal by the third respondent. (Id.)

2. Appeals Procedures

Appeal rights of parties in rabbinical courts are guaranteed under the Rabbinical Court Judges Law; the procedures that apply to appeals are covered under the Regulations of Hearings Procedures in Rabbinical Courts in Israel 5733. (YALKUT HA-PIRSUMIM [OFFICIAL NOTICES] 5753 No. 4102 p. 2299 (as amended). According to the Regulations, the appeal period for any party is 30 days from the date on which the decision was issued. In special circumstances, the Rabbinical Court of Appeals may decide to allow an appeal that was submitted at the expiration of this period, after affording all the parties the right to express their views. (Id. §§ 938-939; Rubinstein opinion, ¶ 31.)

Based on a review of the Regulations and an historical evaluation of the way in which the right to appeal has developed over time, Rubinstein concluded that appeal rights have been reserved for only the original parties. A person who was not a party or had no link to the parties does not have a right of appeal. (Rubinstein opinion, ¶¶ 32-33 & 44.)

3. Decision of the Rabbinical Court of Appeals

Rubinstein recognized that the Rabbinical Court of Appeals had specified that the subject of the appeal before it was the regional court’s decision not to allow the third respondent to be added as a party in the appeal. Nevertheless, Rubinstein held, “the characteristics of the Appeals Court decision are unusual and do not coincide … with the appeal procedure that is common at the Appeals Court. On the subject of the right and the permission to appeal, one judge or three at most could decide, and there is no need for an extended bench.” (Id. ¶ 45.) Furthermore, Rubinstein wondered why the judges of the regional court had been invited by the Rabbinical Court of Appeals to attend the hearing. (Id. ¶ 46.)

Rubinstein also expressed concern regarding the severe implications of enabling any person who is unrelated to the case to appeal a final judgment, particularly in matters of personal status. Such matters, he noted, were especially sensitive, as they may cause great harm to the privacy and other basic rights of the litigants. (Id. ¶ 47.)

4. Constitutional Aspects

Rubinstein determined that enabling the third respondent, who did not have any connection with the case, to appeal would cause harm to the petitioner’s dignity as a person under section 2 of Basic Law: Human Dignity and Liberty. (SH 5752 No. 1391 p. 150.) Although it is permissible for the right to dignity to be violated under a law that meets the requirements of having an appropriate objective and proportionality, Rubinstein doubted if the current case meets these requirements. (Rubinstein opinion, ¶ 50.)

Conclusion

Rubinstein held that the conduct of a hearing on the legitimacy of an appeal filed by the third respondent was in violation of the procedural regulations. Such a hearing further contradicted the principle of finality and harmed the petitioner’s right to rely on the judgment rendered by the regional court. (Id. ¶ 51.)

Rubinstein added that the Supreme Court was presented not only with a question of Jewish law, but also with the very difficult situation of a woman whom the regional court found a way to help. Referring to relevant Jewish legal sources, Rubinstein noted in an obiter dictum that the majority of Jewish law scholars have usually opined that when there is doubt regarding the legitimacy of a get, the get needs to be validated and not voided retroactively. (Id. ¶¶ 54-57.)

The Supreme Court therefore ordered the Rabbinical Court of Appeals to refrain from deliberating the appeal submitted by the third respondent against the regional court decision validating the petitioner’s divorce from her comatose husband. (Id. ¶ 60.)