Question:
Is the principle in Jewish religious law against paternity tests where the woman is married found in Western legal systems ?
Answer:
Reference was made to the comparative standpoints of legal systems on this point in a paternity case in 2004 decided by Tel Aviv Family Court , and it was noted that the English legal system took a different view. While Jewish law wishes to protect the child from a risk of being a ‘Mamzer’ (bastard) if paternity testing revealed that his biological father was his married mother’s lover and not her husband, where all three adults are Jewish, English law regards that the discovery of the truth is generally preferable for the minor.
“.. it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence,” the House of Lords ruled in one case.
Legal Assumption of child's Legitimacy – Israeli & British Law
Question:
Is the legal assumption in Israeli Jewish religious law that a child born to a married woman is that of her husband found in other legal systems ?
Answer:
Yes, the Western legal systems also adopted the legal assumption of legitimacy according to which “ The husband of the mother is the father of her child”. This legal assumption derived from the rule in Roman law “ Peter est quem nuptiae demonstrant” – the father is he on whom the marriage is based. These points were raised in a 2004 family court case concerning a request for a D.N.A. test to determine the father of a child born six months after his mother’s officially divorce from her estranged husband. In Jewish law if a Jewish wife has a lover and becomes pregnant there is an assumption that the child is legitimate , based on the principle that most of the incidences of sexual intercourse will be between her and her Jewish husband.
Child's Right To Know Origins –Reference To Swedish Law
Question:
How does Israeli law compare with European systems in terms of the right of a child to
know his/her biological origins ?
Answer:
In a paternity case in which the Tel Aviv Family Court dealt with an application for a D.N.A. test to establish fatherhood in 2004, reference was made to other legal systems. Particular reference was made to ‘progressive’ legislation from 1985 on artificial insemination in Sweden which expressly states that a child born from the result of donor sperm has a right to receive information about his biological father. One researcher said this legislation was “based on the goals of protecting the integrity of a person to know his/her biological origin, to have a social/legal father, to be raised by appropriate family.’ The family court referred to the Swedish model and said that there was a recognition of the need for a child to know his/her biological father which was independent of the existence or non-existence of a ‘psychological father’ in his life.
Domicile and Private International Law
Question:
What is necessary an Israeli citizen to be subject to the jurisdiction of a foreign court in legal proceedings overseas ?
Answer:
Domicile in that jurisdiction, as residence alone is insufficient. The authorities on private international law , Dicey and Morris, state that to acquire a new domicile a person has to physically move and live in the new state and to intend to live there permanently or indefinitely . These points were stressed by the Israeli Supreme Court in the Berger Case .
Recognition of Foreign Judgments – Unacceptable Loophole
Question:
Can the process of recognizing a foreign judgment be legitimately used to get round difficulties of enforcing a judgment which cannot be obtained in Israel ?
Answer:
No – the 1958 Recognition of Foreign Judgments Act contains a very fine filter for preventing this. Even if the foreign judgment meets all the other requirements for recognition, it cannot be recognized in Israel if it would counter ‘Public Regulations’.
This was stressed in September 2004 by Jerusalem Family Court in a judgment rejecting a plea to enforce a foreign divorce judgment : “ Divorce of a Jewish couple who are citizens of the State of Israel which is based on local civil law and not on the granting of a ‘get’ according to Jewish law substantially contradicts the accepted norms of Israeli society, and accordingly a foreign judgment will not be enforceable in Israel, or any part of the foreign judgment, which draws its existence from that civil divorce.”
The Jerusalem Family Court referred to the famous Irish case of Mayo-Perrot where the Supreme Court of Ireland rejected a plea by the wife to enforce a costs order in a divorce judgment given against her husband in England. At the time it was impossible to divorce in Ireland and the wife did not seek the recognition of the divorce, just the costs order.
The court justified its refusal to enforce the foreign costs order: “To do otherwise would be to invite and give effect to a serious intrusion, indeed a loophole, on the age-old divorce laws of this country. To implement that part of this English judgment which deals with costs is repugnant to the Constitution and to the laws of Ireland, and the public policy reflected in those laws over a long period of Irish history.”
‘Equality of Laws’ & Dissolution of Mixed Marriage
Question:
What can be done when there is a contested civil divorce plea and the couple married abroad but the divorce laws there are not known ?
Answer:
‘Equality of Laws’ is a principle in private international law whereby there is a legal assumption that the legal system and law of one country is similar to that of another. It is used when there is a case involving two legal systems and there is evidence about the law relating to a particular issue relating to one of the systems which is applied to the other.
‘Equality of Laws’ cannot always be applied to solve a legal problem. For example, in May 2002 a Jewish husband who had applied to the Tel Aviv Family Court for the dissolution of his Paraguayian civil marriage from his non-Jewish Polish wife. His wife did not want to divorce. He did not provide an expert legal opinion proving that he had grounds for divorce according to Paraguayian laws of divorce. His counsel asked for the principle of ‘equality of laws’ to be applied but the court rejected this as inappropriate because the foreign law was unknown and Israeli law is silent on the subject, providing no legislation for civil divorce. Accordingly, it rejected the husband’s plea outright.
Breach of Marriage – Western Legal Systems
Question:
How do the legal systems in the West relate to a plea for breach of promise to marry ?
Answer:
According to a brief survey of the ‘Western World’ given in a Supreme Court judgment in July 2004, legal action for a breach of promise to marry is limited.
“In most of the states in the Western World, the grounds for a plea for breach of promise to marry have been cancelled or restricted,” it said.
The judgment even referred to professional literature on breach of marriage from the 1920’s which said: “It is a barbarous remedy, outgrown by advancing civilization and, like other outgrown relics of a barbarous ago, it must go.”
It stated that in the UK, the Law Reform (Miscellaneous Provisions) Act of 1970 states that a marriage contract should not be regarded as an enforceable contract, and that breach of such a contract does not give grounds for a plea. It regulates conflict related to property aspects of promises to marry, including return of wedding gifts. It even provides for the return of property – regardless of which party breaches the contract.
Referring to Australia, the judgment stated: “ Like the English legislator, even the Australian legislator cancelled the possibility of filing a plea for compensation for breach of promise to marry, whilst protecting the possibility of getting presents back.”
Regarding the United States, it said: “In most of the states in the United States the grounds for a plea for breach of promise to marry have been cancelled.”
Property Law Comparison - Israel and U.S.A.
Question:
How does Israel compare to the U.S.A. in terms of financially “punishing” a husband and “compensating” a wife when deciding on the division of marital property if the husband has behaved badly during the marriage ?
Answer:
The American legal system traditionally took a tough stand against extremely negative behaviour by husbands, and there was a tendency to reduce the share an abusive husband received in the marital home, and even make him pay his wife “maintenance” after the divorce. However, today, only a few states “punish” the “guilty party” financially, although there is a tendency to make a spouse compensate financially for mental abuse.
These points were made by Jerusalem Family Court in June 2004 , when it referred to professional literature on the subject. It did so in the context of a plea by a wife to exercise its discretion, in special circumstances, to prevent injustice, when dividing up marital property under the 1973 Spouses’ Property Relations’ Act, and to give her a greater share of marital property due to alleged physical and emotional abuse she had suffered at the hands of her husband. The basic principle governing the division of marital property in Israel is a 50:50 split between spouses.
In this case the wife did not prove the alleged abuse to the standard required by the court, to allow it to reduce the husband’s 50% share in marital property, based on this ground. The wife did succeed in denying the husband any share in her pension rights, on another ground.
Foreigner's Estate - No Bypassing Potential Beneficiaries
Question:
Can an executor of the estate of childless foreign residents who die, one after the other, leaving property in Israel , distribute the estate by enforcing a foreign pre-marital agreement between them ?
Answer:
No ! So held Tel Aviv Family Court in an estate case in December 2002 involving property in Israel and a deceased married couple, who were French citizens domiciled in France, and who had made a pre-marital agreement authorised in a French court which held that either of them would automatically inherit the other’s property upon death.
The husband had died prior to the wife. His Israeli estate included half of the rights of an apartment and money . The couple had no children . The husband had around 25 potential beneficiaries , 13 of whom were known. The executor of the estate had asked the court for permission to distribute the money in the Israeli estate to the late wife’s beneficiaries, and to transfer his rights in the apartment to them, on the strength of a novel legal basis - by relying on the deceased’s couples French pre-marital agreement. No plea had been made to recognise or enforce the foreign judgment authorising the pre-marital agreement in Israel.
Rejecting the application, the court said: ‘ The plaintiff is asking for the plea in Israel to be heard without defendants, based on his claim that in France – the couple’s domicile – there would be no need for an additional legal process after a property relations agreement had been made and authorised, and asymmetry and unnecessary difficulties should be prevented. This way is not possible according to the rules of a hearing acceptable in Israel.’
It stressed that according to the rules of private international law the rules of procedure and evidence governing hearings are that of the country where the case is being heard (the forum) . Only the substantial law relating to the country in which the parties are domiciled is to be applied, it said.
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