This section deals with which court has jurisdiction to deal with a particular issue (from the international level through to the local level) and what happens when different courts compete for jurisdiction, and both of them claim that they can hear the case.
Introduction To Jurisdiction
Question:
How does someone know which type of court to apply to and where in Israel when bringing an action in family law ?
Answer:
Firstly, there is what is called 'subject matter jurisdiction'. This means that for certain subjects or issues one has to go to a certain type of court which has jurisdiction on that matter. Secondly, there is what is called 'local jurisdiction'. This limits jurisdiction geographically .
Applying this to a plea for child maintenance, which must be made where the child lives and needs to eat, if the minor lives with his mother in Tel Aviv, and the action is brought against his father who lives in Eilat, it will be filed a court in Tel Aviv, having subject matter jurisdiction.
Within the question of subject matter jurisdiction, there is what is known as 'exclusive jurisdiction'. This means that only that particular court can hear the matter. For example, rabbinical courts in Israel have exclusive jurisdiction over matters of marriage and divorce relating to Jews who are citizens or residents of Israel, irrespective of where they married in the world and in what ceremony.
Sometimes there is what is 'parallel jurisdiction' where two or more courts can have jurisdiction over the same subject matter . One may have what is called original or primary jurisdiction e.g. the family court on questions of child custody. However, in certain circumstances the rabbinical court may have jurisdiction. Where there is parallel jurisdiction there is a race to gain jurisdiction, with the court where the plea is filed first gaining jurisdiction.
Jurisdiction - International Dimensions
Question:
How is jurisdiction decided when there is an international dimension to legal proceedings in family law ?
Answer:
Firstly, there is the question of international jurisdiction as a venue for the hearing – where two countries compete for jurisdiction. Often the domicile or centre of life rule determines which country has jurisdiction. Regarding proceedings for the return of abducted children according to the Hague Convention, incorporated into Israeli law in the form of the Hague Convention Act , there is an agreement between signatory countries that as a rule children wrongfully removed to or wrongfully retained in a signatory country will be returned to the country where the child is habitually resident.
Secondly, there is the question of which legal system is used – it is possible for example for rules of a foreign legal system to be applied by an Israeli court which has jurisdiction over a particular matter. For example, a Jewish woman who married a Christian Englishman in a civil ceremony in the U.K. can divorce him in an Israeli court by proving grounds according to U.K. divorce law. If he consents to divorce, the Israeli court can dissolve their marriage, without the need for this, as mutual consent alone is sufficient grounds for dissolution of marriage in unions between spouses of different religions.
Action Abroad – Israeli Court Can Make Orders
Question:
Someone in England has taken out legal action against my wife and I for allegedly breaching a contract we made with him when we were living in England. He also applied to an Israeli court for a temporary order freezing our property in Israel. Is an Israeli court empowered to make such an order where the case against Israeli residents is being conducted overseas ?
Answer:
Yes ! The 1984 Courts’ Act gives a court general powers to grant relief. The plaintiff in England has a right to ask an Israeli court to grant temporary relief – here a freezing order – designed to act as an aid in the protection of his rights and the enforcement of a future favourable judgment abroad.
The Tel Aviv District Court has held that an Israeli court can act this way although the 1984 Civil Procedure Rules conditioning the granting of temporary orders on the submission of a main plea do not relate to the situation where the main plea is made abroad.
Supreme Court Petition & Religious Courts
Question:
When should a party who has lost his case at a religious court consider a petition to the Supreme court of Justice ?
Answer:
A petition to The Supreme Court of Justice is only relevant if the issue falls into one of three situations under which the court will exercise its powers under the Basic Law: The Judiciary against a religious court . The situations are: a) where it considers the religious court acted outside its jurisdiction when it exercised its powers ; b) where the judgment of a religious court contradicts the rules of ‘natural justice’and c) where the religious court has ignored civil law instructions which it should have applied. In these situations the Supreme Court of Justice can declare the religious court’s rulings invalid.
Judge’s Comments – Bias
Question:
If a judge makes comments against one of the parties in legal proceedings could this demonstrate bias, and be grounds for getting another judge to hear the case ?
Answer:
A judge will be prevented from hearing a case only if there is a substantial risk of bias. In May 2003 the Supreme Court rejected a request to replace a judge in a family proceedings before evidence in the case was heard, even though the judge admitted having said to the wife in a previous court session : “ You are making hell for me , you make hell for your husband , you make hell for everyone ”. The wife had asked the family court judge to “dissolve himself” but he had turned down her application, saying that he had not formed an opinion in the case, and that he was of an open mind , even though he had passed comments as to her behaviour.
Rejecting the wife’s appeal against the judge’s decision not to dissolve himself, the Supreme Court said that the remarks were not desirable, given all the circumstances, but that there was no evidence to show that the judge had or , would in the future, demonstrate a substantial risk of bias in the case.
Supreme Court - Extra Hearing
Question:
Why does the Supreme Court sometimes hold hearings with a large number of judges ?
Answer:
In exceptional cases the Supreme Court can exercise powers given to it under the Basic Law: The Judiciary and the Courts Law to hold an extra hearing before a panel of 5 or more judges on a case it has already ruled on. The extra hearing is not another appeal, but has been referred to an ‘additional independent examination’ of a legal ruling regarded as ground-breaking or extremely important.
A well-known example of an extra hearing was the Nachmani case involving a woman’s rights to use frozen embryos developed using sperm which was obtained from her husband before her marriage broke down. A Supreme Court panel of 9 judges ruled on the case, even though a panel of 5 had already done so.
Recognition of Foreign Judgments in Israel
Question:
On what basis are foreign judgments recognisable in Israel ?
Answer:
A distinction can be made between the situation where an Israeli court has direct jurisdiction to recognise a foreign judgment and where it has indirect jurisdiction.
In the first situation Israel and the foreign jurisdiction recognise one another’s legal decisions so there is no problem regarding recognition and enforcement of a foreign judgment. In the second situation the parties requiring recognition of a foreign judgment have a link to that foreign legal system - by , for example, citizenship, if they have dual nationality. Thus the foreign court has jurisdiction to give a judgment worthy of recognition , according to the rules of private international law.
Principle of Continuing Jurisdiction – Agreements
Question:
Once a property relations agreement is authorized in court does that same court retain jurisdiction regarding any proceedings that may arise regarding it in the future ?
Answer:
The principle of continuing jurisdiction is designed to grant continuing jurisdiction to the same court where there is an application to change or cancel a previous decision due to a substantial change in circumstances upon which the agreement was made.
However, a court which authorized a property relations agreement and gave the latter the legal validity of a judgment does not retain jurisdiction to rule on the interpretation of the agreement, or its enforcement. However, a plea to correct, change or cancel it should be filed before it.
Jurisdictional Competition - Special Religious Court
Question:
What happens if two different religiou courts claim jurisdiction over a particular family law matter – and each has given a decision stating that it actually has jurisdiction ?
Answer:
A situation can arise where two different religious courts both claim jurisdiction over a matter. They can even give conflicting decisions on the same matter. This can result in the two sides possessing conflicting judgments from two different religious courts . This can be very confusing. The solution is the formation of a special religious court which can decide which religious court should really have jurisdiction.
To get the process started, a party or the court itself can send a memorandum to the registrar of the Supreme Court explaining both the facts agreed upon and those in dispute, plus a summary of the claims. If a special religious court is formed to hear the matter it will comprise two Supreme Court judges and the president of each of the religious courts involved.
Jurisdictional Conflict - Jewish Mother, Moslem Father
Question:
I am Jewish , married to a Moslem man and have young children . We married in a religious ceremony according to Islamic Law . Before we married I was assured that under Islamic Law I could marry without having to convert to Islam. I have never converted to Islam. Our marriage has deteriorated and my husband wants to marry a Moslem woman. I object. He has contacted the Sha’ari Court (religious court for Moslems) about divorcing me and gaining custody of the children. I have filed for custody of the children at the family court .My husband responded by asking the family court to strike out my plea, claiming it had no jurisdiction over the matter, which he claims lays with the Sha’ari court, where he filed for custody. I have objected to t he Sha’ari court's jurisdiction over his custody plea .Both the Sha’ri and the family court have given rulings saying they have jurisdiction over custody. What should I do ?
Answer:
Where , as in your case, two courts -one civil and one religious - claim jurisdiction over the same matter- and the children have two religions – you should apply to the Supreme Court for the formation of a special religious court to decide which court should have jurisdiction. In the case of a Moslem husband and a Jewish wife, like yours, the children will have ‘two’ religions at the same time as under Islam the child receives the father’s religion whereas under Judaism it receives the mother’s.
Grounds For Challenging Ministerial Decision
Question:
On what grounds can a ministerial decision be challenged ?
Answer:
When an individual challenges a ministerial or administrative decision by a governmental body, central or local, by way of a petition to the Supreme Court of Justice one or more of the following grounds must be claimed :
a)lack of jurisdiction – that the decision was void as it was made although the person or authority making it had no power to do so, or acted outside their powers.
b)Unreasonableness – that the decision or act is voidable as it was unreasonable in the circumstances.
c)Mistake – that the decision was a mistake and can be cancelled.
d)Discrimination .
Many petitions aimed at extending the frontiers of individual rights of minority groups are based on the grounds of discrimination.
Breach of Marriage Promise – Jurisdiction
Question:
Which court has jurisdiction over a plea for breach of promise to marry ?
Answer:
As a plea for breach of promise to marry is not listed under the 1995 Family Courts’ Law Act as being under the jurisdiction of the family court , it will only be heard there if the parties come under the category of “family members”. That is to say that the parties were cohabitees or former cohabitees. Where the parties are or were not cohabitees, then jurisdiction for a plea related to an alleged breach of promise to marry will be at the magistrates or district court, depending on the sum sued for by the plaintiff.
In October 2003 Tel Aviv Family Court threw out a plea for breach of marital promise after the plaintiff had failed to prove that the parties were cohabitees or former cohabitees. Living together temporarily for a few months did not qualify the parties as cohabitees, the court held. The respondent had got the plaintiff pregnant while he was still married to his wife and was registered as the minor’s father . The parties had lived together for three months while the respondent was separated from his wife but did not qualify as cohabitees. The family court could not gain jurisdiction because the plaintiff had already filed pleas against the respondent, for paternity and child maintenance , it was held. Leave for appeal was granted.
Matchmaking Bond and Jurisdiction
Question:
Which court has jurisdiction over a dispute concerning a matchmaking ‘bond’ between a Jewish couple who later marry ?
Answer:
Jurisdiction concerning a dispute between spouses over a matchmaking bond lies with the family (civil) court . A matchmaking bond is not regarding as a ‘matter of marriage’ which would fall into the exclusive jurisdiction of a rabbinical court according to the 1953 Rabbinical Courts’ Jurisdiction Act.
In the 1950’s at a special religious court set up by the Supreme Court that the rabbinical court had no jurisdiction to hear a case whereby the husband sued the wife for her failure to fulfil her financial obligations under the matchmaking bond between them. Jurisdiction lay in the civil system , it held.
'Punitive' Damages For Deceased Husband’s Refusal to Divorce
Question:
Which court has jurisdiction to grant a widow damages for her late husband’s refusal to obey an order by the rabbinate obliging him to grant her a divorce ?
Answer:
Punitive damages against a husband for his refusal to obey an order to grant his wife a divorce are under the exclusive jurisdiction of a rabbinical court . This is because they are an issue of marriage and divorce. However, an action for damages against the dead husband’s estate is not within the rabbinical court’s exclusive jurisdiction, and can be brought at the family court. This distinction was noted by the Tel Aviv Family Court in
October 2002 concerning a financial plea made by a widow against the temporary executor of her late husband’s estate.
Jurisdictional Race Over Property Division Plea
Question:
What should happen if each spouse has filed for the division of marital property independently – one at the rabbinical court as part of a divorce plea and one at the family court , and one of them has already declared it has jurisdiction ?
Answer:
In theory, the court that is second to deal with whether it has jurisdiction over the couple’s property should respect the decision of the first court, if it claimed it can rule on the issue, unless there are special reasons for it to proceed and examine whether it has jurisdiction . So said the Supreme Court of Justice in dealing with a petition in January 2003 over which court – the rabbinical or the family – had jurisdiction to rule on the division of a couple’s marital property.
Couple Already Divorced –'Good Faith' Re Property Plea
Question:
I filed for a division of marital property when I filed for a divorce at the rabbinical court. My wife filed for a division of our property at the family court. My wife claimed that I did not file for divorce in good faith and that accordingly the rabbinical court cannot gain jurisdiction over our property plea. Does the fact that we have actually now divorced have any effect on whether the divorce plea will be regarded as having been filed in good faith ?
Answer:
No – according to the Supreme Court of Justice which considered the very point in January 2003.
“ The handing over of the ‘get’ to the petitioner …. does nothing to change our conclusions stated, because the test for genuineness of the divorce plea relates to the day when the plea was filed.” The court stated.
It added that although the husband had been the one to ask for a divorce, and had requested it orally at the first rabbinical court hearing, it had been clear from later protocols at the family court and Greater Rabbinical Court that his consent to divorce depended on his wife making concessions over property. His behaviour as seen in these protocols was accepted by the court as evidence to indicate his true intentions at the time he filed for divorce . They showed he had not filed for divorce in good faith – and accordingly a key requirement for binding a property plea to divorce had not been met.
tel: 03-5234133, 077-3500000
fax: 03-5232251