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et din and judges
jurisdiction over matters included in the divorce (section 3 (c)
of the Law, in the concluding passage). In this regard the Law
specifies that the general rules governing jurisdiction and inclusion
will continue to apply. These rules will be explained
below. Should the head of the rabbinical court rule that there
is no need for divorce, or if he fails to respond within three
months, then the family court has jurisdiction to adjudicate
the matter of dissolution of the marriage (section 3 (d) of the
Law). In this respect, the new law introduced a significant
innovation, because until that time the rabbinical court had
exclusive jurisdiction for the determination of marital status
in matters concerning Jews, and according to the new law of
2005, in such cases, the family court has jurisdiction.
For the sake of efficiency, the Law allows the head of the
religious court to give a general notification to the President of
the Supreme Court, stating that under specific circumstances
there is no need for divorce under the religious law by which
he adjudicates, as a condition for the ability of the party subject
to that law to remarry. This condition obviates the need
for an application to the religious court in such cases in the future
(section 3 (f)). This power can be exercised in the case of
a marriage between a Jew and someone who is not Jewish, for
as stated above, according to the halakhah, mixed marriages
are prohibited and invalid (see *Mixed Marriege). In the 1969
Law, the President of the Supreme Court was conferred the
power to avoid determining jurisdiction for spouses belonging
to different religions, “if he deems that under the circumstances,
it would not be appropriate to grant a remedy to the
applicant” (sec. 3 of the 1969 Law). This section was repealed in
the 2005 Law. Nonetheless, upon application of one of the litigants,
or the Attorney General, the President of the Supreme
Court can order that the jurisdiction to dissolve the marriage
should be conferred to the family court or the religious court
(including, naturally, the rabbinical court) if the President is
convinced that it is justified under the circumstances (section
3 (e) of the Law, as amended in 2005.
An additional condition for the jurisdiction of the rabbinical
court is that the parties are “Jews in Israel, being citizens
or residents of the State” (sec. 2 of the Jurisdiction Law).
According to the Supreme Court’s ruling it is not sufficient
that both spouses be Jewish; there is a need for an additional
link connected them to the State of Israel, by force of their being
(physically) in Israel, and by virtue of their personal link
to Israel, by being residents or citizens of Israel (see, e.g., the
decision of Justice Zamir, in CA 3868/95 Werber v.Werber, 52
(5) PD 817, 843); decision of Justice M. Cheshin in HC 1480/01
Hagag v. Rabbinical Court of Appeals, 55 (5) PD 214, 225–226).
A decision recently given by the Supreme Court (HC 6751/04
Sabag v. Rabbinical Court of Appeals (not yet published) (hereinafter
– Sabag), concerned a Jewish couple who were married
in Monaco, in both a civil and a religious ceremony. They were
divorced civilly, and the women petitioned to compel her husband
to give her a get in accordance with religious Jewish law,
because according to the halakhah, she was still married, and
hence – an agunah. She turned to the Israeli rabbinical court.
The majority view in the Supreme Court, sitting as the High
Court of Justice, was that insofar as neither of the spouses
had any connection to Israel, the rabbinical court lacked jurisdiction
to rule on their case, both on the question of marriage
and divorce, and on the question of maintenance (per
Justices A. Proccaccia, concurred with by Justice Y. Adiel).
The minority view was that in order to prevent the woman
becoming from an agunah, the rabbinical court was authorized
to adjudicate the issue of maintenance, which includes
the maintenance awarded under the rule of “me’ukevet meḥamato
le-hinaseh” (a woman prevented from marrying for
reasons dependent on the husband). For the same reason the
rabbinical court was also empowered to delay the husband’s
departure from Israel and to make his return to Monaco conditional
upon him giving high financial securities (decision of
Justice E.Rubinstein in Sabag). The minority viewed relied on
the previous ruling in HC 1796/03 Cobani v. Rabbinical Court
of AppealsI (not yet published).
In 2005, a major change was introduced into the issue
of the rabbinical court’s jurisdiction over divorce, and its jurisdiction
was extended so that it was no longer limited to
spouses resident in Israel, but was also extended to six additional
cases in which Jewish spouses had married under din
torah (Jewish religious law) and in respect of which one of
the following connections to the State of Israel sufficed for
purposes of conferring jurisdiction to the rabbinical court, to
adjudicate their divorce: (1) the defendant’s place of residence
is in Israel; (2) both of the spouses are Israeli citizens; (3) the
plaintiff’s place of residence is in Israel, provided that he/she
lived there for at least one year immediately prior to the filing
of the action; (4) the plaintiff’s place of residence is in Israel,
provided that the most recent spousal residence was in Israel;
(5) the plaintiff is an Israeli citizen, and his place of residence
is in Israel; (6) the plaintiff is an Israeli citizen, and lived in
Israel for at least one of the two years immediately preceding
the filing of the action (see section 4A (a) of the Rabbinical
Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953,
which was added under section 2 of the Matters of Dissolution
of Marriage (Special Cases and International Jurisdiction)
(Legislative Amendments), 5765 – 2005). In addition,
the Law stipulates that where a Jewish couple was married in
accordance with din torah, and was already divorced under
the laws of the external state, the rabbinical court has jurisdiction
to adjudicate an action for divorce in accordance with din
torah, and an action to remove an impediment to remarrying
in accordance with din torah, even where only the plaintiff is
an Israeli citizen (see section 4A (c) of the aforementioned
law). A classic example of this kind of case is where the Jewish
spouses were married outside Israel both civilly and in accordance
with din torah, and the court of that country issued an
order for civil divorce. In these cases the husband may regard
himself as being at liberty to remarry who ever he wishes (under
the law of that state) whereas, in the absence of a get, the
woman continues to be a married women according to Jewish
Law and therefore she prevented from remarrying, and any
518 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3