JUDAICA - Wisdom In Torah

conjugal relations with another man will be deemed as an act
of adultery, and any child born from such relations will be
regarded as a *mamzer. In such a case the rabbinical court is
empowered to adjudicate her divorce, provided that the wife
is an Israeli citizen, even if her husband is not an Israeli citizen.
This is in addition to the other six possibilities, any one of
which suffices to confer jurisdiction to the rabbinical court to
adjudicate the divorce action. It should further be noted and
emphasized that the Law confers jurisdiction for religious divorces
only. The rabbinical court is not empowered to adjudicate
and rule on matters of civil divorce (section 4A (b) (2) of
the aforementioned law), if an action for a civil divorce was
filed in the foreign state prior to the delivery of the get.
Furthermore, the conferral of jurisdiction to the rabbinical
court over matters of divorce is exclusively for purposes
of solving the problem of aggunot, and accordingly the new
law does not “confer the rabbinical court with jurisdiction over
matters included in divorce” (section 4A (e) of the Law) such
as maintenance, property, or child custody.
The jurisdiction conferred to the rabbinical court under
the 2005 law is not only the jurisdiction over divorce, but
also enables it to adopt measures prescribed by the Rabbinical
Courts Law (Upholding Divorce Rulings) 5755 – 1995. These
measures range from the authority to prevent the husband’s
exit from Israel to the authority to order imprisonment of a
recalcitrant husband (see in detail in entry on *Divorce (Enforcement
of Divorce in Israel). In this way the rabbinical
court in Israel functions as the exclusive forum in the world
that has jurisdiction to resolve the agunah problems of Jews
who were married under din torah, by using the enforcement
mechanism of the State of Israel including preventing exit
from the State, and imprisonment.
Where the plaintiff is not in Israel, the rabbinical court
still has jurisdiction to adjudicate divorce, if one of the conditions
enumerated above exists. However, the Law provides
that in such a case, the action must be served to the defendant
outside Israel, together with a translation certified by a notary.
Even where a judgment is issued due to the defendant’s absence,
he is permitted to apply for rehearing of the action (see
section 4B of the aforementioned law).
The amendment of 2005 enables the Rabbinical Court
of Appeals or one of its dayyanim to give a halakhic opinion
regarding a get pitturin (divorce writ under Jewish Law) or a
permit to marriage in a state abroad, provided that the rabbinical
court receives a request for its halakhic opinion regarding
one of these matters, and even if the Jewish spouses are not
subject to the exclusive jurisdiction of the rabbinical court,
but were married in accordance with din torah.
In order to resolve practical problems concerning aggunot,
the law of 2005 provides that it will also apply to currently
pending claims (section 3 (d) of the 2005 law). Conceivably,
these could be regarded as retroactive application, but a reasonable
interpretation of the law is that the issue concerns the
conferral of jurisdiction in order to solve problems of agunot,
and the impeding party has no vested right to continue
bet din and judges
impeding his /her spouse and there is therefore a moral and
substantive reason for the immediate application of this Law,
even with respect to currently pending actions.
The jurisdiction law also addresses additional matters
pertaining to the rabbinical courts’ jurisdiction:
(a) The divorce action can also include additional matters
(such as maintenance and property), in which case the
rabbinical court will have exclusive jurisdiction over those
matters too (section 3 of the Jurisdiction Law). The case-law
recognized two categories of inclusion (or attachment): (1) a
matter which according to its nature and essence is included
in the divorce action; (2) a matter which although not necessary
a matter of personal status, but regarding which a decision
is necessary for the efficient dissolution of the relations
between the couple being divorced (decision of Justice M.
Silberg in CA 8/59 Goldman v. Goldman, 13 PD 1085, 1091).
Child custody is a matter which by its nature and essence is
included in the divorce action, and therefore belongs to the
first category, placing it under the jurisdiction of the rabbinical
court, even if not expressly mentioned in the divorce action.
(ST 1/60 Winter v. Beeri, 15 PD. 1457. in the decision of Justice
M.Silberg and dayyan (judge in rabbinical court), Rabbi
Goldsmith). To the extent that it concerns the second category
of inclusion, under case-law there is a need to explicitly
include the particular matter (for example maintenance for
the wife, or property) in the divorce action, and in addition,
according to the interpretation of the Israeli Supreme Court,
the rabbinical court’s exclusive jurisdiction is dependent on
the fulfillment of three cumulative conditions: (1) the divorce
suit filed in the rabbinical court must be bona fide; (2) the inclusion
of the woman’s maintenance or of property must be
lawful; (3) the inclusion must also be bona-fide. The burden
of proof for the fulfillment of these three conditions lies with
the litigant claiming that jurisdiction resides in the rabbinical
court and not the family court, because in the view of the
Supreme Court, that person is attempting to deny the general
jurisdiction of the territorial courts of the State and transfer
it to a particularistic religious court (see e.g., decision of Justice
M. Shamgar in CA Givoli v. Givoli 34 (4) PD 155). On the
other hand, if the parties had already litigated the matter of
maintenance and property in the rabbinical court, then the
rabbinical court has jurisdiction, even if the three conditions
were not fulfilled (see HC 5679/03 Anon. v. State of Israel, per
President A. Barak with the concurring opinions of Y. Tirkel
and Y. Adiel (not yet published). Notably, since the adoption
of the principle of good faith in Israeli Law (see sec.39 of the
Contracts (General Part) Law, 5733 – 1973), it has also been
applied and implemented with regard to the jurisdiction of
the rabbinical courts and the aforementioned criterion for
inclusion (see, e.g., CA 700/81 Paz v. Paz, 38 (2) PD 736, 742
per Justice M. Elon).
(b) Section 4 of the Jurisdiction Law provides that when
a woman files a claim for maintenance, unconnected to a divorce
suit, or for maintenance from an estate, “the defendant’s
plea that the rabbinical court has no jurisdiction in the mat-
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3 519