18-year aguna suing Justice Ministry

Dan Izenberg , THE JERUSALEM POST Oct. 29, 2007  

Rachel Avraham waited 18 years for her divorce. She was 36 years old when she left her husband, home and all her property behind in Yavne and took a cab with her five daughters and one son, ranging in age from 14 years to half a year, to her parents' home in Binyamina.

During the years she was an aguna, or a woman denied a religious divorce by her husband, Avraham raised the six children on her own, paid a hefty sum of money for lawyers to represent her in the endless court hearings she attended, and had to reject two marriage offers because she was still a married woman.

Last month, in an unprecedented lawsuit, Avraham, backed by the non profit organization, Center for Women's Justice (CWJ), sued the Justice Ministry, which is in charge of the rabbinical courts, for NIS 4.5 million in Ramat Gan Family Court.

According to the lawsuit, filed on Avraham's behalf by CWJ attorneys Susan Weiss and Yifat Frankenburg, "The religious courts handled her case with clear and criminal negligence. For example, the court let hearings drag on, handed down contradictory rulings and exceeded its powers when it canceled the divorce the husband had granted her. It also violated her basic rights by allowing her husband to dictate the terms of the divorce and treated her with deliberate and inexcusable hostility after she turned to the civil courts for remedy."

In response to a query by The Jerusalem Post regarding the allegations in the lawsuit and charges made by Avraham in an interview with the paper, Efrat Ohrbach, the spokeswoman for the rabbinical courts, issued the following statement: "I would like to point out that two earlier petitions filed by Ms. Avraham were rejected by the High Court of Justice. The following is a quote from the ruling in one of the cases which speaks for itself: '[Avraham's] attorney... admitted to us that the declaration she made before the supreme and regional rabbinical courts about her consent to hold a new hearing regarding the property settlement, this time according to religious law, was a trick that she resorted to in order to extract a divorce by deceit."

Ohrbach added that the state's full response to the lawsuit would be provided by the State Attorney's Office.

The rabbinical court response addresses only one of many allegations included in Avraham's lawsuit. At most, the response could be construed as insinuating that just as the woman had allegedly lied to obtain her divorce, she could very likely be lying about other facts she claimed in the lawsuit. But it does not provide any such proof.

Avraham, who now lives in her own home in Binyamina, dresses in the modest clothing and head coverings of the religious community.

She alleged that as soon as she married and moved into her husband's home, she found that he would get angry over insignificant matters. He also allegedly got angry at her for giving birth to daughters as her first two children. After the third baby turned out to be a boy, Avraham returned to form and gave birth to three more girls.

"He accused me of deliberately giving birth to girls to spite him," said Avraham. When the fourth baby was born, she said, he did not come to visit her in the hospital.

Twice during these years, Avraham filed for divorce in the Ashdod regional rabbinical court. Both times, the rabbinical court judges urged shalom bayit (reconciliation), and she agreed.

After the sixth child also turned out to be a girl, he allegedly started shouting and carrying on in the delivery room. This time, said Avraham, she had had enough. She told her husband she intended to leave him and was willing to give up all the property on condition that he did not contest the divorce. He agreed to this, she said.

"On August 5, 1987, I took my children, ordered a taxi and left with NIS 150 in my purse," she said.

But the husband allegedly reneged on his word. According to the lawsuit, on the very day she left, he filed a counterclaim in court, saying his wife had "rebelled" against him.

After four years, on November 18, 1991, the regional court handed down a decision declaring there was no hope for a reconciliation and the husband should grant a divorce.

The husband appealed the decision to the Supreme Rabbinical Court. It took one year for the court to hear the case, and then it ruled that the lower court decision had only been a recommendation and referred the case back to it.

The lower court again ruled on February 17, 1994 that the husband should grant a divorce. Once again he appealed, and once again the Supreme Rabbinical Court overruled the lower court. Avraham returned to the lower court. On February 2, 1996, the court again ordered the husband to grant a divorce, this time after hearing witnesses testify to the husband's abuse and ordering the wife to take a lie detector test which indicated that she was telling the truth.

Once again, the husband appealed the decision. This time, the Supreme Rabbinical Court upheld the lower court ruling. By this time, 10 years had gone by, and although the court had ordered the husband to grant Avraham a divorce, he had not yet done so.

In 1991, Avraham told the Post, she decided to demand a property settlement in the civil court. She said she did this because her husband had not lived up to his side of the bargain by contesting the divorce after she had left all the property behind. The civil court negotiated a compromise settlement whereby Rachel Avraham was to receive 24 percent of the value of the house and half of a financial portfolio.

After the Supreme Rabbinical Court ordered Avraham's husband to divorce her, the husband filed another request to the Ashdod regional rabbinical court, insisting that the divorce be made conditional on reopening the property settlement, this time in the religious court.

The lower rabbinical court rejected the request. He then appealed to the higher rabbinical court, which also rejected the request. Since the husband continued to refuse to grant the divorce, the higher rabbinical court instructed the regional one to apply sanctions against the husband.

On February 15, 1998, the lower rabbinical court ordered the recalcitrant husband to spend six months in jail. On the same day, the husband's lawyer informed the court that his client had again appealed to the higher rabbinical court and that he must therefore be released. He was released the same day.

In the appeal, the husband asked the court to change its mind regarding the decision against reopening the property settlement.

On March 30, 1998, the higher rabbinical court heard the husband's appeal.

According to Avraham's lawsuit, "the Supreme Rabbinical Court put pressure on Rachel to give in to her husband and forgo his property obligations toward her and the children. The court, in its criminal negligence toward Rachel, helped the husband, who was refusing to obey the court ruling to grant her a divorce, to extort her in return for the divorce."

Two months later, the court ruled that Avraham would only obtain the divorce if she agreed to reopen the property settlement.

"Until now, I still believed in the rabbis," she told the Post. "But this decision broke me. From this moment on, I stopped believing in the court. I regarded the decision as inhuman, unjust and wicked."

Avraham petitioned the High Court of Justice against the rabbinical court ruling, but her appeal was rejected. As a result, she told the rabbinical court she would obey the decision. On October 19, 1999, 12 years after filing for divorce, Rachel finally received it.

Soon afterwards, however, on August 3, 2000, Rachel petitioned the High Court of Justice again, asking it to cancel her agreement to reopen the property settlement because she had made it under pressure. The court rejected the petition in May 2001.

In the meantime, the husband petitioned the High Rabbinical Court again, demanding that the divorce be cancelled because Rachel had gone to the High Court of Justice. On April 30, 2000, the High Rabbinical Court "suspended" the divorce. Rachel was a married woman again.

Finally, the hearings on the property settlement began in the Haifa regional rabbinical court two years after the High Court of Justice ruling. The court asked witnesses to testify again (13 years after Rachel left her husband) and ordered Rachel and her husband to take lie detector tests. On November 25, 2003, it ruled that the civil court property settlement should remain intact, but ordered Rachel to pay her $6,000 in court costs for having petitioned the High Court of Justice.

Once again, the husband appealed the ruling to the higher rabbinical court. On October 21, 2004, the Supreme Rabbinical Court heard the appeal and ruled that the property settlement would remain intact, but waived the interest that the husband owed Avraham for all the years that he had not given her the money that had been awarded to her. The interest was estimated at NIS 160,000. It also ruled that she must be divorced again.

According to Avraham, the Haifa regional rabbinical court set four dates for the divorce ceremony. The husband did not show up for any of them. The matter was then referred to the Supreme Rabbinical Court, which set three dates for the ceremony. Once again, the husband did not show. Finally, on January 22, 2006, Avraham's lawyers persuaded the Supreme Rabbinical Court to "revive" the divorce that had been granted and then withdrawn six years earlier.

Weiss, the founder of the Center for Women's Justice, told the Post that the Avraham case was a classic one for revealing so many different faults in the rabbinical court system - for example, that there is no finality in its rulings, that it allows husband to manipulate the system and that the courts themselves indulge in a power struggle with the secular courts.

She said since the Justice Ministry was in charge of the religious courts, they were ultimately responsible for its faults.

"In this lawsuit, we're saying, 'Something's wrong, and someone must take responsibility,'" said Weiss. "And it's not just the husbands or the rabbinical courts."

Domestic Relations Laws in Israel
 

by Neil J. Saltzman, Israeli attorney-at-law

(Mr. Saltzman is now based in New York City and may be contacted through our office)

Domestic relations matters in Israel are in the jurisdiction of two separate court systems: the civil courts and the religious courts.

Religious courts have been established for each of the major religions in Israel. There are Jewish rabbinic courts; Sharai Islamic courts; Christian religious courts; and Druse courts. The jurisdiction of the religious courts is exclusive in some areas of domestic relations, and concurrent with the civilian courts in others. The jurisdictional rules applying to mixed marriages, and members of no recognized religion are unique and will not be discussed here.

This essay will focus on the legal system in Israel as it affects Jews.

Jewish rabbinic courts have exclusive jurisdiction in connection with marriage and divorce of Jews in Israel. If a party initiating a divorce action explicitly includes a related claim, such as a claim for maintenance or child support, and no other claim on that same related matter was previously submitted to the civil courts, the rabbinic courts obtain exclusive jurisdiction in connection with the related claim as well. One matter that is always considered to be included in the divorce action, whether mentioned explicitly or not, is the issue of child custody. Unless a claim on the issue of child custody was submitted to the civil courts prior to the filing of the divorce action, the rabbinic courts will automatically have exclusive jurisdiction on that issue when the divorce action is filed. For this reason, litigating spouses often race to file first in the system that they believe favors their interests, and a party suing for divorce must be careful to open a child custody file in the civil courts before initiating the divorce action if he feels that the civil courts will benefit his interests.

Besides divorce actions Jewish rabbinic courts have jurisdiction concurrent with that of the civil courts in matters of spousal maintenance, child support, guardianship, inheritance and adoption, among others. For most of these actions the agreement of all parties is required in order for the rabbinic court to obtain jurisdiction.

Generally speaking, the rabbinic courts apply Jewish religious law in its adjudications. The Israeli High Court of Justice has carved out several exceptions to this rule obligating the rabbinic courts to follow general civil law in connection with the division of marital property (absent agreement of all parties to apply religious law) and to give proper weight to principles of basic human rights as defined and established in Israels Basic Laws.

Rabbinic courts have the authority to force compliance with its orders, including those requiring husbands to grant a Jewish divorce, with tools ranging from revocation of a drivers licenses to prison terms for recalcitrant parties.

The civil court possessing jurisdiction in matters of domestic relations is Family Court. Family Court has jurisdiction in matters of personal status, including child support, maintenance, guardianship, division of marital property and filiation proceedings. It also has jurisdiction in matters of inheritance, civil disputes between family members where the relationship is relevant to the dispute, adoption and a number of others. Where the religious courts have exclusive jurisdiction the Family Court retreats. Where the religious courts have already exercised concurrent jurisdiction the Family Court will also retreat. Otherwise, agreement of all parties is not required to bring an issue before Family Court.

In matters of child support and maintenance Family Court will apply Jewish Law to Jewish couples. Relevant rules include a fathers duty, regardless of issues of legitimacy to pay for a childs basic needs until that childs achieving majority. The extent of this obligation varies with a childs age, the fathers income, to a more limited extent the mothers income, and any special needs the child may have. The details are beyond the scope of this essay. Suffice it to say that the obligation of a Jewish father to pay child support is absolute, unaffected by issues of legitimacy, visitation and, as applied by some courts in Israel, to some extent unrelated even to the ability to pay.  The National Insurance Institute (a government body) will often pay child support up to a certain amount in place of a delinquent father, seeking collection from that father in turn. The courts typically use these maximum statutory National Insurance amounts as baselines for support awards even in connection with the poorest and least employable of fathers.

The obligation to pay spousal maintenance exists only as long as the marriage and falls only upon the husband; there is no Jewish form of post- divorce alimony. This fact sometimes counteracts a husbands unwillingness to grant his wife a Jewish divorce since he typically has to pay as long as the couple is married, and is sometimes abused by married women who prefer maintenance payments to a finalized divorce even when they have no intention to reconcile. While Jewish law offers a solution to both problems (the rules of meukevet machmato and moredet), the levels of proof required for their application by both the religious and civil courts in Israel make them rather weak tools in todays proceedings there.

In this context let it be noted that stay of exit orders against defendant spouses and parents are not especially difficult to get in Israel, though more rigorous standards apply if the subject of the order is a foreign citizen.

Divorce agreements require court approval to be enforceable. By statute division of the marital estate is by and large equitable with exceptions for pre-marriage property, inheritances and gifts received by one spouse only and several other types of assets. Donative intent can override the exception and create joint holder status where it otherwise would not have existed.

Navigating the Israeli court system in the context of domestic relations law requires expertise and it is always advisable to obtain legal advice in connection with any proceeding- whether adversarial or not. A number of potential procedural and legal landmines exist for the uninitiated that can have significant effect on the outcome of a case. The details are many and the above survey is just that- a survey reflective of the general rules and the courts application of them at the time of this writing. It cannot be depended on as applicable in any specific situation or as a substitute for legal advice in relation to a specific case.