Family and Inheritance LawOn 22.09.19, the Supreme Court, in Family Leave to Appeal (Bem) 7628/17, resolved (at least for now) a judicial debate that has lasted half a century over whether the issue of child support may or may not be joined to a divorce claim in the Rabbinical Court.
The question begins with the law itself. Section 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, enacted in 1953, provides as follows: “Where a suit for divorce between Jews has been filed in a rabbinical court, whether by the wife or by the husband, a rabbinical court shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple”.
On its face, the wording of the law is clear. The law states explicitly that once a divorce claim has been filed by the husband or the wife, the issue of child support may be joined to it. The problem is that, as in many cases, even though the wording of the law appears clear, the court interprets it differently from its plain literal meaning.
The leading judgment on this issue was given back in 1969 – LCA 120/69 Shragai v. Shragai, PD 23(2) 171 (1969). The children in that case must be adults today, yet the Shragai ruling continues to be cited again and again to this day whenever the issue of joining child support to a divorce claim arises.
The Shragai ruling held that a distinction must be drawn between a claim for reimbursement of support that a parent spent or is due to spend on the children under a judgment already given or under another undisputed entitlement to support – a remedy that may be joined to a divorce claim in the Rabbinical Court – and a standard child support claim, in which the children's needs are examined – a remedy that may not be joined to a divorce claim.
Since the Shragai ruling in 1969, several Supreme Court judgments have been given; some affirmed this rule, while others stated, at least in obiter dicta, the opposite of this rule.
Over the years, judgments were even given that tried to find a middle ground: on the one hand, the issue of child support may be joined to a divorce claim in the Rabbinical Court; on the other hand, this does not prevent a parent from filing a child support claim on the minor's behalf in the Family Court.
A judgment worth mentioning is HCJ 5933/14 of 11.09.14, which reignited the debate, held that child support may be joined to a divorce claim, and even led to a further hearing on the same matter, in which it was held that although child support may be joined to a divorce claim, this does not prevent the filing of an independent child support claim in the Family Court.
Finally, the most recent judgment, mentioned in the first paragraph above, was given. The minority opinion in that judgment held that the Shragai rule should be departed from and that joinder of child support should be permitted in divorce claims filed with the Rabbinical Court.
One of the minority opinion's reasons was that, despite the intensifying race to jurisdiction between the Family Court and the Rabbinical Court, preference should be given to the purpose of preventing duplicate proceedings and resolving all of the couple's matters in a single forum, as well as bringing the parties' disputes to a quick end.
With all due respect, we take a different view for several reasons. First, it must be remembered that the starting point differs between the forums. Jurisdiction over divorce matters is vested exclusively in the Rabbinical Court, and therefore only it can hear all of the couple's matters. Had the Family Court also held such jurisdiction, a comparison might perhaps have been drawn.
Second, a dispute ends when the longest disagreement between the spouses ends. Take, for example, a couple without children who need to divorce and settle only their property matters.
One option is that both issues are heard in the Rabbinical Court. A second option is that the divorce is heard in a Rabbinical Court and the property is heard in the Family Court. Will the fact that the proceedings are split between two forums lengthen the litigation? The answer is that there is no connection whatsoever.
The parties can divorce quickly and settle the property matters slowly, or vice versa. In any case, the split itself will not be what lengthens the litigation, and consolidating the proceedings specifically in the Rabbinical Court will not be what shortens them.
On the other hand, the race to jurisdiction is precisely an issue that must not be intensified, since it is what intensifies the conflict. Perhaps the law should even be amended to set out the powers of each forum. For example, if the Rabbinical Court has exclusive jurisdiction over divorce, the Family Court would have exclusive jurisdiction over other aspects of the divorce proceedings.
A final point regarding the hearing of child support in the Rabbinical Court: as is known, for several years now spouses have been required to initiate a dispute resolution procedure before filing claims. Within this framework, the law provides that each of the forums may grant any interim relief, including with respect to child support.
It follows that while it is clearly not possible today to join child support to a divorce claim in the Rabbinical Court, where interim support is concerned, the Rabbinical Court has jurisdiction to hear the matter. Admittedly, this is “only” interim support pending a final decision, but a final decision can take a long time, and if that were not enough, interim support in many cases roughly signals the final outcome of the case, so much of the sting of the latest judgment has simply been blunted, and this deserves attention.