One of the main reasons for clashes between the religious population and outgoing Supreme Court President Aharon Barak has been the court's tendency to limit the authority of the rabbinic courts. Yesterday, three days before Barak's retirement, he handed down one more ruling in that spirit, determining that rabbinic courts do not have the authority to annul a marriage between spouses of different religions.
"The authority of all religious courts is conditioned on the religious or ethnic membership of those involved in the matter," Barak ruled, a decade after a petition was first filed on the matter. "The unique judicial authority of the rabbinical courts is conditioned on both partners being Jewish."
And if one of the parties does not belong to the same religion as that governed by the religious court, then, Barak wrote, "the court does not have judicial authority."
Barak quoted an article by the late law professor Menashe Shava saying that hundreds of mixed couples have asked rabbinical courts to annul their marriages in the wake of mass immigration from the former Soviet Union, and that the rabbinical courts regularly agree to do so.
The ruling comes 10 years after an attorney from Jerusalem, Meir Saragovi, filed a petition with the High Court of Justice arguing that the religious courts are exceeding their authority by annulling marriages involving non-Jews. The first hearing was held in 1998, and the rabbinical courts agreed to issue an order banning judges in the rabbinical courts from hearing cases involving mixed couples, pending a High Court ruling on the matter. Since then, rabbinical courts have heard such cases in only a few instances.
The reason for the many delays in the case is that the state was attempting to pass a law that would clarify the matter. The amendment proceedings for the Marriage Nullification Law came to a close in November 2005, but all the clauses related to nullifying a mixed marriage were deleted, putting the ball back in Barak's court.
The legal adviser of the rabbinical courts, attorney Shimon Yaakovi, argued in favor of rabbinical court annulments, as long as both spouses gave their consent. He said the practice serves a key goal of the rabbinical courts: limiting mixed marriage.
The other side was represented by the attorney general, who said the rabbinical annulments could lead to several legal problems; for instance, the consent of the non-Jewish partner may not be freely given.
Rabbinical courts director Rabbi Eliyahu Ben-Dahan said he regretted that the courts would no longer be able to provide immigrants from the former Soviet Union with a "short, efficient and reliable" means of annulling their marriages.
Rabbi Gilad Kariv, an attorney with the Reform Movement's Israel Religious Action Center, said he welcomed the move. The High Court, he said, has once again prevented the rabbinical courts from expanding their authority and intensifying the distress of those who require their services.
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