The High Court of Justice ruled last week that the rabbinic courts are not permitted to decide property disputes between a couple after its divorce has been completed, unless they have explicit legal approval to do so. The important innovation of this ruling is that it has rejected the rabbinic courts' authority to serve as arbitrators in financial disputes, even if both parties agree to the proceeding.
Justice Ayala Procaccia, who wrote the ruling with the approval of her colleagues - Justices Mishael Cheshin, the former Supreme Court vice-president, and Salim Joubran - emphasized that the rabbinic courts' legal authority was determined by the law governing rabbinic court jurisdiction, and said no court was permitted to grant itself authority that it had not been granted by the law, even if the parties agreed. The new decision generates many difficulties regarding past rulings by rabbinic court judges who acted as arbitrators. A legislative arrangement is therefore necessary to give validity to the previous rulings.
The obligation to honor the High Court ruling from now on is an elementary concept of a democratic government and of the rule of law. But this does not prevent the passage of a law that circumvents the High Court, as long as such a law does not impinge on basic legal principles. The very recognition of the authority of the legislature to alter the result of a ruling is the legacy of the judicial branch, and the recent High Court ruling does not contradict this. The ruling is based, as is appropriate, on the existing legal situation.
In its ruling, the High Court did, in principle, support preventing a situation in which a court decides various subjects with the agreement of the parties, in an effort to forestall a blurring of boundaries between a governmental judicial system and a system based on agreement. With all due respect to this perspective, one should still support legislation that would make rabbinic courts not only obliged to deal with marriage and divorce, but also authorized to deal with financial conflicts, including but not limited to those that arise in the wake of divorce, provided that the parties agree. In effect, authority with the agreement of the parties is less problematic than authority that coerces the parties to use a system they do not accept.
The expansion of the rabbinic courts? authority in particular, and of religious courts in general, in civil maters is not improper in principle, as long as the authority is activated appropriately. In its ruling, the High Court followed case law, whereby it intervenes in religious court decisions only in "extreme cases" in which the courts exceed their authority, deviate from the law relating to religious courts or impinge upon the principles of natural justice. The High Court's intervention in this case was justified. Now the Knesset must discuss this matter, since it has the authority to legislate the authority of any court.
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