Israel's Rabbinical Courts May Soon Have Unprecedented Power Over non-Israeli Jews

Government pushing bill that would punish foreign Jewish men who refuse to grant a divorce and would also apply to some Israelis married outside of the rabbinate

FILE PHOTO - A religious couple walks past the entrance to the Jerusalem Rabbinical Court, 2014.
Olivier Fitoussi

A government bill giving Israeli rabbinical courts the authority to punish foreign Jewish men who refuse to grant their wives a religious divorce is advancing through the legislative process.

The bill would allow these courts to prevent non-citizens in these circumstances from leaving Israel after a visit, or even to jail them. Such steps against foreign nationals are thought to be unprecedented.

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The Knesset Constitution, Law and Justice Committee is slated to discuss the bill, which was jointly sponsored by the Justice Ministry and the Religious Services Ministry, next week.

Numerous organizations and experts have warned against the legislation. The official justification for the amendment is the problem of Jewish women overseas whose husbands refuse to grant them a religious divorce. Currently, the bill’s explanatory notes say, there is no overseas agency that can force the husband to grant the divorce, so the women remain trapped in unwilling marriages.

To solve this problem, however, the government has proposed a significant expansion of the rabbinical courts’ powers with almost no oversight.

Current law allows the rabbinical courts to handle divorces of Jews who aren’t Israeli citizens, but only if one member of the couple has some connection to Israel —– for instance, by having lived there for some time before suing for divorce. The new bill would eliminate this restriction and give the courts authority to hear divorce cases for any Jew anywhere, as long as “there’s a real fear that a [religious] divorce can’t be obtained at the couple’s last place of residence outside Israel.”

Even if a Jewish divorce is obtainable abroad, Israeli rabbinical courts will still be able to rule in foreigners’ cases if undefined “special circumstances” exist. One of the few restrictions the bill retains is that the divorce suit must be filed in Israel for the rabbinical courts to hear it.

Prof. Celia Wasserstein Fassberg of Hebrew University’s law school, a specialist in international law, said the rabbinical courts’ power to rule in divorce cases involving Jews who aren’t Israeli citizens is already exceptional. The bill will expand their power even further, “to Jews with no connection to Israel,” she wrote in a position paper submitted to the Knesset committee.

“The fact that Israel is the state of the Jewish people doesn’t necessarily justify asserting such exceptional power, and it’s doubtful Diaspora Jews would look kindly on being subordinated to Israel’s judicial authorities just because they are Jews,” she added.

Dr. Sharon Shakargy, also of Hebrew University’s law school, noted that the sanctions rabbinical courts can impose on husbands who refuse to divorce their wives involve “severe, substantial infringements on fundamental freedoms under both Israeli and international law.” This is doubly problematic when applied to “someone who has no connection to Israel,” she added.

“Israel is unilaterally applying its authority to Jews all over the world, without in any consideration of their desires and willingness,” Shakargy continued. “This bill violates the accepted rule that states try hard not to ‘touch’ those who aren’t their citizens. It creates a situation in which Israel isn’t respecting the accepted legal boundaries.”

It’s not just the bounds of the law, but also those of the Jewish world that are at stake. A few weeks ago, Haaretz reported that a committee appointed by Diaspora Affairs Minister Naftali Bennett determined that some 60 million people worldwide have some connection to Judaism or Israel, including some whom the government should consider bringing to Israel and converting. These recommendations were part of Bennett’s broader effort to “strengthen ties with the Diaspora,” which has also included awarding massive funding to organizations, mainly Orthodox ones, to conduct activities for overseas Jewish communities.

One source involved in this issue said the government had already told Reform and Conservative Jews “they aren’t Jewish enough” by canceling plans for an expanded egalitarian prayer area at the Western Wall. “Now, it’s adding that Diaspora Jewry must subordinate themselves to Israeli rabbinical courts. It’s thereby creating an Israeli Vatican.”

Batya Kahana-Dror, director of the Mavoi Satum organization, which helps women whose husbands refuse to divorce them, agreed. “Israelis have gotten used to the rabbinate’s monopoly over personal life, but now it’s trying to steer the lives of all Jews worldwide – including those who haven’t chosen it,” she said.

The Israel Religious Action Center, is the Reform movement’s legal arm, also said this expansion of the rabbinate’s authority to Diaspora Jewry has “no legislative parallel.”

Rabbi Gilad Kariv, head of the Reform movement in Israel, added that if the law were really intended to help agunot, it should explicitly say the rabbinical courts can only hear cases involving these so-called chained women. Instead, it allows any Jew to apply to the Israeli rabbinical courts. Since men have more power than women under Jewish law, this is liable to give them additional tools to harm women, he charged.

Some experts denied that the legislation was even needed. Shakargy, for instance, suggested that overseas rabbis could simply add a clause to the marriage contract recognizing the Israeli rabbinate’s authority. That would make couples aware of the change, and would also “be easier and more reasonable from an international perspective,” she said.

The bill contains another innovation that’s completely irrelevant to the problem of agunot: a provision extending the rabbinical courts’ authority to Jews, including Israelis, who married in civil rather than religious ceremonies, if a woman has been unable to find a husband living in another country to obtain a divorce from him.

Kahana-Dror said most rabbinic authorities hold that civil marriages don’t count as marriage under Jewish law and therefore don’t need a Jewish divorce.

Bar-Ilan University’s Rackman Center for the Advancement of Women’s Status agreed that there’s no justification for subordinating Israelis who chose to marry in civil ceremonies overseas to the Israeli rabbinical courts. There is “no correlation between the [bill’s] explanatory notes and the actual wording of the provision,” it said in a position paper submitted to the Knesset, adding that this provision violates the religious status quo.

The Rackman Center’s director, Prof. Ruth Halperin-Kaddari, noted that even today, the rabbinical courts have de facto authority over divorces of Jews who married in civil ceremonies, but due only to Supreme Court rulings, rather than to legislation.

The bill is loosely based on one by MK Aliza Lavie (Yesh Atid). But hers applied only to overseas Jews unable to obtain a Jewish divorce, and she said she didn’t support its expansion to people who wed in civil ceremonies.

The Justice Ministry referred questions to Justice Minister Ayelet Shaked’s spokesman, Pinhas Wolff. He said the cabinet approved the bill after discussions in the ministry, and that it was prompted by a request from the Conference of European Rabbis.

The government approved the bill because Israel, as the nation-state of the Jewish people, has an obligation to help women unable to obtain a Jewish divorce where they live, he added. He insisted that it limits the rabbinical courts’ authority “to appropriate cases.”

The Rabbinical Courts Administration also said Israel has an obligation to help Jews in distress anywhere, and the bill is intended only to help overseas Jews unable to obtain a Jewish divorce.