The Dilemma of Where to Apply: The Rabbinical Court or the Family Court? And is there really a difference between a man and a woman in this dilemma?
As mentioned, the Rabbinical Court is part of the Israeli judicial system.
In the State of Israel, there are two judicial systems with parallel jurisdiction to deal with matters related to divorce (alimony, property division, child custody, child education, etc.): the Family Courts and the Rabbinical Courts.
In this situation, where there are two judicial bodies with parallel jurisdictions, a “race to jurisdiction” situation is created between the two bodies.
In practice, this refers to cases where one of the spouses has preempted the other and filed lawsuits in one of the courts – the court that is convenient for them.
Usually, the husband will rush to file a linked divorce petition with the Rabbinical Court, as it is generally believed that the Rabbinical Court favors the husband, while the wife will prefer to apply to the Family Court. However, there are certainly some cases where the opposite may also be true.
The Race to Jurisdiction
In most cases, there is great importance to the question of which court will hear the parties’ case, as this can determine the fate of the case, which is why this concept is called “the race to jurisdiction” and as its name implies, it means – who will run first, the husband or the wife to seize jurisdiction, when each party will apply to the court that is convenient for them.
Due to the “race to jurisdiction”, as mentioned, the one who preempts and applies to the court that is convenient for him determines the “agenda” of the conflict, its nature, and there is a chance that the result that will be obtained will be to his satisfaction.
The prevailing opinion is that it is preferable for a man to litigate in the Rabbinical Court, while the preferred court for a woman is the Family Court, however it is important to note that this opinion is not always correct.
There are certain cases where it is strategically preferable for a woman for the proceedings between the spouses to take place in the Rabbinical Court.
The jurisdiction to deal with matters related to the divorce of a couple, namely property matters, alimony, child custody and education, is vested in parallel with both the Family Court and the Rabbinical Court.
While child custody matters are inherently linked to the husband’s divorce petition and the husband does not need to explicitly link these matters, in other matters – namely in the matter of alimony and property matters – in order for the Rabbinical Court to acquire exclusive jurisdiction, explicit linkage is required.
It should be noted that it is not possible to link child support to the divorce petition and these are always under the jurisdiction of the Family Court, unless there is an explicit agreement between the two spouses that the minors’ support will be discussed before the Rabbinical Court.
According to the law, when one of the two courts – the Rabbinical Court or the Family Court – has acquired jurisdiction to hear a matter brought before it, the other court will not hear the same matter even if it has parallel jurisdiction.
The well-known פלמן בג”ץ (8497/00) established the הלכה that when one of the two courts – the Rabbinical Court or the Civil Court (now the Family Court) – has acquired jurisdiction to hear a matter brought before it כדין, the other court will not deal with the same matter, even if it has parallel jurisdiction.
However, it is important to emphasize that even if your spouse has preempted you in applying to one of the courts, this is not yet the last word and the end of the verse, since even if a linked divorce petition has been filed with the Rabbinical Court, the petition must still meet a number of tests in order for the Rabbinical Court to be competent to hear it, otherwise the jurisdiction will be transferred to the Family Court.
The case law established 3 auxiliary tests aimed at preventing abuse of the linkage arrangement by either spouse:
- The divorce petition must be sincere.
- The linkage must be sincere.
- The linkage must be done כדין. According to the case law, only if all 3 conditions are met, will the Rabbinical Court acquire exclusive jurisdiction in matters linked to the divorce petition, as stated in Section 3 of the Law.
Sometimes the husband is negligent and files a defective divorce petition that can be attacked, hence the utmost importance of drafting a divorce petition that cannot be transferred.