Whose Jurisdiction?

Over this past winter break, I had the opportunity of participating in a study abroad program with Hamline University School of Law in Jerusalem. The course, Conflict Resolution from Religious Traditions, which was held at Hebrew University, discussed culture clashes and various ways in which to deal with the clash. However, the class also went into some detail about the court system in Israel, what the structure is, who deals with what issues etc. What I found to be the most fascinating difference between the American Legal System and Israeli legal system is that not all matters are tried in civil court from the onset of a case. Religious courts have jurisdiction over most family law issues but the issues may be appealed in secular civil courts.

Religious courts, be it the Muslim courts, various Christian Ecclesiastical courts, or the Jewish Beit Din have original exclusive jurisdiction to marriage, divorce and alimony awards. In matters of personal status and family matter, consent of the parties is required to give the courts competent jurisdiction to adjudicate. Each religion has a very different view of marriage and divorce, and thus each court deals with the proceedings in diverse manners.

According to Rabbinic Law spouses mutual consent is sufficient grounds for divorce if the court is convinced of the seriousness of their intention. However, the writ of divorce only takes effect when the court or the couple is satisfied with property division, maintenance, and child support agreements. In Muslim courts, which follow shar’iyah law all one needs is the husbands consent.

There are 7 “recognized” Christian Ecclesiastical courts for the different Christian sects living within Israel. Catholic’s view marriage as sacred, and cannot be terminated merely through the parties consent, unless the marriage is declared null and void. The Armenian courts allow divorce, only if there are practical grounds for divorce. Protestant courts always allow divorce. Each different view yields a different result in trial, and differing rewards for maintenance, custody and child support.

Since Christians are the minority in Israel, most Christians do no limit the marriage pool to those who are within their specific sect but intermarry between the different sects. There is a high rate of intermarriage between the varying churches be it the Greek Orthodox Church, the Eastern Orthodox, the Catholic, non-Chaledonians and the Protestant. Thus a major concern when it comes to divorce, is which sects court has jurisdiction over the marriage and divorce? This issue also arises between the different religions. What court does a couple turn to when one member is Jewish and the other Christian?

If the parties are from different Christian sects or different religions, they must first petition in Supreme Court to determine which judicial forum and which substantive law to follow. Judicial officials decide which ecclesiastical court has jurisdiction, and if he or she determines that no ecclesiastic court has jurisdiction the matter will just go to civil court.

The question remains whether this is the most efficient way to determine what court has jurisdiction is a case of a mixed marriage. If the parties are in such disagreement over which religion they belong to, it is likely that one will appeal that religious courts decision. Unless the divorce is resolves largely in the parties favor, there is no reason for why they would listen to a religious court they don’t believe to be their own court. It seems as though it is a waste of resources to have to determine which court has jurisdiction if the issues will likely be appealed back in the civil court regardless. In cases where parties cannot choose which religious court they would like to follow, it is probably best to have a civil court try the case.