Case Number

HCJ 8638/03

Date Decided

4-6-2006

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This petition puts to the test the question of the Rabbinical Court's authority to adjudicate a property dispute between a couple after the divorce proceeding between them has been completed, and it focuses on an alleged breach of the divorce agreement by one member of the couple. Is the matter within the jurisdiction of the Rabbinical Court or is it within the power of the civil judicial instance; and if the Rabbinical Court does indeed have authority to adjudicate the matter, what is the source of the authority and from where does this authority derive? Is it from the law; is it from the parties' agreement in arbitration or otherwise? And what is the nature of this authority?

The Supreme Court, sitting as the High Court of Justice, granted the petition and held (per Her Honor Justice A. Procaccia, with the concurrence of His Honor Vice President (Ret.) M. Cheshin and His Honor S. Joubran) that –

The High Court of Justice's intervention in religious court decisions is limited to extreme cases of ultra vires, infringement of the principles of natural justice, departure from the provisions of law aimed at the religious court or when equitable relief is necessary where the matter is not within the jurisdiction of another court or tribunal. The subject matter of the petition justifies this Court's entertaining the matter on grounds of the Rabbinical Court's exceeding the jurisdiction vested in it.

The Rabbinical Court is a state judicial instance, which was established by virtue of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: "the Rabbinical Courts Jurisdiction Law"), and it derives its power and jurisdiction therefrom, and it has only those jurisdictional powers that the state law has given it.

The original powers of the Rabbinical Court were set in the Rabbinical Courts Jurisdiction Law and they are built of exclusive powers by virtue of the law and powers that are parallel to the civil court and the Rabbinical Court that are vested by virtue of the parties' agreement. The case law has recognized the existence of the judicial instance's inherent ancillary power that derives from the original power of the Rabbinical Court by virtue of the law, and in special circumstances grants it jurisdiction to again hear a matter upon which it has ruled in the past.

Is the Rabbinical Court vested with jurisdiction to decide a dispute by virtue of the parties' agreement, where such jurisdiction is not in the scope of the statute that empowers the Rabbinical Court or within the ancillary powers that are vested in it? The parties' agreement to vest jurisdiction in the Rabbinical Court might take on two guises: one, simple agreement, irrespective of the provisions the Rabbinical Courts Jurisdiction Law; the other, agreement intended to empower the Court to deliberate and decide on a dispute as an arbitrator. A court's jurisdiction is vested by law and it has no power to derive it from the parties' agreement except were the law itself has seen fit to recognize such agreement in certain circumstances as the source of jurisdiction. A similar approach is also taken with regard to the judicial instance's power to adjudicate by way of arbitration. Since the state judicial instance merely has the subject matter jurisdiction conferred to it by statute, it is not vested with power to deliberate and adjudicate a matter as an arbitrator by virtue of the parties' agreement, unless it has been expressly given that power by statute. The Rabbinical Court does not have power to hear and decide a matter that is not one of those that is within its exclusive jurisdiction in accordance with the statute or within its parallel jurisdiction, even if the parties have given their agreement to its jurisdiction. According to the same way of thinking, the Rabbinical Court has no power to decide a dispute as an arbitrator by virtue of an arbitration agreement between the parties in a matter which by its nature is not within its legal jurisdiction.

Is the respondent's answer against the petitioner within the bounds of the Rabbinical Court's subject matter jurisdiction? The respondent's cause of action is the enforcement of a contractual indemnity provision concerning property in the divorce agreement that obtained the force of a judgement of the Rabbinical Court, further to which the parties' divorce was completed. The source of the Rabbinical Court's exclusive jurisdiction in matters of marriage and divorce in accordance with the Rabbinical Courts Jurisdiction Law does not apply because the subject of the claim is a property matter after the dissolution of the parties' marriage and a matter of "marriage and divorce" is not involved. Nor is it a matter "connected with a divorce suit". The respondent's cause of action is a new one, the subject of which is the enforcement of a divorce agreement or an application for the enforcement of a divorce award, based on a divorce agreement. The Rabbinical Court does not have jurisdiction either by virtue of the parties' agreement pursuant to section 9 of the Law, which deals with the Rabbinical Court's parallel jurisdiction that is vested by virtue of the parties' agreement in matters of personal status according to article 51 of the Palestine Orders in Council or the Succession Ordinance. Subject matter jurisdiction under section 9 is limited solely to the matters mentioned in it – matters of "personal status" as defined in the Palestine Orders in Council or the Succession Ordinance. In a dispute that does not relate to those matters, even the parties' agreement cannot vest jurisdiction in the Rabbinical Court. The Rabbinical Court therefore has no original jurisdiction to hear the respondent's claim.

The Rabbinical Court does not have "ancillary" inherent jurisdiction to try the respondent's claim. In the instant case, the Rabbinical Court's ancillary jurisdiction, insofar as it relates to setting aside a divorce award by reason of a defect in making the divorce agreement, that might have given the Rabbinical Court ancillary jurisdiction to try its revocation, is of no relevance. Similarly, the Rabbinical Court has not acquired ancillary jurisdiction by virtue of a material change in circumstances after making the divorce award that justifies setting aside the divorce agreement and the divorce award since the respondent's claim is for the specific performance and enforcement of the divorce agreement. Again, the Rabbinical Court's ancillary jurisdiction to retain jurisdiction in a matter pending before it until the proceedings conducted before it are concluded will not vest it with jurisdiction. The second respondent finally and unconditionally adjudicated herein and awarded the force of judgement to the divorce agreement. A property dispute that has arisen between the parties after the award of judgement gives rise to a new cause of action and necessitates the institution of new proceedings in accordance with the jurisdictional framework prescribed by law.

Nor does the Rabbinical Court have jurisdiction to hear the matter by virtue of the doctrine of "continuing jurisdiction". Continuing jurisdiction is vested where an instance has tried a particular matter in the past and in special circumstances need has arisen to set aside or modify an earlier decision due to a material change that has occurred in the circumstances upon which the original decision was based. The claim seeks to enforce the agreement and has no place in the continuing jurisdiction vested in the Rabbinical Court.

The Rabbinical Court does not have ancillary jurisdiction to try the new cause arising further to the divorce agreement in order to interpret the agreement. Having completed and exhausted its power to rule on the matter of divorce, it no longer has ancillary power to interpret the divorce agreement or the divorce award. Moreover, in the instant case no question of interpreting the divorce agreement has arisen and a claim for its enforcement has been brought instead.

A rabbinical court cannot be empowered to decide a dispute between litigants in arbitration, in a matter that is not within its subject matter jurisdiction according to the statute. In the instant case, it also appears from the divorce agreement that its contents cannot be construed as an arbitration clause, equal to "an arbitration agreement" between the parties. The power of an arbitrator to decide a dispute between parties derives from an arbitration agreement. The condition precedent for arbitration is the existence of an agreement to refer a dispute to arbitration. If parties have agreed to refer disputes between them to the decision of some entity but it is not clear that a decision in arbitration is involved, then there is no arbitration agreement.

By deciding the respondent's lawsuit against the petitioner for the enforcement of a contractual indemnification provision in the divorce agreement, the Rabbinical Courts exceeded the power vested in them by law. Consequently, the decisions of the first and second respondents are void.

Keywords

Arbitration, Constitutional Law -- Basic Law: Administration of Justice, Constitutional Law -- Judicial Review, Constitutional Law -- Parenthood, Constitutional Law -- Property Rights, Contracts -- Performance, Contracts -- Terms, Torts -- Breach of statutory duty, Property, Jewish Law -- Rabbinical Courts, Jewish Law -- Family Law, Family Law -- Marital property, Family Law -- Divorce

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