Case Number

C.A. 238/53

Date Decided

1-15-1954

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellants, Aharon Cohen and Bella Bousslik, went through a form of marriage ceremony in the office of their advocate. They had previously requested the Rabbinate to marry them but since the petitioner, Cohen, was regarded as of Priestly stock, and Bella Bousslik was a divorcee, the Rabbinate refused to solemnize their marriage because of the Biblical injunction forbidding the marriage of a "Priest" (kohen) and a divorced woman.

The office of the Registration of Inhabitants refused to register Cohen as a married man, and the appellants then sought a declaration in the District Court that they were lawfully married. After the case had been heard but before judgment, the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, was passed by the Knesset. Section 1 of this Law confers exclusive jurisdiction in matters of marriage of Jews in Israel, being nationals or residents of the State, upon the Rabbinical Courts. The District Court declined to make the declaration sought, and the appellants appealed.

Held by a majority (Silberg and Sussman JJ.)

(1) As the Rabbinical Courts Jurisdiction (Marriagge and Divorce) Law, 1953, alters substantive rights, it does not operate retrospectively and the District Court had jurisdiction to make the order sought.

(2) Notwithstanding the Biblical prohibition of a marriage between a "Kohen" and a divorcee, once such a marriage has been entered into in a manner recognized by Jewish law, that law regards them as husband and wife.

(3) In the present case the marriage had been entered into in a manner recogniszd by Jewish law (by the intended husband handing the intended wife something of value, namely, a ring, in the presence of two witnesses) and accordingly the petitioners were entitled to the declaration sought.

Held by Cheshin J. dissenting:-

1) The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, affected procedure only, and operated with retrospective effect, and the District Court accordingly had no jurisdiction.

2) The granting of a declaratory order is a matter within the discretion of the courts and in the circumstances of the present case that discretion should be exercised against the petitioners and the order refused.

Keywords

Courts -- Retrospective Judgment, Family Law -- Marriage, Jewish Law -- Family Law

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