Case Number

HCJ 125/49

Date Decided

4-16-1950

Decision Type

Original

Document Type

Full Opinion

Abstract

A Civil Court in Paris granted a decree of divorce to the petitioner and second respondent (being respectively the wife and the husband), who were French nationals domiciled in France, and declared that the petitioner was entitled to the custody of the children, a girl aged seven years and a boy aged four and a half years at the time of the application, but ordered that the second respondent have access to them at stated times. On one of these occasions the second respondent smuggled the children out of France and brought them to Israel, where they were living with him in an immigrants' camp. The Paris Court reaffirmed the petitioner's right to custody and annulled the second respondent's right of access. The petitioner applied for an order in the nature of habeas corpus against the second respondent. It was her intention to take the children back to France; the second respondent declared that he would bring up and educate the children in Israel.

Held: making absolute an order to deliver the children to the petitioner,

1. If the actual right to custody was the subject of a bona fide dispute, petitioner's claim would be a matter of personal status which must be brought before the District Court or the Rabbinical Court. But here the question of custody had already been determined, and since the application was to enforce a right already judically recognised, the High Court had jurisdiction to grant an order in the nature of habeas corpus.

2. A foreign judgment given by a competent court which determined the right to custody of the children of a marriage as a matter incidental to a decree of divorce, is a judgment in rem binding on all the world, and will be recognized in Israel, subject to the question of the welfare of the children.

3. A foreign judgment validly pronounced is presumed to be free of error both as to fact and as to law, and it is immaterial, from the point of view of its recognition in Israel, that it may be subject to appeal.

4. The fact that the parties, who bad been married in Paris both by civil process and before a Rabbi, had not been divorced in accordance with Rabbinical Law, might render invalid a second marriage contracted by either of them, but it could not affect the question of custody of the children.

5. In the circumstances of this case, and for the reasons set out in the several judgments of the court, the interests of the children were not such as would require the court to decline to give effect to the foreign judgment.

Keywords

Family Law -- Child Custody, Family Law -- Divorce, International Law -- Relevance of foreign law in judicial decisions, Jewish Law -- Family Law, Jewish Law -- Rabbinical Courts

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