Case Number

LFA 3151/14

Date Decided

5-4-2015

Decision Type

Appellate

Document Type

Full Opinion

Abstract

An application for leave to appeal a judgment by the District Court concerning the fixing of a time limit for spousal support awarded the Applicant despite the fact that the Rabbinical Court did not rule that she is a ”recalcitrant wife.” The application was heard as an appeal.

The parties were married to each other for over 35 years. The Applicant was rarely employed outside the home during the marriage, and the Respondent was the sole supporter. The parties have been separated since 2011, and have conducted various legal proceedings related to the separation – divorce proceedings, proceedings concerning the woman’s right to support, and proceedings concerning the division of the family assets. Both the Family Court and the District Court believed the Applicant should be awarded support for a fixed period of time. In the course of the proceedings, the Court addressed the question of whether the Family Court could revoke a woman’s support due to her “get recalcitrance” in the absence of a decision by the Rabbinical Court ordering her to accept a get, and in the absence of a positive finding that the couple’s marriage had come to an end. What are the considerations that the Family Court must take into account when it is requested to fix a time period for support, or revoke the support of a married woman who it believes is refusing to agree to a divorce for financial reasons?

The Supreme Court (per D. Barak-Erez J., Z. Zylbertal concurring with the operative outcome, over the dissenting opinion of E. Rubinstein D.P.) granted the appeal:

In Justice Barak-Erez’s view, the principle of comity between courts required the civil court’s restraint and thus, in her opinion, as long as the couple’s divorce proceeding is pending in the Rabbinical Court, the civil court may not base its ruling on spousal support upon “get recalcitrance” in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion stems not only from the principle of comity between courts, but also from the Jewish religious law that applies to this case, which dictates that revoking the right to spousal support in a case of a divorce obligation must be accompanied (based on many opinions) with supplemental steps that are under the exclusive jurisdiction of the Rabbinical Court, and which require the active involvement of the Rabbinical Court (entrusting a get [Jewish bill of divorce] and the financial obligation required under the ketubah [Jewish marriage contract] to a third party).

In her opinion, the means at the disposal of the civil court for addressing the phenomenon of “get recalcitrance” deriving from financial motivations, is through awarding “rehabilitative” support under the general principles of the civil law (on the basis of the principles of reliance and good faith.) Of course, since these are “civil” principles, they would also apply, mutatis mutandis, to a divorcing man under these very same conditions. In her opinion, it is possible to award rehabilitative support under civil law only where the partner is no longer entitled to support under the personal status law, and this at two points in time: “when before the divorce is granted, there is cause for revoking support; or after the granting of the divorce has extinguished the right to support.” The central factor that must be considered in order to determine wither one of the partners is entitled to rehabilitative support, and its amount, is the prospect for alternative sources of income. Therefore, the questions of the home-based partner’s vocational or professional training and work experience, age (including how close they are to the age of retirement), the value of the couple’s property and whether it has already been divided, are of importance. On the other hand, considerations of fault as to the responsibility for the separation are not relevant.

As applied to the matter before the Court, Justice Barak-Erez was of the view that the appeal must be granted, and that as long as there is no change in the couple’s circumstances, including the circumstances surrounding the proceedings in the Rabbinical Court, the Respondent must continue to pay the Applicant support as decided by the Family Court, without setting a termination date.

As opposed to this, the Deputy President, joined by Justice Zylbertal, disputed Justice Barak-Erez’s position regarding jurisdiction. In their view, under the principle of good faith, the civil courts may revoke a married woman’s spousal support when they are persuaded that the marriage has effectively ended and that the woman refuses to accept her get solely for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that often the civil court is called upon to make incidental findings that are required for the determination of the issue of spousal support and property matters that are in its primary jurisdiction (section 76 of the Courts Law.) According to the Deputy President, a civil court’s finding whereby a woman loses her spousal support for being a “recalcitrant spouse” does not lead to the end of the marriage in the Jewish halakhic sense, and does not conflict with the principle of comity between courts. The Deputy President added that he did not rule out the method proposed by Justice Barak-Erez as to the awarding of rehabilitative support in appropriate cases, however in his view, it is a tool in the Family Court’s “toolbox”, which is to be used according to the circumstances of the case in order to resolve the issue of alternative sources of income (while noting other tools, such as an unequal division of resources.)

According to the Deputy President, under the specific circumstances of the case at hand, and once the lower courts, including the Rabbinical Court, were persuaded that the marriage had come to an end, and that the Applicant is delaying the divorce only to improve her financial circumstances, the Family Court, and subsequently, the District Court, correctly fixed the period of support payments, and the District Court’s approach which met the Applicant more than halfway, is acceptable. Therefore, in his view, the appeal must be denied. At the end of the period set (December 2014), the possibility to extend the period of support payments would be revisited.

Justice Zylbertal, who, as noted, concurred with the view of the Deputy President on the matter of jurisdiction, concurred with the view of Justice Barak-Erez as to the operative result, whereby the appeal must be granted.

In Justice Zylbertal’s opinion, the considerations the court must take into account before revoking a woman’s support due to “get recalcitrance” are, inter alia: what is the reason for the refusal – personal vindictiveness or extortion, or a lack of sufficient financial protection for the financially weaker partner upon divorce, and the woman’s ability to continue to support herself after the divorce. In this context, the court must examine the woman’s ability to secure an income, and to this end, it should also consider her age, her share in the husband’s pension, and when she will be entitled to receive her share of those funds.

According to Justice Zylbertal, in the circumstances of this case, it is inappropriate to fix a timeframe for the Applicant’s support, both because her delaying of the divorce is not necessarily the result of vindictiveness or extortion, that is – not a lack of good faith that warrants fixing the period of support – and in light of the understandings that characterized the couple’s marriage, the Applicant’s age (over 50), and her prospects of integrating into the workforce during the short adjustment period left until the partners reach the age of retirement.

It should be noted that, in addition to the above, the members of the panel briefly discussed an issue related to the matter at hand – the possibility of awarding financial compensation in cases of get recalcitrance in the framework of a tort suit.

Keywords

Family Law -- Divorce, Jewish Law -- Women, Jewish Law -- Rabbinical Courts, Jewish Law -- Family Law

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