Has Secular Shaked Turned the Supreme Court Into A Rabbinic Court Enabler?

Few people seem to have seen the report about a contentious decision by the new Supreme Court, new because of judges recently appointed whose appointments were facilitated by Justice Minister Ayelet Shaked of the right-wing Jewish Home party. Some people only have to see right-wing and they see conservative, or more to the point, reactionary and backward. It matters not that Shaked is secular. She is a member of a religious Zionist party — all one needs to know, it seems.

A Facebook friend who posted about the case remarked about how a recent Supreme Court decision shows what dangerous waters Israel is now in. She sees it as if the Supreme Court has become tainted in a way that will set back by decades hard won achievements regarding gender equality. The headlines of the only three articles I found online in English reporting on this case substantiate this impression:

1. Haaretz – High Court Denies Property Rights to Adulterous Woman
2. The Jewish Press – Moving Right, High Court Backs Rabbinic Ruling Cutting Unfaithful Wife from Community Property
3. Hidush News: Shaked Won – The ‘Jewish’ Has Beaten the ‘Democratic’

A superficial reading of these articles adds weight to the argument that the new Supreme Court appointees are damaging the Court’s functioning as a protector of democracy and civil equality.

The case involved a petition to the Supreme Court asking it to overturn the Rabbinic Court ruling in which a wife of thirty years, upon divorce, was denied an equal share of the home in which they both had lived for the past two decades because she had committed adultery in the last few months of the marriage. Adjudicating on this case were three judges, two of whom were new appointees, both religious. It was enough to indict the new Supreme Court judges to learn that these two upheld the Rabbinic Court ruling giving weight to the adultery as a reason not to let the wife have a share in what otherwise would/should have been considered joint property.

But was it? Joint property, I mean. And how is it possible that in 2018, adultery was found reason enough to deny her rights? Shaked! What have you done to our society? I think it is possible that nobody will expect my conclusions. And it is also possible that some of you will be upset with me as you read (hopefully you will understand where I am coming from when you get to the end).

We need to consider the issue with cool heads.If you are interested in what the Hebrew press wrote, you can read here and here, for example. If you can read Hebrew, you may be interested in the ruling in its entirety.

Division of Powers Between the Rabbinic and Civil Courts

Here are the important points to remember:

1. In 1973, the Financial Relations Law was passed and amendments added over the years. It stated that joint property would be split evenly between divorcing couples but if a spouse had property before the marriage or inherited property during the marriage, that would not be considered joint property UNLESS it could be proven that there was an intention for that property to be considered joint property. (Google English translation of the law here.)
2. In 1994, the Supreme Court overturned a Rabbinic Court decision with a ruling that came to be called The Bavli Ruling. It stated that, while the Rabbinic Courts can decide on matters of marriage and divorce, only civil law pertains to division of property, except in special circumstances, and the Rabbinic Courts must rule according to that. Note, this is a precedent and not a new law or amendment to an old law.
3. In 2008, a Supreme Court ruling in case 8928/06 determined that adultery is not a legitimate reason for denying equal sharing of property as part of a divorce settlement. This is also a precedent and not set down in law.

The three judges who sat on this latest case discussed the issues related to whether or not the wife’s adultery should have been brought to bear by the Rabbinic High Court when it struck down the decision made in the Haifa Rabbinic Court. I am not a lawyer and so my impressions should be taken with a grain of salt, but I do find it curious to see how much lawyers like to pontificate even when what they are pontificating about seems not quite to the point.

The point of whether or not adultery should have influenced their decision is secondary to whether or not the Rabbinic High Court (HRC) acted within its sphere of authority when it adjudicated on the issue of property rights in a divorce case. If the HRC acted beyond its authority, then its ruling can be struck down without further ado. However, if the HRC was within its rights to rule in this case, then the Supreme Court needs to consider the question regarding whether or not it properly weighed the relevant factors involved. I will deal with each of these questions in that order.

Did the Rabbinic High Court Act Within its Sphere of Authority?

The answer is: yes and no. And it is precisely because of this answer that there is a problem in the law. The answer is yes according to the law because no law has been passed in the Knesset taking away from the Rabbinic courts the authority to rule in property matters. The answer is no because of the precedent of the Bavli Ruling that has been used since it was made. I know that it is customary to use precedent as an important element in decisionmaking in the courts, but until the precedent has been made into law it cannot be seen as binding in all cases.

And I am in favour of precedent not being binding. And I think feminists would be also because before the Bavli precedent, women were unfairly discriminated against in the rabbinic courts. According to the Jewish Telegraph Agency (JTA), Bavli changed that quite dramatically, and quite to the chagrin of the rabbinic authorities (of course). A precedent set in the High Court is a guide to future adjudication and the rabbinic judges did not want to rule according to civil law. But until these newest appointments to the Supreme Court, they did not openly challenge the Bavli Ruling because they did not want to see further rulings against them on the part of the activist Supreme Court.

The matter was supposed to have been taken to the Knesset in 1994. However, I am sure that the ruling coalition was hesitant to submit a bill seeking to turn the Bavli Ruling into actual law because that would have the same impact on any coalition in which the Haredi parties sit as attempts to pass laws compelling Haredi conscription into the IDF. It challenges the delicate status quo between the Haredi and other parties when the Haredi parties are required in order to form and maintain a stable coalition government.

That situation has not changed now. However, in spite of the appearance of the Bavli Ruling having been overturned in this case, it was not overturned in fact; the superficial appearance of it having been overturned has introduced uncertainty into the courts or at least in the minds of the public. There are two lessons here, one of which seems as unlikely to happen as the two-state-solution. Israel has not yet tackled head-on the delicate issue of finding the balance between religious law and civil law, between religious authority and civil authority, between religious respect for the secular and secular respect for the religious. It is possible that trying to pass a new law stating that property rights issues are to be ruled according to civil law regardless of the court in which the case is handled would lead to “civil war” rather than to reconciliation and respectful mutual accommodation.

The other potential solution was reported already back in 1994 in the JTA report linked to above:

The former Israeli chief Ashkenazic rabbi, Shlomo Goren, suggested that couples interested in dividing their property according to halachah in the event of divorce sign a prenuptial agreement to that effect…

I suggest that ALL couples interested in dividing their property, in the event of divorce, either by halachah or by civil law, sign a prenuptial agreement stating that. Problem solved. This will also solve the other issue raised in the current Haifa case regarding adultery.

Adultery as a Deciding Factor in Property Settlements After Divorce

The rabbinic courts believe that adultery is a cause of marital breakdown. Marital and family therapists disagree. Adultery is the symptom of problems in the marriage. In some cases, adultery leads to divorce and in other cases it leads to the marriage therapist and to revitalization of a dying relationship. As a therapist, I wish that people would find a different way to alert their partners to the need for therapy (or divorce) without having an extramarital affair because the pain and destruction wrought by the affair affects everyone, both spouses, the kids, the extended family, friends — everyone. But that is beyond the scope of this article.

Of course, it is unfair that rabbinic judges find adultery reason enough to deny property rights only when the wife was the perpetrator of the betrayal and not the husband. And that is why secular women face the rabbinic court with such disdain and secular and religious women face it with trepidation. However, Judaism is a religious system that loves to argue with itself. I do believe that if the woman, afraid of losing property rights in the religious court, brings in as a witness, a religious and learned marital therapist or psychologist, basis can be found within our own sacred texts that would allow the religious judges to lean toward granting equality. I would love to hear from a religious scholar where such arguments can be found.

Judge Stein, in his contentious ruling on this case, wrote that rabbinic courts respect the Bavli Ruling and the Financial Relations Law (FRL). And the Bavli Ruling was not really overturned at all in this case because here it was not a matter of dividing communal property, but of dividing property that had belonged to the husband before the marriage and that had remained in his name only throughout the marriage.

Simcha Rothman, in his piece in Israel Hayom, shows that the Bavli Ruling was upheld:

The fact that the same “adulterous woman” was “left with nothing” yet still received, before even leaving the courtroom, half of all the assets purchased during the marriage (a store and three warehouses, another piece of commercial real estate and a quarter of the ownership rights over two apartments)…

In this case, therefore, it was not a matter of sharing with the wife what was THEIRS, but sharing with the wife what was HIS. In order for her to claim that it was shared property, according to the FRL, she would have to show how her husband had had the intention throughout their marriage for the property to be considered joint property. Had the roles been reversed, and the property had belonged to the wife and not the husband, I do not think the feminists would want to see a ruling that made her share half of it upon divorce if during the marriage she did not add his name to the deed.

The stupidest thing I read in all of this is how the adultery is what nullified her claim that his property was theirs. The High Rabbinic Court argument was that had the husband known his wife would betray their marriage, he never would have wanted the property to be considered conjoint property. This is ridiculous! There are a lot of things about which one can claim: “If only I had know X, I never would have/I would have done Y.” That is not a reasonable basis upon which to make legal rulings. Rothman claims, on the other hand, that

it was in fact proven that the husband intended to share the property with his wife as long as she was faithful.

I did not see evidence of that from my reading of the transcript of the Supreme Court ruling. But perhaps I missed something.

My Take-Away From This Case

Feminists, you can choose to be all enraged about this court decision (and I agree that I do not agree with it) and play victim of the system, or you can learn from this another way to empower women.

We are not going to change the law now; it is just not reasonable to expect the Knesset to be able to successfully reach a balance between the rabbinic and civil courts and we have seen how easily things can be swayed in this direction or that direction.

Therefore, the best thing to do is teach our children, male and female children, that when they sign the ketubah or other form of marriage contract, that they include a statement regarding which set of laws, religious or civil, they want to determine property, child care and other relevant issues should their marriage end in divorce. But remember, the Bavli Ruling was not overturned as it only says that adultery will not affect application of the Property Relations Law, and this Law was, in fact, upheld in the case discussed here. Therefore most importantly, if either of them enter the marriage with property or anticipate a substantial inheritance during the marriage, they should add a statement stating either that will be conjoint property or their own individual property. It is easy enough later, during a long-lasting marriage, to put the other spouse onto the property deeds or bank accounts. Even then, as we have seen by this case, long-lasting marriages are not necessarily ever-lasting marriages. But that is another story.