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Israel: Applicable Law of Dissolution of Mixed Marriages

(July 5, 2017) On June 22, 2017, Israel’s Supreme Court rejected a request to allow an appeal against a decision by the Nazareth District Court confirming the validity of dissolution of marriage between a Jewish woman and a man not belonging to any recognized religious community in Israel. (App. Req. 5640/16, Anonymous v. Anonymous (decision by Justice Menachem Mazuz, rendered June 22, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); Fam. App. 21608-03-15, Anonymous v. Anonymous (Nazareth District Court decision, June 14, 2016), TAKDIN LEGAL DATABASE by subscription (in Hebrew).)

Background

Israeli law generally recognizes the application of personal status law of the parties in matters of marriage and divorce. (App. Req. 5640/16, ¶ 15.) Whereas matters of dissolution of marriage are usually within the exclusive jurisdiction of the respective religious tribunals of the parties involved, cases involving spouses who do not belong to the same religious communities (mixed marriages) are adjudicated by the family courts, in accordance with the Adjudication of Dissolution of Marriage (Special Cases and International Jurisdiction) Law, 5729-1969 (§ 1, SEFER HAHUKIM 5729 No. 573 p. 248, as amended (Adjudication Law)).

In accordance with section 5(a) of the Adjudication Law, the family court whose jurisdiction is determined by that Law will adjudicate a matter, based on the relevant order of priority, according to the domestic law of: (1) the place of joint residence of the spouses; (2) the place of the last joint residence of the spouses; (3) the country of citizenship of both spouses; or (4) the place where the marriage was concluded. (App.Req. 5640/16, ¶ 4.)

Circumstances of the Case

The parties in the case, a Jewish woman and a man who did not belong to any recognized religious community in Israel, were Israeli citizens who had entered into a civil marriage in Cyprus in 1986. The marriage was registered in the Israeli Population Registry. In 1998, the parties separated, and in 2012 the husband filed for dissolution of the marriage. The wife objected and claimed that the law that applied to the dissolution of the marriage was Cypriot law. In the absence of expert testimony on that law, she argued, the husband had not proved any recognized cause of divorce. (Id. ¶¶ 6-7.)

Holding that the husband did not belong to any recognized religious community in Israel, the family court recognized the dissolution of the marriage based on “civil principles as determined in precedents, and especially the divorce ground of irretrievable breakdown of the marriage.” (Id. ¶ 8.)

District Court Decision

Two of the three judges of the Nazareth District Court rejected the wife’s appeal on different grounds. One judge opined that because the respondent did not belong to any recognized religious community in Israel, the dissolution of his marriage is governed by the domestic law of the parties’ place of residence, namely, Israel.  In the absence of a specific Israeli domestic law on which to basethe dissolution of a mixed marriage, the judge recognized  the irretrievable breakdown of the marriage as the civil law cause of the divorce. (App. Req. 5640/16, ¶ 9.)

The other two judges, however, ruled that Israeli domestic law did not recognize civil law causes for dissolution of marriage and that the choice of law that was relevant was the domestic law of the place where the marriage was concluded, based on section 5(a)(4) of the Adjudication Law. The two judges differed, however, as to which party had the burden of proof regarding the relevant Cypriot law.  Whereas one judge opined that the burden of proof was on the husband and that the appeal should therefore be accepted, the other opined that the burden was on the wife and that she had not successfully met it. (Id.)

Supreme Court Decision

In rejecting the request for appeal, Justice Mazuz held that even if the questions that arose in the case could justify acceptance of the request, this was not the appropriate case for adjudicating them. He concluded that the marriage was irreparable, as the parties had already been apart for 19 years. Moreover, the respondent remarried soon after the dissolution of marriage was granted by the family court. Although the appellant disagrees with the grant of divorce, Mazuz concluded, approval of her request for appeal could not result in any meaningful change for her. (Id. ¶ 13.)

Mazuz also made some comments on the subject of the district court justices’ disagreement on the choice of law. He expressed the view that domestic Israeli law does not recognize the application of civil law to a mixed marriage entered into abroad. The judicial recognition of a civil marriage concluded abroad, as various precedents indicate, was based on the application of private international law and not on the interpretation of Israeli domestic law. (Id. ¶ 16.)  Mazuz stated that recognition of Israeli civil law as the  law that applies to spouses belonging to different religious communities who got married abroad could be appropriate. First, because it reflects the basic social values of the society in which the couple was living; second, this would save costs associated with obtaining proof of the foreign law of the place where the marriage was contracted. Israeli law, however, did not recognize the application of civil domestic law.  Instead, he determined, the law that applies is determined under section 5(a)(4) of the Adjudication of Law, namely, the domestic law of the place where the marriage was concluded. (Id. ¶ 17.)