(Aug. 18, 2010) In a decision rendered on August 9, 2010, the Supreme Court of Israel rejected petitions submitted by two Israeli men to order the Minister of Interior to register them as fathers of children born to Palestinian women in the West Bank city of Nablus. The petitioners were each married to Israeli women with whom they had nine and five children, respectively. They later obtained judgments from a Sharia (Moslem law) court in Israel that recognized their bigamous marriages to the Palestinian wives as valid and further recognized their paternity of the children born to their second wives.
The Supreme Court held that data registered for children in the Population Registry is designed to reflect biological parenting of children by mothers and fathers and the information is presumed to be true. Israeli law authorizes the registering clerk to check the truthfulness of data on parentage. In situations where the existing objective evidence is insufficient to indicate such a biological link, the clerk is authorized to request additional evidence.
Citing a still valid pre-independence British Mandate legal provision, the Supreme Court stated that among the religious courts of the various communities in Israel, the Sharia court was the only one authorized to make determinations in connection with paternity. The civil family court has exclusive jurisdiction in paternity matters regarding all other religious communities.
The Supreme Court recognized that there was a fundamental difference between the civil law conceptions of parentage and those of Sharia law. Paternity is evaluated by the civil family court with regard to the biological link between a father and a child and is therefore determined based on external evidence and tests. Paternity is examined by the Sharia court, however, for religious law purposes and is based primarily on the existence of a valid marriage under Sharia.
The Supreme Court maintained that paternity data in the Population Registry reflects paternity in its civil meaning. It recognized that the exceptional circumstances of the case justify requesting additional evidence for the existence of a biological connection between the petitioners and the children. Those circumstances included the passage of a long time between the birth of the children and the submission of the requests for registration, as well as the bigamous status of the marriages.
The Supreme Court determined that there would be no need for the petitioners to request a declaratory paternity judgment from the civil family court if the Sharia court based its judgment on genetic test results, to be obtained by the petitioners at that court's order, and on other objective, reliable external evidence. (H.C. Kadan v. Minister of Interior, The State of Israel: The Judicial Authority website, http://elyon1.court.gov.il/files/05/830/064/r09/05064830.r09.pdf (last visited Aug. 13, 2010).)