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Israel: Rejection of a Suit to Nullify Paternity of Moslem Minors

(Apr. 19, 2013) The Haifa Family Court recently rejected a lawsuit brought by a Moslem man for a declaratory judgment that would nullify his paternity of two minor children based on genetic testing he wished to perform. The children, ages 11 and 6, were born during the plaintiff’s polygamous marriage to a Moslem woman whom he had married while already married to his first wife. The plaintiff divorced the second wife after the births of the children. Both the marriage and the divorce were valid under Sharia law. Although convicted of polygamy and sentenced under Israel’s Penal Law, the plaintiff’s polygamous marriage was recognized by the State as legally binding based on its legality under the personal status law of the parties, which in this case was Sharia law. (File No. 652-10-09 Family Court (Haifa) Anonymous v. Anonymous (Mar. 11, 2013) NEVO LEGAL DATABASE (by subscription).)

In accordance with the Family Court Law, 5755-1995, family courts in Israel enjoy parallel jurisdiction along with religious courts over paternity suits. (Family Court Law, 5755-1995, as amended, Sefer HaHukim (Official Gazette, S.H.) 5755 No. 1537, p. 393.) According to Judge Ela Meraz of the Haifa Family Court, the law governing the issues raised in the case was Sharia law. This law recognizes several presumptions and rules that are designed to prevent the declaration of children as illegitimate. Such prevention promotes the principle of the best interest of the child and would prevent the disqualification of children as heirs or as beneficiaries of financial support. (File No. 652-10-09 Family Court (Haifa), supra.)

Meraz held, based on a decision that had been rendered on June 2, 2010, by the Family Court in Nazaret, that under Sharia law the husband of a child’s mother is presumed to be the child’s father if the following conditions were met: the parents were legally married, six months had passed following the marriage prior to the birth of the child, and there is no proof that the couple did not engage in an intimate relationship. The husband may renounce his paternity, however, at the time of the child’s birth or at the time in which it is customary to bless the parents of the newborn for the birth. The evidence in the Haifa case does not support the husband’s suit, Meraz argued. (Id.; File No. 4232/04 Family Court (Nazaret) Anonymous v. Anonymous (June 2, 2010), NEVO LEGAL DATABASE.)

In reaching her decision to reject the suit, Meraz relied on an evaluation of the family by a social worker and on the lack of proof of a necessity to conduct a genetic test, as had been requested by the plaintiff, among other grounds. (File No. 652-10-09 Family Court (Haifa), supra.) Under the Genetic Information Law, 5761-2000, genetic testing may be approved only when its benefit surpasses the harm that may ensue from conducting it. Considering the harm that could be done to the children, no such benefit was proved. (Genetic Information Law, 5761-2000, as amended, S.H. 5761 No. 1766, p. 62.)