On February 19, 2025, Israel’s High Court of Justice, by a two to one majority, accepted four petitions filed by fathers challenging the decisions of rabbinical courts concerning child support in the context of divorce proceedings. The Court voided the decisions, determining that they were given without authority. (HCJ 5988/21, Anonymous v. Anonymous.)
Legal Framework
Disputes of personal status in Israel are within the jurisdiction of the religious courts of recognized religious communities (Jewish, Muslim, Christian, etc.). Under the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, as amended, matters of marriage and divorce of Jews who are citizens and residents of Israel are within the exclusive jurisdiction of the rabbinical courts.
While rabbinical courts have exclusive jurisdiction over marriage and divorce, they share parallel jurisdiction with civil law family courts to hear claims related to ancillary matters, including child support. This situation has led to what is known as a “race of jurisdictions,” in which the party who files the lawsuit first determines where it will be heard.
Section 3 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law provides,
If a divorce claim between Jews is filed with a rabbinical court, whether by the woman or the man, the rabbinical court will have exclusive jurisdiction over all matters related to the divorce claim, including alimony for the wife and the couple’s children. (Emphasis added.)
The law provides in section 9 that,
In matters of the personal status of Jews . . . in which the Rabbinical Court does not have exclusive jurisdiction under this Law, the Rabbinical Court shall have jurisdiction after all the parties concerned have expressed their consent thereto.
In its leading decision in CivA 20/68, Shragai v. Shragai, issued in 1969, the Supreme Court held that the rabbinical courts do not have the authority to hear a claim for child support, even if it is attached to a divorce claim under section 3 of the law. The court clarified that the rabbinical courts only have the authority to consider continued reimbursement of expenses in the nature of those already or about to be paid for by a parent, and the claim was attached to the divorce proceeding. (Justice Yoel Zusman decision, para. 5.) In a 2017 decision, CivA 919/15, the Court further determined that the obligation to pay child support applies equally to both parents, according to the ratio of their income and the extent to which they spend on the children. (CivA 919/15, decision by Justice Uzi Vogelman, para. 147.)
Decision
In her decision, Justice Yael Vilner noted that the High Court has previously clarified that Section 3 of the law relates to divorce claims, and that “the scope of ‘interest’ in a divorce claim is limited to matters which by nature involve the termination of the marital relationship between the spouses who are the parties to the claim.” Child support is an independent right of the child that does not depend on the nature of the relationship between the spouses. Understanding child support as an independent right of the child helps protect the minor from harm resulting from the parents’ conflict. It also helps prevent the use of child support as a lever of pressure to harm the rights of the spouse, usually the female spouse, during the divorce. (HCJ 5988/21, para. 11.)
A claim for child support
differs from a parent’s claim not only in terms of its substance, but also in terms of the litigants who appear before the court or tribunal and litigate, where while in the first case the parents litigate among themselves, in the second case the child litigates with the defendant parent. (Para. 10, citing CivA 20/68, Shragai v. Shragai, Justice Yoel Zusman decision, para. 5.).
As clarified in the Shragai decision, an agreement between spouses regarding child support does not deprive the child of the right to sue on his or her own behalf. (Zusman decision, para 6.)
In a 2019 decision, the Supreme Court elaborated that a claim for child support focuses on the child’s best interests and needs, the way their needs are satisfied, the parent who will bear the expenses, etc. These issues are examined from the perspective of the child’s best interests. In contrast to a claim for child support, a claim for restitution (alimony) does not require “a hearing and a decision on the substantive issue of the obligation to pay child support,” the court ruled. (CivA 7628/17, Justice Meni Mazoz majority opinion, para. 32.)
Justice Vilner concluded that since the decisions of the rabbinical courts that are the subject of the petitions in the current case deal with a claim for “child support” and not with a claim for reimbursement of expenses, and were rendered without the parties’ consent to the courts’ jurisdiction, they were given without authority and are null and void. (HCJ 5988/21, Vilner decision, para. 16-17.)
Dissenting, Justice Noam Sohlberg proposed to reject the petitions. In his opinion, “[t]he Shragai Rule came into the world to improve women’s bargaining power in the process of divorce vis-à-vis the husband who holds excess bargaining power in the form of the long-awaited get [writ of divorce under Jewish law].“(HCJ 5988/21, Sohlberg decision, para. 2.) He noted that,
In recent years, and even more so since the judgment of this court in 919/15 . . . many women began to turn to the rabbinical court, while it was the men who sought refuge at family courts. After the judgment was rendered in 919/15, the amount of alimony paid by men was reduced, in claims filed in the civil courts. (Paras. 27-28.)
According to Sohlsberg, the petitioners’ objective was to reduce the amount of alimony that would potentially be awarded to their children by rabbinical courts by “misuse” of the Shargai rule “to harm women’s rights, contrary to its intention.” (Para. 36.) Based on his interpretation under the Shargai rule, there was “no impediment for the rabbinical court hearing a ‘restitution claim’, as broad as it may be, subject to the possibility of filing an independent lawsuit on behalf of the child in the district [family] court.” (Para. 43.)
Reactions to the Decision
The Dayanim (rabbinical judges) forum that represents the rabbinical courts in Israel sharply criticized the High Court’s decision to limit their authority to adjudicate child support. According to a letter signed by the forum’s head, Rabbi Meir Kahana,
beyond the harm to the Torah of Israel and the status of the State of Israel as a Jewish state and not just a democratic one, we are unfortunately witnessing a harsh reality in which the legislature says one thing, clear and explicit, and the Supreme Court says the opposite, with scholarly explanations.
Rabbi Kahana urged the Knesset (Israel’s legislature) to adopt “a short and clear addition to the existing law . . . in a speedy process, which will make it clear that the words ‘including alimony for the wife and the couple’s children’ refer to all the alimony required until the children reach adulthood.”
The decision in HCJ 5988/21 defines the limited scope of authority given to rabbinical courts in adjudication of child support. Whether the Knesset will act to expressly expand this jurisdiction to “all the alimony required until the children reach adulthood,” as suggested by the rabbinical judges’ forum, is unclear.
Ruth Levush, Law Library of Congress
February 27, 2025
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