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ACCOMMODATING RELIGIOUS LAW WITH A CIVIL LEGAL SYSTEM: LESSONS FROM THE JEWISH LAW EXPERIENCE IN FINANCIAL FAMILY MATTERS
Published online by Cambridge University Press: 08 April 2019
Abstract
The discussion of legal pluralism focuses on the coexistence of several legal systems, mainly religious and civil ones. But what happens when a process of assimilation—whether imposed or voluntary—characterizes the relationships between the systems? This article analyzes the fascinating process of assimilation of civil principles into religious law in the context of Jewish law and Israeli civil family law. Assimilation, as the article shows, is not the whole picture. The article reveals a corresponding (both open and implicit) struggle for the preservation of religious law principles despite the continuing efforts of civil law for their curtailment, or sometimes, elimination. The result, which is somewhat internally contradictory, suggests a normative pluralistic framework that enables both regimes—the civil and the religious—to preserve their core principles in family law matters.
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- Copyright © Center for the Study of Law and Religion at Emory University 2019
References
1 See, e.g., Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights 1–16 (2001) (discussing legal pluralism based on multiculturalism, and its borders), and see id. at 2 n.3 for further references. Several scholars have examined the coexistence in practice of different legal systems. For a recent example, see Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West (2017).
2 See Katz, Sanford N., Family Law in America 98–104 (2d ed. 2015)Google Scholar. In the Israeli legal system, there are two different routes: one according to the Financial Relations Law, 5733-1973 and the other according to the Sharing Legal Presumption. The first is applicable to couples who were wed after January 1, 1974. The second is applicable to cohabitants and to couples who were wed before 1974. According to the first, the right to equal property sharing is a postponed obligatory right, i.e., a right for financial compensation of half of the property rights that comes into effect at the time of divorce. According to the second, the right is an immediate proprietary right, i.e., each spouse owns half of the property, and this comes into effect immediately at the time of its acquisition. See Joint Civil Appeals (JCA) 1915/91, 2084/91, and 3208/91 Yakobi v. Yakobi and Knobler v. Knobler 49(3) PD 529, 548–50 (1995) (Hebrew) (Isr.).
3 For the initial expressions of this idea, see Mary Ann Glendon, The New Family and the New Property (1981); see also, Katz, Sanford N., Marriage as Partnership, 73 Notre Dame Law Review 1251, 1270–74 (1998)Google Scholar (analyzing Glendon's primary contribution to equal property sharing and to the need for spousal support, and indicating the developments since her book); Katz, supra note 2, at 71–73.
4 The legal status of the wife in Jewish law as an independent legal entity is reflected, for example, in the husband's liability for her damages, including damages caused (negligently) in sexual relationships. See Babylonian Talmud, Bava Kamma 32a (defining the husband as one who enters “his friend's property”). Common law in the past viewed the family “as ‘one,’ and that ‘one’ was the husband. That meant that in terms of property interests, the husband was paramount.” See Katz, supra note 2, at 71, and the summary of the changes in this respect in the second half of the twentieth century: Id., at 81–85.
5 According to classic Jewish law, a certain type of the wife's property is controlled and managed by the husband, who is also entitled to the benefits that are derived from that property. See Maimonides, Mishneh Torah, Ishut (Marital Relations) 16:1 (definitions of different types of property); 22:7 (the husband's right to property benefits).
6 On the status of the formal registry of the family apartment in Jewish law, see File No. 956318/1 Rabbinical Court (Jerusalem), Ploni v. Plonit (Mar. 21, 2016), Nevo Legal Database (Hebrew) (Isr.); High Rabbinical Court File 993174/8, Plonit v. Ploni (Dec. 1, 2016), Nevo Legal Database (Hebrew) (Isr.). Some rabbinical judges dispute the view that the registry reflects joint ownership of the family apartment; see, e.g., the minority opinion in File No. 956318/1 at 5–12. The common view, however, is that registration reflects joint ownership, and the apartment should be equally divided. See the majority opinion, id., arguing that “the accepted ruling [of the rabbinical courts] is that of equal division between the parties,” id., at 21.
7 The law regards assets that were bought before the marriage, given as a present during marriage, or inherited during marriage as assets external to the shared property, which therefore should not be divided. See Financial Relations between Spouses Law, 5773-1973, § 5(a)(1). When the other spouse, however, has invested money or efforts in the external asset, or when there are other indications that the couple intended to make the asset a shared one, it would be equally distributed. This depends on the specific circumstances, but the tendency is toward moderating the criteria for the required indications. See Family Appeal Request 1398/11, Almonit v. Almoni (Dec. 26, 2012), Nevo Legal Database (Hebrew) (Isr.).
8 See, e.g., File No. 956318/1 Rabbinical Court (Jerusalem), Ploni v. Plonit (Mar. 21, 2016), Nevo Legal Database (Hebrew) (Isr.). In that case, the apartment was registered in the husband's name, but the couple drew up a contract in which the husband committed himself to provide his wife with half of the apartment's acquisitional rights even though he had not changed the formal registration. The majority viewed the apartment as being in sole ownership of the husband, while the minority opinion accepted the wife's claim for mutual ownership. I assume that a civil family court would view the apartment in this kind of case as a shared asset. See also HCJ 4602/13 Plonit v. Haifa Regional Rabbinical Court (Nov. 11, 2018), Nevo Legal Database (Hebrew) (Isr.). In that case, the rabbinical court rejected the wife's claim for an implied consent for an equal sharing of the family apartment which was registered in the husband's name. The High Court of Justice (in a majority opinion) approved the decision, and did not accept the claim that the rabbinical court ruling was motivated by the wife's adultery. The decision, which was strongly criticized in the public sphere, requires further examination.
9 For the maintenance enactment, see Babylonian Talmud, Ketubbot 83a; Maimonides, Mishneh Torah, Ishut (Marital Relations) 12:4.
10 I am speaking here of traditional wife support during the course of the marriage, which was then part of the regular financial arrangements of normative families. In modern-day families that is, of course, less relevant, due to the dramatic changes in the financial structure of the family. When there is a marital breakdown, however, the husband's obligation often reemerges, as discussed below.
11 Although there were other potential points of conflict regarding financial matters, including the Financial Relations between Spouses Law itself (which rabbinical courts were compelled to follow) or § 2 of the Equal Rights for Women Law 5711–1951, which cancelled the husband's control of his wife's property, the actual and severe conflicts occurred following the Bavli case, followed by assimilation, as discussed here.
12 See supra note 2.
13 See HCJ 1000/92, Bavli v. High Rabbinical Court 48(2) PD 221 (1994) (Hebrew) (Isr.).
14 This law is at the heart of the problematic nature of the legal arrangements in the Israeli marriage and divorce system. Its application was (and in many aspects, still is) unclear, and it was, and still is, a fertile ground for forum shopping, or, in the worst case, for a struggle between the religious and civil legal systems. Usually, the procedure of binding issues related to divorce to enable rabbinic jurisdiction over them must be explicitly stipulated in the divorce suit, with sufficient detail and, according to the court's consideration, it must be sincere, and not for tactical purposes. Child custody is the only exception: according to the Israel Supreme Court, this is considered as “bound by nature” to the divorce suit, so no explicit binding is required. See Ariel Rozen-Zvi, Israeli Family Law—The Sacred and the Secular, 48–65 (1996) (Hebrew).
15 In the Ottoman Empire and the succeeding British Mandate, matters of personal status were adjudicated according to the religion of the parties. The rationale was that the colonial empires did not want to intervene in matters that were considered an essential part of the local native culture. The Israeli system did not change this basic arrangement, but modified it in some aspects (e.g., regarding Jews, in the Rabbinical Courts Jurisdiction Law). More interestingly is that it underwent a fascinating ideological transformation. While initially the object of this arrangement was to enable autonomy for various communities in those personal matters, the arrangement would later be viewed as an inherent aspect of the character of the state as a Jewish state (despite the similar arrangements for other religions). See Avishalom Westreich & Pinhas Shifman, A Civil Legal Framework for Marriage and Divorce in Israel 22–24 (Ruth Gavison, ed., Kfir Levy, trans., 2013).
16 See HCJ 1000/92, Bavli v. High Rabbinical Court, supra note 13, at 246 (§ 28 of the Opinion of the Court by Justice Barak) (Hebrew).
17 Id., at 232–34 (§ 8).
18 Id., at 249 (§ 31).
19 Such as the civil alternatives for religious divorce (e.g., providing the cohabitant spouse with rights similar to those of a married spouse); see Pinhas Shifman, Family Law in Israel 1, 424–39 (1995) (Hebrew).
20 Two leading High Rabbinical Court judges, Rabbis Shlomo Dichovsky and Avraham Sherman, wrote an exchange of articles in the Tchumin rabbinical journal on the validity of the civil equal property sharing arrangement. See Dichovski, Shlomo, The Presumption of Sharing—Is It the Law of the Kingdom? 18 Tchumin 18 (1998) (Hebrew)Google Scholar; Sherman, Avraham, The Presumption of Sharing in Light of Torah Law, 18 Tchumin 32 (1998) (Hebrew)Google Scholar; id., The Presumption of Sharing Is Not Anchored in Jewish Law, 19 Tchumin 205 (1999) (Hebrew)Google Scholar, and the response of Rabbi S. Dichovski, id., at 216. The theoretical discussion within the Jewish law arena continues to the present, but the practice has taken a very clear direction, as I discuss below.
21 On the willingness of rabbinical courts to apply civil law in financial matters and the need to continue supervising this application of civil law, see Justice Rubinsten's statement at HCJ 5416/09 Plonit v. Ploni § 10 (Feb. 10, 2010) (Nevo Legal Database) (Hebrew) (Isr.).
22 Babylonian Talmud, Bava Kamma 113b; Bava Batra 54b and more.
23 Societal acceptance as the basis for legal obligation, rather than coercive power, has an interesting parallelism in modern legal positivist jurisprudence. See H.L.A. Hart, The Concept of Law 79–88 (1961).
24 As explained by the twelfth-century Talmudic commentary of Rabbi Samuel ben Meir (Rashbam) to Babylonian Talmud, Bava Batra 54b. For this and other rationales, see Menachem Elon, Jewish Law: History, Sources, Principles 64–74 (Bernard Auerbach and Melvin J. Sykes, trans., 1994). For views of present day Jewish law decisors see Kleinman, Ron S., The Halakhic Validity of Israel's Judicial System among Israeli Ultra-Orthodox Halakhic Decisors: Building and Condominium Housing Laws as a Test Case, 18 Review of Rabbinic Judaism 227 (2015)CrossRefGoogle Scholar.
25 See Sherman, supra note 20. For further discussion, see Elon, supra note 24.
26 See (including additional discussion on the first principle, “the law of the kingdom”) Elon, supra note 24, at 122–41.
27 The classic Talmudic source of this principle is Babylonian Talmud, Bava Metsia 74a, in which the Talmud provides legal validity to merchants’ methods of acquisition, even to those which are not formally recognized by Jewish law as forms of acquisition.
28 See Broyde, Religious Arbitration, supra note 1, at 154–63 (justifying from a Jewish law perspective the validity of religious courts functioning as arbitration panels, based on the parties agreement and established customs).
29 See, e.g., File No. 918948/7 Rabbinical Court (Haifa), Plonit v. Ploni 3 (Nov. 6, 2016), Nevo Legal Database (Hebrew) (Isr.): “This method of the act of acquisition is accepted by many rabbinical courts, with the main approach being that the act of acquisition removes any halakhic doubt regarding the possibility of the rabbinical court to decide in accordance with the Financial Relations between Spouses Law.”
30 See, for example, File No. 1059097/4 Rabbinical Court (Haifa), Ploni v. Plonit (Apr. 6, 2016), Nevo Legal Database (Hebrew) (Isr.), in which the decision is based on implied consent between the parties: “Clearly, the Financial Relations Law has the standing of a binding contract that relates to the assets acquired by the spouses during their life together.” (This verdict deals with determining the time for property division; see infra section titled “The Influence of Religious Principles on Civil Financial Rights.”)
31 These courts usually agree that the basis in Jewish law for applying civil law is (also) an implied agreement on the basis of a general custom or “the law of the kingdom” principle, but they require additional elements that would strengthen the legitimacy of their practice. See File No. 593163/2 Rabbinical Court (Tiberias), Plonit v. Ploni 12 (Jan. 5, 2014), Nevo Legal Database (Hebrew) (Isr.): “The halakhic force given to the instructions of the Law is based on the consent of the parties to act in accordance with the Law and the custom of the land … in order to avoid any doubt, it is the practice in some rabbinical courts to effect kinyan that gives halakhic validity to the instructions of the Law.”
32 See his correspondence with Rabbi Shlomo Dichovski, supra note 20.
33 Sherman, Tchumin, supra note 19, at 216. Sherman applied his approach during his term as a High Rabbinical Court Judge. See High Rabbinical Court File No. 811921/1, Plonit v. Ploni, 6 (Jun. 30, 2011), Nevo Legal Database (Hebrew) (Isr.).
34 That is, state courts that have jurisdiction concerning marriage and divorce (see supra, text accompanying note 14). The picture is different as regards private courts, an issue which is beyond the scope of this article.
35 The rabbinical verdicts cited in this and in the following two sections support this argument. See also Justice Rubinstein's statement, supra note 21. It should be noted that the concept of binding precedent is not part of Jewish law jurisprudence. Therefore, regional courts usually do not feel bound by the High Rabbinical Court's decisions. We thus find different views on many issues which are based on various Jewish law sources, without one decisive decision.
36 See Chayim Shlomo Sha‘anan, Iyyunim ba-Mishpat: From Decisions That Arose in the Rabbinical Court 81–92 (2005) (Hebrew). His view is reflected in the title of the chapter: “Is the Rabbinical Court Permitted to Decide upon a Compromise in a Suit for Property Sharing in Order to Prevent Adjudication in the Secular Court?”
37 Some Jewish law scholars argue that ketubbah is a commandment derived from Biblical law (from the Torah; de'orayta), i.e., it has a high normative status within Jewish law. Others attribute it to the enactment of early rabbis of the Second Temple period (Simeon ben Shatah [ca. second to first centuries BCE]; see Babylonian Talmud, Ketubbot 82b). Both views are rooted in the Babylonian Talmud (Ketubbot 10a), but the latter view is more common among post-Talmudic scholars (the views are summarized and discussed in the classic Jewish law code, Arba'ah Turim, Even ha-Ezer 66). According to both views, the details of the ketubbah obligation were developed by the rabbis in the Mishnaic period (from the destruction of the Second Temple [70 CE] to the redaction of the Mishnah [ca. 200 CE]) and in the Talmudic period (ca. 200–500 CE), as detailed in length in tractate Ketubbot of the Mishnah and Talmud.
38 According to Talmudic law, the husband could unilaterally divorce his wife, and the resulting need to pay the ketubbah could prevent or delay him from doing so. At the beginning of the second millennium, however, Rabbenu Gershom of Germany enacted that unilateral divorce would be prohibited (known as “the Ban of Rabbenu Gershom”), and his enactment was widely accepted; see Elimelech Westreich, Transitions in the Legal Status of the Wife in Jewish Law—A Journey among Traditions (2002) (Hebrew). Accordingly, the first object of the ketubbah became in many cases unnecessary (some still approve unilateral divorce in some cases, and according to them the ketubbah might still have some relevancy; see infra notes 85–86 and the accompanying text).
39 The basic sum of the ketubbah was 200 zuz, which at that time was equal to the average yearly cost of living. The nominal value of 200 zuz today is disputed, but it is quite low. Some, however, argue that the ketubbah obligation should be evaluated according to its purpose, thereby setting this obligation as a sum equal to the yearly cost of living. See the discussion in High Rabbinical Court File No. 1687/24/1, Ploni v. Plonit (Sep. 2, 2007), Nevo Legal Database (Hebrew) (Isr.). The court (opinion by Rabbi Shlomo Dichovski) set the ketubbah amount at NIS 120,000, an amount that reflects a reasonable yearly cost of living.
40 See Dichovski, id.; File No. 585140/2 Rabbinical Court (Haifa), Ploni v. Plonit (Nov. 11, 2013), Nevo Legal Database (Hebrew) (Isr.); File No. 575141/19 Rabbinical Court (Haifa), Ploni v. Plonit (Jan. 1, 2017), Nevo Legal Database (Hebrew) (Isr.) at 6: “The ketubbah is the wife's lifeline and security after her divorce; the maintenance she had during the marriage is gone. For until her husband divorces her she had maintenance from him, but once her husband divorced her, her right to maintenance from her husband has expired, but as a substitute for this she has the payment of her ketubbah.”
41 See, e.g., Maimonides, Mishneh Torah, Ishut (Marital Relations) 16:7–8 (regarding paying the ketubbah payment from all of the husband's belongings, and not only from his real estate, as was the case in the original law). Sometimes, however, due to local enactments and cultural changes, some stipulations were no longer required and were omitted from the ketubbah. See, e.g., Assaf, Simcha, The Cancellation of a Ketubbah Stipulation Regarding Male Children, 10 Ha-Zofeh le-Hokhmat Yisrael (Hazofeh Quartalis Hebraica) 18, 25–27 (1926)Google Scholar (Hebrew) (accessible at http://www.hebrewbooks.org/37234) regarding a ketubbah stipulation that provides the wife's sons with the right to inherit her, which, due to other enactments, became superfluous in the medieval period.
42 Many couples see the ketubbah obligation as a symbolic obligation or ceremonial act, and therefore write in the ketubbah high round numbers or other symbolic numbers (e.g., NIS 555,555 or the like). The rabbinic establishment objects to this practice and in many cases would not view these amounts as a binding obligation; see infra note 81.
43 See Financial Relations between Spouses Law, section 17: “This law does not detract … from the wife's rights according to her ketubbah.”
44 See, e.g., File No. 575141/19 Rabbinical Court (Haifa), supra note 40, at 1 (emphasis added): “It is a well-known judiciary practice that the wife is not entitled to her ketubbah [payment] if she received additional rights from the husband in accordance with a civil court ruling which does not follow Torah law. Consequently, the decision regarding the ketubbah cannot be given before the conclusion of the financial proceedings in the civil court.”
45 See File No. 838835/8 Rabbinical Court (Tel Aviv), Plonit v. Ploni 19 (Jan. 24, 2013), Nevo Legal Database (Hebrew) (Isr.). Hishrik's view was a dissenting opinion. The majority argued, similar to the dominant view in rabbinical courts today, that the wife cannot receive both the ketubbah and civil financial rights.
46 In addition to the citation infra see the views cited supra notes 44, 45 (majority), and more.
47 See File No. 593163/2 Rabbinical Court (Tiberias), Plonit v. Ploni, supra note 31, at 2.
48 See High Rabbinical Court File No. 1075070/1, Plonit v. Ploni (Dec. 8, 2016), Nevo Legal Database (Hebrew) (Isr.). The court obligated the husband to pay NIS 150,000 (part of his ketubbah obligation), which would be collected from his part in the family apartment, i.e., the wife would receive her part in the apartment, and an additional NIS 150,000 from her husband's part (so that her part in the apartment would not offset the ketubbah obligation). On the other hand, this partial ketubbah obligation would be reduced if and when the wife were to receive additional financial rights on the basis of a family court decision (id., at 1).
49 On the status of a joint bank account according to Jewish law, see File No. 989884/1, Rabbinical Court (Haifa) Plonit v. Ploni, 13–14 (Oct. 28, 2014), Nevo Legal Database (Hebrew) (Isr.). In that case the couple requested the court to rule according to Jewish law (rather than according to the Financial Relations between Spouses Law). The court accordingly ruled that a joint bank account, the family apartment, and other assets that are registered in both spouses’ name, should be equally divided.
50 Id., citing (and rejecting) the disputed opinion of Rabbi Avraham Atlas regarding a joint bank account. See also, High Rabbinical Court File 993174/8, Plonit v. Ploni (Dec. 1, 2016), Nevo Legal Database (Hebrew) (Isr.). In that exceptional case, the majority opinion determined that an apartment that had been purchased by the wife from money that she had inherited would not be considered in partnership, even though it was registered in both spouses’ names. The court recognized in principle the status of the formal registry but excluded the specific case.
51 File No. 593163/2 Rabbinical Court (Tiberias), Plonit v. Ploni, supra note 31 at 14.
52 It is obviously necessary to define what is considered as accepted and what not. As mentioned in previous notes, there is not complete consensus on this question. There are, however, dominant views in this matter, mainly regarding the marital apartment (as discussed above).
53 This is the argument of Rabbi Hishrik (supra note 45), although he limits this to nonreligious couples. In my opinion, this could be applied to religious couples—most of whom live their marital life in full partnership—on the basis of similar arguments.
54 For example, the ketubbah can fulfil the object of replacing maintenance. Toward the end of this article I elaborate on this option of a doctrine that could recognize both civil financial rights and that of ketubbah.
55 See supra note 2.
56 See Joint Civil Appeals 1915/91, 2084/91, and 3208/91, Yakobi v. Yakobi and Knobler v. Knobler, supra note 2, at 552.
57 Financial Relations between Spouses Law, §§ 5a(a)(1)–(2). The first part of § (2) mentions marital breakdown, without providing any details. I refer to this point below.
58 The jurisdiction in financial matters is given to civil family courts, unless one of the spouses bound these matters to his or her divorce suit; see supra text to note 14.
59 Id., end of § 5a(a)(2).
60 Id., § 5a(b).
61 The verdicts cited below provide examples; see, e.g., infra note 65.
62 See Katz, supra note 2, at 94–99. This view was adopted by the Israeli civil courts; see infra text to notes 73–75. Although, generally speaking, reducing the place of fault in monetary matters is a global trend, it continues to play a role in some jurisdictions (as regards alimony, and sometimes even regarding property distribution). For the process and its complexity, see, e.g., Wilson, Robin Fretwell, Beyond the Bounds of Decency: Why Fault Continues to Matter to (Some) Wronged Spouses, 66 Washington & Lee Law Review 503 (2009)Google Scholar.
63 See Maimonides, Mishneh Torah, Ishut (Marital Relations) 24:6.
64 See infra, text accompanying note 66.
65 See, e.g., File No. 585140/2 Rabbinical Court (Haifa), supra note 40 (establishing the time of the marital breakdown at the beginning of the wife's extramarital intimate relationship); File No. 1059097/4 Rabbinical Court (Haifa), Ploni v. Plonit 4 (Mar. 23, 2016), Nevo Legal Database (Hebrew) (Isr.) (arguing that “the wife's infidelity is opposed to all social norms and to the essence of marriage. Infidelity completely shatters the covenant between the spouses,”).
66 See, e.g., High Rabbinical Court File No. 947597/1, Plonit v. Ploni (Oct. 7, 2013), Nevo Legal Database (Hebrew) (Isr.) (accepting the wife's request not to obligate her to divorce despite her husband's adultery).
67 A mamzer is prohibited from marrying according to Jewish law (see Maimonides, Mishneh Torah, Ishut (Marital Relations) 1:7). I have used here nondecisive language (“might be declared”) since rabbinical courts usually refrain from declaring one a mamzer due to the harsh results of this declaration. They would prefer to use a fictional legal presumption in order to attribute the child to the wife's husband, rather than to his or her biological father, thereby precluding the need to declare him or her a mamzer. See Michael Wigoda, Examination of Suspicions Concerning Proper Lineage in the Rabbinical Courts (opinion submitted to High Rabbinical Court, Jul. 7, 2003) (Hebrew) (accessible at http://www.daat.ac.il/mishpat-ivri/havat/45-2.htm). The legal option, however, that the child from that relationship should be declared a mamzer (even if such a declaration is usually not actually issued) evinces the severe attitude of Jewish law toward adultery on the part of the wife.
68 See, e.g., the interesting case of File No. 480172/6 Rabbinical Court (Haifa), Ploni v. Plonit 4 (Mar. 9, 2017), Nevo Legal Database (Hebrew) (Isr.). In that case, the couple had a prenuptial agreement in which they agreed that the property would be divided according to Jewish law. The court, however, found some flaws in the agreement and therefore provided the wife with full financial rights according to the Financial Relations between Spouses Law (the right for the ketubbah payment was offset with the other rights, but she still received much more than she would have if the prenuptial agreement had been declared valid; id., at 14, 17–18). In my analysis of this verdict, the court's view that divorce was the husband's fault in having extramarital sexual relationships (id., at 12) is at the basis of the invalidation of the prenuptial agreement (on the basis of flaws which, in my view, could be resolved relatively easily). The indirect influence of fault in this case is astonishing: it leads the court to invalidate an agreement which could make possible the application of religious law, and apply instead civil law's rival financial regime.
69 See, e.g., such ambivalence in File No. 862728/1 Rabbinical Court (Netanya), Plonit v. Ploni, 6–9 (Jan. 28, 2015), Nevo Legal Database (Hebrew) (Isr.); Ruth Halperin-Kaddari, Husband's Adultery as a Ground for Divorce, 7 Mehkarei Mishpat, Bar-Ilan Law Studies 297 (1989) (Hebrew); Shochetman, Eliav, Adultery and Living with a Cohabitant—A Ground for Coerced Divorce?, 1 Family in Law Review 259 (2007) (Hebrew)Google Scholar.
70 See Financial Relations between Spouses Law, § 8.
71 Id., § 8(2). This means that human capital is not considered as property to be valuated and divided, but rather as an additional consideration that can influence the property distribution at the court's discretion.
72 See, e.g., File No. 1059097/4 Rabbinical Court (Haifa), Ploni v. Plonit 4, supra note 65.
73 See CA 264/77, Dror v. Dror 32(1) PD 829, 832 (1978) (Hebrew) (Isr.). See also CA 384/88, Ziserman v. Ziserman 43(3) PD 205 (1989) (Hebrew) (Isr.) (discussing the husband's rights in an apartment which his wife inherited and had given him half as a present). The Supreme Court ruled that fault considerations (the husband's adultery) do not affect property rights, and therefore the husband should not be stripped of his rights. The Supreme Court explicitly distanced itself from the opposite decision, which (according to the petitioner) would have been taken had the court followed Jewish law.
74 HCJ 8928/06, Plonit v. High Rabbinical Court 63(1) 271, 279 (2008) (Hebrew) (Isr.).
75 Id., at 283. Interestingly, Justice Rivlin (from whom the last citation is taken) hints in an obiter dictum to the deep ideological gap between the High Court of Justice and the rabbinical view. Rabbinical courts view adultery as a cardinal sin, while according to Rivlin, “infidelity by itself does not make one of the spouses the sole guilty party” (id.). Cf. Family Appeal Request 7272/10, Plonit v. Ploni (Jan. 7, 2014), Nevo Legal Database (Hebrew) (Isr.). In this very exceptional case, the Supreme Court used section 8 to deny the husband's right to half of his ex-wife's pension, due to his attempt to murder her.
76 The main object is to protect the wife from unilateral divorce. See Babylonian Talmud, Ketubbot 82b; Maimonides, Mishneh Torah, Ishut (Marital Relations) 16:10. The ketubbah, however, has additional objectives (including financial support). For a review of the purposes of the ketubbah and their practical implications, see, e.g., File No. 575141/19 Rabbinical Court (Haifa), supra note 40; and see the discussion supra, text accompanying note 37–40.
77 See Babylonian Talmud, Ketubbot 101a: “women concerning whom the Sages have ruled, ‘They are not entitled to [i.e., may be divorced without receiving their] ketubbah,’ as, for instance, [a wife who] transgresses the [Mosaic] law, and others enumerated in the same context, are not entitled to [their ketubbah].”
78 See Financial Relations between Spouses Law, § 8, and supra text to note 70–71. When the “special circumstances” for applying the exception to equal sharing is the wife's financial inability to continue her life properly, it is plausible that this exception would be accepted by both civil and religious courts.
79 The Israel Supreme Court acknowledged in principle this right (even when there is no right for maintenance according to religious law); see Family Appeal Request 3151/14, Plonit v. Ploni (Nov. 5, 2015) (accessible at http://elyon1.court.gov.il/files/14/510/031/a08/14031510.a08.htm) (Hebrew) (Isr.), §§ 46–55 (Barak-Erez); §§ 12–15 (Rubinstein). This approach was applied in practice by family courts. See, e.g., Family Court File (Tel Aviv) 39614-12-14, A.N. v. ‘A.N. (Jan. 23, 2017), Nevo Legal Database (Hebrew) (Isr.).
80 See supra text to note 39–40. The Israel (civil) Supreme Court recognized this rationale of the ketubbah as an alternative to rehabilitative maintenance. See Family Appeal Request 3151/14, supra note 79, § 50 (Barak-Erez). Another possible route is divorce compensation that is given to the wife in addition to the ketubbah, a route which is less practiced today. Here as well, the rabbinical courts usually offset it against payments received according to civil law. See (including references to early sources of this custom and its offsetting against civil payments) File No. 68607/6 Rabbinical Court (Ashkelon), Plonit v. Ploni[t] (July. 12, 2017), Nevo Legal Database (Hebrew) (Isr.).
81 High Rabbinical Court File No. 1687/24/1, Ploni v. Plonit, supra note 39, at 3. See also supra text accompanying note 39–40, regarding the object of the ketubbah as maintenance, that serves as a basis for this decision. Limiting the amount of a ketubbah (when the amount is symbolic and unrealistic) is not rare. In fact, the Israeli rabbinical system directs the rabbis who perform marriages not to exceed a certain amount in the ketubbah (NIS 1,000,000) that is deemed unrealistic. See Chief Rabbinate of Israel, Regulations and Directives for Marriage Registration 29 § 48.6 (2012) (Hebrew). Rabbinical courts, when dealing with an unrealistic ketubbah, very frequently reduce it to a more reasonable amount, as in the case discussed here. Rabbi Dichovski's approach regarding reducing the ketubbah obligation to a reasonable amount (id.) was cited later in several other decisions, and it seems to be widely accepted. For a review of rabbinical court decisions on this matter (including some that object to this approach and impose a ketubbah obligation as written), see File No. 83475/4 Rabbinical Court (Beer Sheva), Plonit v. Ploni, 5–6 (Oct. 10, 2016), Nevo Legal Database (Hebrew) (Isr.).
82 The court in File 585140/2, supra note 40, does not accept this approach. Although it recognizes the rehabilitating objective of the ketubbah payment, it subjects it to the civil property sharing, and if the wife were to receive extra civil rights, the ketubbah payment might be offset. Rabbi Dichovski, however, might agree with the approach suggested here, as reflected in his decision.
83 In the terminology of Hirschl and Shachar, this proposal reflects a move from a “non-state law as competition” conflict (that presumably stands behind the contradictory process of assimilation and rejection, described in this article) to a “diversity as inclusion” model, that enables various legal systems to coexist. See Hirschl, Ran and Shachar, Ayelet, The New Wall of Separation: Permitting Diversity, Restricting Competition, 30 Cardozo Law Review 2535 (2009)Google Scholar, and see also supra note 1.
84 Imposing a limitation on the ketubbah amount is fundamentally accepted. See supra note 81.
85 See Westreich, Avishalom, The Right to Divorce in Jewish Law: Between Politics and Ideology, 1 International Journal of the Jurisprudence of the Family 177 (2010)Google Scholar. Unfortunately, there are no data regarding the measure of acceptance of this approach by the rabbinical courts (since many rabbinical verdicts are not published). My impression, however, on the basis of reading dozens of verdicts, is that it is quite common today. This impression is shared by rabbinical judges themselves. See the poetic description of the acceptance of this approach by the Haifa Regional Rabbinical Court judge, Rabbi Avraham Meir Chelouche, File No. 1061137/1 Rabbinical Court (Haifa), Plonit v. Ploni (Dec. 6, 2016), Nevo Legal Database (Hebrew) (Isr.), at 30: “We know the words of our master, R. Jerocham [one of the most important classic Jewish law sources that supports no-fault divorce], as well as the practice of the courts that we have heard and known; this has also been practiced in rabbinical [court] decisions … the further the hand reaches to search, the more an abundance of decisions such as this will be found on this question.”
86 See, e.g., High Rabbinical Court File No. 1053135/3, Ploni v. Plonit (Oct. 27, 2016), Nevo Legal Database (Hebrew) (Isr.); High Rabbinical Court File No. 1098277/1, Ploni v. Plonit (Feb. 14, 2017), Nevo Legal Database (Hebrew) (Isr.) (see esp. the view of Rabbi Shlomo Shapira, id. at 5–7).
87 High Rabbinical Court File 1075070/1, supra note 48, at 7 note 5 (emphasis added).
88 Obergefell v. Hodges, 135 S. Ct. 2584, 2625–26 (2015).
89 See Westreich, Avishalom, An International Perspective on Same-Sex Marriage Post Obergefell (and Some Thoughts on Legal Positivism as a Means of Reconciliation): The Israeli Case, 30 Brigham Young University Journal of Public Law 303, 319–23 (2015)Google Scholar.
90 E.g., this understanding might affect the approach toward the present-day debate as to whether religious institutions should be exempted from the prohibition of discrimination of transgender people through “gender-segregated restrooms.” See Willson, Robin Fretwell, The Nonsense about Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, 20 Lewis & Clark Law Review 1373, 1410–14 (2017)Google Scholar (“[I]t is possible to allow businesses to open restrooms and other facilities to transgender persons in a way that ensures the safety, dignity, and privacy of all their patrons. This is possible without sacrificing the discretion of religious groups to determine questions of sexuality important to their faith communities.”).