[The following report was compiled by Adv. Shirin Batshon, the Legal Department Coordinator for Kayan-Feminist Organization based in Haifa. Kayan-Feminst Organization was established by a group of Arab women with the goal of acting together to create social change, to improve the status of Arab women, and to increase their active participation in society. The organization`s Legal Department provides legal advice and representation free of charge to Arab women in family law cases, and works to eliminate discrimination against women in the religious courts, and to make women`s rights accessible to them in the context of legal proceedings. The report was issued in January 2012.]
Ecclesiastical Courts in Israel: A Gender-Responsive Analysis
Introduction
In Israel, for a given person, two parallel legal systems will have jurisdiction over issues related family laws. First, the religious legal system consists of independent courts for each of the 13 religious communities recognized by Israel: the Rabbinical courts (with jurisdiction over the Jewish community), the Sharia courts (with jurisdiction over the Muslim community), the Druze courts (with jurisdiction over the Druze community, and separate courts for each of 10 recognized Christian denominations. Second, the civil legal system includes the Family Courts established by the Family Court Law in 1995 (hereinafter: `Family Court Law`).
The religious courts have the authority to rule on matters related to the personal status of the members of a married couple, provided that both spouses belong to the same religious denomination, according to Paragraph 51 of the King`s Order in Council concerning Palestine, 1922-1947, (hereinafter: `the King`s Order`). The King’s Order is the British legislation dating back to the Mandate period, which the State of Israel has adopted or left in place; its application primarily concerns the authority of religious courts. Currently, these courts have exclusive jurisdiction over matters of marriage and divorce, while all other family law issues, such as alimony and child support, custody, division of property, etc., fall under the jurisdiction of both religious courts and the civil Family Courts. The terms and conditions of this parallel jurisdiction differ from one religious community to another, due to the varied applicability of certain provisions of state law.
Christian Courts
Concerning the Christians, nine communities are recognized in Israel by the Second Paragraph to the King`s Order in Council: the Eastern Community (Orthodox), The Latin Community (Catholic), The Gregorian-Armenian Community, The Armenian Community (Catholic), The Syrian Community (Catholic), The Chaldean Uniate Community , The Greek-Catholic, Melkite, Community, The Maronite Community and The Syrian Orthodox Community.
During the 1970s, the Evangelical Episcopalian Community was also recognized by a government order. The four largest Christian communities in Israel are the Eastern Orthodox, Greek-Catholic, Latin and Maronite communities. Other smaller Christian communities remain unrecognized and have unofficial courts.
Powers of the Christian Courts
According to paragraph 54 of the King`s Order:
The Courts of the several Christian communities shall have:
(i) Exclusive jurisdiction in matters of marriage and divorce, alimony, and confirmation of wills of members of their community other than foreigners as defined in Article 59.
(ii) Jurisdiction in any other matters of personal status of such persons, where all the parties to the action consent to their jurisdiction.
Christian courts have sole jurisdiction over marriage/divorce when both spouses belong to the same religious community. Regarding guardianship, child support, child custody, etc, their jurisdiction applies if both parties agree. Same is for the wills, where a written agreement is needed. Finally, regarding women’s alimony, the jurisdiction is vested in both Christian courts and the Family Court.
Court Procedures, Lack of Supervision, and State Regulation
As in the case for other religious courts in Israel, the rulings and decisions of the Christian courts are subject to legal review by the Supreme Court on certain, narrowly-defined grounds, such as deviation from authority, violation of the principles of natural justice, deviation from the provisions of the laws for religious courts, or when equity relief is required and the matter is not under the jurisdiction of a specific court.
However, although religious courts in Israel are all subject to State supervision and even intervention in various matters, Christian courts are the only religious courts that enjoy absolute independence in appointing judges, budget management, court proceedings and procedural matters. Every recognized Christian community has its own independent court, and its own distinct proceedings and procedural practices, which differ from each other as well as from those in place in the civil Family Courts. The Supreme Court is qualified to intervene in the decisions of the Christian courts on certain grounds (see above), although their intervention in matters concerning the court procedures in the courts is even narrower. [Supreme Court 11230/05, Muassi v. the Sharia Appeals court et. al. (unpublished, March 7, 2007)]
So whereas the Ministry of Religious Affairs enacted various regulations for other religious courts (e.g. concerning fees in the Druze and Sharia courts [regulations of the Sharia Courts (Fees), 1968] and the appointment of qadis (judges) in the Sharia courts [Sharia Courts Law (Approval of Appointments), 1953; Qadis Law, -1961]), there are no State regulations for Christian courts. Thus, such issues are decided internally among each Christian community, without any external accountability. This situation is unique to Christian courts and apparently stems from political considerations and agreements [Supreme Court 3238/06 yousef Suleiman v. the archbishop Bolus Sayah, issued in 23,2,09 ].
Moreover, Christian courts utterly lack accountability and transparency, as most judges in Christian courts are priests in their respective churches, and neither the courts` laws nor their judgments are published. (In fact, not even the addresses or other contact information of the Christian courts are published.) This is further complicated by the fact that each community has central legal tenets that differ from the next.
On 5 November 2001, Amendment No. 5 of the Family Court Law (hereinafter: `the Amendment to the Law`) was passed, giving the Family Courts parallel jurisdiction over family law and personal status issues (with the exception of marriage, divorce) that had previously been under the exclusive jurisdiction of the Sharia and Christian courts recognized under paragraphs 52 and 54 of the King`s Order. The Amendment to the Law was the result of pressure from the Working Group for Equality in Personal Status Issues, which had struggled for many years to change the Family Court Law. The Amendment to the Law was aimed at improving the status of Arab women by enabling them to litigate in a civil forum, recognizing that violation of their rights in religious courts.
A Gender Approach of the Christian Courts
I conducted interviews with 18 female litigants (from 27 to 57 years-old, average age of 38.7), and three attorneys who practice in this field in order to objectively understand both what the court proceedings are in the Orthodox, Catholic and Latin courts, as well as the litigants` and attorneys` subjective experience of these proceedings. A total of 21 interviews were conducted, of which 15 concerned divorce cases in the Orthodox court, and six concerned separation or dissolution of marriage cases – four in the Catholic court and two in the Latin court. That there are relatively few interviews concerning the Catholic and Latin courts reflects the small number of women who have filed for separation or dissolution of marriage in these courts, due to the relatively low prospects for success and the length of the process, as compared to divorce proceedings in the Orthodox court, which can be short and have a high chance of success when there is consent between the two parties (see findings below).
The interviews with the litigants and attorney consisted of questions about the type of proceedings they were involved in, which spouse initiated the proceedings, fees (or exemption from fees), the number of hearings, the duration of proceedings and the results of the proceedings. The interviewees were also asked about the worries and concerns they experienced as part of this process, their personal impressions about the proceedings, what they perceived to be the problems with the system, and what they felt the advantages and disadvantages of litigating in a civil court vs. religious court might be.
The principal difference in applicable law in the Orthodox and Catholic/Latin courts is that the Orthodox court can grant a divorce, while the Catholic and Latin courts cannot. One can only file for an annulment, dissolution, or a temporary or permanent separation. The applicable laws of the Latin and Catholic courts are similar to each other (and to the laws of the courts in other Catholic denominations), and therefore the findings related to these two courts will be presented together.
The Orthodox law allows for divorce on certain grounds, which differ for men and women. For example, a woman may demand a divorce from her husband if he abandoned her for a period of three years, if he is impotent and was unsuccessful in treating it within three years, if he committed adultery inside the residential home or in the same city, or if he alleged that his wife had committed adultery without proving it. Meanwhile, a man may demand a divorce from his wife if she was not a virgin at the time of their wedding, if she spends nights outside of the home without his permission, if he can prove that she committed adultery, if she abandoned him for a period of three years in violation of a court order obliging her to return. Either spouse may demand a divorce if the other suffers from a serious mental illness, has committed an offense against the security of the State, has been convicted of a criminal offense, has converted, or has threatened to kill his/her spouse.
- Dissolution is a process whereby a marriage is dissolved if there has been no physical consummation.
- Annulment means that the marriage was void ab initio – even if there was a physical relationship – on the grounds that it was carried out without the free and knowing consent of one of the partners (e.g. if one of the partners was too young at the time of the marriage, if there was unrevealed impotence, deception, fraud, or a previous marriage to someone outside the community, etc.)
(After a dissolution or annulment, both spouses regain their single status, as if they had never been married.) - Separation is the formal declaration that the two parties have not managed to live together and therefore live separately from one another. However, the spouses remain legally married and do not have the right to re-marry.
- Divorce releases spouses from their marital relationship and frees them to re-marry if they choose to do so.
Findings of Interviews
Greek Orthodox Court
All 15 cases were divorce cases. In three cases, there were also additional claims, such as obedience claims filed by the husband and alimony claims. In one case there was a child custody claim filed by the husband.
66% of the proceedings were initiated consensually by both parties. In other cases, the proceedings were closed consensually, despite an initial absence of mutual consent. In 40% of the cases both parties had converted from one of the other Christian denominations to Greek Orthodox Christianity, due to their inability to obtain a divorce in their own community`s court (in all of these cases, the application for divorce was filed consensually by both parties).
The court fees collected ranged from 3,000 to 13,000NIS, with the couples who had converted to obtain the divorce paying significantly more, as they were charged an additional fee for the conversion process. In proceedings were there was no conversion the fees ranged from 3,000 to 6,000 NIS, and in proceedings that included conversion, the fees ranged from 6,000 to 13,000NIS.
These fees are extremely high compared to fees charged by other religious courts for similar proceedings, and compared to the fees charged by the Family Court. For example, the court fee for filing a divorce claim in the Sharia or Druze courts is NIS 223, and in the Rabbinical court the fee for a divorce claim is 327NIS. The fee for filing a claim in the Family Court ranges from 230 to 467NIS, except for property claims; in property claims for a high liquidated sum, the fee is 1% of the amount of the claim (not less than 467NIS), and for other property claims, the fee is 2,798NIS.
Most of the litigants interviewed did not request a fee exemption or reduction, some because they did not know this possibility was open to them. In cases where a fee exemption was requested, some requests were granted and others denied, but it is unclear on what grounds these decisions were made. There was no formal application procedure to request an exemption or reduction, rather the requests were submitted verbally to one of the priests who was considering the case. Further, the decisions to grant or deny these requests were not set in writing and no explanation of the decision was provided.
Each case was heard by a panel of three judges, most of whom were priests who served in the immediate community. All the proceedings that were initiated ended in divorce, resulting in the release of the spouses from their marital relationship.
In two cases no hearings were held; instead the parties were summoned to meet with a senior church dignitary in his chambers to discuss the matter. In the other cases, between one and 11 hearings were held, with more hearings necessary in cases where the divorce was not mutually agreed upon. For the consensual divorce cases, there was an average of 1.5 hearings per case, whereas there was an average of 6.3 hearings in cases where the divorce was not consensual.
Similarly, in cases where the divorce was consensual the average duration of proceedings was two months. When the decision to file for a divorce was not consensual, but the proceedings ended with mutual consent, the proceedings took from two to six years (and as soon as the dissenting party gave his consent, the proceedings were quickly concluded). For divorces where no accord was ever reached, the proceedings took between two and ten years.
In response to the questions about the problems they faced during the process, some interviewees indicated their sense that something was going on `behind the scenes` that affected the case, such as when the husband was close to one of the priests hearing the case and has likely heard the story already from the husbands point of view. Women expressed their bad feeling as a result of that, inspite of the fact that it didn’t harm their divorce claim at the end of the day.
Some interviewees mentioned prejudices against women and insensitivity to women`s interests, such as in one case where the judges tried to convince the litigant to return to her husband, despite the fact that she had testified that he had subjected to sever violence that could have endangered her life. The women also experienced bias in favor of the men, such when the judges gave the husband more space to speak, even when the divorce was applied for consensually. Some of the women indicated their sense that if it were not for the fact that the man wanted the divorce, the court would not have approved it. The interviewees also pointed to the absence of a female figure in the court, which made them feel uncomfortable and ill-at-ease. One woman also described her discomfort upon reading the applicable Orthodox law and the accepted grounds for divorce, due to its patriarchal language and sensibility, which gave her the sense that the law was made to serve men over women.
Other issues that emerged were the absence of any kind of professional mediation process that could lead to a more egalitarian and just agreement. Indeed, some women said they felt a `deal` was being made, not that they were in a court that was aiming to provide justice. Many women complained that unless and until their husband consented to the divorce, they were `imprisoned` in the marriage, and this gave their husbands leverage to extort huge financial and material concessions from them.
Asked whether they would have preferred to file for a divorce in a civil or religious court, many of the interviewees noted that, althoughthe process was completed in significantly less time in religious courts than in the Family Court, once there was consent between both parties, However, some interviewees said they would have preferred to litigate in the Family Court because it is “more liberal,” because there is “no bias in favor of men like in the Christian court,” because there is “a sense of order and rule of law” and “a sense that justice will be served,” and because there is “clarity and a better attitude towards women.”
Catholic and Latin Courts
There were three separation cases, all of which were filed by the wives. Two of the cases were filed with the Latin court and one with the Catholic court. Each of the cases was heard by a single judge and one of the attorneys interviewed said that a court fee of 1,500NIS was charged.
There were at least five hearings for each case, and the proceedings lasted at least three years. One interviewee reported that the proceedings for her case lasted 15 years. One application for separation was denied, despite the litigant`s reports of domestic violence and the fact she and her husband had been living separately for many years. This left the litigant in a practical state of separation, but with no options for obtaining any legal remedy or relief.
The interviewees pointed to the length and duress of the process, the results of which are uncertain. Like the women from the Orthodox community, they also noted a lack of empathy and understanding towards them as women, and an unwillingness of the judge to recognize the suffering they had experienced during their married life. For instance, the courts did not consider the matter of domestic violence (often the motivation for filing for separation) to be a serious one. Further, because the courts prefer not to grant legal separations, they take an excessive amount of time to deal with each case. One interviewee, who obtained permanent separation 15 years after she had actually separated from her husband, described the process as “painful in the extreme.” The courts offer no possibility of rapid resolution and are unprepared to deal with urgent cases (such as those caused by domestic violence).
The interviewees reported their preference for the Family Court due to the aforementioned problems, some of adding that the Family Court gives a “greater sense of justice” and “protection for women.”
As to the Annulment ,there were only two such cases among the data gathered, both of which took place in the Catholic court and cost 5,000NIS. In both cases, the proceedings consisted of two phases: first obtaining a judgment from a local Catholic court and then obtaining a confirmation of the judgment from the Appeals Court. Each of the proceedings consisted of at least three hearings and lasted three years or more.
The interviewees pointed out problems such as the “long and onerous” and “very complex” process, which requires that two different panels of judges make a decision. However, one of the interviewees considered the “informality” of the court as a positive, compared with the proceedings in the Family Court where, because of their formal nature, she would have felt more “stressed.” Both of the cases were ultimately successful, with the marriages annulled and the women declared single.
Only one dissolution case was examined, which was filed with the Catholic court and heard by a panel of three judges. The process lasted over four years; the interviewee described “foot-dragging” on the part of the court, and the process was further elongated by the fact that, after a recommendation for dissolution is given, the case must be transferred to the Vatican. The interviewee also noted that the court obliged her to provide sensitive and personal information, which caused her to feel extreme “discomfort.” However, ultimately the marriage was dissolved and the woman was declared single.
Conclusion
One of the clear findings emerging from the interviews is the stark difference between the divorce proceedings in Orthodox courts and the separation, dissolution and annulment proceedings in the Catholic and Latin courts. While the divorce process result in the absolute termination of the marital relationship, so that each party may re-marry, the separation proceedings does not put an end to the marital relationship, and the spouses remain bound by it. Although annulments and dissolutions do terminate the marital relationship, they are granted very rarely and the probability that a request for an annulment or dissolution will be granted is low; moreover the proceedings are lengthy (at least three years) and complex, requiring both the approval of both a local court and the Court of Appeals or the Vatican.
The non-existence a divorce in the Catholic and Latin communities often condemns members of these communities to remain in a situation of `enforced` marriage, with no practical ability to terminate the marital relationship, despite the economic, emotional, psychological or social damage it may be inflicting on one or both spouses. Consequently, a number of Catholic couples, mutually desirous of a divorce, convert to Greek Orthodox Christianity (and pay an extraordinarily high fee) for the sole purpose of obtaining a divorce.
The Orthodox law states explicitly that mutual consent is not a grounds for divorce [Section 251 of the Byzantine Family Law applicable to the Christian Orthodox Community]. How ever, the court’s practice is exactly the opposite. the majority of cases surveyed here were filed with the consent of both parties and/or the divorces were ultimately obtained on the basis of an accord between the two parties. Furthermore, the divorce cases in the Orthodox court that were completed within a relatively short time, by far, were those submitted with the consent of both parties, while the cases decided without mutual consent often lasted for years. Women pointed out the problems with this, as spouses (particularly men) can refuse the divorce until the party desirous of the divorce agrees to extortionate concessions; this undermines the right of the party wishing to divorce to a fairly negotiated settlement.
Many of the women interviewed pointed to negative aspects of the religious courts, such as the length and complexity of the proceedings, and the insensitivity to women`s interests in the Catholic and Latin courts, and the sense of injustice, the lack of professionalism, the absence of the rule of law, and the masculine bias and patriarchal atmosphere in the Orthodox courts. The findings also shine light on the issue of court fees which are much higher in Christian courts, especially Orthodox courts, than in other religious courts.
Recommendations
At the legal department of Kayan, we believe that the above findings require the attention of the State and of the Christian courts, and therefore we shall end with the following list of recommendations:
- We believe that the State has a duty to assure the right of individuals to choose their spouses and terminate their marital relationships, which the existing legal conditions do not guarantee. We therefore recommend that a civil alternative to religious divorce be created. Furthermore, we believe that inability to terminate a marital relationship has a disproportionate negative impact on women, both because of the social stigma for Arab women who live in unmarried partnerships and because the divorce proceedings that are currently available enable recalcitrant partners - usually men - to demand extortionate financial and material concessions from their wives in exchange for their consent to the divorce. In this context it should be noted that Section 23 of the International Covenant on Civil and Political Rights 1966 (hereinafter: `Covenant on Civil and Political Rights`) declares a person`s right to marry and establish a family, and further obliges the State (and Israel is party to the Covenant), to take appropriate steps in order to ensure that these rights and associated responsibilities are enjoyed and shared equally by both spouses, both during marriage and at its dissolution.
- We recommend that the Marriage and Divorce Law -2009, which was proposed at the 18th Knesset on 1 April 2009 and would establish a civil alternative for marriage and divorce, be adopted. Creating a civil option for marriage and divorce in Israel is commensurate with the obligations of the State to act to eliminate discrimination against women, as stipulated by the Committee for the Elimination of all Forms of Discrimination against Women, and emphasized in the Committee`s latest recommendations to Israel [See Sections 49(a), (b) and (c) of the Summarizing Recommendations of the Committee for the Elimination of all Forms of Discrimination against Women dated February 4, 2011].
- We believe that the State should regulate court fees, making them equal to those charged in other religious courts, and should also regulate the procedures for applying for fee exemptions in the Christian courts, in order to avoid an arbitrarily administered fee policy.
- We believe that the State should supervise the legal proceedings of the courts, to ensure transparency, clarity and the consistent application of legal provisions.
- We believe that the Christian courts, especially the Orthodox court, should act to improve the service they provide to their constituents, by increasing their level of professionalism, clarifying and codifying court procedures, creating transparency and improving women`s access to justice.
- We believe that the courts should take measures to increase the sensitivity of judges to the interests and needs of women litigants, and to reduce the sense of alienation felt by women litigants.
- We believe that the State should supervise, if not intervene, in the process of appointing judges to the Christian courts, as it does in the other religious court systems.
We believe that the State`s role in the supervision and regulation of the Christian courts is crucial for protecting the litigating public, particularly women. Further, it is incumbent upon the State to take on this role in order to protect the rights of its citizens, since the decisions of the Christian and other religious courts are binding upon individuals and the State, by virtue of the powers vested in them under State law.