4 Middle E. L. & Governance 1 (2012)

handle is hein.journals/measterna4 and id is 1 raw text is: MIDDLE EAST
LAW AND
GOVERNANCE
BRILL            Middle East Law and Governance 4 (2012) 1-68            brill.nl/melg
Enforcement of Divorce Judgments in Jewish Courts
in Israel: The Interaction Between Religious and
Constitutional Law*
Yehiel S. Kaplan
Associate Prof., Faculty of Law, University of Haifa
Abstract
In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of mar-
riage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get,
to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue
for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his
wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse
disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt
to enforce divorce judgments, they are generally reluctant to do so. The implementation of inap-
propriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual
coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanc-
tions out of concern that inappropriate coercive measures invalidate the get, rendering the couple
still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts
in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and
Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the bal-
ance between the rights and obligations of the husband and wife in the process of enforcing
divorce judgments, neither before nor after the enactment of the of the two important constitu-
tional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant
spouses in Rabbinical courts in Israel-in light of the principles of Jewish and constitutional law
in the country-has not yet been undertaken. The aim of this essay is therefore to present the
appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given
the principles of Jewish and constitutional law. The formula is presented in light of constitu-
tional law in Israel. However, it is also applicable in other countries with similar constitutional
legislation, such as Canada, where legislation sometimes allows for the civil enforcement of
Jewish divorce.
* I thank Mr. Eli Fischer for the editing of this article and the editorial board of Middle East Law
and Governance for useful comments.

 Koninklijke Brill NV, Leiden, 2012

DOI 10. 1163/187633712X631246

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