Israel's Supreme Court
Israel's Supreme Court Flash 90

The Torat Hamedina organization on Wednesday sent appeals to Knesset members on the issue of the Supreme Court adultery ruling, or "Cheating Supreme Court" as it is being referred to in Hebrew, and demanded that the guidelines of the next government determine the strengthening of the Jewish family and the independence of the rabbinical courts.

The Knesset members were presented with three proposals to amend the laws that they claim would harm the ruling of the additional hearing in the "Cheating Supreme Court," and the organization demanded that Knesset Members adopt the amendments to the requirements for the next government.

Torat Hamedina turned to MK Naftali Bennett, MK Betzalel Smotrich, MK Moshe Arbel, MK Miki Zohar, MK Amit Halevi, MK Moshe Gafni, MK Yisrael Eichler, and MK Yoaz Hendel with the requirements.

"In the near future, the Supreme Court may issue a ruling in the 'Cheating Supreme Court' procedure (HCJ 8537/18), which means giving legitimacy to adultery and even determining that the State of Israel is obligated to sanction cheating within the framework of family life," the MKs wrote.

"Furthermore, the ruling may prevent spouses from mutually committing to maintaining fidelity and determining that such a condition is void, because it is contrary to 'public policy,'" they added. "Beyond the violation of the sanctity of the family, the ruling will deprive the rabbinical courts of their authority to adjudicate according to the Torah in matters of the family according to their authority under the law."

"We appeal to you to stop the destruction of the Jewish family, and the narrowing of Beit Din's (rabbinical court) jurisdiction by the Supreme Court. Torat Hamidina has drafted three bills that address the damage inherent in the Supreme Court's ruling. We call on you to include these proposals in the guidelines of the next government."

The Rabbis of the Eretz Hatova Forum called on public figures to repair in legislation the apparent damage of the legal process known as the "Cheating Supreme Court." The forum consists of senior rabbis of religious Zionism, and among the rabbis who signed the call are Rabbi Zalman Melamed, Rabbi Chaim Druckman, Rabbi Dov Lior, Rabbi Yaakov Ariel, Rabbi Tzefania Drori, Rabbi David Chai HaCohen, Rabbi Isser Klonsky, and Rabbi Chaim Steiner, and the Forum is coordinated by Rabbi Yosef Artziel.

The amendment to the first law they proposed is to add section 9 to the "Judiciary of Rabbinical Courts Law," which will state: "In any matter under this law that the rabbinical courts have unique jurisdiction, the tribunal shall rule according to Torah law, unless there is an express provision in another particular law, addressed to the tribunal, which explicitly states that the rabbinical tribunal must adjudicate under the same law."

The explanatory memorandum to the bill reads: "The purpose of this bill is to re-anchor the authority that the rabbinical courts have had from time immemorial and as the simple reading of the law states, to rule according to Torah law - Jewish law, in matters provided for in the law's unique jurisdiction. All this, except in the case of a special provision of law, which is addressed to the Rabbinical Court and which explicitly states that the Rabbinical Court must adjudicate in accordance with this provision of the law."

In the second bill, they sought to add to the "Financial Relations between Spouses Law" detailed circumstances that justify a "change in the balance of resources" of the divorcing spouses and their unequal distribution. The circumstances they propose to enshrine in legislation: "1. Disclaimer of responsibility for the effort for the economic benefit and well-being of the family, and for the effort to raise and nurture their children. 2. Sexual infidelity to one's spouse. 3. Arrogating property that should be included in the balance of resources."

"Spouses who reach the stage of division of property they have accumulated during the years of their marriage at the time of their separation expect a fair division," the explanatory memorandum to the bill reads. "In principle, the law stipulates that in the event that there is no financial agreement between the parties, the default is an equal distribution in accordance with the statutory arrangement (resource balancing arrangement). However, there are circumstances where fairness and justice dictate that this arrangement should be deviated from."

Another amendment they seek to promote is an amendment to section 5 of the "Matrimonial Property Act," and the anchoring of the legislation that property acquired by one of the spouses before the marriage, or after the marriage but as a gift or inheritance, will remain with the spouse in full during the marriage and divorce, if some or all of them were transferred to the spouse with a written document and registration ("in the manner prescribed in sections 7 (a) and 8 of the Real Estate Law, 5769-1969 only").

"This bill seeks to create certainty and clarity regarding the division of real estate that is unbalanced between spouses and to fulfill the legislature's desire regarding such assets," the explanatory memorandum to the bill reads.

This proposal came after the court established the definition of "specific partnership" which states that it can be concluded that a party who has "external property" intended to share it with his spouse and grant them rights in the property, even if it is still registered only in the name of the pre-marital party.

According to Rabbi Yaakov Yakir, head of the Beit Midrash "Torat Hamedina - Beit Orot," "For many years, the Supreme Court has been trying to undermine the foundations of the Jewish family, and give legitimacy to infidelity. In the same way, the Supreme Court has repeatedly nibbled away at the power of rabbinical courts."

He added: "The Cheating Supreme Court is a legal proceeding that pits the Ten Commandments against the Supreme Court, and the rabbinical court system against the secular court system. The Supreme Court ruling can be a low point, which will eventually lead to public and political awakening, and a recognition that the way to restore the Jewish family's dignity and the courts' independence is through the public and its elected representatives."

The "Cheating Supreme Court" case concerns a judgment of the Grand Rabbinical Court (Beit Din Hagadol) from 2017, which stated that a residential apartment that came into one's possession through an inheritance will remain in his possession at the time of divorce. The husband brought as an auxiliary claim that he would not have intended to grant rights in the apartment to the wife had he had known of his wife's infidelity to him during their marriage. In the words of one of the judges, it was stated that indeed the existence of infidelity helps (but is not decisive) to prove that there is no desire on the part of the husband to transfer his property to his wife despite their marriage.

According to Israeli law, an asset inherited by one of the spouses is not an asset in which the spouses automatically participate upon their arrival in a marriage contract. The Great Rabbinical Court ruled according to the language of the law.

The woman petitioned the Supreme Court to overturn the verdict, with the position of the judge who referred to the betrayal as an element in the division of property at the center of the appeal. The Supreme Court, by a majority of two judges against one, upheld the ruling mainly for reasons of giving place to the judicial autonomy of the rabbinical courts and respecting the autonomy of the individual in relation to his property.

The woman again petitioned the Supreme Court to have another hearing and overturn the original Supreme Court ruling. The request for further hearing was joined by women's organizations as amicus curiae "friends of the court" in the proceedings due to its broad significance.

Torat Hamedina amicus sought to join the legal process as amicus curiae, arguing that the Supreme Court should act in accordance with Israeli law and consensus both in relation to the family trust component, in relation to the division of property and in relation to the authority of rabbinical courts.

However, Supreme Court Chief Justice Esther Hayut rejected the request without providing supporting rationale.