Defying Rabbinical High Court, judges refuse to make man pay for his ex-wife’s house

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A Jerusalem rabbinic court refused two months ago to order a man to share his ex-wife’s mortgage payments despite a Rabbinical High Court ruling that sided with the woman, in a rare – but not unheard of – display of defiance by a lower religious court toward a higher authority.

In a statement, the lower court judges – known in Hebrew as dayanim – argued that the High Court’s decision to raise the ex-husband’s alimony violated Jewish law and could bring the man, a yeshiva student, to the brink of “total financial collapse.”

As part of the divorce dispute, the woman intended to buy her ex-husband’s share of the apartment but demanded that he continue to pay some part of the remaining mortgage. According to the information the couple submitted to the rabbinical court, the woman works and receives a regular salary – and she has a sum of money of hundreds of thousands of shekels she can use to buy out her ex-husband’s share. The man does not earn a regular salary and studies in yeshiva.

After the case was first heard by the regional rabbinical court, the dayanim denied the woman’s request, arguing that mortgage payments were not part of alimony and that there was no legal reason to require the man to pay for housing owned by an ex-wife. “The father is obligated for the woman’s expenses for the children, and the mortgage payment is not considered to be an expense but an investment … The father is not obligated to subsidize the purchase of the apartment for the woman,” the ruling stated.

The dayanim explained that according to Jewish law the father’s obligation to support his children is a charitable obligation, and in the present case the woman’s income is equal to the man’s, if not higher. The calculation of the man’s support for the children’s housing should take the woman’s income into account, the dayanim said.

The woman appealed the ruling to the High Rabbinical Court in Jerusalem, and it accepted her appeal and reversed the lower court’s ruling. The High Court judges wrote that it made no difference if the children were living in a rented apartment or in one owned by the woman, and the father was still obligated to pay his relative share.

Criticizing the lower court, the High Court said the judges decided on too low a figure for alimony without providing a proper explanation. The higher court ordered the case returned to the lower court to determine the exact amount the father must pay.

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But two months ago, the dayanim of the regional court, Rabbis Shlomo Tam, Menachem Hager and Gideon Shiryon, announced that they refused to carry out the High Court’s ruling because they said it violates Jewish law. The lower court dayanim said it was immoral to make a person pay without a legal obligation, adding that the man was not making a living to begin with. In comparison, the woman was in the process of becoming financially secure, while any additional payments would lead to the ex-husband’s financial downfall, which would mean he would be “unable to continue with his life in any shape or form.”

The judges said that section five of the ethics code for religious court judges states that in such a case they must write their down their objections and return the case to the higher court for reconsideration.

Prof. Shahar Lifshitz, an expert in family law and the head of the Center for Jewish and Democratic Law at the Bar-Ilan University law school, said the regional court’s refusal to follow the instructions of the High Court is “an exceptional legal event,” but one that has occurred in the past. “The institution of appeal and the institution of obligatory precedent are not authentic halakhic institutions,” he explained.

The process of appeals were imposed on the rabbinical courts by the British during the Mandate period, Lifshitz said, as a condition for recognizing their judicial authority. Some regional rabbinical courts occasionally still display independence and openly reject instructions handed down to them by the High Court, he said.