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Published online by Cambridge University Press: 12 February 2016
Religious or communal affiliation is one of the major factors in the choice of law and jurisdiction in matters of personal status. First, a religious court has jurisdiction only if all parties belong to the religion or community of that court. Where the parties involved in a matter of personal status belong to different religious communities, only the President of the Supreme Court is entitled to confer jurisdiction upon a particular religious court. Secondly, religious affiliation determines the bond between a person and the substantive law which will apply to any matter of his personal status. The importance of such affiliation is declining as legislation fixing unified, territorial norms applicable to all religions and communities increases. However, because personal law continues to play a major role in our legal system, religious affiliation, too, continues to be a focal point of interreligious disputes. Here the lack of a consistent, unified system for regulation of these inter-religious disputes is particularly noticeable, and the solutions proposed are remarkable for their pragmatism and their evasion of the basic problems.
1 Shibli v. Shibli (1950) 3 P.D. 142, 150; Bassan v. The High Rabbinical Court (1964) (IV) 18 P.D. 309, 318; Silberg, , Personal Status in Israel (Jerusalem, 1957, in Hebrew) 40.Google Scholar Exceptions to the rule will be discussed at a later stage.
2 The authority of the President to confer such jurisdiction is specified in sec. 55 of the Order-in-Council, and with respect to matters of dissolution of marriage, in the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969 (23 L.S.I. 274).
3 Since the determination of religious affiliation is not listed amongst the matters of personal status, the religious court has no direct jurisdiction over the question of a person's religious affiliation. Thus, for example, the Rabbinical court is not “a tribunal that has been expressly appointed in order to determine people's status, whether or not they are Jews”. (Gittiah v. The Chief Rabbinate et al. (1968) (I) 22 P.D. 290, at 300, in the judgment of Witkon J.). The Rabbinical court, therefore, is not authorized to give a declaratory judgment about a person's Jewishness. The same applies with respect to the validity of a conversion: “When the very validity of the conversion is in dispute… the religious court of the community to which the person claims he now belongs following his conversion will not be competent to resolve the issue, but rather the decision will lie with the District Court.” (Hadad v. Zozel (1969) (I) 23 P.D. 729, 731.) On the other hand, the religious court is authorized to decide on the question of a person's religious affiliation when it arises incidentally, e.g. for the purpose of determining a person's capacity to marry (the Gittiah case), or for examining the validity of a marriage, or in order to determine whether the religious court may deal with the matter.
4 This is particularly pertinent to the Rabbinical courts, for the question of “who is a Jew?” for the purposes of the jurisdiction of those courts is decided in general, according to the laws of the halakha (in contrast to the question of “who is a Jew?” for other purposes, such as the right to immigrate to Israel under the Law of Return). See Rufeizen v. The Minister of the Interior (1962) 16 P.D. 2428, 2437; Bassan v. The High Rabbinical Court of Appeal (1964) (IV) 18 P.D. 309, 318; Gittiah v. The Chief Rabbinate et al. (1968) (I) 22 P.D. 290, 295; Shalit v. The Minister of the Interior (1969) (II) 23 P.D. 477, 511; Rogozinsky et al. v. The State of Israel (1972) (I) 26 P.D. 129, 134; Holzman (1972) (II) 26 P.D. 85, 88–89.
5 Cf. Vitta, , The Conflict of Laws in Matters of Personal Status in Palestine (1947) 63.Google Scholar
6 See Globus, A.L., “Questions and Answers in Personal Law and Personal Status” (1954) 10 HaPraklit 225, 231.Google Scholar
7 Silberg, , Personal Status in Israel 352.Google Scholar
8 For the problems caused by the criterion of membership in Knesset Israel, see Silberg, op. cit. at 62–76.
9 This, in any case, was the ruling in Halo v. Halo (1948–49) 1 P.E. 195, see Silberg, at 349.
10 See Silberg, at 353; Tedeschi, G., “Who is a Jew?” (1963) 19 HaPraklit 101Google Scholar, and see also Shibli v. Shibli, op. cit. at 149. Contrary to the opinion of Shava, M., “Legal Aspects of Change of Religious Community in Israel” (1973) 3 Israel Yearbook of Human Rights 256, 258Google Scholar, it should be determined that the fact that a number of religions are claiming the person does not prevent the secular law from regarding the person as belonging to only one of the religions.
11 In the words of Prof. Silberg, op. cit. at 353.
12 Under Islamic law, a person is considered a Moslem if his father or his mother were Moslems (see: Kassani, Al, Bada'ia al Zana'ia (Cairo, 1910) 104Google Scholar: “You shall follow the better of the parents from the perspective of religion”; see also Hassan v. Benjamin (1963) 35 P.M. 243, 251). Under Jewish law, “one follows the mother” (Kidd. 83:12).
13 Shava, M., Personal Law in Israel, (Tel Aviv, 1976, in Hebrew)Google Scholar.
14 Al Zafadi v. Benjamin (1963) 17 P.D. 1419, 1426, 1428, following the proposal of Silberg in his book, op. cit. at 355, and cf. Levi Ash-Sheik v. Gana'im (1941) P.M.S. 448.
15 Vitta, op. cit., supra n. 5 at 65.
16 Silberg, op. cit. at 355. On the criterion of effectiveness in international law see: Bar-Yaacov, N., Dual Nationality (London, 1961) 210Google Scholaret seq.
17 Sanh. 44:71. And see the judgment of Silberg J. in the Rufeizen case, op. cit. at 2432 ff. But see Responsa Mahari Bi Rav, no. 39, who concludes that only in relation to matters of marriage and divorce is a convert from Judaism considered a Jew, but in general he is considered a Gentile in that his acts do not have the legal effect of acts performed by a Jew.
18 Abbo, J.A., The Sacred Canons, vol. 1, pp. 124–26Google Scholar; Michlowicz v. Michlowicz et al. (1961) 27 P.M. 412, 418.
19 Rabbath, E., “La Théories de Droit de l'Homme dans le Droit Musulman” (1959) 11 Revue International de Droit Comparé 672, 682.CrossRefGoogle Scholar
20 Per Cohn J. in the Al Zajadi case, op. cit., supra n. 14 at 1426.
21 Sec. 13A of the Capacity and Guardianship Law, 1962. On the other hand, sec. 3 of the Religious Community (Change) Ordinance, which was not expressly revoked, provided that the consent of one parent was sufficient in order that the minor's conversion be considered valid.
22 It seems unjustified that Cohn J. refrained from deciding this question. He held that the question need not be considered, for the judgment of the Shara'i court included no findings on the matter of the child's welfare, and because the appellant himself applied to the District Court. But if indeed the Moslem court had jurisdiction, such jurisdiction would be exclusive, depriving the District Court of jurisdiction, and the fact that a litigant applied to a court which did not have jurisdiction cannot confer jurisdiction upon that court which is not given by the law. Consequently, the very question of the competence of the District Court was raised: there is no evading this question.
23 The Al Zafadi case, op. cit. at 1426.
24 And cf. the words of Silberg J., op. cit. at 1428.
25 Re the connection between the welfare of the child and the religious consideration, see Shifman, P., “The Welfare of the Child in the Rabbinical Court” (1973–1974) 5 Mishpatim 421.Google Scholar
26 The Al Zafardi case, op. cit. at 1430.
27 Id. at 1428–29. In contrast to the words of the judge, that had he been asked to decide on the question he would have answered “openly and unabashedly, I do not know!”, Silberg, J., in Boslik v. Attorney General (1954) 8 P.D. 21Google Scholar, said: “Teach yourself to say ‘I don't know’” is not a saying that is directed at a judge, who must, in general, reach a clear and definite decision on every legal question brought to him.”
28 Mizrachi et al. v. The Shara'i Court of Nazareth (1976) (I) 30 P.D. 377.
29 It could have been argued that in any case, the girl was not the only party involved: her Moslem father and her Jewish uncle, who were fighting over the right of guardianship of the girl, could also have been regarded as parties. If that argument had been accepted, the girl's religious affiliation would have had no relevance, because in any case the matter would have been one in which members of different religions are involved, and hence sec. 55 of the Order-in-Council would have applied. But the Court postulated that it was not the religious affiliation of those who were claiming the right of guardianship over the child which was decisive, but rather, the consideration of the child's welfare, and hence she should be considered as the only party to the issue. This approach was implied in the Mizrachi case, ibid.
30 Al Zafadi, op. cit. at 1439.
31 Id. at 1429. However, in his book, op. cit. at 353, Prof. Silberg expressed the view that with respect to people with more than one religion, a Gordian knot will sometimes be created, conferring “exclusive” jurisdiction which is not exclusive to one religious court.
32 Frukhter v. Frukhter (1955) 9 P.D. 1361, 1365–66; Al Zafadi, op. cit. at 1429.
33 The principle of sec. 4(2) of the Religious Community (Change) Ordinance will apply here, at least by way of analogy.
34 Cf. Iyj'bariah v. Iyj'bariah (1972) 48 P.M. 224.
35 The Mizrachi case, op. cit. supra n. 28 at 377.
36 For the purpose of the conversion of a minor, sec. 13A requires one of the following: either the consent of both parents, or the approval of the district court. If one of the parents is deceased, one can say that the consent of the surviving parent replaces the consent of both parents (see sec. 28).
37 It should be remarked that the judge requires the consent of the court only where the parents were of different religions. In other words, the legal requirement that the court give its approval where the two parents have not agreed should not be interpreted as meaning that the surviving parent can never replace the two parents for this purpose. The judge's conclusion does not emanate from the language of the section, but rather from wide interpretation or from analogy.
38 For another view, see Maoz, A., “The Status of an Apostate” (1976–1977) 7 Mishpatim 442, 452–53.Google Scholar
39 Nevertheless, this does not mean that every change of religion entails a change in the status of the person from the perspective of the new religion. A person may change his religion, and then return to his former religion, which never recognized his conversion. In such a case, the person's return to his former religion constitutes a change of religion from the point of view of secular law, whereas the religious law views it merely as a penitent return on the part of a person who never ceased to belong to that religion. However, there are cases in which even the religious law requires a ceremony which will give expression to the person's wish to return. On Jewish law, see the Ritba on Yebamot 48: “A Jew who sinned and then repented is not required to undergo ritual immersion but must be received anew by the Beth Din (religious court), but nevertheless the Rabbis require that he immerse himself in the ritual bath…”; see also the Nimukei Yosef on Yebamot, op. cit., and Shulhan Arukh, Yoreh Deah, 268:12. But see the Remah on the Shulhan Arukh, Hoshen Mishpat, 34:29; Responsa of the Rashbash, 88.
40 Zozel v. Hadad (1971) 71 P.M. 374.
41 Compare Hutchins et al. v. The Minister of the Interior et al. (1976) (III) 30 P.D. 148, which dealt with the annulment by a Rabbinical court in the U.S.A. of a conversion when the court found out that the conversion was done in bad faith, motivated by a desire to acquire Israeli citizenship for the purpose of carrying out missionary activities in Israel. With respect to Jewish law, there is strong support for the view that a convert whose conversion was not in good faith is not, in fact, a convert, even ex post facto. See Responsa, Igrot Moshe, Yoreh Deah, 157Google Scholar: “…and even if he says that he accepts the laws, if we witness the fact that he does not accept them, then it is nothing…”, and the Responsa, Akhiezer, pt. 3, 26Google Scholar: “Where…we are certain that it is not his intention to convert and that his heart is not in his words, there is then proof that his saying that he accepts the laws amounts to nothing, for he has not accepted the laws”. But see: the responsum of Herzog, R., in R. Herzog Memorial Volume 51.Google Scholar
42 In a number of cases, the solution to the problem will be found in sec. 4(1) of the Religious Community (Change) Ordinance, which we shall presently discuss. On the annulment of a conversion done in bad faith, compare the view of Bartholomeo, G.W. with respect to the situation in India, in “Private Interpersonal Law” (1952) 1 I. & Comp. L.Q. 325, 342–343.CrossRefGoogle Scholar
43 The only condition stipulated by sec. 3(1) of the Religious Community (Change) Ordinance for the validity of a change of religion, was the condition of the consent of the parent or the guardian of the minor. This section has never been expressly revoked, but in practice, we follow the stricter requirements of sec. 13A of the Capacity and Guardianship Law, 1962. On the application of this section in order to annul the conversion of a minor, see Hadad v. Zozel, op. cit., and on the distinction between the two sections, see Shava, M. (1974–1975) 4 Iyunei Mishpat 302, 306–8.Google Scholar And on the application of sec. 13A, see the Mizrachi case, op. cit. Nevertheless, the application of sec. 13A can be restricted, and sec. 3(1) of the Religious Community (Change) Ordinance be revived, if the following argument is accepted: Sec. 13A is found in the first chapter of the Capacity and Guardianship Law. Sec. 13 of that law provides: “The provisions of this chapter do not apply to the legal capacity of a person for the purpose of acts which determine or change his personal status…” Hence, it would seem that sec. 13A does not apply to the capacity of a minor under his personal law to change his religion, and the restrictive provisions of sec. 13A will apply only to matters which do not involve personal status. (This is the view of Shelah, H., Freedom of Conscience and of Religion in Israeli Law 217Google Scholar). This view does not seem to me to be acceptable. The term “personal status” in this context conforms to the technical definition in section 51 of the Order-in-Council, i.e., “immunity” is granted to those legal acts which determine or which change one of the institutions that appear as matters of personal status in sec. 51 of the Order-in-Council (see Englard, I., “Sections 1–13 of the Capacity and Guardianship Law, 1962” in Tedeschi, , ed., Interpretation of the Laws of Obligations 75Google Scholar). Change of religion is not a matter of personal religion (see Hadad v. Zozel, op. cit.), and consequently, is not subject to the provisions of sec. 13. This is logical as well. Sec. 13 is devised to preserve the provisions relating to legal capacity as determined in the personal law, but sec. 13A is intended to set down a general, secular provision for all matters in relation to the conversion of minors, and the dichotomy between the force of a change of religion for the purpose of different matters seems to me to be contrary to the aim of the law.
44 On this matter, see Shmuel v. The Attorney General (1964) (III) 18 P.D. 452, 466, 471; Beth El Mission v. The Minister of Welfare (1967) (II) 21 P.D. 325. Re the considerations of the court in granting permission for conversions see, e.g. A.B. v. C.D. (1970) 70 P.M. 335.
45 See Sussmann J. in Shlezinger v. The Minister for the Interior (1963) 17 P.D. 225, 251 where he says, obiter, that “we are able to ignore the provision of sec. 4(2) of the Religious Community (Change) Ordinance” because “we assume that the woman converted before coming to Israel…”
46 See, e.g. sec. 2(3) of the Ordinance which states that a copy of the registration of the conversion will be sent to the head of the religious community into which the person entered, and to the head of the community to which he formerly belonged.
47 Shomali v. Chief Execution Officer et al. (1945) A.L.R. 651, 653; Shibli v. Shibli, op. cit. at 149; Halo v. Halo (1949–50) 2 P.D. 16. In the Shibli case, Heshin J. actually left open the question of whether the Ordinance applies when a member of a non-recognized community joins a recognized one. But see Mizrachi v. Chief Execution Officer et al. (1944) A.L.R. 21, and Goldenberg v. Goldenberg (1947) 14 P.L.R. 1, in which sec. 4(2) of the Ordinance was applied even when a person left a recognized religious community without entering another: however, it is possible that sec. 4(2) was used only by way of analogy, and see infra n. 95.
48 In order to dispel any doubts, a declaration was made in sec. 9(2) of the Palestine Order-in-Council (Amendment), 1939 that the Ordinance was lawfully enacted. The doubt which arose with respect to the validity of the Ordinance mainly concerned the question of whether sec. 4(2) of the Ordinance was inconsistent with secs. 53 or 54 of the Order-in-Council. See Peretz v. Director of the Lands Registration and Settlement Department (1950) 4 P.D. 257, 262.
49 Apart from Jewish community, the communities listed were: Greek-Catholic (Melekite), Maronite, Syrian-Orthodox, Eastern (Orthodox), Latin (Catholic), Gregorian-Armenian, Armenian (Catholic), Syrian (Catholic), Chaldaean (Uniate).
50 Declaration of a Religious Community (the Evangelical-Episcopalian Church of Israel) Order, 1970, K.T. 2557 (1970) 1564.
51 Religious Community (the Baha'i Faith) Order, 1971, K.T. 2673 (1971) 628.
52 On this matter see Abu Anjillah v. The Registration Clerk (1963) 17 P.D. 2751.
53 Religious Communities (Organization) (Druze Community) Regulations, 1957, K.T. 695 (1957), 280. These regulations, which were promulgated by the Minister of Religion under the Religious Communities (Organization) Ordinance, stipulate that “the Druze community shall be a recognized community in Israel” but from a formal point of view, this recognition is limited to the requirements of the Ordinance, and cannot apply to the Order-in-Council which, as a condition of recognition of a religious community, requires an Order from the High Commissioner—today, the Government. And compare the Orders mentioned in infra nn. 79 and 80. And see Pearls, P.S., “Legal Questions Concerning Religious Communities and Religions in Israel” (1960) 16 HaPraklit 60.Google Scholar It should be noted that the Druze community was added to the list of religious communities in the Succession Ordinance (see K.T. 1456 (1963), 1600), but for some reason it was not added to the equivalent list in the Appendix to the Order-in-Council.
54 Yair v. State of Israel (1965) (III) 19 P.D. 402. And see Pearls, P.S., “Does a Jewish Community Exist in the State of Israel?” (1959) 15 HaPraklit 16.Google Scholar
55 That was the opinion of Prof. Silberg in his book, op. cit. at 350–51. Prof. Silberg argued that if “you attribute jurisdictional importance to this change”—i.e. to the apostasy of a Jew—”you will be forced to return to the situation as it was before the law was passed, and to take away from the Rabbis their authority to deal with the matters of the personal status of a Jew who is not a member of the Knesset Israel, for the Knesset Israel Regulations have not yet been revoked…” It should be noted that after judgment was given in the Yair case, that reason will probably not hold good. Today, it is certain that “Knesset Israel” in its Mandatory format has ceased to exist, and in any case, there is no force to the argument that application of the Religious Community (Change) Ordinance to the Rabbinical Courts Jurisdiction Law would so-to-speak revive the definition of the concept “Jewish community” in the Knesset Israel Regulations.
56 See supra nn. 18, 19.
57 Indeed we do sometimes find in the case-law incidental comments by the judges to the effect that the Rabbinical Courts Jurisdiction Law applies to a Jew who converted from Judaism as well, see, e.g. what Sussmann J. says in the Shalit case, op. cit. at 511, basing himself on the opinion of Silberg J. in the Rufeizen case, op. cit. at 2437, who held that the term “Jew” in the above law also included a Jew who had abandoned his religion. But on the other hand, see Berinson J. in the Rogozinski case, op. cit., who deduces the subjugation of the appellants to the Rabbinical Courts Jurisdiction Law from the fact that “they admit that they were born to Jewish mothers and that they never adopted a religion other than Judaism.” This implies that if the appellants would have adopted another religion, they would have succeeded in liberating themselves from the application of that law. And see Pearls, P.S., “The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, and its Relationship to Previous Laws” (1954) 10 HaPraklit 272.Google Scholar
58 Frukhter v. Frukhter, op. cit., supra n. 32, at 1365.
59 See Silberg, op. cit. at 358, and see the cases cited in the appendices and addendum to the above book (Akademon, 1967) 18.
60 Frukhter v. Frukhter, op. cit.; Schwartz v. Schwartz (1968) (I) 22 P.D. 154. With respect to the dissolution of marriages, the authority of the President of the Supreme Court was extended in the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969 to cover people belonging to religions or communities which are not recognized. See my article on the above law in (1970) 2 Mishpatim 416.
61 The only Protestant community which has been recognized to date is the Evangelical-Episcopalian Church.
62 Husseini v. Ghanem (1941) 8 P.L.R. 216; Amar v. Chief Execution Officer (1943) 10 P.L.R. 78; Hamadan v. Sha'yah (1972) (I) 28 P.D. 225. The Ordinance was even applied in relation to entry into the Moslem community, e.g. Kativ v. Chief Execution Officer et al. 4 P.M.S. 1265. And see Mizrachi v. Shara'i Court of Nazareth, op. cit.
63 Shomali v. Chief Execution Officer (1945) A.L.R. 649; Shibli v. Shibli, op. cit.; Halo v. Halo, op. cit.
64 Cf. Agranat J. in Holzman, op. cit. at 92, where he distinguishes between the judicial jurisdiction of the Rabbinical court in a divorce suit involving a person whose Jewishness is uncertain, and the religious competence to convert that person.
65 Under the Transfer of Powers (District Commissioners and District Officers) Law, 1964, the powers and functions exercised exclusively by the District Commissioner by virtue of a number of Ordinances, including the Religious Community (Change) Ordinance, will devolve upon a person to be appointed by the Minister responsible for the execution of that Ordinance from amongst the clerks in that Ministry. The Minister of Religion, who was charged with the execution of the Religious Community (Change) Ordinance (Official Gazette no. 5, 16.6.48, p. 22) from time to time authorizes various clerks in the Ministry of Religion to act as the authorized body for the purposes of the Ordinance (see, e.g. Yalkut HaPirsumim 1646, p. 2580 and 1617, p. 1761).
66 See Mizrachi v, Shara'i Court of Nazareth, op. cit. at 379.
67 See the cases cited in n. 63, and in particular, Shibli v. Shibli, op. cit. at 149: “The requirements of chap. 127 apply only to those people who belong to one of the communities recognized by the law and who convert to a religion by the law and who convert to a religion which is also recognized. Not included are those people who join an unrecognized religious community or who convert from such a community: such people are exempt from the requirement of registering their change of religion.
68 Amar v. Chief Execution Officer, op. cit. at 78; Baqluq v. Baqluq (1944) A.L.R. 192; Shibli v. Shibli, op. cit. at 142; but see Sawmi v. Chief Execution Officer et al. (1946) A.L.R. 245.
69 Shubeita v. Chief Execution Officer (1942) 9 P.L.R. 121.
70 Shubeita v. Shubeita (1942) 9 P.L.R. 264.
71 Hamadan v. Sha'yah, op. cit. at 225, as per Agranat J.: “I do not wish to rely on the reasoning that the husband may not take advantage of the fact of his conversion from Christianity … to Islam, as long as the Islamic authority has not notified the District Commissioner, as required by sec. 2(1) of the Ordinance. It is clear that in view of the certificate … relating to the above change of religion … this omission can be rectified, and consequently I would postpone the proceedings in order to enable the husband to notify the appropriate authorities.”
72 See, e.g. sec. 4(1) of the Ordinance, according to which a change of community which was properly registered under the Ordinance will not affect any obligations to which the person committed himself prior to the registration of the change by the District Commissioner. This means that the decisive moment for the purpose of the validity of the change is the time of registration. This interpretation may be inferred from the recent case of Mahol v. Ecclesiastical Court of the Greek Orthodox Church, Akko, et al. (1979) (II) 33 P.D. 617.
73 Agranat J.'s above-mentioned decision is supported by the decision of the Mandatory Supreme Court cited in Vitta, op. cit. at 69–70, according to which registration of a change of religion can cause a marriage which took place a few days before the registration according to the laws of the new religion, to acquire validity. See Shava, M., Personal Law in Israel (1976) 173–74.Google Scholar
74 On this matter see Bandack v. Mikail (1946) A.L.R. 33.
75 On this matter, see: Baqluq v. Baqluq, op. cit. at 194, per Frumkin J.: For years it has been the practice of this court that no change of religion subsequent to marriage can affect the jurisdiction of the court of the community to which the parties belonged at the time of the marriage. This sound and logical principle was adopted in the Religious Community (Change) Ordinance, sec. 4(2), which allowed one diversion from the rule, and that is, when both parties have subsequent to the marriage changed their religious community. The object of this principle is obvious. No party to a marriage should be allowed to escape matrimonial obligations by depriving a court of its natural jurisdiction through a change of community”. And see also Haddad v. Haddad (1947) A.L.R. 42; Hamadan v. Sha'yah, op. cit. at 225.
76 Halo v. Halo (1948–49) 1 P.E. 51, 66–67. Another source for this law may be found in Solesh v. Solesh (1959) 13 P.D. 1620, in which the President of the Supreme Court ruled that his power to decide the question of jurisdiction in matters of marriage between a Jew and a Catholic, by virtue of sec. 55 of the Order-in-Council, is not negated if the woman applied to be converted, as long as she has not actually converted.
77 See Halo v. Halo, op. cit. at 65–66.
78 E.g. Shomali v. Chief Execution Officer, op. cit. at 649, in which recognition was granted to a Protestant who joined the Latin-Catholic Church.
79 On recognition of a change of religion outside of Israel, see e.g. Holzman, op. cit. at 85, in which the President of the Court was prepared to recognize a conversion by a Reform rabbi outside Israel if a certificate attesting to the conversion would be produced before the court. (Discussion of the problems arising from such recognition is beyond the scope of this article, but see Shaki, H., Dinai Israel, vol. 4, p. 161Google Scholar); Shifman, P., “Conversion Outside the Halakha” (1975–1976) 6 Mishpatim 391.Google Scholar In an unpublished decision, the President of the Supreme Court considered himself competent to deal with the marriage of a Catholic couple who were married in Italy, and the woman converted to Judaism in Italy. According to the Catholic view, they are both Catholics, and only the Catholic Church is competent to handle the matter.
80 Cf. Abbo, J.A., The Sacred Canons vol. 1. p. 24.Google Scholar
81 On this mater, see Rogozinski et al. v. State of Israel op. cit. at 324, in which the Supreme Court ruled that a person who, under Jewish law is considered Jewish, is subject to the exclusive jurisdiction of the Rabbinical court in matters of marriage and divorce, even though he himself testifies that he holds no religious belief and does not belong to any religion. On the other hand, with respect to registration in the Population Registry, see Rufeizen v. Minister of the Interior, op. cit. at 2447, and Shalit v. Minister of the Interior, op. cit. And see Shaki, A.H., “Jewish Atheists—Jews?” (1973–1974) 3 Iyunei Mishpat 879.Google Scholar
82 Cf. the opinion of G.W. Bartholomeo, “Private Interpersonal Law” op. cit. supra n. 4, at 339: “…it is…surely open to question whether a person's personal law should change merely by their adoption of agnosticism or atheism. It is at least arguable that persons born and brought up as Muhammadans should remain subject to the Muhammadan law, until they are converted to a religion which necessitates the application to them of a different personal law”.
83 In particular, see Bracha, B., “Personal Status of Persons Who Do Not Belong to a Recognized Religious Community” (1971) 1 Iyunei Mishpat 156Google Scholar, and the notes there; Bracha's starting-point seems to me to be fundamentally wrong. The decisive question does not concern the opinion of the Mandatory legislator, if indeed there was a clear-cut opinion on this subject, but rather, what meaning can and must be attributed to the expression “personal law” in sec. 47 of the Order-in-Council.
84 A.L. Globus, op. cit. at 225; Pearls, P.S., “Questions and Answers about Religious Communities and Religions in Israel” (1960) 16 HaPraklit 60.Google Scholar
85 Sec. 2(b) of the Family Law Amendment (Maintenance) Law, 1959 states that “a person who is not a Jew nor a Moslem nor a Druze, not a member of one of the religious communities specified in the First Appendix to the Succession Ordinance, or who is not subject to any personal law, is obliged to pay maintenance to his spouse, and the provisions of this Law will apply to such maintenance”. Could we not learn from this that it is possible that a person is subject to a “personal law” even if he is not a Jew, nor a Moslem, nor a Druze, nor a member of a recognized Christian community? Otherwise, the expression “or who is not subject to any personal law” would be superfluous. However, according to our interpretation, the expression means a person who has no religion, or who is a member of a religious community that has no independent provisions with respect to maintenance. And see Shava, M., Personal Law in Israel 160–61.Google Scholar
86 Cohen v. Ludmirer 11 P.L.R. 522; on the application of Anglican law to Anglicans, see Salfiti v. Ashker (1944) S.D.C. 297.
87 Sihu v. Karaite Community Court et al. (1977) (I) 31 P.D. 31, and see P. Shifman, “The Status of People with no Recognized Community: an Intermediate Arrangement” (1977–78) 8 Mishpatim 162. See also Mored and others v. Government of Israel (1980) (not yet published).
88 See Marzok v. Minister of the Interior et al. (1970) (II) 24 P.D. 628, in which the validity of a marriage certificate issued by a Karaite Rabbi operating as a “registration authority” recognized by the Minister of Religion, was held to be valid.
89 And the same applies to adherents of a religion that has no priests in Israel. Sec. 65A of the Order-in-Council, which was added in 1939, (P.G. (1939) Suppl. II, No. 898, p. 464) and which provides that “…provision may be made by Ordinance for the celebration of marriages of persons neither of whom is a Moslem or a member of a religious community…” has always remained a dead letter, and has never been given substance.
90 Rubinstein, A., “The Right to Marry” (1973–1974) 3 Iyunei Mishpat 433, 439Google Scholar, and his book, The Constitutional Law of the State of Israel 136; cf. Blum, Y.Z., “The Laws of Marriage in Israel and Human Rights” (1966) 22 HaPraklit 214, 226–231, 361 ff.Google Scholar
91 Dissolution of marriages will be governed by the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969. It is possible that the reference to foreign law does not provide a complete solution to all the problems even if we take the Israeli territorial laws into consideration.
92 Cf. Silberg, Personal Status in Israel 261. He is obviously aware that this possibility is not the most appropriate solution, as Landau J. said in another context: “What kind of solution is that for the Israeli legislator and the Israeli courts to send Israeli residents to other countries in order to carry out their intentions?”: Rodnizki v. High Rabbinical Court et al. (1970) (I) 24 P.D. 704, 713. Undoubtedly the inability of a person with no religion to marry in Israel has great symbolic significance, but that is not relevant here.
93 If, on the other hand, we accept the version which says that a member of an unrecognized religion does not have a personal law, the inevitable conclusion is that a person cannot join that religious community if he leaves a recognized one.
94 Khayat v. Khayat (1937) 4 Rottenberg 1244, 1251–52.
95 With respect to the competence of the Rabbinical court, in fact what was decided was that when one of the couple erased his name from the Knesset Israel rolls after his marriage, the Mandatory court will rule that sec. 4(2) of the Religious Community (Change) Ordinance, by virtue of which the competence of the Rabbinical court is not removed as a result of the departure, because at the time of the marriage both of the couple were subject to the jurisdiction of the Rabbinical court, applies here. See Elkin v. Chief Execution Officer et al. (1944) A.L.R. 21; Goldenberg v. Goldenberg (1947) 14 P.L.R. 2. In Elkin v. Chief Execution Officer, the Court in support of its decision, says that at the time of the marriage, either party was entitled to expect that any dispute affecting their personal status would be brought before the Rabbinical court; the court does not accept—“at least insofar as sec. 4 of the Ordinance is concerned”—the argument that the Ordinance does not apply to leaving Knesset Israel. In the above-mentioned decisions, sec. 4(2) is somewhat extended and is applied even when there was no adoption of a new religion. In Halo v. Halo, op. cit. at 65–66, the Supreme Court of Israel accepted the principle that in accordance with sec. 4(2), a person cannot, by actually leaving his community, deprive the religious court of its jurisdiction in matters of marriage and divorce, but the Court refused to apply this section to a change of religion which did not result in a termination of membership in the recognized religion, such as in the case of a Protestant converting to Judaism after marrying a Jewish girl in a civil ceremony outside Israel. On the matter of a change of religion outside Israel, Sussmann J. expressed his opinion, obiter dicta, that sec. 4(2) does not apply, and that when the Ordinance does not apply, the factual situation as it existed when the suit was filed is decisive. (Shlezinger v. Minister of the Interior (1963) 17 P.D. 225, 251; and see supra n. 36.) In my opinion, the logic of this conclusion may be questioned, for if we are to accept it, the result would be that a change of religion outside of Israel will be more effective than a change of religion in Israel, and a person trying to circumvent the law here can achieve his purpose—outside Israel. It may be possible to interpret sec. 4(2) of the Ordinance as applying also to a change of religion outside Israel, even though the provisions of the Ordinance concerning registration apply only to a change of religion in Israel.
96 Khayat v. Khayat, op. cit.; Shubeita v. Shubeita, op. cit. at 264.
97 Prof.Silberg, discusses this question in his book, Personal Status in Israel 256–59.Google Scholar But he does not arrive at a clear-cut conclusion.
98 We find a substantive provision relating to preserving the validity of marriages which took place before the conversion in sec. 65A of the Order-in-Council, which allows for the enactment of an ordinance to deal with civil marriages of people who are neither Moslems nor members of religious communities. Subsection (b) of the above section states that “…if a party to a marriage celebrated under the provisions of any such Ordinance thereafter becomes a Moslem or a member of a religious community, the validity of the marriage shall not thereby be affected…”. The section does not cover the question of the validity of the marriage when both parties changed their religion.
99 Goadby, , International and Inter-Religious Private Law in Palestine (1926) 166.Google Scholar
100 On the adoption of this law in Israel, see Skornik v. Skornik (1954) 8 P.D. 141, and for extensive discussion see Silberg, Personal Status in Israel 219 ff. But see Levontin, A., On Marriage and Divorce Outside Israel particularly p. 31 ff, 81–90.Google Scholar
101 It seems that the decision in Husseini v. Ghanem, op. cit., i.e. that the provision in sec. 4(1) is a substantive provision that must be considered by the Shara'i court, should be left open to further review. In any case, sec. 4(1) is not limited to obligations which crystallized in the court's order, as Shava mistakenly believes in his article (see supra n. 10), and Husseini v. Ghanem is evidence of such non-limitation. In that case, the court ruled that the succession rights of a widow who married the testator according to a former religious law are not affected as a result of his change of religion.
102 See Halo v. Halo et al. (1949–50) 2 P.D. 16, 33, and compare: Skornik v. Skornik (1951–52) 5 P.M. 51, 61.
103 On forcing an apostate husband (to give a bill of divorce) see the various opinions in the responsa Maharam Alashkar, no. 73; Beit Yosef on the Tur, Even Ha'Ezer, no. 134; Knesset Hagedola, Even Ha'Ezer, no. 134, Hagahot Beit Yosef, 72; Remah, Shulkhan Arukh, Even Ha'Ezer, 154, A; Pitchei Teshuva, Shulkhan Arukh, Even Ha'Ezer, 62:4. On a “woman who transgresses” in general, see Schereschevsky, , Family Law (Jerusalem, 2nd ed., 1967, in Hebrew) 305–8.Google Scholar
104 Cf. Goadby, op. cit. at 162–171; s.v. Fitzgerald, , Muhammadon Law 84–5.Google Scholar
105 See e.g. Shibli v. Shibli, op. cit. at 150. See also Silberg, Personal Status in Israel 40; Bassan v. High Rabbinical Court et al. (1964) (IV) 18 P.D. 309, 318. An exception to this rule is, obviously, the principle that was expressed in sec. 4(2) of the Religious Community (Change) Ordinance, which we shall presently discuss.
106 The authority of the President to confer such jurisdiction is given to him in sec. 55 of the Order-in-Council, and with respect to dissolution of marriages, in the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969. And see my note on the above law in (1970) 2 Mishpatim 416.
107 Amar v. Chief Execution Officer, op. cit. at 78; Baqluq v. Baqluq, op. cit. at 192.
108 Amizur v. Chief Execution Officer (1953) 7 P.D. 98, and see Silberg, op. cit. at 72–76. The same idea was expressed in Saffouri v. Salman (1947) A.L.R. 71: “…the petitioner married in the Greek Orthodox Church. She herself instituted proceedings in the court of the Greek Orthodox community. Throughout the nine years in which the proceedings continued, she never objected to the jurisdiction of the court, and never claimed that she was a Protestant …I think that owing to her behaviour over the years, she is estopped from raising the point now”. And see Sheinberg v. Chief Execution Officer et al. (1953) 13 P.E. 124.
109 See Heshin J. in Shibli v. Shibli, op. cit. at 150–53. The President (Zmora) left open the question of whether a man can be estopped, because of his conduct, from claiming membership in a particular religious community.
110 Bassan v. High Rabbinical Court, op. cit. at 316–17.
111 This principle served, in the time of the Mandate, as the basis for overruling the decisions of the Rabbinical courts, when one of the litigants was not registered in the rolls of Knesset Israel, and see Silberg, op. cit. at 62 ff.
112 See Paltiel v. Paltiel (1959) 13 P.D. 599, 601–02, 607.
113 Bower, S.. The Law Relating to Estoppel by Representation (1966) 136–137.Google Scholar
114 Bromley, P.M., Family Law (1976) 80–82Google Scholar; Jackson, J., The Formation and Annulment of Marriage (London, 2nd ed., 1969) 357–364.Google Scholar And see Becher v. Becher-Goldberg (1970) (I) 24 P.D. 373, 375.
115 Pero v. Kadi Midahav (1966) (II) 20 P.D. 342, 345.
116 On this subject see Gilo v. Magistrate, Jerusalem (1960) 14 P.D. 1709, 1713–14; Vicki Levy v. District Rabbinal Court T.A.-Yaffo (1958) 12 P.D. 1182; Pero v. Kadi Midahav, op. cit., and see Zamir, I., “The Competence of the High Court of Justice” in The Abraham Rosenthal Legal Research Memorial Volume 225 ff.Google Scholar
117 On the various doubts with respect to this prohibition, see: Schenk, J., Impediments of Mixed Religion and Disparity of Cult (1929) 139 ff.Google Scholar
118 Codex Iuris Canonici, Canon 732(2).
119 Canon 1070, and for further details on uncertainty with respect to marriage in the Canon law see Shifman, P., Doubtful Marriage in Israeli Law (Jerusalem, 1975, in Hebrew) 100–105.Google Scholar
120 Shifman, id. at 35.
121 Id. at 119–123.
122 Bassan v. High Rabbinical Court, op. cit. at 317: Shaki, A., in his article “The Case of a Doubtful Jew in the Rabbinical Courts and the Supreme Court” (1972) 2 Iyunei Mishpat 699, 703–6Google Scholar, criticizes this ruling, saying that in fact, a “doubtful Jew” is like a Jew, just as in his opinion, a woman whose marriage is open to doubt is like a woman who is certainly married (apart from pecuniary rights). This criticism ignores the different consequences, even in ritual law, stemming from a doubtful marriage and a certain one. And see Shifman, P., “The Status of the Doubt” (1966) 33 Deot 153.Google Scholar
123 Cf. Silberg, op. cit. at 94–5.
124 E.g., Women's Equal Rights Law, 1951, sec. 5 (5 L.S.I. 172); Capacity and Guardianship Law, 1962, sec. 79 (16 L.S.I. 117); Declarations of Death Law, 1978, sec. 6(a) and others.
125 See Kanol v. District Rabbinical Court (1958) 12 P.D. 1622, 1623. And see supra n. 123.
126 Bichovsky 7 Ct.L.R. 178; Silberg, op. cit. at 129–32.
127 On this question, see Shaki, op. cit. at 708–10; Maoz, A., “Doubtful Jurisdiction” (1974–1975) 4 Iyunei Mishpat 598, 610–12.Google Scholar
128 Gittiah v. Chief Rabbinate and the Religious Council, Jerusalem (1968) (I) 22 P.D. 290, 298.
129 Bassan v. High Rabbinical Court, op. cit. at 312.
130 It is questionable whether the decision in the Gittiah case can be reconciled with that in the Bassan case. In Gittiah, the court ruled that the Rabbinical court was authorized to prohibit the petitioner from marrying because of the doubt with respect to his Jewishness, as long as he did not convert by means of ritual immersion. The (secular) court found that the jurisdiction of the Rabbinical court in matters of marriage “includes the power to decide in advance, by way of a declaratory judgment, if the applicant could marry” (at p. 294), but it seems that according to the decision in the Bassan case, the doubt concerning Gittiah's Jewishness ought to have deprived the Rabbinical court of jurisdiction, at least to the extent that the Rabbis' decision was not to disqualify themselves, but rather, dealt with the conditions qualifying the petitioner for marriage. Stipulation of the conditions could only be a halakhic opinion, but not a binding legal decision. And see Englard, I., Religious Law in the Israel Legal System (Jerusalem, 1975) 194, n. 72.Google Scholar
131 Peloni v. Almonit (1963) 17 P.D. 2329.
132 And see Shifman, P., “Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969” (1970) 2 Mishpatim 416.Google Scholar
133 (1972) (II) 26 P.D. 85.
134 Bassan v. Bassan (1967) 57 P.M. 63.
135 We shall not dwell on the other refutations of this ruling. On this matter, see Shifman, P., Doubtful Marriage in Israeli Law 124.Google Scholar
