Israel, State of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

 

State of Israel established in 1948 after period of British Mandate rule ended, followed by war with Arab states. Most of the majority Arab population of Mandate Palestine became refugees in neighbouring Arab states.

In matters of personal status, system of shared jurisdiction in particular areas has allowed for legislation to intervene in application of Muslim law (still based on OLFR 1917 implemented by British) by way of penal sanctions and procedural devices used to indirectly effect changes in the law. However, core of personal status relating to marriage and divorce is still based on religious laws for majority Jewish and for Muslim and Christian communities; civil marriage not recognised.

School(s) of Fiqh

Mainly Hanafi law applied (due to Ottoman heritage) though majority (particularly in rural areas) is Shafi’i; besides Muslim Palestinians, also Christian Palestinians and Druze minorities in Israel

Constitutional Status of Islam(ic Law)

 

 

Basic Law on the Judiciary regulates creation of religious courts (beit din), including Muslim Religious Courts.

(No formal constitution; some functions of a constitution fulfilled by Declaration of Establishment (1948), basic laws of the parliament (Knesset), and Israeli citizenship law, as well as other documents of constitutional significance.)

Court System

 

Judiciary comprised of Supreme Court, District Courts, and Magistrates’ Courts. Supreme Court is highest court and court of final appeal. Five District Courts. Magistrates’ Courts serve as courts of first instance with separate Family Chambers with jurisdiction over personal status cases not under exclusive jurisdiction of religious courts.

Muslim, Druze, Christian and Rabbinical Religious Courts. Muslim Religious Courts have exclusive jurisdiction over all matters concerning Muslim personal status. Courts apply Ottoman Law of Family Rights 1917 (as amended after adoption in Palestine by British Mandate ordinance in 1919) and also have jurisdiction, with consent of parties involved, over adoption and inheritance. Organised at two levels: Shari’a courts of first instance and Shari’a Appeals Court.

Relevant Legislation

 

Ottoman Law of Family Rights 1917

Age of Marriage Law 1950

Women’s Equal Rights Law 1951

Penal Law Amendment (Bigamy) Law 1959

Capacity and Guardianship Law 1962

Penal Law 1977 (as relates to bigamy)

also:

Palestine Order of Council 1922

Welfare (Procedure in Matters of Minors, Mentally Sick Persons and Absent Persons) Law 1955

Family Law Amendment (Maintenance) Law 1959

Qadis’ Law 1961

Succession Law 1965

Alimony Law (Security Payment) 1972

Spouses (Property Relations) Law 1973

Family Courts Law 1995

Notable Features

 

Marriage Age: minimum age is 17 for females under Marriage Age Law 1950 and as determined by personal status law applicable to prospective grooms (18 years under OLFR); scope for judicial discretion (granted to Civil Courts) if wife in underage marriage is pregnant or child has been born (without a minimum age) or for ‘special circumstances’ (specified by case law) from age of 16 for females; penal sanctions of imprisonment and/or fine for non-compliance for husband, person arranging the marriage, and person officiating, though law does not invalidate underage marriages

Marriage Guardianship: wali’s permission required for marriage of female below minimum marriage age of 17 years

Marriage Registration: obligatory; non-registration does not invalidate marriage according to religious law

Polygamy: wife may insert stipulation in marriage contract that husband may not take additional wife and if he does so, she or the co-wife will be divorced

Obedience/Maintenance: no forcible execution of obedience judgement; maintenance claims between spouses or involving minor children governed by personal law applicable to defendant, whether case comes before secular or religious courts; claims for maintenance not to be heard after completion of ‘idda period after divorce and arrears of maintenance cannot be claimed

Talaq: OLFR invalidates talaq uttered under coercion or intoxication; also introduced requirement of notification of divorce to shari’a court, but notification is procedural and does not affect validity of repudiation; Women’s Equal Rights Law 1951 provides penal sanction of imprisonment for husband’s unilateral decision to divorce against wife’s will and in absence of court judgement permitting such repudiation, but repudiation remains valid

Judicial Divorce: under OLFR, judicial dissolution available to wife on following grounds: defect or illness of husband (failure to consummate marriage, impotence, infectious disease, and mental illness); non-payment of maintenance by absent husband; discord and strife (after appointment of 2 arbitrators to form a family council, with such council empowered to determine fault should reconciliation efforts fail); and irregular/void marriage; Age of Marriage Law also provides contracting of marriage of girl under 17 years as grounds for requesting dissolution before wife attains 19 years (or at request of wife’s guardian or a welfare officer before she attains 18 years)

Post-Divorce Maintenance/Financial Arrangements: divorcée who is not disobedient (nashiza) entitled to deferred dower and maintenance during ‘idda unless she renounced such rights; compensation paid to wife became regular feature in divorce after passage of Women’s Equal Rights Law 1951 establishing penal sanctions for unilateral repudiation of wife against her will and without court judgement.  Women’s Equal Rights Law 1951 removed division of property from remit of religious courts – now governed by civil law; Spouses (Property Relations) Law 1973 directs application of ‘community property rule’ with presumption that parties have equal share in marital property if parties opt for adjudication under state law.

Child Custody and Guardianship: under Capacity and Guardianship Law 1962, in absence of specific agreement between spouses, wife has preference in matters of custody over minor children until 6 years; courts are to base judgements according to wards’ best interests; on death of one party, guardianship to revert to surviving parent; courts empowered to appoint guardians for minors, with ward’s interests being sole criteria for exercise of judicial discretion

Succession: Succession Law 1965 permits co-wives to share in estate of deceased husband; Muslims over 18 may opt for application of shar’i inheritance law, otherwise, Ottoman Law of Succession 1913 (initially equalising rights of male and female heirs to miri property, i.e., state-owned property granted to individuals) as amended by Women’s Equal Rights Law (extending Ottoman legislation to mulk and movable property)

Notable Cases

 

Law/Case Reporting System

Law reporting through Israeli Official Gazette and case reports published in bulletins of the Muslim and Druze Divisions of the Ministry of Religious Affairs (Majallat al-Akhbar al-Darziyya and Majallat al-Akhbar al-Islamiyya). [?]

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – signature 1966, ratification 1991 with reservation to Art. 23 of ICCPR

CEDAW – signature 1980, ratification 1991 with reservations to Arts. 7(b) & 16 and declaration regarding Art. 29(1)

CRC – signature 1990, ratification 1991 without reservations

Convention to Consent to Marriage, Minimum Age for Marriage and Registration of Marriages – signature 1962

Legal History:

Palestine remained under Ottoman rule from 1517 until 1917. The state of Israel was established in 1948 after the period of British Mandate rule from 1922 ended, followed by war with the Arab states. A majority of the Palestinian population became refugees in neighbouring Arab countries. Israel also has a significant Palestinian minority, a majority of whom are Muslim.

The Israeli legal system is a mixture of English common law, British Mandate regulations, and, in personal status law, Jewish, Christian, and Muslim law. In matters of personal status, the system of shared jurisdiction in particular areas has allowed for legislation to intervene in the application of Muslim law (still based on the OLFR 1917 implemented by British Mandatory administration) by way of penal sanctions and procedural devices used to indirectly effect changes in the law. However, the core of personal status relating to marriage and divorce is still based on religious laws.

Schools of Fiqh: The Hanafi school is officially the main school of law, although this is a legacy of Palestine’s Ottoman history. Much of the Muslim population, particularly in rural areas, is Shafi’i. Israel also has Christian and Druze minorities.

Constitutional Status of Islam(ic Law): The Basic Law on the Judicature regulates the creation of religious courts (beit din), which includes the Muslim Religious Courts. There is no formal constitution; some of the functions of a constitution are served by the Declaration of Establishment (1948), the basic laws of the parliament (Knesset), and the Israeli citizenship law, as well as other documents of constitutional significance.

Court System: Muslim, Druze, Christian and Rabbinical Religious Courts are separate. Muslim Religious Courts have exclusive jurisdiction over all matters concerning Muslim personal status. The Courts apply the Ottoman Law of Family Rights 1917 (as amended after being adopted in Palestine by ordinance in 1919) and have jurisdiction, with the consent of the parties involved, over adoption and inheritance.

Notable Features: The minimum marriage age is 17 for females under the Marriage Age Law 1950 and as determined by the personal status law applicable to the prospective grooms (18 years under the OLFR). There is scope for judicial discretion (granted to Civil Courts) if the wife in an underage marriage is pregnant or a child has been born (without a minimum age) or for ‘special circumstances’ (specified by case law) from the age of 16 years for females. There are penal sanctions of imprisonment and/or fines for non-compliance for the husband, the person arranging the marriage, and the person officiating, though the law does not invalidate underage marriages. The wali’s permission is required for the marriage of a female below the minimum marriage age of 17 years.

Marriage registration is obligatory; non-registration does not invalidate the marriage according to religious law. The wife may insert a stipulation in the marriage contract that the husband may not take an additional wife and if he does so, she or the co-wife will be divorced. There is no forcible execution of an obedience judgement; maintenance claims between spouses or involving minor children are governed by the personal law applicable to the defendant, whether the case comes before the secular or religious courts. Claims for maintenance are not to be heard after the completion of the ‘idda period after a divorce and arrears of maintenance cannot be claimed.

The OLFR invalidates talaq uttered under coercion or intoxication and also introduced the requirement of notification of divorce to the shari’a court, but notification is procedural and does not affect the validity of a repudiation. The Women’s Equal Rights Law 1951 provides penal sanction of imprisonment for a husband’s unilateral decision to divorce against his wife’s will and in the absence of a court judgement permitting such repudiation, but the repudiation remains valid. Under the OLFR, judicial dissolution is available to the wife on the following grounds: defect or illness of the husband (failure to consummate marriage, impotence, infectious disease, and mental illness); non-payment of maintenance by an absent husband; discord and strife (after the appointment of arbitrators to form a family council, with such council empowered to determine fault should reconciliation efforts fail); and irregular/void marriage. The Age of Marriage Law also provides contracting of marriage of girl under 17 years as grounds for requesting a dissolution before the wife attains 19 years (or at the request of the wife’s guardian or a welfare officer before she attains 18 years). A divorcée who is not disobedient (nashiza) is entitled to deferred dower and maintenance during her ‘idda unless she renounced such rights.

Compensation paid to the wife became a regular feature in divorce after the passage of the Women’s Equal Rights Law establishing penal sanctions for the unilateral repudiation of wife against her will and without a court judgement. The Women’s Equal Rights Law extended adjudication of the division of property to the regular civil courts. The Spouses (Property Relations) Law 1973 directs the application of the ‘community property rule’ with the presumption that parties have an equal share in marital property if the parties opt for adjudication under state law. Under the Capacity and Guardianship Law 1962, in the absence of a specific agreement between spouses, the wife has preference in matters of custody over minor children until 6 years. Courts are to base judgements according to the wards’ best interests. Upon the death of one party, guardianship is to revert to the surviving parent. Courts are empowered to appoint guardians for minors, with the ward’s interests being the sole criteria for exercise of judicial discretion.

The Succession Law 1965 permits co-wives to share in the estate of the deceased husband. Muslims over 18 may opt for the application of shar’i inheritance law, otherwise, the Ottoman Law of Succession 1913 (initially equalising rights of male and female heirs to miri property, i.e., state-owned property granted to individuals) as amended by the Women’s Equal Rights Law (extending Ottoman legislation to mulk and movable property).

Notable Cases:  

Law/Case Reporting System: Law reporting is through the Israeli Official Gazette. Case reports of shari’a court decisions are published in bulletins of the Muslim and Druze Divisions of the Ministry of Religious Affairs (Majallat al-Akhbar al-Darziyya and Majallat al-Akhbar al-Islamiyya).

International Conventions (with Relevant Reservations): Israel signed the ICCPR and ICESCR in 1966 and ratified them in 1991. Israel submitted a reservation to Article 23 of ICCPR relating to the establishment of gender equality in the area of family law. The declaration states that "…matters of personal status are governed in Israel by the religious law of the parties concerned. To the extent that such law is inconsistent with its obligations under the Covenant, Israel reserves the right to apply that law".

Israel signed the CEDAW in 1980 and ratified it in 1991. Israel submitted a reservation to Article 7(b) relating to gender equality in the formulation and implementation of policy, including holding public office and performing public functions at all levels of government. The Israeli reservation states that, other than in the area of religious courts, the article has been fully implemented in Israel, and that the reservation concerns the inadmissibility of appointing women judges in religious courts where this is prohibited by the communal laws applicable to a particular community. Israel also expresses its reservation to Article 16 on gender equality in family law "to the extent that the laws on personal status which are binding on the various religious communities in Israel do not conform with the provisions of that article".

Israel signed the CRC in 1990 and ratified the Convention in 1991, without reservations.

Israel signed the Convention to Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1962.

Background and Sources: Ibrahim, "The Status of Arab Women in Israel," Critique: Journal of Critical Studies of the Middle East, v. 12(1998): 107-120; Israel, Initial & Second Periodic Report to CEDAW, 8 Apr. 1997; Layish, "Reforms in the Law of Personal Status of the Muslims in Israel: Legislation and Application," Recht van de Islam 12(1994), pp. 45-57; Layish, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Shari’a Courts in Israel, Jerusalem, 1975; Redden, “Israel” in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990; Reiter, "Qadis and the Implementation of Islamic Law in Present Day Israel," pp. 205-31 in Islamic Law: Theory and Practice, Gleave, ed., London, 1997; Welchman, "Family Law under Occupation: Islamic Law and the Shari’a Courts of the West Bank," in Islamic Family Law, Mallat & Connors, eds., London, 1990.