Below are readers' questions about 'Jurisdiction', which we have chosen to answer. More detailed information on 'Jurisdiction' can be found on our main website, Family Law in Israel.
Jurisdiction is basically the venue for the legal proceedings i.e. at the broadest level, the country in which the dispute will be heard, and legal system means the law (of a particular state/country) which is to be applied in deciding it.
The family court, except in vary rare circumstances where a religious court can claim jurisdiciton.
Where the dispute is global or international i.e. involves parties with different nationalities,who live or have lived in different countries,and have children and property in various places, the question arises as to which country is the venue for the proceedings,and which country's legal system applies.
As regards venue, a particular court in Israel will need jurisdiction at three levels to have legal authority to hear a case and rule on it. Firstly, it will need jurisdiction at the international level i.e. Israel rather than another country has legal authority to hear the case. Secondly, it will need substantive or subject matter jurisdiction i.e. be the appropriate court within Israel to deal with the particular issue. Finally, it will need local jurisdiction i.e. be the correct court, geographically, of its type to deal with the matter within Israel.
Basically, when a court has jurisdiction over a matter, it means that it has the legal authority and power to hear the proceedings,and give a decision. When a court does not have jurisdiction over a matter, it means that it lacks the legal authority and power to hear the proceedings and to give a decision.
If an anti-suit injunction application has been filed, it can be countered with an application to throw out these proceedings, on the grounds of lack of jurisdiction, inappropriate forum and bad faith, or abuse of the legal process, together with an analysis of the particular supporting circumstances.
It is possible to succeed – and have the anti-suit injunction application thrown out from the start, as happened in January 2015 when Tel Aviv Family Court accepted the defendant’s application to throw out the Plaintiff’s application for an order to prevent her from continuing with child custody, support and financial proceedings she had filed against him in Seattle, Washington, U.S.A.(File 52324-10-14). The Defendant/mother was represented by our law practice. The Tel Aviv Family court accepted her arguments and held that the appropriate forum for hearing the proceedings was in the States, where the parties were both living, separately, and not Israel, which they had left permanently in 2010, so that the proceedings were stopped at the outset.
Only the rabbinical court.
'Forum shopping' is when parties to a global family law dispute, research the 'market' and try to get their dispute heard in a country with a favourable legal system. They may actively plan,or even manipulate,after appropriate research. Their aim is to cause the venue for the legal proceedings to be in one country, rather than another, and for one country's laws, rather than another to be applied, because it gives them a legal advantage.
Forum shopping is often employed in 'international divorce' where the legal systems related to marital property and child custody can vary considerably from country to country.
At the family court.
Where courts in two different countries can both claim jurisdiction to hear a particular international family law dispute,the preferred one is known as the 'appropriate forum'. An appropriate forum is the venue that it is more convenient in terms of hearing witnesses,including elderly people or those for whom travel is difficult, and gathering evidence,including professionals who may have to make ongoing reports for the court.
As technology improves,and the means of gathering testimony and examining witnesses become more diverse,and include video conferencing, many obstacles that previously existed have been overcome.
At the family court or the rabbinical court.
In Israel, parallel jurisdiction exists over certain issues such as child custody. Where both parties are Jews, the question of custody can be heard by the family court, or the rabbinical court. Competition exists between the two courts as to which will be the venue for child custody proceedings. Whoever files first can win the 'jurisdicitonal race' over child custody and proceedings will be heard at that court, rather than the other.
If a divorce plea is filed at the rabbinical court, custody is bound to it, if a custody plea has not been opened beforehand at the family court. If a custody plea has been filed at the family court before the divorce file is opened at the rabbinical court, then the path is blocked to the rabbinical court gaining jurisdiction over custody.
Yes! Parallel jurisdiction exists regarding certain matters in Israeli family law. For example, the family (civil) court can have jurisdiction over child custody, but so can a recognised religious court, in certain circumstances.
You have a choice of either the family (civil) court or the Roman Catholic Church Court.