RELIGIOUS LAW AND CIVIL LAW IN FINANCIAL MATTERS: THE GAPS—AND THEIR BRIDGING

IMPOSING CIVIL LAW ON RELIGIOUS LAW

In 1994, the decision of the Israel High Court of Justice in the landmark Bavli case obligated the state rabbinical courts to follow civil law in financial family matters.Footnote ¹¹ In that case, Ms. Bavli demanded equal property sharing on the basis of the Sharing Presumption (the couple were wed before 1974, so the Financial Relations between Spouses Law was not applicable to them),Footnote ¹² but the rabbinical court refused and granted the husband the right to the property that was formally owned by him, which resulted in an unequal distribution of the property. The High Court of Justice ruled that in financial family matters the state rabbinical courts must follow civil, rather than religious, law. Therefore, financial matters must be adjudicated according to civil principles, that is, the Sharing Presumption or the Financial Relations Law.Footnote ¹³

The formal reasoning behind this decision was as follows: according to the Rabbinical Courts Jurisdiction Law, rabbinical courts have sole jurisdiction in matters of marriage and divorce (section 1), and these matters should be adjudicated according to Jewish law (section 2). Matters that are related to divorce, such as property distribution and wife and children's maintenance, are under the jurisdiction of rabbinical courts when one party binds those issues to his or her divorce suit (section 3).Footnote ¹⁴ Traditionally, in cases like the Bavli case, in which the Financial Relations between Spouses Law was not applicable, those matters were adjudicated by rabbinical courts according to religious law.Footnote ¹⁵ In the Bavli case, however, the High Court of Justice ruled (counter to the practice that preceded this decision) that although property distribution is under the jurisdiction of the rabbinical court when there was a proper “binding” according to section 3, it should be adjudicated (by the rabbinical courts!) according to civil law, rather than according to religious law.Footnote ¹⁶ The High Court of Justice argued that property distribution is not a matter of personal status, as opposed to other matters such as child and spousal maintenance, and therefore should be adjudicated according to civil law.Footnote ¹⁷ It might be possible to explain the distinction between property distribution and maintenance in some doctrinal ways, but obviously the High Court of Justice here was not motivated by a doctrinal distinction. It was motivated by its values of women's equality, together with a general institutional (some might say political) objective, to limit the authority of religious courts and religious law, and to strengthen civil family law. The Court stated this outright (“In civil matters, all judicial bodies, including the rabbinical court, are obliged to act in accordance with the general [i.e., civil] law”),Footnote ¹⁸ and it accords with other decisions that sought to circumvent the scope of religious law in Israeli family law.Footnote ¹⁹

Not surprisingly, the reactions to the decision were highly emotional, and it led to a profound controversy regarding the relations between religious and civil law in Israel. Alongside the public debate, the religious legal system itself was internally conflicted on the question of accepting or rejecting this newly imposed legal arrangement.Footnote ²⁰ But the passage of time achieved what scholarly writings did not. During the more than twenty years since the Bavli decision, the application of civil principles and civil law in financial matters in divorce (whether through the Sharing Presumption or the Financial Relations between Spouses Law) became widespread among rabbinical courts, whether willingly, unwillingly, or with hesitations (and from time to time the High Court of Justice had to reemphasize the obligation of rabbinical courts to apply civil law in financial matters).Footnote ²¹ From a civil perspective, this process was imposed and supervised by the High Court of Justice on the basis of the Bavli decision. From a Jewish law perspective, the application of civil principles was justified by several halakhic constructions, which I describe below.

CIVIL AND RELIGIOUS FINANCIAL RIGHTS: THE COMPETITION

A central element of the financial arrangements in divorce according to Jewish law is the ketubbah payment. The ketubbah is a marriage document which regulates the rights and obligations of the couple in their marital life. It includes the monetary obligation of the husband to be paid to his wife upon his death or divorce. The ketubbah was enacted by early SagesFootnote ³⁷ for two purposes. First, in order to prevent the husband from unilaterally divorcing his wife.Footnote ³⁸ Second, in order to provide the wife with financial resources after being divorced from her husband.Footnote ³⁹ The first purpose is more common in Talmudic and post-Talmudic literature, but the second is also taken into account (and may have some practical implications, for example, in evaluating the ketubbah as an amount equal to the present average yearly cost of living, or in viewing the ketubbah as an alternative to the wife's maintenance.)Footnote ⁴⁰

Throughout the years, the content of the ketubbah became subject to general enactments and more local customs, including the imposition of additional financial and other obligations on the husband.Footnote ⁴¹ Today, the ketubbah is an integral part of the wedding ceremony. In it, the husband commits himself to pay his wife a certain sum of money: the original 200 zuz and an additional sum of money, which—in the Israeli practice—may be equal to a few thousand U.S. dollars, and sometimes even more.Footnote ⁴²

So where is the competition between the ketubbah and civil financial rights?

In the past, rabbinical courts divided the property according to its formal ownership. In many cases, the husband received more than the wife did, but had to compensate her by paying the ketubbah payment. In the years after the Bavli decision, as mentioned above, ruling according to the civil principles of equal property sharing (on the basis either of the Sharing Presumption or of the Financial Relations Law) became widespread among rabbinical courts. Now the question arises: would the wife be entitled to both civil financial rights and rights provided to her by the religious-law contract, the ketubbah? Israeli law states explicitly that civil financial relations and financial rights do not affect rights based on religious law.Footnote ⁴³ Nevertheless, many rabbinical courts argue that the wife cannot win “double deals,” so that if she receives assets according to civil law when she was not so entitled according to Jewish law, she will not be entitled to the ketubbah payment.

Offsetting the ketubbah obligation by the civil financial rights without considering them as the wife's two parallel rights accordingly became a common practice in the rabbinical courts.Footnote ⁴⁴ Admittedly, some rabbinical judges do not accept this practice (at least when both spouses agreed to adjudication according to civil law), and argue that these are two separate rights, and one cannot override the other. Rabbi Eliyahu Hishrik, a High Rabbinical Court judge and formerly a judge in the Tel Aviv rabbinical court, writes,

Many (apparently most of the rabbinical court judges), however, accept the offsetting approach in its entirety.Footnote ⁴⁶ As Rabbi Uriel Lavi, a well-known rabbinical judge at the time in the Tiberias regional rabbinical court, and today in the Jerusalem court, writes clearly (followed by a review of the dominance of this opinion in recent verdicts and its basis in classic Jewish law sources), “The decisions of the rabbinical courts in recent years are generally unanimous in disallowing double rights.”Footnote ⁴⁷ So what motivates those who accept the offsetting practice and do not provide the wife with the right to the ketubbah payment when she receives financial rights on the basis of civil law?

In order to answer this question, we should mention an interesting phenomenon regarding the practice that rejects “double deals”: this practice does not refer to every possible asset of the couple; it does have some limits. Even those who do accept the practice in general may well acknowledge that some financial rights are stable enough that they exist together with the right for the ketubbah payment. This is so regarding the family apartment, which is considered joint property, especially when it is registered in both spouses’ name.Footnote ⁴⁸ It is probably the case also regarding a joint bank account that is recognized by rabbinical courts as belonging to both spouses, and therefore should be equally distributed between them.Footnote ⁴⁹ Some rabbinical judges argued (mainly in the past) that, according to Jewish law, the registration cannot affect the husband's ownership, and even those assets should not be divided. But this view is not accepted today.Footnote ⁵⁰ Rabbi Uriel Lavi, who is cited above as a supporter of the rejection of the “double deals,” follows his extensive discussion of the basis of his view by emphasizing that this is not the case regarding the family apartment. The wife is entitled to half of the family apartment according to Jewish law without the adoption of civil concepts of property sharing, so its division should not affect her right to the ketubbah payment. In his words, “This does not refer to property that, by Torah law, belongs to the wife, even without the Financial Relations Law, such as the part registered in her name of the apartment.”Footnote ⁵¹

It appears that when a financial right is recognized and accepted as part of the classic Jewish law view, it can live happily ever after with the right to the ketubbah payment. This is not so, however, when the financial right is imposed by civil law, even if it is then accepted by the rabbinical courts on the basis of the above three constructions.Footnote ⁵² The necessary conclusion is that those rights, although they are provided by rabbinical courts and justified on the basis of Jewish law doctrines, are still considered somehow illegitimate, and therefore, when possible, they are counterbalanced by the cancellation of other, established financial rights, such as the ketubbah payment.

Thus, despite the apparent acceptance of the equal property sharing principles, the above practice reflects a reaction to the coercive imposition of civil principles on religious courts. Rabbinical courts were forced to adopt civil financial rights into their rulings and implement them in practice. They did so, and as described above, even found internal Jewish law doctrines to justify this. But since this process was effected mainly by coercion, it is not straightforward.

In theory, rabbinical courts had the option to claim that equal property distribution provides the wife with her own assets (for example, due to the implicit intention of the parties when they wed to co-own the future marital assets).Footnote ⁵³ All family assets—not only the family apartment—could be considered shared property. In this case, sharing the property by rabbinical courts would be no more than a declarative decision (sharing what already belongs both to the wife and the husband) and not providing the wife with new financial rights to which she was not entitled prima facie according to Jewish law. The ketubbah could be considered as providing the wife with additional financial resources for certain objectives, and thus it could accord with property sharing.Footnote ⁵⁴ Moreover, if indeed the adoption of equal property sharing by rabbinical courts is based on its being a general custom, it is presumed that the couple agreed to this financial regime. The husband's unilateral obligation to pay the ketubbah is thus irrelevant to the property sharing, and accordingly should not be affected by this property sharing. The rabbinical courts, however, choose not to do so. In their opinion, one offsets the other, and therefore the wife is not entitled to both.

The result is fascinating. Rabbinical courts are forced to follow civil law as regards property sharing. They do so—and even integrate it into the Jewish law discourse—but they do not completely internalize property sharing as a legitimate right. Therefore, they view civil financial rights and the ketubbah payment as competitive rights rather than supplementary or independent ones, and thus one overrides the other.

THE INDIRECT INFLUENCE OF RELIGIOUS PRINCIPLES ON CIVIL FINANCIAL RIGHTS

The ketubbah payment, as analyzed in the previous section, generates an explicit competition between rights based on civil law and those founded in religious law. Sometimes, however, the complex relationships between the two are reflected in a much more indirect way—as an interpretative influence of one on the other; an internal (sometimes silent) influence that enables the application of Jewish law principles. More specifically, rabbinical courts are obliged to provide the couple with civil financial rights and to follow civil concepts of property sharing. Perhaps the implicit expectation of those who formed this demand was that rabbinical decisions would express civil values such as equality and freedom (in their modern sense). The rabbinical courts, however, apply these rights while using a broad and creative interpretation that makes it possible to integrate some religious law principles in the civil decision, sometimes in a quite different manner than expected from a civil perspective. How so?

The Financial Relations between Spouses Law is based on a financial regime of delayed obligatory property sharing. That means that the financial right comes into effect at the time of separation.Footnote ⁵⁵ Initially, the Law ruled that property sharing is to be implemented only at the time of actual divorce. This made the Law ineffective (or, as the Supreme Court defined it, “a dead letter”), since spouses who wanted to delay or prevent property sharing raised difficulties for the divorce proceedings, or sometimes completely refused to divorce. Divorce, it should be recalled, is performed in Israel according to religious law, and the structure of divorce law in Jewish law often enables divorce refusal.Footnote ⁵⁶

Following the fourth amendment of the Financial Relations between Spouses Law in 2008, property sharing can be executed if there is a permanent marital breakdown, without the need for formal divorce (as had been required before the amendment). According to section 5a of the amended law, property distribution would be executed in one of the following cases: (1) after a year from the submission of a formal suit that initiates procedures of separation (whether a divorce suit or various kinds of property distribution suits); (2) there is a marital breakdown, or nine months of actual separation between the couple.Footnote ⁵⁷ The rationale behind this law is that when there is a permanent breakdown, the spouses no longer participate in a shared financial enterprise and the property is no longer a shared property. It is not, however, merely a purely financial rationale. Rather, the law also aims to assist in solving the problem of divorce refusal which had been encouraged by the previous arrangement (as described above). After the amendment, the law detaches property sharing from the actual divorce (which is performed according to religious law), so its delay will not provide the recalcitrant spouse with any financial benefits. By this, the law transforms divorce refusal by those who wish to avoid property sharing into a completely ineffective act.

Nonetheless, the court that adjudicates the case (either civil or rabbinical court) is given broad leeway in its considerations.Footnote ⁵⁸ The first part of section (2) mentions “marital breakdown” as a cause for property distribution, but does so without providing any details to what characterizes this “breakdown.” The second part of this section, which mentions nine months of separation, uses the word or, thereby providing a second option for executing property sharing. If “marital breakdown” is not separation, what does this term mean? It is a fine example of open texture that provides the court with a wide range of options. Even more explicit are the third part of section 5a(a)(2) (whose first and second parts are the marital breakdown and nine months separation mentioned above) and section 5a(b) of that law. According to section (2), the court may shorten the separation period required for proving marital breakdown when there is “a judicial decision that affirms the existence of a breakdown between the couple.”Footnote ⁵⁹ Section 5a(b) adds that in certain circumstances, the court may also shorten the other periods suggested by the law. Thus, the court may order the execution of property sharing even less than a year after opening divorce procedures, when, for instance, the other spouse was convicted of domestic violence.Footnote ⁶⁰

It is important to note that both civil family courts and rabbinical courts commonly interpret the concept of family breakdown as applied retroactively rather than prospectively. Thus, when the court is convinced that there is a permanent marital breakdown, it might indicate a specific time in the past at which the breakdown occurred, and property sharing should be done retroactively, on the basis of the property that existed at that time. This is quite significant, since the financially stronger spouse would be interested in the determining time of breakdown being set as early as possible, and then all assets that were acquired by him or her from that point onward would not be divided.Footnote ⁶¹

The key for executing property sharing is therefore marital breakdown. But what can be considered as a breakdown between the couple that justifies property sharing? Since the no-fault revolution, fault considerations are not a necessary cause for divorce, and usually would not affect the property and financial rights of each of the spouses.Footnote ⁶² But rabbinical courts, very creatively, integrate fault considerations in the process of property sharing. They usually do not do so directly by arguing that fault influences property rights, since in financial matters they are under the purview of civil law, and Israeli civil law shares the above no-fault concept of financial rights. They do so indirectly, by using fault as an indication of marital breakdown. Let me explore this point a bit further.

According to Jewish law, when the wife commits adultery, she is “forbidden to her husband” (and to the one with whom she committed adultery), the couple must divorce, and she does not receive her ketubbah payment.Footnote ⁶³ Adultery committed by the husband is condemned, but sometimes is more tolerable, especially as regards the lack of a religious demand to divorce.Footnote ⁶⁴ Some rabbinical courts claim that the wife's adultery (even a single time) is an indication of a marital breakdown, and property sharing should be executed on the basis of the assets that existed at that moment (even if the adultery has taken place long before the actual separation).Footnote ⁶⁵ Assuming a traditional family structure, in which most marital property is under the husband's formal ownership and the husband is the main financial resource, the wife would get much less than she would receive had the property been divided later.

This result introduces the concept of fault into property sharing. Rabbinical courts claim, many times probably rightly, that adultery reflects marital breakdown. It is not, however, always a sufficient condition for a marital breakdown, and marriage could possibly be restored after a single instance of an extramarital relationship. This argument can be proved from the rabbinical courts’ internal argumentation itself: when it comes to an extramarital relationship on the part of the husband, rabbinical courts are more forgiving. They would not necessarily view this as an irretrievable breakdown of marriage, but would recognize the option of restoring the marriage.Footnote ⁶⁶

The necessary conclusion is that the issue is not—or not only—the factual marital breakdown, but rather the view regarding the religious fault of adultery. Jewish law considers a wife's adultery to be a cardinal sin, which results directly in the demand for divorce (and, if there are children from the relationship, they might be declared bastards, or mamzerim).Footnote ⁶⁷ A husband's adultery, on the other hand, is not on the highest level of the religious-prohibitions scale, and does not necessarily result in divorce. The difference between men and women in this respect has a legal historical explanation. It is a reflection of the history of polygamy: originally, polygamy was permitted by Jewish law, and the husband's marriage, or sexual relationships, with more than one woman were permitted (although not encouraged). A wife's multiple relationships, on the other hand, were strictly prohibited. Since the Ban of Rabbenu Gershom (around the beginning of the second millennium CE), most Jewish communities accepted the prohibition of polygamy, but this did not lead to declaring a husband's out-of-marriage sexual relationships as a sin equal to that of the wife's. Admittedly, upon the wife's demand, it can be considered as a sufficient ground for divorce (and may also have some effect on property distribution),Footnote ⁶⁸ but not one as severe as adultery by the wife.Footnote ⁶⁹

Adultery is therefore, for the most part, a religious fault and not necessarily an indication of marital breakdown. The rabbinical courts, however, present this as an indication of the law's civil conception of marital breakdown, which, as mentioned above, directly influences the couple's property sharing. Integrating the religious concept of fault is not done in these cases explicitly, since the discourse is a civil one and the principles are civil principles, but the result is that the rabbinical courts’ view of fault influences civil property rights.

Sometimes the traditional religious concepts of fault are entered into civil law in an even more explicit way (although, still, while using interpretative tools)—and therefore with less success. According to section 8 of the Financial Relations between Spouses Law, the court can deviate from equal property sharing if there are “special circumstances.” The deviation from equal property sharing may be done by (1) not including some assets in the division, (2) division into unequal parts, (3) determining the value of the property on the basis of its evaluation at a time earlier than the actual property sharing, or (4) determining the scope of the divided property on the basis of the couple's assets at an earlier time (so that, for instance, if the husband sold an asset before the separation, it would still be considered shared property, and he would have to compensate his spouse for half of its value).Footnote ⁷⁰ The purpose of this law is to support the weaker spouse when the gaps between them are significantly deep, and equal sharing will produce injustice. For example, the law states that human capital can be part of the “special considerations” for deviation from equal division. Thus, if the husband gained high professional status and has the potential to further develop his career, while the wife did not develop hers, she might be compensated by getting more than half of the property (while the husband will bridge the gap with his human capital).Footnote ⁷¹

Not surprisingly, some rabbinical courts found section 8 to be fertile ground for incorporating concepts of fault. Some claimed that adultery can be part of section 8's special considerations, and in those cases the spouse at fault would receive less than 50 percent of the property.Footnote ⁷² Thus, by viewing adultery as a legitimate consideration for applying section 8, the fault consideration could influence property sharing more directly than as an indication of marital breakdown.

This step is much easier from an interpretative perspective, since “special circumstances” is a very vogue concept, which depends almost entirely on (subjective) interpretation. The use of section 8, however, is very patent, much more explicit than the other, and therefore the fault-based motivation of rabbinical courts in using section 8 was quite easily revealed by the High Court of Justice—and rejected. The Israeli Supreme Court denied the applicability of fault considerations in determining civil financial rights already in 1978,Footnote ⁷³ and in 2008 (sitting as the High Court of Justice) ruled that, on this basis, adultery cannot be considered as “special circumstances” for applying section 8. According to the High Court of Justice, “section 8 allows for greater flexibility which enables the court to balance the assets between the parties in a fair manner, according to financial and other considerations.”Footnote ⁷⁴ Nonetheless, it does not include adultery, since “a person is not to be punished for his part in the breakdown of the relationship by means of economic sanctions, within the framework of the division of property between the spouses.”Footnote ⁷⁵

Thus, following the position of the High Court of Justice, section 8 can no longer be a basis for using fault considerations in financial decisions. Indirectly, however, rabbinical courts continue to take into account fault considerations in financial decisions by viewing them as an indication of marital breakdown, as described above. Fault as an indication of marital breakdown is a much more sophisticated way to integrate fault considerations into property sharing as compared to the use of section 8, and therefore much harder to be uncovered. The result is that fault-based considerations continue to play a role, even if only through the backdoor, in rabbinical court decisions on civil financial matters.

In conclusion, the relationships between religious and civil law discussed here are quite complex. On the one hand, we witness a fascinating process of assimilation: despite significant gaps in handling financial matters, rabbinical courts adopt almost completely the basic civil attitude of equal property sharing. On the other hand, rabbinical courts find ways to give expression within this regime to concepts of fault, including faults that influence the property sharing, although fault's influence on property sharing is not accepted today from a civil perspective.

The result is quite complex, since it includes two contradictory actions at the same time: accepting civil law and rejecting it. This is due, in my opinion, to the unilateral imposition of the modern civil financial regime on the rabbinical courts. Its assimilation within the rabbinical courts’ adjudication is astonishing, but it is not an organic part of their doctrine, and therefore, when possible, concepts of fault influence the rabbinical courts’ decisions.

WHAT SHOULD BE THE RELATIONSHIP BETWEEN RELIGIOUS AND CIVIL LAW IN FINANCIAL MATTERS? AN INTEGRATED NORMATIVE SUGGESTION

Following my conclusion in the previous section, and on the basis of our analysis of the different natures of the financial elements of the divorce process, I would like to suggest a framework which might moderate this anomaly. The framework is based on the ketubbah payment, and it has some support from recent writings in rabbinical courts, as follows.

The ketubbah payment is an obligation of the husband to his wife. It has several objectives, including protecting the wife from unilateral divorce (when this was possible according to Jewish law, before the Ban of Rabbenu Gershom) and providing her with financial resources that would enable her to continue her life after divorce.Footnote ⁷⁶ The ketubbah payment, however, is subject to fault considerations, and when there is a recognized fault (mainly those of a sexual nature), the wife's entitlement is negated.Footnote ⁷⁷ Today, many of the aims of the ketubbah are no longer relevant. The husband cannot divorce his wife without her consent (with only very rare exceptions, and subject to the approval of a rabbinical court), and the concept of equal property sharing can provide her with financial resources for continuing her life after divorce.

But this is not always so. At times there is a significant financial gap between the husband and the wife (usually in favor of the husband), and the wife lacks sufficient qualifications for continuing her life at a standard of living similar to what she was accustomed while still a couple (when she was “investing” her efforts in the family assets). In those cases, there are few alternatives for supporting the financially weaker spouse and preserving her interests. First, the property can be distributed in an unequal way on the basis of section 8 of the Financial Relations between Spouses Law. This may include the nonequal distribution of the property or the inclusion of other elements in calculating the distributed assets, for example, human capital.Footnote ⁷⁸ Second, the court might order rehabilitating maintenance for a certain period in favor of the wife. This is a civil route, since according to Jewish law the wife's right to maintenance ceases when the couple divorces. Yet, in the Israeli context, although maintenance is considered a matter of personal status, and therefore is adjudicated according to religious law, in recent years civil courts have been willing to impose civil rehabilitating maintenance on the husband when necessary.Footnote ⁷⁹ Religious courts, however, have their own possible route—the third one: the ketubbah payment. When the gap between the husband and the wife is significant, and there is a reasonable fear that equal sharing of the property will not suffice for the wife's financial needs, religious courts might adhere to one of the rationales of the ketubbah: providing the wife with financial resources for a limited time.Footnote ⁸⁰

If we take this rationale seriously, in this kind of case there should be no competition between the ketubbah and property sharing. Quite the opposite: the ketubbah here supplements equal property sharing. Needless to say, in this case no offsetting of the ketubbah payment is required. In this respect, understanding the different objectives of the two financial tools, the ketubbah and civil property sharing, may lead to legitimizing their coexistence, while one adds elements needed to complement the other.

Rabbi Shlomo Dichovski, a former High Rabbinical Court judge, seems to accept the approach suggested here. When he explains his view, that a ketubbah which obligates the husband for an unrealistic, symbolic amount (e.g., NIS 1,000,000) should be set to a reasonable amount of NIS 120,000, he writes:

Accordingly, if the ketubbah amount is reasonable, which, according to Rabbi Dichovski, is an amount that suffices to cover living expenses of one year, it is possible to impose a ketubbah obligation together with full civil property sharing (which may include pension, human capital, and more). It is not explicit in his opinion, and even less accepted in today's rabbinical courts (as discussed in the preceding section), but in my opinion it has great potential for legitimizing the coexistence of religious and civil financial rights from both religious and civil perspectives.Footnote ⁸²

The possible supplementary use of the ketubbah payment may even be taken a step further, in a bit more complicated way. This step recognizes in a very moderate way a traditional concept of fault which might be used by religious courts, but here as well, as a tool supplementary to civil equal property sharing. It might not be easily accepted from a liberal civil perspective, but in my opinion should be considered as a possible way of reconciling the two competing worlds: religious and civil, and as a possible reflection of a legitimate legal pluralism.Footnote ⁸³ If accepted, it should be emphasized that its use must be done carefully, with continuing attention to prevent a “slippery slope.”

A moderate and limited ketubbah paymentFootnote ⁸⁴ might be used to reflect the classic Jewish law approach toward fault, which sees it as a significant parameter in the divorce process, but with limitations. The influence of fault would be limited to some financial aspects of the divorce, while other important divorce aspects would continue to be adjudicated according to no-fault principles. Thus, the basic right to divorce and the concept of equal property sharing would be adjudicated according to civil law principles (and both can be accepted by Jewish law, as described below), while the ketubbah payment would reflect the response of the rabbinical court to the element of fault (when relevant).

Despite the apparent complexity of this idea, its application is quite simple. Rabbinical courts would acknowledge the right of a couple to divorce in a marital breakdown, together with full equal property sharing. Yet they could use the ketubbah payment as a reflection of the concept of fault, either by obliging the husband to pay a moderate ketubbah payment to his wife (when divorce is the husband's fault) or by exempting the husband from any additional payments mandated by Jewish law (when divorce is the wife's fault).

In this respect, it should be noted that this construction may be applied not only in the Israeli context but also in other Western countries, such as the United States and Canada, by recognizing the ketubbah financial obligation as a binding agreement. The ketubbah obligation might be executed on the basis of the limited fault considerations described above, alongside the civil procedures of (no-fault) divorce.

In the Israeli legal context, this construction is not merely theoretical. Rather, first steps toward this approach are already being taken in some Israeli rabbinical courts. This is being done in two stages: first, by acknowledging a moderate right to no-fault divorce (when there is an irretrievable marital breakdown), and second, by providing the ketubbah payment with a role in this kind of divorce. In recent years, a growing number of rabbinical courts have recognized a moderate concept of no-fault divorce, and when there is an irretrievable breakdown of marriage, they have obligated the recalcitrant spouses to divorce.Footnote ⁸⁵ When fault considerations are completely disregarded, divorce should be executed together with equal property sharing, and no additional elements are required (unless the wife needs rehabilitating maintenance, as discussed above). The ketubbah payment, however, gives rabbinical courts room to deviate from the pure no-fault divorce regime, without (in my opinion) violating its essence. Accordingly, when divorce is one spouse's fault (even if not “fault” in its classic meaning—usually adultery and the like—but rather responsibility for the marital breakdown), although the other spouse is obligated to divorce, the ketubbah payment comes into effect. In this case, it can be (and in some cases already is) used in order to compensate the wife (by the ketubbah payment) or the husband (by exemption from the payment) for the divorce. The spouse that is responsible for the marital breakdown has the right to divorce, but still needs to compensate his or her spouse.

The use of the ketubbah for this aim is practiced in some courts.Footnote ⁸⁶ I propose broadening this practice and making it a supplementary element to full equal property sharing. The ketubbah payment should, accordingly, not be influenced by civil property sharing. According to the proposed framework, these are not two competitive rights, but rather two supplementary tools that give expression to two different purposes. Thus, according to this construction, the rabbinical courts would, on the one hand, accept the civil financial regime (on the basis of their own internal constructions), and, on the other, apply the Jewish law ketubbah regime, not as a substitute, but rather in order to reflect their view on fault in divorce. The first part of this construction is becoming more common today. The second part—the ketubbah as a supplementary element to equal property sharing—has yet to enter judicial practice. We have, however, some indicators of its potential, as in an obiter dictum of the High Rabbinical Court Judge Rabbi Zion Luz, in a footnote of a decision that discusses the ketubbah payment. Rabbi Luz writes as follows:

Acknowledging this construction as a compromise between the two competitive, sometimes contradictory, worldviews would enable them to coexist. It would accept the practice of no-fault divorce due to marital breakdown and equal property sharing on the basis of the widely accepted civil principles, but with a moderate traditional ketubbah payment at the discretion of the rabbinical court. In this way, rabbinical courts would not—and should not—have to artificially incorporate fault considerations in civil financial sharing. Rather, these two different value-based frameworks would be able to coexist.

To summarize, in the proposed construction (which has begun to be adopted by some Israeli rabbinical courts), civil financial rights should not be harmed by fault considerations, not even indirectly, as opposed to what seems to be practiced by some rabbinical courts today. The ketubbah, nevertheless, would be the means by which the rabbinical court would apply the Jewish law view on the influence of fault or responsibility (that is, not necessarily the classic sense of fault) in marriage cases, but moderately and with certain limitations. That is, the rabbinical courts would have the authority to decide whether the divorce resulted from one spouse's fault. If the husband were to be found at fault, he would have to pay the ketubbah payment, and thereby give expression to this classic Jewish tradition. If the wife is at fault, the husband would be exempt from this payment, thus reflecting her responsibility for the divorce from a Jewish law perspective.

EPILOGUE: THOUGHTS ON POSSIBLE EXPANSION OF THE NORMATIVE CONSTRUCTION

Jewish law is dynamic, as is civil law, although Jewish law usually changes through an interpretive process rather than by legislation. In the property sharing debate, the rabbinical courts were forced to adopt what seemed to be correct and just according to liberal considerations of women's freedom and equality, and they did so using their internal doctrines. Nonetheless, the coercive aspect, in my analysis, led to anomalies in the application of the equal property sharing regime, so, together with the integration of civil law into Jewish law, we can identify an opposite process, of integrating Jewish law's classic views into this civil legal regime.

Jewish law and the civil, liberal legal systems are in collision on quite a few issues, similar to common conflicts between (more traditionally oriented) religion and state law in general. This is so, for example, as regards same-sex marriage: the former sees same-sex marriage as religiously forbidden, while the latter accepts it on the basis of the principles of freedom, equality, and human dignity (mainly following the Obergefell decision, in which the American Supreme Court ruled that same-sex couples have a constitutional right to marry throughout the United States).Footnote ⁸⁸ On the basis of my findings, can faith-based worldviews and civil law be reconciled?

I—very cautiously—suggest that property sharing can serve as a test case for the accommodative potential of religious worldviews in general. Comparing different religious (or faith-based) worldviews must, of course, be done with a great degree of care, due to the deep differences between religious systems. Moreover, even within a single such system, comparing different arenas is no less difficult—for example, when trying to draw analogies between the property sharing debate and issues of marriage and divorce (like same-sex marriage), which usually have a very high normative status in faith-based systems, whether Jewish or others. This said and done, the current analysis can teach of the potential for using a religious system's internal doctrines in order to reconcile with (at least parts of) a civil legal system, but the degree of its effectiveness depends on the degree of cooperation between the systems. This might be made, for instance, by the recognition by religious systems of same-sex marriage as a legitimate social practice, on the one hand,Footnote ⁸⁹ and, on the other, by leaving room for the religious system to retain its own beliefs and understandings of marital life. That is, for example, when religious agents who refuse to take an active part in the recognition of alternative (although socially legitimate) family practices are not coerced to do so, or in general, by not forcing faith-based institutions to act—internally—in a way contrary to their own beliefs.Footnote ⁹⁰ This kind of process might be done in a coercive way, but, as I show regarding property sharing in Jewish law, a better result could be achieved if the process is effected consensually, with mutual recognition of different worldviews.