Classification in the european legal systems of exclusive competence of the Rabbinical court in Jewish divorce

Abstract

In Israel in the family questions is applicable the religious law of each confession. To the Jewish people is applicable the religious Jewish law which dates back to the Pentateuch of Moses. According to that law the divorce is not only the legal, but also the sacral act. The divorce between the Jewish people is realized in Israel in the religious rabbinical court. The divorce in the secular court does not have the legal effect from the point of view of religious Jewish law. If the Jewish spouses wish to get divorced in an european country where the religious courts do not have the public power, so two concepts come into conflict: the concept of the territorial sovereignty of the State authority and the concept if the universal power of religion over its followers regardless of their residence. In private international law this conflict expresses in the conflict of characterization. The requierement of the religious support of divorce is considered as the substance in law of Israel and as the procedure in law of european countries (Russia, Germany, France). This article is dedicated to the conflict of civilization, competence and/or characterization, which consists in the question whether to consider the religious rabbinical court as exclusive competent and to refer the spouses to get divorced in Israel or to consider the secular court in an european country as an equivalent replacement of the religious court. Since the French Court of Cassation rendered its famous decision in the case of Levinçon 1903 where this question was first posed this question has still not found its unambiguous solution.