Shabbat Parashat Ha'azinu-Succot | 5769
Location to Adjudicate When a Couple Live in Different Places
P'ninat Mishpat
(based on Halacha Psuka, vol. 47- from Mishp’tei Shaul 42)
Case: A couple were married in Israel, but now the husband (=def) lives abroad and rarely returns. The wife (=pl) lives in Israel and wants her claim for divorce and related issues to be heard in an Israeli beit din. Def wants the matter adjudicated in his area.
Ruling: The case should be heard in Israel; two presentations of the rationale follow.
Rav Goldschmidt – It is noteworthy that def is an Israeli citizen who plans to return and, therefore, is bound by Israeli law. Also, beit din in Israel has legal authority to rule and enforce matters of divorce, which the beit din that def requests lacks. The Maharival (II, 97) explains that the reason for the practice that the plaintiff adjudicates in the defendant’s city is that the defendant is expected to feel more bound by the authority of the local beit din and accept their rulings. Since the rule is for the plaintiff’s good, if this can be attained specifically in the plaintiff’s place, that is its proper place, as is the case here.
Rav Yisraeli - The gemara (Sanhedrin 31b) cites a machloket about a case where one litigant wants to adjudicate locally and the other wants to go to the beit va’ad (place of eminent experts). It concludes that we follow the request of the lender because a “borrower is a servant to the lender.” Israel’s batei din should be considered a beit va’ad because of the concentration of talmidei chachamim serving in an organized fashion. Most Rishonim understand that the special status of a lender applies to other types of plaintiffs. The Mordechai cites those who say it applies to inheritors and those who give an object to be watched. The Haghot Maimoniot, citing Tosafot, extends it to matters of theft, damages, and commerce. The Haghot Maimoniot and Kesef Mishneh dispute if the Rambam (Sanhedrin 6:7) should be understood broadly or in a limited manner (Kesef Mishneh) in this regard. According to the Kesef Mishneh, it would not be possible to force def to adjudicate in Israel; according to Tosafot it would be. Either way, in this case, where the batei din function by authority of Israeli law, which obligates all of Israel’s citizens, def cannot avoid its jurisdiction. Also, the Gra (CM 14:18, based on Bava Kama 46b) explains that the rationale that a case is usually heard in the defendant’s place is that “one whose teeth hurt should go to a doctor.” This implies that this is when the defendant is able to deny the allegations outright and win. However, in this case, pl demands that def continue to pay her support, and, regarding support before divorce, it is the husband’s burden to prove that he does not owe it (see Rama, Even Ha’ezer 70:12 and Shulchan Aruch, EH 154:3). Because of these circumstances, def should go to Israel to try to prove his case.
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