Forum Shopping: Where to File a Maintenance Suit

Chapter 11
Forum Shopping: Where to File a Maintenance Suit

As described in Chapter 10, the legislation amendment of November 2001 created a situation of deep or “strong” legal pluralism, from the point of view of Muslim litigants. Except for issues of marriage and divorce (which were left under the exclusive jurisdiction of the shari‘a courts),1 all other issues pertaining to personal status matters of Muslims in Israel can henceforth be dealt with either by shari‘a courts or by family courts. Muslim men and women may now freely choose to appeal to either one of these forums in diverse matters such as child and wife maintenance, custody, and guardianship over minors. Furthermore, since a “connection principle” does not apply, filing a suit by one of the spouses in the shari‘a court does not prevent the other party from filing a related suit in the family court, and vice versa.2 Although the material laws that apply to personal status matters of Muslims are presumably similar in both tribunals, in effect, the differences in rules of evidence, in procedures, and in legal cultures—produce dissimilar judgments.

To illustrate the consequential implications of choosing to file a suit in one forum and not the other, this chapter delves into the complex considerations that Muslim Jerusalemite women who wish to obtain an executable maintenance order (should) take into account.3 I added “should” in brackets, since—as we will see—in most cases litigants are not fully aware of the implication of their choice of forum, and their choice is therefore uninformed. Nevertheless, in some cases they do make a choice, and this choice is a complicated one, ridden with meanings, tensions, and conflicts.

Let us begin with a short excerpt taken from my field notes, written at the shari‘a court in West Jerusalem on Tuesday, April 7, 2004: I arrived to the court in the morning. Hearings began at 09:00. At 11:00 Qadi Zibdi left the room and went to a meeting of all the judges at the shari‘a court of appeal. Having nothing better to do, I sat on the green sofa in the court’s waiting room and chitchatted with Akram al-Maliki, a shar‘i advocate friend (…). When there was a moment of silence, a middle-aged man who sat nearby approached me and inquired who I am. I explained that I’m an anthropologist, conducting research in the court (…). I excused myself and went to talk with him. I asked him why is he there, and he replied that he is escorting his daughter, who should have a hearing concerning a maintenance claim that she had filed against her husband. He said that his daughter had left the marital home with her two young children (aged four and two) about a month ago, after she had been “viciously attacked” by her mother-in-law. I asked why it had happened, and he said:

I don’t know. This is how she’s like. They [i.e. his daughter and her mother-in-law] quarrel all the time. She [the mother-in-law] doesn’t like how she [his daughter] treats the children, she doesn’t like how she cooks, she doesn’t like how she dresses. One morning she assaulted her and tore her dress.

Q: And what did her husband do?

Her husband doesn’t protect her. He’s afraid of his mother [ … ] so she ran away from there to me. [ … ]

Q: Why did you choose to file the maintenance claim in this court?

I don’t know. My uncle knows the lawyer Abu Sha‘ban (al-muhami Abu Sha‘ban), and he recommended him. We went to see him in his office, and he said that we should file a claim here. He is our lawyer.

While my interlocutor described Abu Sha‘ban as a lawyer, this was not in fact the case. Apparently the man did not know that Abu Sha‘ban was not a lawyer (muhami) but a shar‘i advocate—a councilor allowed to represent clients in shari‘a courts alone, and not in any other court.4 This means that once my interlocutor decided to contact Abu Sha‘ban, his ability to shop for a forum that would best serve the interests of his daughter was effectively reduced to zero.

This brief excerpt therefore brings up a very important point, which should be highlighted at the beginning of this analysis: many of the litigants whom I encountered in the shari‘a court did not, in fact, practice forum shopping. These people were not well-informed as to the intricacies of the dual court system in the domain of family law, and some of them were not even aware of the possibility of choosing among different legal forums. Consequently, they had no practical ability, nor incentive, to shop for a forum. Rather, they were channeled to a specific forum by chance, coincidence, and no less important, social networks and references, such as the uncle’s recommendation to contact his acquaintance, in the excerpt above.

And still, while some of those who represent litigants in the shari‘a court are indeed shar‘i advocates, others are lawyers—well familiar with both the shari‘a and the civil courts. The lawyers often make sure that their clients are informed of the various options available to them. One of the lawyers who used to represent clients both at the shari‘a court and at the family court, once told me:

I recommend to my clients to appeal to the family courts, since rules of evidence are less restrictive there. [In the family court] it’s enough to have a deposition [stating that the husband beat his wife] and a medical report signed by a doctor in order to obtain a maintenance judgment and a protection order. In the shari‘a court you have to present evidence, to bring witnesses … it’s much more difficult.

(Conversation with muhami Mudhi al-Rishk, May 26, 2002)

Indeed, as indicated by ICS 509/2002, a wife appealing to the shari‘a court may fail to substantiate her claims for maintenance payments due to insufficient evidence. In this particular case, a young woman sued her much older husband, claiming that he, together with his first wife and her adult children, had attacked her in the marital home and injured her so badly that she was forced to go to hospital several times for treatment. According to her statement of claim, she did not return to the marital home after this incident (that had occurred three and a half months earlier), and she stayed instead in a “state of anger” (hardane) in her father’s house. Her husband, she further argued, had expressed no intention to bring her back to the marital home, for he has never sent a delegation of notables (jaha) in order to try and settle the dispute. She therefore asked the court to establish that she is entitled to maintenance, and to determine the sum of maintenance payments as it sees fit.

On the day of the hearing (April 29, 2002),5 both husband and wife, who were represented by lawyers, attended the court. The young wife was covered from head to toe by a black robe, her face veiled by a hijab, and even her hands wrapped in black gloves; her husband, a man of about sixty years of age, was dressed in a plain-looking outfit, and a big white knitted skullcap on his bald head. Both the husband and the wife were accompanied by relatives (the husband by three of his grown-up children, and the wife by her mother and brother), and the two parties expressed their mutual antagonism by constantly heckling and taunting each other. The difficulty faced by the wife was that the presumed beating had occurred in the marital home, and there were no witnesses to the event. Instead of witnesses, she tried to support her claim by presenting corroborating textual evidence: a signed confirmation that she had been taken by ambulance—at a specific time, from a specific location—to a hospital; some medical reports of her injury and treatment; and a copy of the complaint she filed against her husband at the police station.

The husband’s attorney was not impressed by this evidence and claimed that none of it proved that the wife was indeed beaten by her husband. He further stated that for all we know, she could have done this physical damage to herself and then called an ambulance and filed a false complaint at the police station. In response to these suggestions, a small insurgency developed in the courtroom, as the parties began shouting and cursing each other. Only after several minutes of rumpus did the qadi—aided by the lawyers—manage to restore order in the courtroom. He rebuked the husband’s attorney for suggesting that the wife fabricated her complaint, but he accepted his assertion that the evidence supplied by the plaintiff did not substantiate her claims. The qadi thus determined that the wife failed to prove her claims, and that the husband may now take an oath of innocence (on the shar‘i oath, see Chapter 5). The husband took the oath, and the qadi ruled that the wife’s suit for maintenance payments was hereby repelled.

This example demonstrates that the strict evidence rules applied in Israeli shari‘a courts might indeed present difficulties to women and might prevent them from attaining maintenance payments—as argued by the lawyer cited above. Another disadvantage of shari‘a courts from the perspective of women litigants has to do with the average sums of maintenance that these tribunals grant. It is common knowledge among attorneys, as well as among women litigants, that a maintenance suit filed in the family court will probably yield larger sums of maintenance payments than a similar suit filed in the shari‘a court. Although there has been a significant increase in the average sums of maintenance granted by shari‘a courts over the last decade (see Chapter 10), the family courts still have the upper hand. This gap can be explained, perhaps, by the socio-economic context: the population that attends the shari‘a court (that is, the Arab-Muslim population in Jerusalem) usually comes from lower socio-economic strata than the population attending the family court (that is, a mostly secular Jewish population). As a result, the sums of maintenance payments—requested, and thence adjudicated—in the family court are necessarily higher.

But there is also another explanation for the larger sums of maintenance adjudicated by the family courts: unlike the shari‘a courts, they have set a minimum sum of maintenance to be granted to entitled wives, regardless of their husbands’ financial situation and of their capacity to pay such sums.6 By contrast, the shari‘a courts that “do not wish to disintegrate families,” as one of the lawyers told me, “find ways to reduce the sums of maintenance adjudicated to wives and minors.”7 The underlying assumption is that if the maintenance sums were higher, husbands would be motivated to divorce in order to avoid paying their wives.8 Therefore, ideological preferences drive the shari‘a courts to determine lower maintenance payments.

Thus far, we have recounted two very obvious advantages—from the viewpoint of Muslim women—of filing a maintenance suit in a family court, rather than in a shari‘a court. And yet, there are also some noticeable advantages to shari‘a courts. First of all, the family courts are often regarded as hostile and uninviting legal institutions for Muslim litigants, men and women alike. The language of litigation in these courts is Hebrew; security measures are stringent; and the procedural and material law is alien to Islamic norms. By contrast, the shari‘a courts are perceived as much more familiar and accessible: litigation is held in Arabic; security measures are relatively loose; and procedural and material laws are based on traditional shar‘i concepts.

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