Whose Law is it Anyway? The Case of Matrimonial Property in Israel

Abstract

It is often argued that courts avoid foreign laws because they prefer local
law. It would make sense if they did—after all, foreign law can be hard to
understand and complicated to employ, and it is also . . . foreign. Aiming
to investigate this assumption through a qualitative analysis of all available
cases on one question and comparing the findings with the approach towards
local matrimonial property cases in Israel, this Article finds something rather
different. At least as regards Israeli judges discussing matrimonial property,
it appears that sometimes judges do not prefer the lex fori but something
else. The Article discusses one case that reveals what could be described as a
judicial mutiny, where judges chose to apply neither foreign law nor local law
per se. In the case of matrimonial property, a particular legal norm seems
particularly close to the judges’ hearts. So much so that despite legislative
intervention designed to change the judicially-shaped law, the courts continue
to apply their own, judicially created law.