Sharon Shakargy, ‘Whose Law is it Anyway? The Case of Matrimonial Property in Israel’

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.

Shakargy, Sharon, Whose Law is it Anyway? The Case of Matrimonial Property in Israel (August 2, 2021). 23 Theoretical Inquiries in Law 161 (2022), Hebrew University of Jerusalem Legal Research Paper forthcoming.

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