Can religious and civil marriage coexist in Israel?

As we have observed in the previous two articles, there is a growing crisis on several fronts, religious, national, cultural and social, democratic and a growing demand for a change in the policy towards civil marriage in Israel. In the aftermath of the immigration from the former Soviet Union, there are hundreds of thousands of citizens who cannot marry in Israel because they are not recognized as halakhically Jewish. There are also a considerable number of couples who are not able to marry according to Jewish law and there are thousands of Israeli citizens who are recognized as Jewish, but choose to travel to Cyprus or elsewhere to marry. There are also an increasing number who want to marry in a Jewish but not Orthodox ceremony, who are forced to break the law when they choose a Reform or Conservative rabbi to perform the ceremony.

A new approach is required that will encourage religious marriage according to halakha as the ceremony of choice for most Jewish citizens of Israel, with the legal option of civil marriage for those who choose not to marry according to Jewish law. The Chief Rabbinate should participate in and help shape this process, so that the halakhic position is not compromised.

Various options have been proposed in the framework of public discourse on this topic. Four of the main options are presented below

Two parallel legal structures for marriage in which people can choose between civil or religious marriages. The tracks would be kept separate with no interaction. Couples will decide for themselves which track to choose – religious or civil but the laws for each track will be separate and distinct from one another. Civil marriage would end in civil divorce and religious marriage in religious divorce. If a woman who married in a religious ceremony cannot be freed with a get due to the resistance of her spouse, she cannot avail herself of the civil option. Each track would be recognized by the state but the state would be unable to mandate any sort of universal policy regarding marriage and divorce because the religious marriage track would be completely governed by the Rabbinate. In other words, a centralized body of marriage and divorce law developed by the state will not be relevant for citizens who choose the religious marriage and divorce option, even if the civil track develops a systematic codification and enactment of such laws. One concern is that the religious track will be labelled Orthodox only, and it will distance many traditional but non-Orthodox Jews from choosing to be married through the Rabbinate. Another possible concern is the delegitimization of the agunah crisis out of a feeling that people who get married religiously “ask for it.”
A civil union option. A civil union is an agreement between two partners to establish a family unit. Couples who are not interested in a religious wedding or who cannot marry according to religious law will be able to legally formalize their relationship in a special registry. Couples will be given the legal rights and obligations that Israeli civil law currently gives to married couples such as social benefits, inheritance rights, property rights, alimony and eligibility to adopt children. The system will be parallel to the system of religious marriage and divorce and as described in option number one in that there will be no contact between the two systems.

Marriage remains in the hands of the religious courts but this option will build on the currently limited civil union option mentioned earlier in this article to all who seek an alternative to the rabbinate, in the manner suggested by Prof. Lifshtiz. Couples who choose this option would deliberately be choosing marriage without any intent for kiddushin. In addition, the dissolution of such unions would require a set of laws that would apply to such dissolutions, including guidelines for financial arrangements between the partners. Such laws might include parallels to no-fault divorce and alimony payments currently unavailable in Israel because of the religious halakhic restrictions involving divorce.

The main argument presented against this proposal is that it leaves marriage and divorce again only under the authority of the rabbinic courts and halakha, since “civil union” conspicuously avoids the use of the term marriage. Even if legally protected, using terminology that does not include the word “marriage” already weakens such unions in the eyes of many and suggests something more liberal than marriage. It also does not provide any solutions for non-Orthodox citizens seeking Jewish but non-Orthodox wedding ceremonies.

At the same time, the Orthodox are concerned that opening up civil unions to all who seek them weakens the rabbinic courts exclusive authority over legal life partnerships and legitimizes sexual relationships not sanctified by Jewish law.

Nonetheless, the Israel Democracy Institute’s argument for civil unions recognizes the compromise of both sides in moving in this direction. The secular/liberal population of Israel receive a legally legitimate structure in which they can effectively “marry” and be recognized by the state. By stating they are deliberately not marrying with kiddushin, they avoid the halakhic necessity for get. The rabbinic courts maintain a monopoly over the institution of Jewish marriage and equally over the institution of divorce. It maintains halakhic integrity in the sense that it effectively distinguishes between marriage through kiddushin and a legal structure equal in status to marriage.

A complete separation between Rabbinate and state in the manner of marriage and divorce carried out in Western democracies like the United States, England and France. Marriage and divorce will be conducted according to civil law. If a couple meets the state’s standards and is granted a license to marry, the couple will be able to choose the type of marriage ceremony they desire. The same would be true of divorce. As long as the couple files for a marriage license and divorce document with the State, according to the standards of marriage and divorce laws, the State will not intervene. In addition, the State will not intervene in the religious ceremonies and rituals surrounding marriage or divorce unless there is a situation in which a man systematically refuses to give his wife a religious divorce in which case the State could still use whatever resources are at its disposal to free the woman. Religious laws and rituals for marriage and divorce would be overseen by rabbinic authorities on a community wide basis. There would be no competition between state and religion. In addition, couples could choose to have Jewish but non-Orthodox ceremonies and interfaith couples could marry civilly and with a religious ceremony. Such a mix and match system would closely resemble the American system for marriage and divorce. The danger, which exists in all Jewish communities outside of Israel is that couples who married with kiddushin might divorce without Gittin and there would be no mechanism to regulate such a system. This could potentially lead to a split in the country with the Orthodox and ultra-Orthodox forming their own registries and creating two nations – the fully Jewish and the nominally Jewish.
A pluralistic system of the sort recommended by Justice Ruth Gavizon and Rabbi Yaakov Meidan in which there is an awareness and synergy between the religious and civil structures. The initial registration would take place through official State channels and the couple would then choose the type of marriage ceremony they desire. The innovation is in the divorce structure.

In acknowledgement of the complexity of divorce, Gavizon-Meidan propose that a person will only be recognized as single and able to remarry if he or she meets the religious criteria for that definition. This would allow a certain amount of halakhic control over the institutions of marriage and even more importantly, over divorce. It is a compromise that addresses the religious concerns of adultery and mamzerut. While this maintains a certain monopoly over divorce, nonetheless, it is likely that couples who refuse to undergo a Jewish divorce after being civilly married or even married in a non-Orthodox ceremony and similarly divorced, will not be coerced to do so based on the majority position that such marriages are not halakhically recognized (see sections C and D above). The women will not be defined as adulteresses and their children will not be labeled mamzerim. In this integrated approach, the system would allow for civil divorce for the purpose of structuring financial and personal agreements, child support etc. but would mandate the presence of the rabbinic court to facilitate the get when the couple married with kiddushin. Couples that choose religious marriage must understand the halakhic consequences so that they do not enter into it lightly.

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The article was written as part of the work of the Ne’emanei Torah Va’Avoda organization to review the process of marriage registrations in Israel.