The state of marriage in the State of Israel
Since the Rabbinical Courts (Marriage and Divorce) Law, 5713 – 1953, was passed, Israeli law requires that all marriage ceremonies, without exception, must be authorized by a religious court. For Jewish Israelis, the State Rabbinical Court under the auspices of the Ministry of Religious Affairs, was given full jurisdiction over marriage as well as over divorce. This extended to determining the halakhic criteria for Jewish identity, since the ability to marry as a Jew rests on this determination. In other words, the Law of Return recognizes a person as Jewish if they have or had a Jewish grandparent and thus, entitles them to citizenship in the State of Israel. The State will also allow Jews who convert in non-Orthodox conversion program to apply for citizenship. The Rabbinate on the other hand, regards anyone without a halakhically proven Jewish mother as not Jewish and only regards as valid Orthodox conversions performed by approved Orthodox rabbis, which has consequence in all areas of personal status, including marriage, divorce, and burial.
The rationale behind this legislation was that for the Jewish people, marriage historically has defined and sustained the homogeneity of the Jewish people. Supervision of marriage, divorce, conversion and religious identity by the State Rabbinical Court, it was argued, would maintain this homogeneity. It would also reassure the Orthodox and ultra-Orthodox, especially in the case of divorce, that women were not being permitted to remarry in violation of halakha with the spread of mamzerut as a possible consequence (a mamzer is a child resulting from a relationship between a Jewish married woman and a Jewish man other than her husband or from incest; such children are put on a list of “unmarriageables” kept in the files of the Rabbinate).
Likewise, Israeli law requires that Jews marry only through the religious ceremonies of huppa and kiddushin that are overseen by a rabbi authorized to do so by the Office of the Chief Rabbinate, which recognizes only Orthodox and ultra-Orthodox rabbis. Reform and Conservative rabbis are prohibited by law to perform marriage ceremonies for their congregants and this past summer, in an unprecedented flexing of political muscle, the Haifa Rabbinical Court filed a criminal report against Conservative Rabbi Dov Haiyun for performing illegal marriages, which resulted in his being detained by police at 5:30 in the morning, this past summer.
By the same law, Christian and Muslim Israelis can only marry in accordance with their respective religious requirements. While this blocks the possibility of interfaith couples marrying in Israel, it complicates things for citizens who have no religious affiliation or for Israelis who identify as Jewish but are not considered halakhically Jewish by the Orthodox rabbinate. This category includes hundreds of thousands of Russians who emigrated in the 1990’s. In addition, the control of the Rabbinate prevents marriage between individuals who are barred for halakhic reasons from marrying one another, for example, a Kohen marrying a divorcee or a child born from an adulterous relationship (the mamzer referred to above). Finally, Jews who affiliate with denominations other than Orthodox are not recognized as married when marrying in a ceremony that reflects their non-Orthodox rituals and practices.
In stark contrast to this Israeli law, marriage in Western democracies is a civil, not a religious matter. The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, for example, declares that “Men and women of full age, without any limitation due to race, nationality or religion, have the full right to marry and to found a family…They are entitled to equal rights as to marriage, during marriage and at its dissolution….The family is the natural and fundamental unit of society and is entitled to protection by society and the State.”
Legally mandated halakhic requirements have created a situation in Israel where many citizens, Jewish and non-Jewish, do not have the right to marry within the state, violating what in secular democracies is enshrined as a basic human right. The cause of this problem lies in assigning all marriages to a religious court system without an option for civil marriage. The end result is that the status quo severely impairs the fundamental rights of individuals in Israeli society today and allows religious institutions to provide services that secular state institutions should provide.
For their part, Israel’s secular courts have been very cognizant of these problems and have provided some alternatives to the requirement of Orthodox religious marriage. For one, in accordance with international agreements, marriages authorized by a foreign state outside of Israel are recognized in the Israeli population registry. This was extended to gay marriage as well, when such marriages became legalized in the United States and Canada.
Complications arise, however, when such marriages disintegrate. Unless contractual agreements were signed at the time of the marriage, that provide a legally binding mechanism for adjudication in case of divorce, no legal system for divorce in such marriages exists. Nevertheless, in November 2006, retired president of the Supreme Court Aharon Barak ruled that the recognition of a civil marriage entered into abroad extended to its validity and recognition as a marriage for the purpose of Israeli law, overruling a rabbinical court that had ruled that only a religious court had the authority to decide the validity or otherwise of a civil marriage entered into abroad. This Supreme Court ruling led the Great Rabbinic Court to recognize civil marriage between two Jewish citizens and to require such couples to appear before the rabbinic court in order to work out in advance the divorce process. As a result, family courts and rabbinic courts are able to work in parallel and to determine divorce arrangements based on the legal definition of marriage given to their civil marriage by the rabbinic court.
At the time of the Supreme Court ruling, in response to intense polarization between the secular and religious populations in Israel, Professor Shahar Lifshitz, at the request of the Israel Democracy Institute, drafted a proposal for a spousal registry. Presented first in 2006 and then reissued again in 2013, Lifshitz proposed that couples who were not interested in religious marriage or were ineligible, could enter into a civil union and be recognized by the State as a couple, with all of the ensuing rights and obligations that Israeli civil law gives to marriage, but without the formal language of marriage. In addition, he proposed a system for civil dissolution of such unions by stipulating that such unions not be considered marriage in the eyes of halakha, thus avoiding mamzerut situations. While Lifshitz’ proposal has yet to be adopted, there has been renewed public interest in the last few years in a spousal registry as a possible solution to the civil marriage crisis.
In 2010, the Israeli Knesset passed the “Civil Union Law for Citizens with No Religious Affiliation.” This law allows a couple to form a civil union in Israel if they are both registered with the Ministry of the Interior as not belonging to any religion. This civil union is an agreement between two partners who wish to establish a family unit. This union is legally recognized as marriage without using the language of marriage and is similar to what Prof. Lifshitz suggested, though on a very limited scale because it affects only those citizens who are prepared to officially register as lacking a religion. Nevertheless, it has been seen by some as an opportunity to explore whether broader application of the 2010 law might solve more of the challenges mentioned earlier. In addition, secular courts now recognize common law marriages on an ad hoc basis, taking into account such factors as joint living quarters and joint bank accounts. This allows couples to be recognized for National Insurance purposes and for the right to enter Israel if one is not a citizen, but is still far from recognizing such people as fully married.
Despite these important steps, the 65-year monopoly of the rabbinate over marriage and divorce continues to be upheld although there is a rise in the number of Israeli citizens who are choosing to marry in private ceremonies even if they could marry through the Rabbinate, in addition to the tens of thousands of couples who travel abroad to marry before returning to register their marriage through the Interior Ministry.
In addition to the civil liberties issues, a major question around the marital status of halakhically Jewish couples who marry in a civil or non-Orthodox ceremony arises. Do these couples need a Jewish divorce or would a civil divorce suffice to render the woman marriageable according to criteria of Jewish law? Again, the major concern revolves around permitting married women to remarry without a Jewish divorce which will lead to their bringing children into the world who will be branded mamzerim.
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.