User:Acidburn24m/Sand Box 11

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Civil marriages are marriage in which the married couple gets a formal status by the state as secular body (and not by a religious institution). Currently, Israeli marriage licenses are recognized only if performed under an official recognized religious authority (whether it be Orthodox Jewish, Christian, Muslim, Druze, etc.) only between a man and a woman of the same religion, while civilian marriages are only officially sanctioned if performed abroad. This is a major issue among secular groups, as well as adherents to non-Orthodox streams of Judaism. There is fear that civil marriage will divide the Jewish people in Israel between those who can marry Jews and those who cannot, leading to concerns over retaining the character of the Jewish state.

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[edit] The legal situation prior to legislation of the rabbinical courts law

The Ottoman Empire which controlled the land of Israel until 1917, did not recognize any non-religious/secular rule for matrimony. The law which was in use was the law of Sharia, and matters of personal status were ruled by the Muslim courts and courts of other recognized religions. With the alternation of the Ottoman authority with the British authority, the matters of personal status gained a legal legislation within the Order-in-Council legislation, which basically preserved the Ottoman arrangement with certain changes. The "Order-in-Council", and another legislation from the British Mandatory period such as the law of inheritance, determined eleven recognized denominations: Muslims, Jews, nine different denominations of Christians, which are basically different types of Catholic Christianity and Orthodox Christianity. The law left from outside of this arrangement (And therefore without any ability to get married within the land of Israel) whomever was not included in the list of recognized denominations, such as the Protestants. The relation of an individual to the Jewish denomination was determined according to his relation to the body that calls "Knesset Israel" which managed registrations of the people whom where related to it, which was a voluntary organization. Jews whom did not want to do so, and there many like that, such as the supporters of "Agodat Israel", didn't have to register to "Knesset Israel".

The Druze population were not recognized as separate denomination from the Muslim denomination until 1957. In 1962 The legislation of the Druze courts law made the Druze courts legal and parallel to the rabbinical courts, The Shariam courts, and to the courts of the different Christian denominations.

The way in which the marriages would be held still remained open. The Ottoman legislator, and British legislator, did not consider a situation in which a person would want to have a wedding and wouldn't have it in a religious ceremony within any of the recognized denominations, and because of that they not regulate this matter. And so it was claimed that the term "Marriage Matters" that provided the religious courts of authority according to the "Order-in-Council" law would not occur, because there was no conflict or claim. A British order called "Order of marriage and Divorce (registration)" regulated the registration of the marriage and the divorces, but not the way in which they would be conducted. Actually, the legislation seemed as if in Israel, until 1953 in which the rabbinical courts law was legislated, there were no other way to get married except for religious marriage.

[edit] The legal situation after the legislation of the rabbinical courts law

When David Ben Gurion and the religious parties reached an agreement on the status quo in 1947, the agreement included a promise that civil marriage and civil divorces would not take place in Israel. With the legislation of the first coalition agreement, between Mapai and the religious parties, this concurrence included in the agreement.

The jurisdiction law of the rabbinical courts (marriage and divorces) from 1953, was legislated due to the legal situation which was unbearable; The situation in which there was no rabbinical court authority which ruled on all the Jews, but rather only on those whom were registered in "Knesset Israel", urged political difficulties, as well as judicial difficulties. The combination of the judicial situation which was vague, and the coalition promise, brought to the laws' legislation.

The law determined that in first section that "matters of marriage and divorces of Jews in Israel civilians of the state or its residents would be in the exclusive jurisdiction of the rabbinical courts." and in the second section that "marriage and divorces of Jews would be conducted in Israel according to the law of the Torah."

The significance of this legislation was that Jews, inhabitants of the state of Israel or citizens, would only be able to get married in a religious marriage within the rabbinical court (with only a certain exceptional marriages took place abroad). This legislation won to the glorification from the religious public in Israel and harsh criticism from the secular public in Israel. It is considered the base to the status quo between the religious public and the secular public in Israel.

This law gained the defense of the Israel legislator even when it was the "Basic Law: Human Dignity and Liberty" is legislated, which determined in section 10 that the basic law can not harm the judgment of the law which used to exist prior to its legislation.

Although the main point of the public discussion of the civil marriage issue deals with Jews, the problem of the civil marriage issue is also relevant to all other religions, which the legal situation does not allow them to marry outside of the religious courts of their denominations.

After the legislation of the rabbinical courts law, in 1962 the legislation of the Druze courts law was made too and nowadays a system of religious courts such as the Sharim, Christian, Jewish and Druze, which rules of the personal status of the inhabitants of the state. This arrangement creates a double limitation. On the one hand, a person can not get married or end his marriage outside of this system (only in exceptional cases), i.e. he can't get married to a person whom is not from his denomination, in the case he does not want to marry in a religious ceremony, in the case he is not allowed to get married according to the religious rules accustomed within his denomination. And on the other hand, those who whom do not belong to any recognized denomination (such as the Protestants) can not get married at all. This problem was worsened in the 1990s when a big wave of immigrants came to Israel according to the Law of Return, and a big part of them was not considered to be Jewish according to the Halakha and did not belong to any of the recognized the religious denominations in Israel nowadays and therefore they are not allowed to get married in Israel.

[edit] The development of the verdict

Still in 1951 the Supreme Court of Israel determined that also marriages outside of Israel, which were conducted by a rabbinical court according to the Jewish religion, would be recognized as marriage in Israel. But the big question was different - in which cases would the state of Israel recognized a civil marriage that was conducted outside of it? In the original case which the supreme court debated it was ruled that the couple were not residents or citizens of the state of Israel at the time of the marriage, and the state in which the marriages were conducted at recognized their status of marriages, then according to the international private law the state of Israel has to recognize in status of the marriage. But what if one or either two of the couple were inhabitants or citizens of the state of Israel?

This question received great significance, because the judgments of the marriage according to Judaism include many prohibitions, such as prohibition of the marriage to a Mamzer or prohibitions of marriage to cohens, which left many in the status of illegitimate to marriage. The solution to those was to get married in foreign states, most Cyprus. This still remains a heavily debated matter between the religious public are secular public. In 1962 the supreme court determined that official in charge of the registrations in the Ministry of the Interior would have to register as a legal married couple couples whom married in civil marriage outside of the country, also if at the time of the wedding either one of the couples or both were citizens of the state of Israel. This verdict was interpreted only as a small technical matter, which is only needed for the statistical purposes only, which does not permit a personal status of married people since the registering as itself would not be able to determine on the validity of the marriages, and he is done only because the foreign certificate is assumed to be valid, and there are no additional evidence which claim that it is not.

A verdict given in November 2006 the retired president of the supreme court Aharon Barak, determined that the recognition of the civil marriages which was conducted abroad is both with respect to the form and with respect to the essence (the Hebrew law), and this in the aftermath of adjudication of the rabbinical supreme court in this case itself, which determined that it is enough that a civil marriage were conducted abroad, in order for a religious court to be the one to recognize them or not afterwards.

[edit] The public disagreement

During it's time of existence the legal settlement which gives the rabbinical courts the monopoly on conducting the marriages and divorces in Israel has been a source to great criticism from the secular public, but also to the ardent support from the religious public. The main argument of the supporters of the law is that its cancellation will divide the Jewish people in Israel between the Jews whom would marry and divorce each other within the Jewish religious athorities and the Jews whom would marry and divorce each other within the civil marriages - which would not be registered or inspected by the religious authorities, and thus their children would be considered illegitimate to marry the children of the couples married within the religious court, from fear of them being considered Mamzer. Opposers of the law see in it as a severe offense to the human civil rights made by the state of Israel.

Ruth Gabizon, which have been attempting to make a constitution with wide concurrence, found that one of the main problems with the human rights in the state of Israel is the status of the rabbinical courts, and because of the desire to defend their monopoly status is one of the main reasons that Israel does not have a constitution which consists of a complete scroll of human rights. due to this, Gbizon presumes that the legislation of 1992 which was referred to by Aharon Barak as "the constitutional revolution", is not so bright and revolutionary as Barak presumes, since that legislation left untouched alone two of the main settlements that harm the human rights - the personal status laws, and the emergency legislation of the British Mandatory.

[edit] Arguments for supporting the religious marriages

The supporters of the continuation of the current situation raise the following rationales:

  • The monopoly of the rabbinical courts on the marriages and the divorces of the state of Israel keep the state of Israel consolidated. If the rabbinical courts would lose their monopoly , there is a fear that the children which would be born to the couples whom married within civil marriages would be fathering bastards, and therefore every children born to such a couple would be considered as bastardly from the fear of illegitimate marriage. This situation would divide the Jewish people in Israel into two groups whom according to the religious law would not be able marry each other.
  • The marriages in the rabbinical court keep the holiness of the state of Israel, and add to couple a spiritual and religious dimension of the family purity Jewish religious laws.
  • Creating a civil marriage authority in Israel will lead to the assimilation and the intermarriage of the Jewish people. Marriages in the rabbinical court are a guarantee to the continuation of the existence of the Jewish population in the state of Israel.
  • The secular legislator is not able to estimate the importance of religious Halakha norms to the religious public.
  • From the religious aspect, no harm is caused by religious legislation, which forces the Halakha norms on the Jewish population - it is even considered by the religious public as a Mitzvah.
  • This legislation is required in order to keep the peace between the religious public and the secular public and it is situated in the consensus of the nation.

[edit] Arguments for supporting the civil marriages

According to the supporters of initiating a civil marriage authority in Israel, the current settlement harms human rights of the inhabitants of Israel in the number of ways:

  • A coercion of the religious Halakha norms and religious lifestyle on those whom do not desire it.
  • There is not given a legal possibility of marriage between couples from different religions, or people whom lack religious status.
  • The harming of rights of the "illegitimate of marriage" people whom according to the religious Jewish law. Between those whom are considered Mamzer, Cohens whom desire to marry a divorcee and the prohibition of widows whom did not have any children from her late husband to get re-married without passing Halizah.
  • The harm to the equality in front of the law due to giving the full authority to the rabbinate courts, and not to the parallel Jewish institutions of the Reform Judaism and the Conservative Judaism.
  • The existing religious law discriminates against women, by the inclusion of institutions as Aginot and "recalcitrant wives". Also women can not officiate as rabbinical in the rabbinical court.

To supporters of the civilian settlement, the current legal situation contradicts the Universal Declaration of Human Rights, of the rights of those whom have reached the age of the marriage and desire to get married and to establish a family without limitations which are based on their race, nationality or religion.

[edit] Arrangement attempts of the legal situation

[edit] The verdict

At the times when a petition was brought in front of Israel's Supreme Court which tried to convince the Supreme Court to form an authority of civil marriages, the Supreme Court refused to do so, and determined that this was the call of the parliament. in the cases when people requested to proclaim themselves as of being "Non-religious", in order that the court would be able to recognize his marriage according to the acceptable Judgment, the court reject their assertion. in the single times in which Israel's High Court of Justice determined that the law has to recognize the ceremony of marriage held between a Cohen to the divorcee, was only when it was based on the religious law that determines that those are forbidden marriages from the start but allowable post factum.

[edit] Alternative authorities

With the times a number of alternative institutions developed which enabled people whom wanted to avoid the rabbinical weddings, or that were ineligible to get married in the rabbinate, which gave the couples a status of a married couple or a similar status.

The weddings arranged outside of Israel, and in particular in Cyprus became an available and comfortable solution to many Israelis. It was also discovered by the Israeli lawyers that marriage in Paraguay would not even need the attendance of the couple in the Paraguay itself or in any attachment to Paraguay in order to get married within its judgment, and thus "Paraguay marriages" or "Marriage by means of mail" became a common ceremony in Israel.

The legal status of Common-law marriage developed also into a wide institution, which entitles its holders varied rights in the inheritance, pension and the landlord and tenant law. Still the Common-law marriage status is not equal to the marriage status, and there are many fields in which rights are given to the married couples that not given to the Common-law marriage couples. for example, the law of security legislated in 1986, determines the exempt from military service of married women. There is not similar exempt for the Common-law marriage women.

The jurist Frances Radi supposes these are attempts to "bypass the law in legal ways", and that the necessity of the Israel citizen to turn to a foreign state in order to get married gives less value to the alternative ways to get married. To her assertion "the existence of those minor alternatives only points out the lack of the respect to the secular values that the Israeli judiciary demonstrates".

[edit] Political attempts to solve the situation

In the late 1960s there was an attempt of the Independent Liberals party that permit civil marriages amongst illegitimate couple according to the rabbinical courts - this attempt ended up causing a governmental crisis.

The Meretz party, and it's historical components parties Mapam, Ratz and Shinui have been leading a struggle for civil marriages in Israel for a long time, but without success. At the start of the 21st century several rabbis claimed (including the chief rabbi to Israel, Shlomo Amar) that the great alienation which this situation creates does not serve the religious wide interest. As part of the coalition agreement in Ariel Sharon's second government, the Shinui party demanded finding a legal solution for those whom can not get married within Israel. A committee which was raised to find a solution for this problem which would be different from the civil marriages came up with the "Coupling arrangement" solution (ברית הזוגיות). This committee, which was lead by the following Israeli parliament members - Roni Bar-On, Yuri Stern, Nisan Slomianski and Roni Brizon, represented parties from the wide political religious arc, from the Shinoi party to the Mafdal party, and eventually submitted a bill by which there would be a separate status made for people which came in the pact of duality which would not be considered as "marriage" but will be similar to the marriage institution as much as possible. The bill didn't ever reach progressive legislation procedures.

In July 2007 Israel's justice minister, Daniel Friedmann, and the chief rabbi of Israel Shlomo Amar reached an agreement on a limited bill for civil marriages in Israel which would apply on marriage between Israel civilians whom do not belong to any recognized religious denomination. This agreement has yet only been advertised in the press, and has not yet been preceded by in any legislation procedure.