Marriage in Israel

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Marriages in Israel can be performed only under the auspices of the religious community to which couples belong, and no religious intermarriages can be performed legally in Israel.^[1] Matrimonial law is based on the Millet or confessional community system employed in the Ottoman Empire, which was not modified during the British Mandate and remains in force in the State of Israel.^[2]

In addition to the respective faiths of Jewish, Muslim and Druze communities in Israel, Israel recognizes ten distinct denominations of Christianity.^[3] Marriages in each community are under the jurisdiction of their own religious authorities.^[2] The religious authority for Jewish marriages performed in Israel is the Chief Rabbinate of Israel and the Rabbinical courts. The Israeli Interior Ministry registers marriages on presentation of proper documentation. Israel’s religious authorities — the only entities authorized to perform weddings in Israel — are prohibited from marrying couples unless both partners share the same religion. Therefore, interfaith couples can be legally married in Israel only if one of the partners converts to the religion of the other. However, civil, interfaith and same-sex marriages entered into abroad are recognised by the state.^[4]

It is illegal under Penal Law Amendment (Bigamy) Law, 5719 (1959), to marry in Israel while already married. This applies to members of each confessional community, including the Jewish and Muslim.^[5][6] Polygyny is nevertheless still practiced in the Bedouin community, where about 25% of men are believed to have more than one wife.^[7]

In 2013, the minimum marriage age in Israel was raised to 18, from a previous age of 17.^[8][9] Previously, the marriage age was 18 for males and 17 for females,^[10] before they were equalised at 17 years.

History

Under the Ottoman Empire all matters of a religious nature and personal status, which included marriage, were within the jurisdiction of Muslim courts and the courts of other recognized religions, called confessional communities, under a system known as Millet. Capitulation Treaties also permitted the registration of marriages and divorces in the British, German, American and other consulates during the Ottoman period. Jewish religious matters were handled by the Hakham Bashi and the Jewish courts.

Article 14 of the British Mandate of Palestine required the mandatory administration to establish a commission to study, define, and determine the rights and claims relating to the different religious communities in Palestine. Article 15 required the mandatory administration to see to it that complete freedom of conscience and the free exercise of all forms of worship were permitted. Those mandates were never enforced or put into effect. The High Commissioner established the Orthodox Rabbinate and retained a modified Millet system that recognized only eleven religious communities: Muslims, Jews and nine Christian denominations (none of which were Christian Protestant churches). All those who were not members of these recognised communities were excluded from the Millet arrangement, and "marriages" conducted in Palestine outside these communities were not recognised. Consular marriages remained customary during the British Mandate and civil divorces granted in other countries were registered and recognized by the mandatory administration. Provision was made for the registration of marriages,^[11] but not for the manner in which marriages would be conducted.

It has been argued that the Ottomans and the British did not contemplate a situation in which a person who belonged to one of the recognized communities would want to be married in a non-religious ceremony within that community. It has been claimed that there was no opposition to religious marriages when the religious courts were given authority in these matters. However, no provision was made for marriages between people who were not both members of the same, recognised, community.

Jewish community

It is a criminal offense for Jews in Israel to marry in weddings performed outside the state’s religious authority, and doing so can result in a jail sentence of up to two years. Hiddush ranked Israel as the only Western democracy that is on a par with Iran, Pakistan, Afghanistan, Saudi Arabia and other Islamic states in relation to freedom of marriage. Hiddush also found that almost two thirds of Israeli Jews do not know that Israeli Jewish couples who marry in civil ceremonies overseas can, according to Israeli law, only get divorced through the Israeli Orthodox Rabbinical Courts.^[12]

In 1947 David Ben-Gurion and the religious parties reached an agreement that included an understanding that matters of personal status in Israel, which included marriage, would continue to be determined by religious authorities. This arrangement has been termed the status quo agreement and has been maintained despite numerous changes of government since.

Under the arrangement, the Mandate period confessional system would continue, with membership in the Jewish community being on the basis of membership of a body called "Knesset Israel", which was a voluntary organization that managed registrations of people who were related to it—that is, those recognised as Jews. There does not seem to have been any dispute at the time of who was a Jew. Jews could choose not to register with "Knesset Israel". Members of Agudath Israel, for example, chose not to register.

Before 1953 "Knesset Israel" courts had authority over Jews registered with it. However, in 1953 rabbinical courts were established with jurisdiction over matters of marriage and divorces of all Jews in Israel, nationals and residents. (section 1) It was also provided that marriages and divorces of Jews in Israel would be conducted according to the law of the Torah. (section 2)

Since 1953 the rabbinate has only approved marriages between Jews in Israel conducted in accordance with the Orthodox interpretation of halakha. The changes were applauded by religious Jews, but have been criticized by secular Jews since they were instituted. The only exception to these arrangements was that marriages entered into abroad were recognised as valid in Israel.

Jewish marriage and divorce in Israel is under the jurisdiction of the Chief Rabbinate of Israel, which defines a person's Jewish status strictly according to halakha. The rabbinate's standards and interpretations in these matters are generally used by the Israeli Interior Ministry in registering marriages and divorces.

Halakhic and biblical restrictions on marriage are applied in Israel. So, for example, a kohen may not marry a convert to Judaism. Similarly, children of adulterous and incestuous unions are restricted as to whom they can marry.

Up to 1999, any marriage council had the option to send a person to a Judaism test (Hebrew). A governing document^[13] that defined rules of marriage had been finally concluded in 2001. Contrary to guidelines, some councils didn't fulfill the guideline; several petitions had been sent to the high court.^[14] A research showed that 93.5% of people sent to Judaism test had been from the former Soviet Union and 83% of them succeeded and 10% left the process. In 2010 a final ruling defined that all immigrants after 1990 must go over a Judaism test.

However, Israel does recognise civil or religious marriages entered into outside Israel. It is usual for couples who may not or choose not to marry in Israel to travel overseas to marry.^[15] One out of every ten Israelis who married in 2000 did so abroad mainly because they could not marry in Israel. 2,230 couples who married abroad consisted of two Israeli partners, and another 3,660 couples consisted of an Israeli and a non-Israeli partner.^[15]

The issue of civil marriages is a major issue for secular Jews and members of non-Orthodox streams of Judaism, who are required to meet the Orthodox standards to be able to marry in Israel.^[16] There is a debate over whether civil marriages would divide the Jewish people in Israel by increasing interfaith marriages and marriages that do not meet halakhic requirements, and over the character of the Jewish state.

Most secular Jews view their Jewish identity as a matter of culture, heritage, nationality, or ethnicity.^[17] Ancestral aspects can be explained by the many Jews who view themselves as atheist and are defined by matrilineal descent^[18][19] or a Cohen (Kohen) or Levi, which is connected by ancestry.^[20] The question of "who is a Jew" is a question that is under debate.^[21] However, matters concerning marriage in Israel are controlled by strict Orthodox standards and disputed issues are resolved by the Israeli Chief Rabbinate. Issues related to ancestral or ethnic Jews are solved by the Israeli Chief Rabbinate.^{[22][23][24][25]}

Orthodox halachic rules apply to converts who want to marry in Israel. Under these rules, a conversion to Judaism must strictly follow halachic standards to be recognised as valid. The rabbinate even scrutinizes Orthodox conversions, with some who have converted by orthodox authorities outside of Israel not being permitted to marry in Israel. For example, a man who converted to Orthodox Judaism in the USA was denied an official marriage in Israel on the grounds that his conversion may not have been legitimate and that the Orthodox rabbi who converted him in Louisiana is not recognized in Israel.^[25][26]

In the rabbinical courts, which operate according to halakha (Torah law), a Jewish woman is allowed to initiate divorce proceedings, but her husband must give his consent to make the divorce final. If the husband disappears or refuses to grant the divorce, the wife is considered an "agunah" (lit. "chained woman") and may not remarry or give birth to halakhically legitimate children. Rabbinical tribunals may, and sometimes do, rebuke a husband who refused divorce, but still do not grant a divorce without his consent.^[27]

If a person's Jewish status is in doubt, then formal conversion is required in order to be allowed to marry according to the Orthodox rules, which govern all marriages between Jews in Israel.

According to an editorial in The New York Jewish Week:

As a result, non-Orthodox Jewish couples are forced to submit to an Orthodox marriage ceremony with an Orthodox rabbi and are compelled to attend classes on family purity.^{Family purity[›]} No Israeli may marry outside his faith community. Hundreds of thousands of Israeli citizens from the former Soviet Union who are not Jewish or whose Jewish ancestry is in doubt are unable to marry at all inside Israel.^[28]

A person who was born as the result of an adulterous or incestuous union is limited in whom he or she can marry. The most common case of this is a person who was married halachically but not divorced halachically. In October 2013, however, the Tzohar law was passed and effectivity ended the monopoly which community Orthodox Rabbis had over weddings and allowed for people of Jewish faith to pick a rabbi of their choosing outside the area which they live, though it still does not account for people who converted to either Conservative and Reform Judaism .^[29][30]

In 2015 Tzohar (a religious Zionist rabbinic organization in Israel), along with the Israeli Bar Association, introduced a prenuptial agreement meant to help ensure divorcing wives will receive a get; under the agreement the husband commits to paying a high sum of money daily to his spouse in the event of a separation.^[31]

Muslim community

Most Muslims in Israel are Sunni Arabs.

In 1922, the British created the Supreme Muslim Council as the Muslim religious authority in the British Mandate of Palestine and appointed Amin al-Husayni (1895–1974) as the Grand Mufti of Jerusalem. The council was abolished in 1948 by Jordan, but was reconstituted in Jerusalem after the Six-Day War in 1967.

As the law of the land in relation to marriages has formally remained the Islamic law prior to the establishment of the State of Israel, it was not necessary for the Muslim community to formally "accept" these arrangements.

Muslim marriages are conducted in accordance with Islamic law and customs. Inter-faith marriages are permitted between Muslim males and Christian or Jewish females, but the opposite is not allowed for female Muslims.

Sharia courts deal with personal status issues in the Muslim community.

A Muslim woman may petition for and receive a divorce through the Sharia courts without her husband's consent under certain conditions, and a marriage contract may provide for other circumstances in which she may obtain a divorce without her husband's consent. A Muslim man may divorce his wife without her consent and without petitioning the court.^[27]

Christian churches

There are nine officially recognised churches for the purposes of marriage. These are the Greek Orthodox, Roman Catholic (Latin rite), Armenian Apostolic, Armenian Catholic, Syrian Catholic, Chaldean (Uniate), Melkite Greek Catholic, Maronite and Syrian Orthodox churches.

In 1970, the Anglican Church was included with these recognised churches. At the same time, special arrangements for the recognition of marriage were made between the State of Israel and the Lutheran, Ethiopian Orthodox, and Coptic Orthodox churches.

Christians may seek official separations or divorces, depending on the denomination, through ecclesiastical courts.^[27]

Druze community

The Druze community was recognized as a separate community from the Muslim community in 1957. In 1962, separate Druze courts were established to deal with personal status issues in the Druze community, alongside the rabbinical courts, the Sharia courts, and the courts of the Christian communities.^[32]

Criticism of confessional system

The status quo agreement creates difficulties for people who, for whatever reason, cannot marry or divorce within the system, or who do not want to marry in a religious ceremony. The issue became acute when large numbers of immigrants (olim) from the former Soviet Union arrived in Israel in the 1990s. Although they became Israeli citizens under the Law of Return, some of the olim were not considered Jewish by the rabbinate, which requires proof of maternal Jewish descent.

Partial recognition of civil marriage

In 1951 the Supreme Court of Israel ruled that marriages entered into outside Israel conducted by a rabbinical court in accordance with halakha must be recognized in Israel. The case before the court involved a couple who were not residents or citizens of Israel at the time of their marriage. However, commentators have noted that the case did not deal with a situation where one or both of the couple were residents or citizens of Israel, nor with a civil marriage abroad.

The issue of recognition of civil marriages is of special significance in Judaism because Orthodox Judaism has various prohibitions involving marriages. This includes, but is not limited to, restrictions on marriages involving a mamzer and by kohenim. Such marriages will not be sanctioned by religious authorities and as there is no form of civil marriage, cannot be formally entered into in Israel. The couples in these prohibited marriage situations sometimes marry overseas, mostly in Cyprus, which is near Israel.^[33]

In 1962 the Supreme Court determined that the Ministry of the Interior must register as married couples who married in a civil marriage abroad, even if either or both of the couple were citizens of Israel. This judgment was interpreted as a minor technical issue, as the act of registration was said to be for statistical purposes only, and not a recognition of the personal status of the couple, as registration does not determine the validity of the marriage.

In a judgment given 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, which had determined that a religious court had the authority to decide the validity or otherwise of a civil marriage entered into abroad.

In 2010, Israel passed the Civil Union Law for Citizens with no Religious Affiliation, 2010,^[34] allowing a couple to form a civil union in Israel if they are both registered as officially not belonging to any religion.^[35]

Divorce process

The 1973 Spouses' Property Relations Act officially defined what assets would be divided after divorce or if one of the spouses dies, unless they both agreed beforehand.^[36] An amendment was later added to the 1973 law in 2008 to ensure that property would be divided equally among both spouses before the divorce rather than after.^[36]

Under the nation's Capacity and Guardianship Law, child custody was almost always granted to the mother following a divorce.^[37] In 2012, however, an amendment was added to the law to ensure that both the father and any child of the divorced parents who is at least six years of age would share equal rights as the mother as state-appointed social workers determine child custody.^[38] The age of the child with equal privilege was later lowered to two in 2013.^[39]

The divorce process in Israel for married people of Jewish faith is administered by the Get Procedure and finalized by Rabbinical Judges.^[40] On November 15, 2016, the Get Procedure was officially regulated after State Attorney Shai Nitzan required criminal prosecution of men or women who refuse to grant or accept a divorce after being instructed to do so by a rabbinical court, although some said it would not have a dramatic impact since criminal proceedings will only be possible if the rabbinical court issues a rarely used ruling obligating a spouse to agree to the divorce.^[41]

Views on civil marriage

Since the establishment of the rabbinical courts, the status quo agreement has been strongly supported by the religious community, but criticised by others. The main argument of the supporters of the system is that a change of the status quo agreement will divide the Jewish people in Israel between those who marry according to Jewish religious standards and those who marry in a civil marriage. Civil marriages would not be registered or scrutinized by the rabbinate. In certain circumstances, such as when a woman who was previously married according to Jewish religious standards entered into a civil marriage without obtaining a religiously-valid divorce decree (get), the children produced by civil marriages could be considered illegitimate or mamzerim, which would prohibit them from marrying any Jew who was not also a mamzer. Opponents of the status quo agreement consider the system to be contrary to people's civil rights.

In 2011, roughly 9,000 couples registered with the Central Bureau of Statistics that they were married overseas.^[42]

Although most of the debate relating to civil marriage in Israel is conducted in the Jewish community, the issue has the same implications for all other recognised religious communities in Israel.

Support for religious marriages

Supporters of the status quo agreement argue that:

• When people are married according to Jewish law and subsequently divorce civily, children from a subsequent marriages of the woman will be mamzerim, who are severely limited by Jewish law in whom they can marry. This, together with acceptance of non-Orthodox conversions, will split the Jewish people into two groups that can not marry one another.
• Marriages in the rabbinical court preserve the holiness of the state of Israel and add a spiritual and religious dimension of family purity according to Jewish religious laws.
• Civil marriage will lead to assimilation and intermarriage. Marriage in the rabbinical court, it is argued, is a guarantee to the continuation of the existence of the Jewish population in the state of Israel.
• A secular legislator is incapable of understanding the importance of religious halakha standards to the religious community.
• From a religious standpoint, a religious ceremony causes no harm even though it imposes halakhic standards on non-religious Israelis—it is even considered by the religious community to be a mitzvah, a noble deed.

Support for civil marriages

Supporters of civil marriage in Israel argue that the status quo agreement violates the rights of Israeli citizens by:

• imposing religious standards on those who do not desire it.
• creating difficulty for the marriages of people who belong to different religious communities and people who do not observe any religion.
• not permitting marriages of those who are prohibited by halakha, such as marriage between a person considered to be a mamzer, or a Cohen wishing to marry a divorcee. It also prohibits widows who did not have any children from a previous husband from getting remarried without passing halizah.
• restricting religious equality by refusing to delegate authority to Reform and Conservative communities.
• discriminating against women, by the inclusion of institutions such as Agunot and "recalcitrant wives", and by refusing to permit women to officiate as rabbis in the rabbinical court.

Supporters of civil marriage also argue that the status quo agreement is in breach of the Universal Declaration of Human Rights, Article 16, which states that "men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family."

Arrangement attempts of the legal situation

The verdict

At the times when people petitioned the Supreme Court of Israel, trying to convince the Supreme Court to form an authority of civil marriages, the Supreme Court refused to do so, declaring that this was the responsibility of the Knesset. In cases when people requested to proclaim themselves as being "non-religious", in order that the court would be able to recognize his or her marriage according to an acceptable civil judgment, the court rejected their assertion. The only time in which the Court determined that the Ministry had to recognize a marriage between a Cohen and a divorcee was when it was based on the religious law that determines that those are forbidden marriages from the start but allowable post factum.

Alternative methods

Over time a number of alternative methods have been used by couples who wished to marry without a religious ceremony, or who were unable to marry in Israel.

One method is to marry outside Israel; nearby Cyprus became the most convenient venue for many Israelis. Paraguay, which allows marriage without the presence of the couple to be arranged by the Paraguayan consulate in Tel Aviv, is another jurisdiction used.

Another approach is to resort to what is called a "common-law marriage". A common-law marriage entitles the partners to most of the rights of a formally married couple in relation to inheritance, pensions and the landlord and tenant matters. However, the status of common-law marriage is not equal to that of formal marriage in many fields. For example, exemption from military service for a married woman only applies to a formally married woman.

Jurist Frances Radi supports these attempts to "bypass the law in legal ways", but points out that the necessity of an Israeli to resort to the use of a foreign state in order to get married diminishes the value of the alternative ways to get married. In her view, "the existence of those minor alternatives only points out the lack of the respect to secular values that the Israeli judiciary demonstrates".

Political attempts to resolve the situation

In the late 1960s the Independent Liberal party attempted to enable civil marriages for couples who could not marry in rabbinical courts; however, this attempt caused a governmental crisis.

The left-wing Meretz party, and its historical component parties Mapam, Ratz and Shinui have been trying to allow civil marriages in Israel for a long time, but without success. At the start of the 21st century several rabbis (including the chief Sephardi rabbi of Israel, Shlomo Amar) said that the great alienation that this situation creates does not serve the religious interest. As part of the coalition agreement for Ariel Sharon's second government, the Shinui party demanded that a legal solution be found for those who could not marry within Israel. A committee formed to find a solution for this problem came up with the "coupling arrangement" solution (ברית הזוגיות). This committee, which was led by Israeli parliament members Roni Bar-On, Yuri Stern, Nisan Slomianski and Roni Brizon, and represented parties from the wide political religious spectrum from the Shinui party to the Mafdal party, eventually submitted a bill by which there would be a separate status recognised for people who came in the pact of duality, which would not be considered as "marriage" but would be as similar as possible to the marriage institution. The bill never reached further 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 only to the marriage of Israelis who do not belong to any recognized religious community.^[43] Such a bill was introduced by Yisrael Beiteinu in 2009, eventually passing the Knesset in May 2010; this bill, however, only grants "couplehood union" status to couples who both declared non-religious status.^[1]

See also

• Civil marriage
• Common-law marriage
• Interfaith marriage in Judaism
• Same-sex marriage in Israel
• Unregistered cohabitation in Israel
• Gett: The Trial of Viviane Amsalem

References

External links

• Jewish Virtual Library: Bigamy and Polygamy