The following is a proposal for civil marriage and divorce in Israel, written by Avishalom Westreich and Pinchas .Shifman. The proposal is edited by Ruth Gavison and has been distributed through Metzilah – Center of Zionist, Jewish, Liberal, and Humanistic Thought (Metzila website). Mezilah's framework appropriately details Hiddush's vision for freedom of marriage in Israel.
This paper examines the existing legal and social reality in the field of marriage and divorce in the State of Israel. It claims that the current legal arrangement, which subjects such a significant aspect of Israeli civil life to a religious monopoly, is unjustified and ineffective. Our paper proposes an alternative solution in the form of a civil legal framework for marriage and divorce in Israel.
The first section of the paper (chapters 1-3) discusses the existing legal arrangements and their shortcomings.
Israel is the only Western democracy that legally sanctions a religious monopoly over marriage and divorce. From a historical perspective, this arrangement is in fact an extension of the status-quo that existed in British-mandate Palestine, which itself evolved from the Ottoman Empire's Millet legal codes, dating back to the 19th century. Today, however, many consider the issue of marriage and divorce to be a highly significant aspect of Israel's Jewish character, and even an integral part of its definition as a Jewish state. For members of other religions as well, marriage and divorce are central aspects of their collective identity.
Whatever the case may be, the state currently entrusts the rabbinical courts with the sole authority over marriage and divorce services to its Jewish citizens. Personal status issues of non-Jews are cared for by religious courts of the major denominations. A citizen's affiliation with one or other religious denomination is determined in accordance with the religious law, and sometimes without the person's consent. For the sake of comparison, in other Western democracies, the legal system provides a common, civil framework for marriage and divorce to all citizens, regardless of their cultural background and religious affiliation or tendency.
In the existent social and legal order, this arrangement causes significant difficulties and should clearly be modified. We argue that changing this legal norm is a social, moral, legal religious and cultural necessity.
Social – because of the many couples who are interested in a nonreligious marriage, and the many who are unable to undergo a religious marriage, either because they are religiously disqualified from doing so, or because they are not formally affiliated with any religion. The rising number of such couples is derived from recent changes in Israeli society, following the massive immigration waves from the former Soviet Union, as well as from ideological changes in the social conception of family and marriage. These changes indicate an ever-growing difference between the customary liberal and religious views on marriage stability, implications of divorce, and religiously forbidden relationships, such as same-sex couples.
It is worth mentioning that in light of the difficulties caused by the existing situation, the Israeli legal system has in recent years established extensive bypass mechanisms, such as the provision of many legal rights to cohabitants, thus placing them in the same status as formally married couples, the legal recognition of marriage between two Jewish Israeli citizens who are married abroad, as well as partial recognition of inter-faith civil marriages and same-sex marriages performed abroad. The Israeli Civil Union Law For Persons With No Official Religion, which was passed in 2010, is another such bypass mechanism. These "local" solutions indeed make life somewhat easier for those who find themselves restricted by the religious-orthodox monopoly over marriage, but we believe they are not sufficient. Moreover, they actually perpetuate the existing restrictions, thus making their resulting dilemmas permanent.
Our examination of these aspects leads us to conclude that the existing situation must be changed, and that a civil legal framework for marriage and divorce must be established. In the second part of this paper (chapters 4-5) we discuss our proposal of such a civil framework, while comparing it to previously-formulated proposals designed to revise the Israeli marriage and divorce laws.
Proposals for restricting or terminating the marriage and divorce religious monopoly in Israel have long been an integral, continuous part of the legal, academic, religious and public agendas in this country. Such proposals are divided into two main categories: the first category proposes to retain the religious route, but to add a civil alternative. This alternative includes three versions: a minimalistic version that supports civil marriage only for those who are religiously disqualified from getting married; an extensive version of varying applicability that proposes to establish two equally accessible alternatives – civil marriage and religious marriage; and a third version that retains the exclusivity of religious marriage, but offers to establish alternative "civil union" arrangements of varying applicability. The second category consists of proposals for forming a uniform civil legal framework for marriage, while allowing for various ceremonies. According to such proposals, the various cultural and religious groups and their traditions would be fully represented through their corresponding ceremonies (civil or religious, of various denominations and currents), and yet, all marriages and divorces would be subject to the same civil legal framework. The various proposals in this category vary in the weight and significance each attributes to religious provisions within the civil legal framework, concerning, for instance, the granting of a civil marriage certificate following a civil, but not religious, divorce.
Our analysis examines the advantages and disadvantages of these proposals. It should be noted, though, that they all recognize the urgent need to discontinue the religious-orthodox monopoly over this field. And yet, it often seems that such proposals pay a high price for their attempt to find the appropriate balance between all the various considerations that play part in such a complex social and legal reality. Consequently, for example, the first proposal, which offers to retain the religious route, does not offer appropriate solutions to the human rights violations that this route entails, since the existence of a religious route, fully sanctioned by the state, obligates the state itself, and not the marrying couple, to account for various aspects of inequality found in marriage and divorce arrangements of the various religions. In light of these and additional difficulties, we now wish to present our proposal and to explain its advantages.
We propose adopting a uniform civil framework for marriage and divorce. Such civil framework model would require advance registration and fulfillment of the necessary conditions for marriage, thus constituting an all-inclusive, normative civil system that would handle all matters of marriage and divorce in Israel. In light of the significant weight and importance of religion in Israeli society, this model would provide full legitimacy to a wide variety of religious and non-religious marriage ceremonies, as well as various divorce ceremonies and procedures. Yet, state recognition of the marriage and divorce will depend only on the uniform state license and its implementation through any recognized ceremony, including a purely civil one. Those who wish to do so, especially if they were originally religiously married, would then be able to choose whether or not to continue litigating their marriage and divorce disputes in the religious courts, provided that these courts remain committed to elementary principles of civil property law, and to equal implementation of the right to divorce.
As far as the state's accountability for marriage laws goes, this constitutes a dramatic change, because the most important marriage decisions would now become the state's responsibility, whereas the religious and cultural aspects of marriage would become matters of personal choice. As part of this change, the state would formulate basic principles for an appropriate marriage and divorce legal framework. It would also decide on a clear policy pertaining to marriage restrictions (such as the prohibition of marriage by minors, bigamy, and perhaps even a requirement of certain medical examinations). Above all, such a framework would oblige the legislature, as the representative of the various public views, to determine the status of marriage in Israeli society as opposed to that of non-married couples, and to determine the appropriate requirements for dissolving a marriage.
In general, this arrangement would directly force the state to develop civil family laws based on widely-agreed upon social values, while at the same time allowing the representation of a wide variety of Israeli social groups, currents and cultures. It stands to reason that some of the issues would raise disagreements, which should be resolved in a proper manner, through discussion, negotiation and compromise. However, this would have to be a decision made by the state, and not by various religious establishments. On the other hand, the state would not have to make inner-religious decisions, or review the decisions of religious bodies, bound by religious laws, thus significantly reducing the enormous tension that exists today between state and religion in Israel, and between various perceptions of Jewish religiousness.
We do not believe that this type of civil legal framework would harm the unique Jewish nature of the state, since we estimate that many of Israel's Jewish citizens would continue to integrate cultural, traditional or religious Jewish contents into their marriage. Moreover, the alternative of a civil marriage would encourage non-religious Israelis who wish to affirm their cultural Jewishness to do so, without making this an issue of opposing religion or religious coercion, thus decreasing the state/religion tensions, as previously mentioned. A similar freedom to explore non-religious aspects of their culture will be given to non-Jewish communities in Israel.
Since, according to our proposal, marriage would only be recognized under state law, the same should apply to divorce, which should be granted by the state, i.e. through the civil courts, which would also deal with property matters in accordance with the civil property laws. This arrangement, however, raises religious-halachic dilemmas (and usually serves as the main argument in favor of preservation of the present religious monopoly), since a civil divorce without a Jewish-orthodox divorce (by performing a valid writ of divorce, a get) might lead to the problem of illegitimate children (mamzerim).
We therefore propose two possible models in this context. The first model grants the civil authority full jurisdiction over the recognition of divorce, while the second model ‘integrates’ in a way the function of religious and civil courts. According to the exclusively-civil model, a civil divorce would be completely valid even without a Jewish-orthodox divorce (get), i.e. the divorcees would become fully eligible for remarriage. However, the integrative model distinguishes between the various functions of divorce: it enables the couple to disengage from each other as far as personal and financial rights are concerned, including all obligations pertaining to themselves and their children, but does not allow them to get remarried until they are regarded as unmarried by religious law as well. The integrative model prevents the danger of illegitimate children in those cases where marriage was originally performed in accordance with Jewish law, while the first, exclusively-civil model, might indeed raise such a dilemma.
Yet, in practice, even according to the current custom, the civil legal system does not forbid a second marriage (de-facto, as cohabitants, and sometimes as an official marriage as well) even when the previous, religious marriage had not been dissolved. In addition, the court does not forbid marriage between the religiously-disqualified, and for the most part recognizes inter-denominational marriages (when performed abroad). Today, it is not primarily the civil authorities that prevent religiously-disqualified couples from bonding, but rather their own religious-cultural considerations, to the extent that these play a significant role in their lives. The proposed arrangement would not modify this aspect in any considerable way: an Israeli court would issue a civil divorce verdict, as per the exclusively-civil model, and would leave the decision of whether to remarry without an orthodox get to the couple themselves. The power and innovation of this model only lies in its legal sanctioning of such remarriage. In any case, the paper does not determine which would be the most desirable model for matters of divorce, either the exclusive or the integrative one.
Whether or not the exclusive model is approved, or even more so, in the case of the integrative model, the civil legal system must not lose its sensitivity towards women whose husbands decline to grant them a divorce. We propose that the civil courts continue to grant these women legal aid in the form of compensation for damages, suspension of the civil divorce procedure in cases where the declining party is the one who applies for the divorce, and holding the husband's refusal against him financially, as is customary in other Western countries, as well as in the Israeli rabbinical courts.
It is the state's duty, as well as that of its leaders, to form an appropriate and suitable legal framework for dealing with such a central aspect of civil life as marriage and divorce. This is true in every country. It is especially true in the Jewish and democratic state of Israel, as it strives to establish a political and legal framework resulting in a cohesive society, based on deep, but different , cultural foundations. Therefore, despite political and other impediments, the treatment of such a central issue must be based on a clear vision. Formulating such vision is the goal of this paper.
The paper was written by Dr. Avishalom Westreich and Prof. Pinchas Shiffman, edited by Prof. Ruth Gavison, translated by Kfir Levi, and published by Metzilah – Center of Zionist, Jewish, Liberal, and Humanistic Thought. All rights reserved – Metzilah, 2012.
The full paper (in Hebrew) is available online on Metzilah's website: www.metzilah.org.il. Hard copies may also be ordered online.
Avishalom Westreich - Lecturer of Jewish Law and Philosophy of law at the College of Law and Business in Ramat Gan, Israel, and focuses on Family Law and Religion and State issues.
Pinchas Shiffman - Former president of the College of Law and Business in Ramat Gan, and Professor (Emeritus) at The Hebrew University Faculty of Law; has authored several books and many articles on Marriage and Divorce in Israel over the past four decades.