The legal arrangement in Israel for marriage, and particularly for divorce, is one of the most complex in the world, and Israel is the only country in the western world that maintains two parallel judicial systems, a civil and a religious one. This double arrangement regularly forms frictions and duplications between the authorities of the various judicial systems, such as for divorce, custody, division of property and inheritance. Alongside this, Israel has two other unique systems for arranging partnerships – the common law spouses institute and the domestic partnership institute.
Shelly and Ivgeni, took part in Be Free's couple's campaign, got married in a civil marriage ceremony in Prague
What are the entry conditions for the partnership arrangement tracks in Israel?
As mentioned, there are three key arrangement tracks that shape the relationship between partners – marriage, the common law spouses institute and the domestic partnership institute. Alongside these, there are parallel systems, such as marriage overseas or an overseas domestic partnership agreement, which lead to special complexity.
Marriage – the authority to solemnize marriages and divorces in the State of Israel is conferred exclusively to the religious courts (rabbinical, Shariat, ecclesial and Druze).1 A marriage ceremony that is conducted in Israel that is not by a qualified representative of the religious body corresponding with the religion of the two spouses is not valid in Israel and does not confer marital status (but, as explained below, it may form a common law spouses relationship). A Rabbi who serves in a religious capacity cannot hold a valid marriage ceremony if he is not recognized for this purpose by the Chief Rabbinate either (this difficulty has arisen on more than one occasion concerning rabbis of the Ethiopian community, whose marriage ceremonies were not recognized by the Chief Rabbinate).
The eligibility for participation in the marriage ceremony is based on the position of the religious body. For example, the rabbinical courts are allowed to demand conversion to Judaism according to their regulations and refuse to recognize another form of conversion, and are allowed to reject a person whom they have not found to be Jewish, even if the same person is Jewish for the purposes of the Law of Return or for any other criterion. The requirement to prove the Jewish status of spouses arises on many occasions in the context of Immigrants from the Former Soviet Union, who find themselves facing a complex process of proving their Judaism. Similarly, city rabbis have refused to register members of the Ethiopian community for marriage, arguing that they had doubts as to their Jewishness.2 Because one may register to marry at any religious council today, and because the level of proof of the Jewishness of partners is determined by the local religious council, in certain cases, the need to prove Jewishness may be avoided by registering at a local council that is not that of one’s domicile.
As a rule, the marriage institution in Israel, from all religious persuasions, is closed to persons of the same sex and mixed couples. Besides this, different religions impose different restrictions. For example, Judaism prohibits the marriage of a male Cohen to a divorced woman. No proceeding has ever been held concerning a case in which a partner has asked the religious system to recognize its power to hear its case despite its objection.
Recognition as a married couple requires action on the part of the spouses (although as explained below, the courts may, for certain purposes, recognize partners as married despite not yet having had a religious wedding or one recognized by the religious institution).
The domestic partnership – the domestic partnership institution provides a solution to the needs of couples in which both spouses are “religionless”. Religionlessness, for this purpose, is a person who is not Jewish, Druze, Muslim or Christian. By law, once an application for registration of a domestic partnership is filed, a notice is transferred to the heads of all of the religious courts in Israel, who are authorized to prohibit the registration of the domestic partnership if one of the partners is a member of their religion or there is doubt concerning his belonging to the religious congregation with which the court is charged.3 In addition, this institution is open only to couples with no religion who are a man and a woman.4 Although courts previously recognized that the term “man and woman” is to be interpreted as applying to same sex couples too,5 this issue has not yet arisen in the context of the Domestic Partnership Law. In addition, both partners must be residents of Israel. Another requirement is that the official register of the State of Israel is to recognize the person as religionless (thus, a person whose registration is Jewish, and who has come to Israel pursuant to the Law of Return, will not be able to enter the domestic partnership if he is not recognized as a Jew for the purpose of marriage by the rabbinical institution in Israel). Entering the domestic partnership requires actual action by both partners.
Common law spouses – the common law spouses’ institution is open to any partner, including same-sex partners.
Unlike marriage or a domestic partnership, assuming the “common law spouses” status does not require any action to be taken by the partners, and cohabitation as a partner is sufficient. In this context, the question of whether a couple is a “common law partnership” or not is complex, and often depends on the context in which it arises (for example, a joint argument of both partners being common law spouses is more likely to be recognized easily than when one of the partners argues this and the other one objects). As a rule, the test for the identification of common law spouses is twofold – holding of life as an entity and sharing their lives. This test is a flexible one, depending on circs and context and sometimes the Court will recognize common law spouses even if they do not meet these conditions (for example, if a common household has not been maintained due to them being closet partners,6 or in view of the work characteristics of the partners).
Holding of a ceremony other than through the rabbinate in Israel – in the State of Israel, the only way to marry in a manner that will be recognized by the state is by holding a religious ceremony that is recognized by the relevant religious system (in the case of Jews – the chief rabbinate). Holding of a civil wedding ceremony, issue of a partnership certificate, signing of a partnership agreement, etc., may all serve as highly significant evidence for proving that partners are “common law spouses”. However, these ceremonies do not confer married status.
Marriage overseas – marriage overseas is the main alternative today to institutionalizing the marital tie in Israel, for those who cannot or are uninterested in marrying under the authority of the religious court. The State of Israel recognizes the need for registration by valid overseas marriage certificates, including same-sex marriages or other marriages that cannot be performed in Israel.7 For heterosexual couples there are many options for marrying outside of Israel, without a need for foreign citizenship, including the common possibility of marrying in Cyprus. For same-sex couples, it is necessary to marry in countries that allow foreign couples to marry and allow same-sex couples to marry. The common destinations for same-sex couples are Canada and the United States. After holding the wedding ceremony, the marriage may be held in Israel. The registration proceeding varies from country to country and depends on an agreement between Israel and the foreign country concerning recognition of foreign official certificates.8 In this context, it is noted that although formally, the State of Israel recognizes the foreign certificate only for registration purposes and does not recognize marriage materially, the Courts actually treat a marriage overseas in the same way as marriages in Israel, and no special difficulties arise for partners due to the marriage overseas. Thus, it has been determined that a marriage that is valid overseas is also a relevant marriage for the purposes of inheritance, division of property, child support, national insurance and other such purposes, even if the marriage were not possible in Israel.9
Do partners have different rights on the account of the status of their marriage?
The common law spouses’ institution in Israel is one of the most developed in the world, and effectively grants partners the same rights as married partners10 and imposes on them the same duties11. Same-sex partners also gain identical rights. There are a number of specific points in which there is a genuine distinction between common-law spouses and married partners.
The main field in which there is a distinction based on status is family unification and immigration. A person who is married to an Israeli is entitled to undergo a five year naturalization process, whereas a common law spouse of an Israeli can only undergo a process of permanent residency that lasts seven years. In this context, the State of Israel does not recognize marriages of same-sex partners and allows married partners to undergo the long process only. It is noted that a petition is currently pending in the court against the discrimination that this procedure entails. Further to the foregoing, Israelis whose partners are residents of countries that are defined as enemy countries, or residents of the Palestinian Authority, are not entitled to any family unification proceeding.
Besides this, the marriage status has consequences in the field of adoption, in which preference is given to married couples. It is noted in this context that a same-sex partnership is not recognized at all for adoption purposes, and such partners may adopt as single adopters only. 12 In practice, until now, only one person has been adopted by a same-sex couple, without any genetic affiliation with either adoptive parent, and he was adopted as an adult and based on his own will.13
Although in principle, common law spouses are supposed to get the same benefits and opportunities as married partners, often the bureaucratic demand to prove their partnership is much greater in the case of unmarried partners. In this context, the Supreme Court has recognized the honesty of the common law spouse relationship even in settings such as an open relationship,14 but in practice common law spouses often encounter distrust concerning the earnestness of the relationship between them when the relationship does not correspond with commonly accepted heteronormative trends.
Divorce – how is the martial tie undone in Israel?
The termination of a marriage has two main components – change of status from married to divorced and arrangement of the matters concomitant to divorce, including property and custody. The attitude to these two components in Israeli law is different.
Change in status – concerning the change in status, the exclusive authority to hear a motion for divorce is conferred to the religious court for any married person who is not religionless, as long as both partners belong to the same religion. The meaning of this is that a person who has married overseas is also required to terminate the marriage through the religious system.
For partners who married abroad or in another way, who are not members of the same religion, or whose marriage is not recognized by the religious system, or in the case of partners who are not Jewish, there is no religious system in Israel that has the authority to terminate the marriage, and an annulment proceeding may be conducted.15 If one of the partners belongs to a recognized religious congregation in Israel, the marriage annulment proceeding requires a permit of the relevant religious judicial system, declaring that for religious purposes there is need to conduct a religious divorce. 16 In the case of the marriage being valid according to the religion of one of the partners, the proceeding will be filed to the President of the Supreme Court, who will determine the appropriate system for annulling the marriage. An example of this is same-sex married partners who are allowed to terminate their marriage by annulment even if both of them are Jewish, because their marriage is not valid for religious purposes.17 The process of annulment is held before the Family Court.
Partners who have entered a domestic partnership may file a joint motion to strike them from the register of domestic partnership, and if there is no agreement between the partners concerning the change in status, either party may apply to the Court in order to order the striking of the partnership from the register.
The question of recognition of a divorce that is conducted abroad is highly complex and depends on the circumstances. As a rule, in the case of a couple that was allowed to hold a proceeding of annulment in Israel, the foreign verdict ordering the divorce will be recognized in accordance with the rules of reciprocity between the countries. In the case of a couple for which the power of divorce is conferred in Israel to the religious system, the religious system in Israel must recognize the divorce that was conducted overseas for the purpose of recognizing the divorce in Israel and allowing the possibility of remarrying. The question of whether it is possible to change the record in Israel based on an overseas divorce certificate is unclear. It would seem that when a divorce is performed before conferring status in Israel, the divorce would be registered according to the identity documents of the new immigrant. Conversely, it is doubtful whether a person who is already registered as married in Israel can change the register based on a divorce certificate from overseas.18
Arrangement of matters concomitant to marriage – besides the divorce itself, a proceeding dealing with division of property, establishing child custody and visitation, alimony, etc., may be held. These proceedings may be held before a religious system or general system (the Family Court). If the dispute has arisen during a divorce, the decision on which system will hear the said arrangements is based on the question of which system was approached first. This mechanism is recognized as the “race of powers”, in which partners who wish to present their case before the system that is convenient for them. Once one of the judicial systems has acquired jurisdiction to hear the subject, the hearing will continue before it alone. In this context, it is not enough to certify a divorce agreement in order to confer jurisdiction to the religious system, and the power is conferred only if the religious systems has heard and ruled on the issue in dispute.19
If the dispute did not arise during the divorce, the jurisdiction is conferred to the Family Court only, unless the partners agreed to holding a hearing before the religious system. In this context, it is emphasized that the partners may agree to a hearing before the religious system only if the religious system can have jurisdiction over their case in any case. For example, partners who are members of different religions cannot agree to have their case heard before the religious system, and the religious system is not allowed to hear disputes on property, alimony or custody between the partners. It is also emphasized that today, in order to prevent the utilization of the Get (divorce decree) for extorting the wife on the financial plane, a woman is allowed to have the financial sharing arrangement dissolved even before a Get motion has been filed or approved.20
Further to the foregoing, conceptually, the law that applies to the conflict is general law rather than religious law, even if the hearing itself is held before a religious system.21 In practice, in view of the broad discretion of the Court, often the hearing before the religious system will be based on norms that are drawn from religious law rather than the based on general law.
A key question that remains unsettled is whether it is possible, by prenuptial agreement, to state in advance that the religious court will have no jurisdiction on any issue concerning the arrangements concomitant to divorce. The Supreme Court has dealt with this issue on two occasions and has expressed its opinion that it may be prescribed in an agreement at any time before the divorce that the religious court will have no jurisdiction to hear divorce-related matters.22 However, no final decision on the matter has been made and there is no binding rule. In effect, many couples today add a clause in their prenuptial agreements that states that any conflict related to a divorce is to be heard before the general system rather than the religious one.
Common law spouses, whether they held a ceremony in Israel or overseas or not, who have not registered as being married, must formally hold a divorce proceeding in order to be able to remarry. In practice, the religious courts cannot know of the relations between partners, and unless the partners wish to remarry within the religious institution, the need for a religious divorce for common law spouses does not arise.
The bottom line – a change in status from married to divorced is only possible through the religious system. If the religious system has no power regarding partners, a process of annulment of a marriage or dissolution of the domestic partnership may be performed. Matters that are concomitant to divorce will be heard before the religious system if they have been attached to the Get suit and were not heard beforehand before the civil system. If the matters related to the divorce have not been attached to the Get suit, they will be heard before the general system, unless the partners have agreed to have the hearing held before the religious system.
What is the meaning of being refused a divorce or being an agunah?
As set forth, concerning the status of marriage and divorce, the religious system has the sole jurisdiction to hear the matter, as long as both spouses answer to its jurisdiction. For Jewish partners, the meaning is that the partners are required to consent to the divorce. When the female partner refuses the divorce, the male partner may become a mesorav get (divorce refusee), but the rabbinical court has the power to force the divorce on the female partner. In the opposite case, which is more common, within which the husband refuses to give a get, his spouse becomes a mesorevet get. In Judaism, a man cannot be forced to give his wife a Get. As a result, many women find themselves bound to their marriage status, preventing them from moving on in their lives. However, the rabbinical court may impose sanctions on men who refuse to give their wives a Get, the harshest of which is imprisonment. In a few cases, the imprisonment may last many years, even for more than a decade.23 Similarly, the rabbinical court is allowed to fine and issue a staying order against the husband. In this context, the President of the Supreme Court is imposed on any imprisonment term that is imposed by the rabbinical court. Until today, the Supreme Court has approved prison sentences, including very long ones, in order to force a husband to give his wife a Get.
At the same time, a woman can begin a civil suit against a husband who refuses to give her a Get and demand compensation for damage sustained. The civil proceeding may constitute on many occasions a significant incentive for the husband to give a Get. However, it gives rise to concern that the court will disqualify the Get on the account of being a “Get Meuseh” (divorce under duress).24
Besides this, the wife may start to dissolve the financial relationship and divide property between the partners, and commence custody proceedings in the Family Court, even before a Get has been given.
In practice, on many occasions, the husband’s power to refuse to give a Get is a bargaining chip for shared property and many women are required to waive their rights to receive the Get that they want.
The state of Aginut (being bound to marriage) is different. In this case the husband refuses to give a Get. In certain cases, the refusal to give a Get can be considered a type of Aginut, alongside the case of a missing husband, a husband who has a disease that prevents him from giving his consent and so on. The meaning of Aguna status is far-reaching and problematic. An Aguna cannot remarry and she is barred from marrying a person with whom she has had a relationship while still being bound to her marriage, her children will be considered illegitimate and she loses her eligibility for her Ketubah (amount stated in the religious marriage contract to be awarded in the case of divorce).
The court may undo the Aginut status in different ways, the first of which is recognition of the husband’s death and others being identification of a flaw in the wedding ceremony that retroactively cancels the marriage.
The bottom line is that the rabbinical court has the sole power to settle any case of Aginut or Mesoravut Get. The Rabbinical Court has the power to impose sanctions on a husband who refuses to give a Get, but does not force men to give a Get to their wives. Sarvanut Get often serves as a strategic tool for the husband to coax his wife to waive her rights. The wife has the option of dissolving the financial relationship between the partners without a Get being given, and she can sue the husband for her damages, but by doing so, she relies on the possibility that the Get, if given, will be disqualified by the rabbinical court as a Get Meuseh.
* The account above is a general description of the law and cannot serve as an alternative to receiving a legal expert opinion.
1 For example, Section 1 of the Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 5713-1953 states that: “matters of marriage and divorce of Jews in Israel who are citizens or resident of the state will fall under the sole jurisdiction of rabbinical courts” and Section 2 of the Law states: “The marriage and divorce of Jews will be conducted in Israel according to Din Torah (Jewish religious law)”.
2 See http://www.nrg.co.il/online/11/ART2/618/730.html
3 Section 6 of the Domestic Non-Religious Matrimonial Partnerships Law, 5770-2010.
4 Section 1 of the Domestic Non-Religious Matrimonial Partnerships Law, 5770-2010. See High Court of Justice 129/13 Axelrod v. Government of Israel ( January 26, 2014) for criticism against the limited coverage of the law.
5 Civil Appeal (Nazareth) 3245/03 the inheritance of the late S.R. of blessed memory v. the Attorney General at the Custodian General’s Office (November 11, 2004).
6 Family Appeal (Tel Aviv) 2219-06-12 R.B.H. v. K.G. (March 6, 2014).
7 High Court of Justice 3045/05 Ben Ari v. the Director of the Population Administration, Supreme Court Verdict 61(3) 564 (2006).
8 See for example – the abridged gay marriage in Canada guide http://www.glbt.org.il/Files/marrigeGuide.pdf
9 Civil Family Appeal Motion 9607/03 John Doe v. John Doe, Supreme Court Verdict 61(3) 726 (2006); Leave for Civil Appeal 8256/99 Jane Doe v. John Doe, Supreme Court Verdict 52(2) 213 (2003).
10 Civil Appeal 2622/01 Land Betterment Tax Director v. Levanon, Supreme Court Verdict 57(5) 309 (2003); Leave for Civil Appeal 6854/00 the Attorney General v. 6854/00 the Attorney General v. Zemer (July 2, 2003); High Court of Justice 5492/07 Buaron v. the National Labor Court (September 19, 2010).
11 Family Case (Tel Aviv) 21910-02-10 S. v. M. (August 27, 2013).
12 See Paragraph 9 of the verdict of Justice Joubran in High Court of Justice 566/11 Mamat v. Ministry of the Interior (January 28, 2014).
13 Adoption Case (Tel Aviv) 34/07 Even Kama v. the Attorney General (March 10, 2009).
14 Civil Appeal 4385/91 Salem v. Carmi, Supreme Court Verdict 51(1) 337 (1997).
15 The Jurisdiction in Cases of Annulment of Marriage (Special Cases and International Jurisdiction), 5729-1969.
16 Family Leave for Appeal 41782-04-10 Jane Doe v. Anonymous (March 23, 2011).
17 Annulment Case (Tel Aviv) 52224-11-13 Johns Doe (December 8, 2013)
18 Originating Summons (Jerusalem) 1366/89 Tuviana Weissberg Miriam v. Tuviana Chaim Claude (April 9, 1994), in which it was ruled that a divorce from Switzerland of Jews who married in Israel was not valid in Israel due to the infringement of the public policy.
19 High Court of Justice 8638/03 Amir v. Great Rabbinical Court of Jerusalem, High Court Verdict 61(1) 259 (2006).
20 Section 5A of the Financial Relations between Partners Law, 5733-1973.
21 High Court of Justice 1000/92 Bavli v. the Great Rabbinical Court, Supreme Court Verdict 48(2) 221 (1994).
22 High Court of Justice 6929/10 Jane Doe v. the Great Rabbinical Court (March 20, 2013); High Court of Justice 6866/03 Vaknin v. the Netanya Regional Rabbinical Court (2003); Hagai Kalai “Thinking Ahead to End the Race” Orech Hadin 23, 116 (2013).
23 See for example Family Motion 4072/12 John Doe v. the Great Rabbinical Court (April 7, 2013).
24 See for example 2374/11 John Doe v. Jane Doe (February 15, 2011); the key verdict of the Great Rabbinical Court, which set the principles concerning Get Meuseh is Case 7041-21-1 (the Great Rabbinical Court) Jane Doe v. John Doe (March 11, 2008).