What are the legal implications of “Mamzerut” – Bastardy
Most of us are familiar with the term “bastard” used as a slang word, when one wants to denounce a person or to glorify one as shrewd or mischievous. However, the term bastard has significant implications when it comes to family law. More on this subject – below.
What is the definition of a bastard?
According to the Jewish law, a bastard is a child born out of wedlock, i.e. as a result of an affair the wife had with another man, while she was married. A bastard is also a child born to a father who is a Cohen and a divorced mother, and a child who is a result of incest. Contrary to popular belief, a child born to unmarried/ bachelor parents is not considered a bastard. The same goes for a child born to parents not of the same faith, as well as a child born to parents who didn’t marry in a religious marriage in Israel – they are not considered bastards.
The question arises, why the definition is so important?
After all, it is a status that was set many years ago by the religious law. The answer is that while the source of the statement about bastardy stems from an archaic religious law, it has importance and is significant nowadays, as I explain below.
The religious law in Israel
The religious law is old and archaic, as mentioned, but is has enormous implications in the state of Israel, even in the 21st century. This is due to the simple fact that all marriage and divorce is regulated solely by the personal-religion law that applies on citizens of Israel. The Rabbinical Courts Jurisdiction (marriage and divorce) law 5713-1953 stats that, in Israel, marriage and divorce will be regulated solely by the personal-religion of the couple.
What does this mean? Let me explain: the personal-religious law has prohibitions and rules. For example: the Jewish religion forbids marriage between same-sex couples and sees it as a grave sin. Another prohibition is marriage between a Cohen and a divorcee.
What is the law regarding bastards?
The status “bastard” is a very harsh status that holds within it grave consequences. This due to the law in the book of Deuteronomy (Devarim) where it state that a “Mamzer” will not be accepted in the Hebrew community even after ten generations. This means that a person defined as a bastard cannot marry, even if his beloved one is recognized as a Jew who can marry. According to the law, a bastard can only marry another bastard.
How does the judicial system deal with bastardy?
Even today, the legal system in Israel is torn between the religious law that regulates matters of divorce and the modern need for respectful existence, liberal life and human rights. But, the law in Israel has not been changed and the law that rules is the religious law.
This being said, in order to avoid the need to recognize a person as a bastard, there is a main practice which has been derived. This is done by avoiding having a paternity test when there is doubt regarding the fatherhood and the child might be a result of an affair. In such cases, the court might prevent the father claiming that the child is not his biologically, from having the test. This position comes from Jewish law that claims that the assumption is that if the child was born while the mother was married, the husband is the biological father.
The religious law needs irrefutable proof that the wife was unfaithful in order to declare bastardy, i.e. two witnesses who will explicitly state that they saw the wife cheat. It seems that the demand for this evidence regarding “cheating” is derived from the will to avoid recognizing a child as a bastard.
Bastardy is a result of a strict archaic religious law which doubtfully has place on our modern lives, especially as a compelling law in a modern country, as it is in Israel. There is no doubt that the religious law of marriage and divorce can cause severe consequences. As long as the law is not changed, bastardy laws will be a part of the Israeli law, especially in family law.