The field of marriage and divorce is subject to religious law, which the Rabbinic Courts in the State of Israel are responsible for adjudication. In other words, this means that the State of Israel does not have formal recognition in a civil marriage, but only in a marriage conducted according to personal-religious laws. This situation creates quite a few difficulties, for example, in cases in which the couple cannot marry according to personal-religious laws, or when there are partners who for ideological reasons refrain from marrying according to the personal-religious laws.
I feel that this issue is very important. I will focus on matters regarding marriage and divorce and specifically civil marriage – starting with the laws of marriage and divorce in Israel, the procedure of civil marriage in a forging country and what the state’s attitude toward this marriage is. I will also discuss the disadvantage of civil marriage in a foreign country, as well as the law regarding divorce between spouses who have been married in a foreign country. In addition, I will describe the law regarding a partnership agreement.
This article is general and is not a substitute for legal advice. For this purpose, you can contact our office and arrange a consultation meeting.
Marriage and divorce in the State of Israel
According to the Rabbinic Courts (Marriage and Divorce) Jurisdiction Law, 5712-1952 (hereinafter: “the Rabbinic Courts Law”), marriage and divorce matters shall be in the exclusive jurisdiction for the Rabbinical Courts and in accordance with Jewish law and not according to the civil law whose enactment is the hands of the Knesset.
Even before the establishment of the State of Israel, when the British Mandate was in power, a law called “The King’s Word to the Council for the Land of Israel” was enacted. This law gave all the religious communities in the Land of Israel the authority to deal with the issue of marital law, that is, in the area of marriage and divorce and its derivatives. Accordingly, to date, there are religious courts in the State of Israel, which have jurisdiction over matters of marriage and divorce among Muslims, religious-Druze courts and Christian-religious courts. As for the Jews, the Rabbinic Courts Law replaced the provisions of the King’s Order to the Council, so that the law that applies today is that matters of marriage and divorce are regulated by the religious law applicable to the Israeli citizen.
This means that there are quite a few cases of couples who cannot marry in Israel. For example, none of the religions in Israel recognizes same-sex marriage; on the contrary, all religions see this marriage as sin. Neither religion recognizes intermarriage, that is, between one religion and another. The only option in such cases is to convert and then it will be possible to marry. If this is not enough, there are also prohibitions on marriage in Jewish religious law. For example, in the State of Israel there are many Jews who immigrated to Israel and received citizenship under the Law of Return, but many of them are not recognized by Jewish law as Jews, absurdly. So that many of them can not marry in the State of Israel.
Another difficulty faced by Jewish couples, for example, is when it comes to a Cohen and divorcee. This marriage, too, is forbidden according to Jewish law. This is also the case with bastards (who were born as a result of a married woman and another man having sex). The difficulties existing due to the personal-religious law on marital and divorce issues in the State of Israel has been described by the scholar Schiffman in his book on family law in the State of Israel. In light of the importance of the matter, I wish to quote this in full –
“This marriage’s subordination to the religious establishment has a fairly high price today, people with no religion cannot marry, couples of different religious communities are prevented from marrying, those who are bound from marrying (according to the definition of the religious establishment) are not allowed to marry, same sex couples are not recognized as married, etc. there are citizens who cannot marry at all, some can marry as they wish and some of those who can marry as they wish are unwillingly subject to a religious set of rules that imposes restrictions on them that go against their conscience and binds them to a relationship that seems to them forging, wrong and outrageous. Those who wish to unravel the religious bond are obligated to do so according to the religious law and sometimes because of its rulings they find themselves anchored in a connection to which they no longer wish to be in”.
Avshalom Westerreich and Pinchas Schiffman, A Civil Framework for Marriage and Divorce in Israel, Position Paper – Tel-Aviv (ed. Ruth Gavison), P. 21.
In the state of Israel, as mentioned, matters of marriage and divorce are regulated according to the personal-religious law of the couple. This means that when a couple want to divorce, they will have to go to the Rabbinic court to file a divorce claim. Many people are not aware of the fact that a divorce claim is in fact a legal action for all intents and purposes. A person filing to the Rabbinic court for divorce has to prove that he/she/ has a reason, between the reasons for divorce that are recognized in the Jewish religious law. For example, adultery is a reason for divorce, a rebellious wife is another reason as is an act of ugliness by the woman. A physical defect is yet another reason recognized. Moreover, a party to a divorce proceeding is entitled to object to the divorce and in such a case the couple may conduct a complex and lengthy divorce process, at the end of which the Rabbinic Court will decide whether a cause of divorce has indeed been proven. If the grounds for divorce are proven, then the court will order a divorce ruling and a Get.
Other matters related to divorce and marriage
In order to complete the picture, it should be noted briefly that in the framework of a divorce proceeding, there are other issues that spouses must arrange. For example, child custody cases, i.e., a married couple wanting a divorce, will have to arrange who will serve as custodial parent for their joint children, as well as arrange the visitation rights that will be granted to the other parent. Another issue is the one of the children’s alimony (child support). Let me explain: According to the personal-religious law, a father must pay for his children’s needs. At the time of divorce, it is possible to petition even before the divorce is granted for the receipt of temporary alimony, until the final ruling is issued. Another issue that needs to be regulated is the division of the couple’s common property. During marriage, the couple will accumulate joint property with their own labor, but at the time of divorce they will have to decide which of them gets what. So that the divorce process, as a rule, is never expressed only in divorce in the Rabbinic Court.
The relationship between the religious courts and the family court
Before we discuss civil marriage from start to finish, the relevant actors must be recognized as regards civil marriage and divorce. As noted, the Rabbinic Court (and the religious courts in general) has exclusive jurisdiction over all matters relating to marriage. The religious courts also have authority to deal with alimony, but in these matters the family court also has parallel authority. However, the Rabbinic Court and the religious authorities have no authority to deal with matters of property and custody of children. This authority is reserved for the Family Court. As a rule, the latter has the authority to deal with any family matter and any family conflict. For example, approval of agreements on family matters, alimony, custody, wills and inheritance, financial relations between spouses, annulling of marriage (very relevant in the field of civil marriage – I will relate to this matter later), adoption of children etc.
However, the Rabbinic Court has the authority to deal with matters of child custody and property matters only when a person filing a divorce claim binds these matters. In such cases, the Rabbinic Court “acquires” the authority to deal with these matters, which it normally does not have the authority to deal with. Also, a couple may agree to conduct a procedure in the Rabbinic Court and thus the latter “acquires” the authority, that is – by virtue of consent.
What is a civil marriage?
Civil marriage is actually a name for marriage that is recognized in most countries of the world, where a couple who want to marry do so by formal registration in the ministry of Internal affairs of that country or, in some cases, at the municipality or other local authority. In the State of Israel, one cannot have a civil marriage since there is no law to enable it and, at the same time, the personal-religious law is the one that applies on the citizens of Israel when it comes to matters of marriage and divorce.
However, there is a possibility which was not given by the authorities of the state and the Knesset, but rather by the supreme court, which is to marry in a forging country and register in the ministry of Internal affairs as a married couple. There is another possibility which was recognized in Israel which is Matrimonial Partnership according to the law of Matrimonial Partnership of people with no religion, 5770-2010. This being said, this law refers only to people who have on religion, i.e. not Jews, Muslims, Christians, Druze or any other religion that is recognized in Israel. More about this law below. Some couples just decide not to marry but to draw a partnership-contract between them regulating their relationship. This contract is authorized in the court. More about this subject below.
Marriage in a forging country – how is it done?
As mentioned, one cannot marry in a civil marriage in Israel but you could marry in a forging country, and then register as married in Israel – at the registrar of Internal affairs’ office. The Supreme Court’s ruling recognized this possibility, where registering with the Ministry of the Interior is in fact a formal registration, but it does not have the practical effect of recognizing a substantive right, which is the right to marry. This is what the Supreme Court described:
We hereby decide that in the framework of the statistical-registration status of the population registry and due to the registration clerk’s role as a collector of statistical material for the purpose of managing the registry, the registration clerk must record in the Population Registry what is presented from the public document submitted to him by the petitioners, stating that they are married. We do not decide that in Israel, marriages of the same sex are recognized; We do not recognize the new status of this marriage; We do not take any position regarding the recognition of Israel of same-sex marriages conducted outside of Israel (whether they are Israeli residents or non-residents). The answer to these questions, which we do not decide today, is difficult and complex. “HCJ 3045/05 Yossi Ben-Ari v. Chairman of the Population Administration).
So today there is a strange situation where couples go to forging countries, marry according to the laws of that forging country, come back to Israel and register in the population registry. This marriage is not recognized in essence but for the rights and obligations of the couple, they are recognized for all intent and purpose.
Another question that arises is: how does one marry in a forging country? Usually, Israeli couples marry in forging countries such as: Cyprus (because of Geographical closeness), the Czech Republic (due to comport and possibility) and in Canada that recognizes same-sex marriages. Marriage in a forging country must be – according to the ruling of the supreme court – recognized by the country where it was done. So, if a same-sex marriage was done in a country that doesn’t recognized this type of marriage, then the marriage will not be recognized in Israel too and will not be registered in the population registry.
When having a civil marriage, one must present the certificate of registration of the marriage as well as an Apostil. In order to open a request for marriage on a forging country one must present a registration extract showing that the couple are single, since polygamy is a criminal offence in most countries of the world as in the State of Israel. Note that marriage in a forging country that is then registered in Israel grants the couple all the rights granted to other couples who married in a Jewish ceremony, i.e. rights in the field of taxation, social security, other social rights etc.
Marriage in a foreign country – in the absence of spouses, is it possible?
In the past, there was a phenomenon of marriage called “El Salvador marriage” and “Paraguay marriage”. In those countries, the couple did not need to appear at all in order to marry, but it was possible to do so by proxy. In other words, a local person who handled all the forms and applied himself to the registrar. Today the laws in those countries have changed and you cannot be married without the presence of the spouses, at least one of the spouses. As stated, in order for a marriage to be recognized in Israel for purposes of registration at the Ministry of the Interior, the marriage must be recognized according to the laws of the country in which the marriage took place.
Divorce from civil marriage
It seems that marriage in a foreign country is indeed a suitable option for many couples who cannot marry in the State of Israel, either because they are a mixed couple (i.e., members of different religions) or same-sex couples or just partners who are not interested in a religious marriage because of ideological reasons. However, marriage in a foreign country has a catch in it for a very simple reason. When a marriage in a foreign country is held by a couple who could have been married in the State of Israel, according to the personal-religious law, the couple will have to divorce according to the law that applies in the State of Israel. As is known, the law that applies to the subject is that marriage and divorce are conducted according to the personal-religious law that applies to the couple. In other words, the couple will file a divorce suit in the Rabbinic Court. In such a case, they would have to conduct a divorce procedure for all intents and purposes, even if the reason they wanted to marry in a foreign country was the desire to escape religious law.
However, it is different when it comes to spouses who could not marry in the first place in Israel and wish to divorce now, after they married in a foreign country. In such a case, personal-religious law is irrelevant to them. Therefore, these spouses will have to file a claim with the Family Court. This claim is called a claim to dismantle a marriage. This is a lawsuit in which the court orders the termination of the marriage of the couple. However, in order not to harm the laws of marriage and divorce according to religious law, the court must conduct an inquiry with the president of the religious court of each religious community and obtain an opinion according to which the couple is not married according to one of the relevant religions. After receiving this opinion, the Family Court will order the termination of marriage, or in other words, the dismantling of the marriage.
What is a Shared Life Agreement?
Another way in which a couple circumvents religious law is by living together as common-law partners. Some of them even establish the relationship by means of a joint life agreement. A joint life agreement is an agreement in which spouses regulate the entire course of their lives, from the obligation to behave with dignity to the obligation to act responsibly (if they bring children into the world), and to behave in a certain manner at the time of separation. Thus, for example, many, in the framework of a joint life agreement, regulate the obligation of child support and its height for the benefit of their children, as well as the custody of children at the time of separation. A common life agreement is of great significance and importance, so it is also often approved – in the Family Court. I suggest that if you are interested in making a joint life agreement, do so with the help of a family lawyer with experience in these agreements, as these are long and detailed agreements. So, if we summarize this point, we can say that a common life agreement, including a common life way-of-life, is another form of civil marriage, and certainly another possibility of bypassing personal-religious law in matters of marriage and divorce.
The marital union – and civil marriage
In 2010, the Marital Union Law was passed in the State of Israel. Ostensibly, this is a wonderful law, which in effect gives the possibility, for the first time in the State of Israel, to have a civil marriage. But in reality, the law of marital union is very limited, not in terms of its provisions, but in terms of its applicability. The law applies only to persons without religion, i.e. Israeli citizens who are not members of a recognized religion in the State of Israel.
Ostensibly, this is a law that provides all the options that most Israeli citizens would want in a civil marriage. It does not violate personal-religious law, but merely establishes a parallel channel. For example, the law establishes the institution of a registrar of marital unions, which is responsible for registration (and erasure) of couples in accordance with this law. In addition, the law does not use the term marriage and divorce, which are in fact religious terms, but the term conjugal union.
So that persons who wish to register as a couple have to be without religion, over the age of 18 and not married according to another religion. The registrar of the marital union will register the couple, after a period of time during which objections can be presented. At the time of separation, the Registrar may be requested to delete the couple from the register, by consent or not.
In this article, I have taken a closer look at civil marriage. I explained that the State of Israel does not have the legal possibility of conducting civil marriages, but rather through a number of indirect methods. One way is to marry in a foreign country and register with the Ministry of the Interior, as described in detail in this article. The second way is to have a couple as a common-law partner and even have an agreement for a shared life. The third way is relevant to the non-religious: it is possible to register with the registrar of the marital union according to the law of the marital union. Beyond that and for individual consultation adapted to specific circumstances in this complex area, it is recommended to consult a family lawyer.