Marriages in Israel are performed under the auspices of the religious authority of the religion to which couples belong. The system is based on the Millet or confessional community system inherited from the times of the Ottoman Empire and not substantially modified during the British Mandate period nor since the establishment of the State of Israel. The system is also in use by several Muslim countries of the Middle East and beyond.
The religious authority for Jewish marriages is the Chief Rabbinate of Israel and there are parallel authorities for Christians, Muslims and Druze communities. Each authority regulates marriages and divorces for their own community. There is no provision for inter-faith marriages.
Israel makes no provision for civil marriages to be entered into in Israel. However, civilian marriages entered into abroad are recognised. The issue of civil marriages is a major issue for secular Jews, as well as members of non-Orthodox streams of Judaism, who are required to meet the Orthodox standards to be capable of marrying in Israel.[1] There is a debate over whether civil marriages would divide the Jewish people in Israel by increasing inter-faith marriages and marriages which do not meet halakhic requirements, and over the the character of the Jewish state.
Marriages entered into abroad are recognised in Israel. This applies even if such marriages would not have been valid if entered into in Israel.
The confessional system
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. This system was maintained under the British Mandate, with certain changes. The changes included the recognition of eleven communities: Muslims, Jews and nine Christian communities (none of which were Christian Protestant churches). All those who were not members of these recognised communities were excluded from the arrangement, and "marriages" in Palestine outside these communities were not recognised. Provision was made for the registration of marriages,[2] 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 would want to be married in a non-religious ceremony within any of the recognized communities. It has been claimed that there was no opposition to religious marriages when the religious courts were given authority in these matters.
Membership in the Jewish community was on the basis of membership of a body called "Knesset Israel", which was a voluntary organization which managed registrations of people who were related to it, that is recognised Jews. There does not seem to have been any disagreement 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.
The Druze community was recognized as a separate community from the Muslim community in 1957. In 1962, separate Druze courts were established alongside the rabbinical courts, the Sharia courts, and the courts of the Christian communities.
Establishment of rabbinical courts
In 1947, David Ben Gurion and the religious parties reached an agreement on the status quo, which included an understanding that civil marriage and civil divorces would not take place in Israel. This status quo agreement has been maintained despite numerous changes of government.
The rabbinical courts were established in 1953. Prior to that time a rabbinical court only had authority over those Jews who were registered in "Knesset Israel". The law provided that:
matters of marriage and divorces of Jews in Israel civilians of the state or its residents would be in the exclusive jurisdiction of the rabbinical courts. (section 1) and
marriage and divorces of Jews would be conducted in Israel according to the law of the Torah. (section 2)
The effect of the changes was that rabbinic courts now had jurisdiction over all marriages involving Jews in Israel. Since its establishment, the rabbinate has only approved religious marriages in Israel conducted in accordance with the Orthodox interpretation of halakha. The only exception was for marriages entered into abroad. This change was applauded by religious Jews, but has been criticized by secular Jews. It is considered the base to the status quo between religious and secular communities in Israel.
The present arrangements create difficulties for people who, for whatever reason, cannot get married or end a marriage within the system. This would apply, for example, to a couple each of whom belongs to different denomination and to a couple which does not want to marry in an Orthodox religious ceremony. Also, those who do not belong to a recognized denomination (such as Protestants) cannot marry in Israel. The problem became acute in the 1990s with the large number of immigrants who came to Israel under the Law of Return but who were not considered Jewish by the rabbinate and did not belong to any of the recognized religious denominations, and consequently could not get married in Israel.
In 1962, the Druze courts were established to deal with personal status issues in the Druze community.
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 religious communities in Israel.
Marriage and divorce 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.
However, Israel does recognise civil or religious marriages entered into outside Israel. As a result, it is not uncommon for couples who may for some reason not be able (or chose not) to get married in Israel to travel overseas to get married.[3]. 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 one Israeli partner and one non-Israeli.[3]
In terms of ethnicity, most secular Jews view their Jewish identity as a matter of culture, heritage, nationality, or ethnicity[4]. Ancestral aspects can be explained by the many Jews who view themselves as atheist and are defined by matrilineal descent[5][6] or a Cohen (Kohen) or Levi, which is connected by ancestry[7]. The question of “who is a Jew” is a question that is under debate[8]. However, matters concerning Marriage in Israel are controlled by strict Orthodox standards and disputed issues can be resolved by the Israeli Chief Rabbinate. Thus, while this issue is in dispute, it is not concerning marriages in Israel. Issues related to ancestral or ethnic Jews are solved by the Israeli Chief Rabbinate[9][10][11][12].
The rules governing converts who can marry in Israel follow the rules of Orthodox halakhic conversion. Under an orthodox view of halakha, a conversion to Judaism is not in order unless it is properly Orthodox. Even actual Orthodox conversions are scrutinized. Some who have followed an Orthodox conversion cannot get married in Israel. An American man who underwent an Orthodox conversion in Metairie, Louisiana, was denied an official marriage in Israel on the grounds that his conversion may not have been valid and that the Orthodox rabbi who converted him in Louisiana is not recognized in Israel.[12][13].
If one's ancestral line of Jewishness is in doubt, then a proper conversion would be required in order to be allowed to marry under Orthodox rules, or in Israel, where such rules govern all marriages.
According to The 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.[14]
Ancestral lineage is also important when attempting to marry a cohen in Israel, since the rules governing who they can marry are dictated by halakhic law as interpreted by the Israeli Chief Rabbinate. In the article, “Not Jewish enough to marry a Cohen”,
Irina Plotnikov cannot marry the man she loves, Shmuel Cohen, even though she is Jewish according to halakha (Jewish religious law). A rabbinic court in Jerusalem ruled recently that even though Plotnikov is Jewish, she is not eligible to marry a Cohen since her father is not Jewish. According to Jewish tradition, people with the surname Cohen are descendants of the priests that served in the Temple in Jerusalem 2,000 years ago.[15]
Also, the children of illegitimate unions are affected with a stigma.
There are two related worries: intermarriage and illegitimacy. A child of marriages forbidden by Jewish law, or halacha (for example, unions between a kohen and a divorcee, between close relatives, or between a man and a previously married woman who did not undergo a halachic divorce) is considered a mamzer or chalal ("defiled" cohen). Mamzerim and their offspring, stigmatized with an irrevocable brand of illegitimacy, may marry only other mamzerim. A split in the nation, the argument goes, will follow: mamzerut will increase dramatically and it will be difficult to keep track of mamzerim to ensure they do not wed non-mamzer Jews.[14]
Either ancestral or ethnic Jews cannot get married in Israel. There are examples of converted Jews who cannot get married in Israel because their marriage does not conform to halakha. There are even Orthodox Jews whose conversion is challenged along halakha laws and, thus, cannot marry in Israel. The children of marriages forbidden by halakha are also stigmatised. Jews are both defined along ancestral and ethnic lines—as in a Kohen or Levi and a convert, who is ethnically recognized. A person who is not ethnically or ancestrally Jewish, according to halakhic law as interpreted by the Israeli Chief Rabbinate, cannot marry in Israel.
The development of the verdict
Still in 1951 the Supreme Court of Israel determined that also marriages outside of Israel, which were conducted by a rabbinical court according to the Jewish religion, would be recognized as marriage in Israel. But the big question was different - in which cases would the state of Israel recognized a civil marriage that was conducted outside of it? In the original case which the supreme court debated it was ruled that the couple were not residents or citizens of the state of Israel at the time of the marriage, and the state in which the marriages were conducted at recognized their status of marriages, then according to the international private law the state of Israel has to recognize in status of the marriage. But what if one or either two of the couple were inhabitants or citizens of the state of Israel?
This question received great significance, because the judgments of the marriage according to Judaism include many prohibitions, such as prohibition of the marriage to a Mamzer or prohibitions of marriage to cohens, which left many in the status of illegitimate to marriage. The solution to those was to get married in foreign states, mostly in Cyprus. This still remains a heavily debated matter between the religious public are secular public. In 1962 the supreme court determined that official in charge of the registrations in the Ministry of the Interior would have to register as a legal married couple couples who married in civil marriage outside of the country, also if at the time of the wedding either one of the couples or both were citizens of the state of Israel. This verdict was interpreted only as a small technical matter, which is only needed for the statistical purposes only, which does not permit a personal status of married people since the registering as itself would not be able to determine on the validity of the marriages, and he is done only because the foreign certificate is assumed to be valid, and there are no additional evidence which claim that it is not.
A verdict given in November 2006 the retired president of the supreme court Aharon Barak, determined that the recognition of the civil marriages which was conducted abroad is both with respect to the form and with respect to the essence (the Hebrew law), and this in the aftermath of adjudication of the rabbinical supreme court in this case itself, which determined that it is enough that a civil marriage were conducted abroad, in order for a religious court to be the one to recognize them or not afterwards.
Views on civil marriage
Since the establishment of the rabbinical courts, the status quo agreement has been subject to criticism, but also to the strong support from the religious community. The main argument of the supporters of the system is that a change of the status quo will divide the Jewish people in Israel between those who marry according to Jewish religious standards and those who marry in a civil marriage. These would not be registered or scrutinized by the rabbinate, and thus their child may be considered illegitimate, or a mamzer, if they wished to marry a child of a couple married in accordance with halakha. Opponents of the status quo consider the system to be contrary to people's civil rights.
Support for religious marriages
Supporters of the status quo argue that:
The rabbinical courts' monopoly over marriages ensure consolidation within the state of Israel. To them the fear is that, if the rabbinical courts lost their current monopoly by the establishment of a civil marriage, that the children resulting from civil marriage would be mamzerim, from a religious viewpoint. This would divide the Jewish people in Israel into two groups who would not be able to marry each other.
The marriages in the rabbinical court preserve the holiness of the state of Israel, and supposedly add a spiritual and religious dimension of family purity according to Jewish religious laws.
Civil marriage will lead to the 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 not able to understand the importance of religious halakha standards to the religious community.
From a religious standpoint, no harm is caused by religious legislation, which forces the halakhic standards on the Jewish population - it is even considered by the religious community to be a mitzvah.
Support for civil marriages
Supporters of civil marriage in Israel argue that the status quo violates the rights of Israeli citizens by:
imposing religious standards on those who do not desire it.
creating difficulty for the marriage of people who belong to different religious community, or 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 re-married without passing halizah.
abridging religious equality by refusing to delegating authority to Reform and Conservative communities.
discriminating against women, by the inclusion of institutions as Aginot and "recalcitrant wives", and by refusing to permit women to officiate as a rabbi in the rabbinical court.
Supporters of civilian marriage also argue that the status quo is in breach of the Universal Declaration of Human Rights, Article 16 of 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 a petition was brought in front of Israel's Supreme Court which tried to convince the Supreme Court to form an authority of civil marriages, the Supreme Court refused to do so, and determined that this was the call of the parliament. in the cases when people requested to proclaim themselves as of being "Non-religious", in order that the court would be able to recognize his marriage according to the acceptable Judgment, the court reject their assertion. in the single times in which Israel's High Court of Justice determined that the law has to recognize the ceremony of marriage held between a Cohen to the divorcee, was only when it was based on the religious law that determines that those are forbidden marriages from the start but allowable post factum.
Alternative authorities
With the times a number of alternative institutions developed which enabled people who wanted to avoid the rabbinical weddings, or that were ineligible to get married in the rabbinate, which gave the couples a status of a married couple or a similar status.
The weddings arranged outside of Israel, and in particular in Cyprus became an available and comfortable solution to many Israelis. It was also discovered by the Israeli lawyers that marriage in Paraguay would not even need the attendance of the couple in the Paraguay itself or in any attachment to Paraguay in order to get married within its judgment, and thus "Paraguay marriages" or "Marriage by means of mail" became a common ceremony in Israel.
The legal status of Common-law marriage developed also into a wide institution, which entitles its holders varied rights in the inheritance, pension and the landlord and tenant law. Still the Common-law marriage status is not equal to the marriage status, and there are many fields in which rights are given to the married couples that not given to the Common-law marriage couples. for example, the law of security legislated in 1986, determines the exempt from military service of married women. There is not similar exempt for the Common-law marriage women.
The jurist Frances Radi supposes these are attempts to "bypass the law in legal ways", and that the necessity of the Israel citizen to turn to a foreign state in order to get married gives less value to the alternative ways to get married. To her assertion "the existence of those minor alternatives only points out the lack of the respect to the secular values that the Israeli judiciary demonstrates".
Political attempts to solve the situation
In the late 1960s there was an attempt of the Independent Liberals party that permit civil marriages amongst illegitimate couples according to the rabbinical courts; this attempt ended up causing a governmental crisis.
The Meretz party, and its historical component parties Mapam, Ratz and Shinui have been leading a struggle for civil marriages in Israel for a long time, but without success. At the start of the 21st century several rabbis claimed (including the chief Sephardic rabbi to Israel, Shlomo Amar) that the great alienation which this situation creates does not serve the religious wide interest. As part of the coalition agreement in Ariel Sharon's second government, the Shinui party demanded finding a legal solution for those who can not get married within Israel. A committee which was raised to find a solution for this problem which would be different from the civil marriages came up with the "Coupling arrangement" solution (ברית הזוגיות). This committee, which was led by the following Israeli parliament members - Roni Bar-On, Yuri Stern, Nisan Slomianski and Roni Brizon, represented parties from the wide political religious arc, from the Shinoi party to the Mafdal party, and eventually submitted a bill by which there would be a separate status made for people which came in the pact of duality which would not be considered as "marriage" but will be similar to the marriage institution as much as possible. The bill didn't ever reach progressive legislation procedures.
In July 2007 Israel's justice minister, Daniel Friedmann, and the chief rabbi of IsraelShlomo Amar reached an agreement on a limited bill for civil marriages in Israel which would apply on marriage between Israel civilians who do not belong to any recognized religious denomination. This agreement has yet only been advertised in the press, and has not yet been preceded by in any legislation procedure.[16]
Islamic law remains the law of the land as concerns the marriages of Muslims, without the need for formal recognition arrangements of the kind extended to the main Christian churches.
