Elena R. immigrated to Israel as a teenager with her family in the early 1990’s and received Israeli citizenship. She met Uri while serving in the defense forces and the two fell in love. After completing university, they decided to marry. But when they attempted to complete the registration procedures at the Rabbinate, the religious authority that maintains absolute control over marriage, they were informed that Elena must prove she was Jewish by producing the birth certificate of her grandmother. Although the Israeli Ministry of the Interior recognized Elena and her parents as Jewish for the purpose of obtaining Israeli citizenship, the Rabbinate rejected Elena because she was unable to produce the required birth certificate, which had disappeared in the destruction of the Second World War. Elena, a citizen who served in the army, paid her taxes, and held a productive job, was refused the right to marry and establish a family in Israel.
Israel today is the only democratic nation that does not permit its citizens freedom of religion. Instead, control over marriage, divorce and other family matters is concentrated in the hands of the religious authorities, resulting in the tragic absurdity faced by Elena and Uri: in order to marry, they were forced to leave Israel and marry in a civil ceremony in the neighboring country of Cyprus, and upon their return to register their marriage in the Ministry of the Interior, which has no problem recognizing civil marriage, but only when it takes place abroad. Elena and Uri found a solution, albeit expensive, to their problem, but what of the thousands of residents of Israel who are not so fortunate, lacking the funds to travel abroad, or restrained by legal constraints from leaving Israel and thus unable to fulfill their basic right of establishing a family? The root of the problem lies in the definition of “family,” or in the case of Israel, lack of definition.
The Changing Family
The definition of “family” underwent a global earthquake some two hundred years ago when the Western world began to worship the individual and individual rights on the altar of social progress. Society began to comprehend that what benefits the individual benefits society as a whole, and that it is up to individuals to take their fate in their hands. As part of the process, individuals now choose their mates, choose how much time they will spend together, and choose whether or not to have children. With all the available choices, the individual often ignores the fact that government institutions still have the right to decide what constitutes a wrong choice, or forbid certain couples to be together.
What kind of changes have taken place? The contemporary family is no longer of necessity the offspring of a religious ceremony. More and more families do not fit the traditional definition of a household or extended household consisting of grandparents, parents, children, and grandchildren. Instead, we find single parent families, couples who are unmarried in the eyes of the state or religious authorities, and couples whose members hold different religious beliefs. A single factor has not changed throughout the years: the importance of the family framework and the overwhelming desire to establish a family which fights to overcome any obstacles put in its way.
The Consequences of Failing to Define the Family
Despite the importance of the basic need to establish a family, to this day the Israeli government has not defined the legal entity of the family. The president of the Israeli Supreme Court, Justice Barak wrote:
Life creates a reality which the judicial system must cope with. We encounter the single parent family. We know about couples who live together without marriage but in a family unit in the framework of common law marriage. Homosexual unions demand to be legally recognized. We encounter the rising movement of civil marriage. The judiciary is facing new questions that it must answer. The judiciary is facing a new reality, for which it must provide solutions. This new reality has no intention of destroying the concept of family; it wants to annex it. It wants to provide new meaning. (Family Members in Israel in the Period of the Family Court. Volume 3. Entry: “Judge Y. Gafman” p. 1149-1160.)
The intolerable situation of thousands of citizens who are unable to establish formal family entities recognized by the state is a direct result of the absence of a legal definition of family and violates their civil rights. This is an inheritance of the Ottoman Empire perpetuated by the British Mandate. In matters of personal status, subjects of the Ottoman Empire whose religious or ethnic status was recognized by the state were subject to the religious or ethnic law of the group into which they were born and belonged, and subject to the religious courts of their community. Israel perpetuated this arrangement and even strengthened it regarding Jewish citizens by legally extending the jurisdiction of the Rabbinic court over marriage and divorce in 1953.
Unfortunately, the rule of Orthodox Jewish law has created an intolerable situation that violates the most basic rights of the individual and the citizen and does not conform to the civil foundation of the state. For example, Orthodox law denies the right to marry of an individual not considered “fit for marriage” by religious standards, an individual with no religious membership, or one whose religious status is in doubt. The right to marry is denied to hundreds of thousands of citizens, particularly new immigrants from the former Soviet Union who are not considered Jewish according to strict religious law, but do not have another religion. The same problem exists for couples of different religions. The religious freedom of the non-orthodox Jewish population, who belong to the Conservative and Reform religious movements is also violated.
Religious law also violates the rights of women requesting divorce, who may find themselves legally bound by marriage, as is the case with women refused divorce by their husbands, abandoned wives, and “yevamot” (women whose husbands die without an heir and are required by religious law to marry their dead husband’s brother, unless he releases them in a religious ceremony). Religious law restricts women from building new relationships, while men are free of religious sanctions. Religious law violates the rights of people without economic means who lack the financial ability to marry abroad in a civil ceremony.
These limitations have created a gigantic system of techniques to bypass religious marriage, including civil marriage in Cyprus, in Paraguay (in which only one member of the couple must be present), “private marriage,” “contractual marriage,” and almost total recognition of the status of common law marriage. Israel is the only democracy in the world that allows the religious courts exclusivity over marriage and divorce, a monopoly that creates a long list of internal contradictions and violations of human rights.
Coercion of Religious Law in Matters of Marriage and Divorce
Marriage in Israel is permitted only in an Orthodox religious ceremony. The link between the desire to marry and the necessity of belonging to a certain religious group is a violation of religious freedom and civil rights. Religious coercion is in effect a contradiction of religious belief. Even when individuals are able and willing to marry under religious law, the religious system continues to hold them prisoner in essential family matters such as divorce, child alimony, child custody, and property rights.
Unfit to Marry
Article 16 of the Universal Declaration of Human Rights declares that “[M]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” In Israel, a long list of law abiding citizens who are loyal to their country, pay their taxes, and serve in the armed forces, are considered “unfit” to marry for their entire lives because Jewish religious law does not recognize them and prevents them from marrying. Among those classified as unfit to marry are “agunot” (deserted wives), “bastards,” “doubtful Jews” who are required to prove their Judaism as a condition for marriage, as well as people named “Cohen” or a variation of this name, who are not permitted to marry divorced women because they are considered descendents of the priestly caste of Biblical times who were forbidden to marry divorcees, widows, rape victims, or the converted. To these one should add “yevamot” awaiting release, and women who are prostitutes or had sexual relations outside of marriage.
The largest group on the list is restricted from marrying because interfaith marriage is not permitted. These are principally families of Russian immigrants who number some 200,000 – 250,000. Although they are part of Israeli society, they are not permitted to marry in Israel. In addition, there are individuals who belong to a religious group with no legal recognition, such as the Karaites (a sect believing only in the Hebrew scriptures and not in the oral law interpretations of Rabbinical Judaism), and gay couples who have received recognition in Germany and Holland, as well as certain states in the U.S. but not in Israel.
The Orthodox Monopoly
The exclusive concentration of marriage and divorce in the hands of only one religious stream prevents other religious movements from operating. Liberal religious movements that are not Orthodox are not recognized in Israel for the purpose of holding marriage ceremonies and granting divorces – even though they are leading religious movements outside of Israel.
Circumventing the Rabbinate
The most popular means of circumventing religious restrictions to date is civil marriage outside Israel, a phenomenon that is growing yearly and represents a solution for those rejected by the Rabbinate and couples wishing to avail themselves of freedom of religion. According to the Central Bureau of Statistics, 6,856 Israelis married abroad in 2001, the latest year for which statistics were available, which constitutes almost ten percent of the marriages that year. At the same time, the number of marriages taking place through the Rabbinate is decreasing yearly.
Another alternative is “Paraguayan marriage” which requires the physical presence of one member of the couple in Paraguay and registration of the marriage according to Paraguayan law before it can be registered in Israel. This alternative was formerly quite popular since the Ministry of the Interior registered marriages by “proxy”: all legalities were handled by lawyers through correspondence and the couple did not travel outside Israel. Since 2002, the Ministry has recognized only Paraguayan marriages in which one member can prove travel and marriage registration in Paraguay. This alternative is quite expensive, although it provides a solution if one of the couple is physically unable to travel or cannot legally reenter Israel once having left.
Formerly, when one member of the couple was a foreign national, the couple was allowed to marry in the foreign national’s consulates. However, the Israeli government requested that the consulates cease conducting marriage ceremonies and for the past several years, this option has been closed to Israeli residents. The New Family Organization appealed to the Supreme Court on this matter against the Minister of Foreign Affairs, which holds that individuals are permitted to marry and divorce only according to the law of the religious courts of their religion, even if they do not define themselves as having religious beliefs.
“Contract” Marriage – Common Law Couples
This relationship emulates marriage and sometimes includes a symbolic ceremony, but is actually an informal civil alternative to Rabbinical law. The number of couples choosing this alternative is growing and it is better known as “common law marriage.” This union is often anchored in a civil contract that details the partnership between the two individuals and gives judicial authority to the relationship between them, even though it is not legally considered a marriage. With the passing years, judicial interpretations and legal expansion have given common law marriage a status almost equal to, and in some areas, more than equal to marriage itself. In recent years, this process has resulted in the strengthening of the civil system regarding civil marriage.
The religious establishment is paying a high price for its conservative stance. The opposition of religious forces to civil legislation regarding marriage and divorce, even in a restricted manner, strengthens the social and judicial processes that undermine, and often prevent the establishment of the family, which the religious establishment regards as positive. To this must be added the fact that the number of individuals considered “unfit” to marry is rising. The Rabbinical authority’s unwillingness to provide a solution to these cases magnifies the need to find a civil solution that will maintain the dignity, religious freedom and equal rights of every resident of Israel.
