Same-Sex Relationships and Israeli Law
© Springer Science+Business Media Dordrecht 2015
Macarena Sáez (ed.)Same Sex Couples – Comparative Insights on Marriage and CohabitationIus Gentium: Comparative Perspectives on Law and Justice4210.1007/978-94-017-9774-0_66. Same-Sex Relationships and Israeli Law
(1)
Sha’arei Mishpat Law School, Hod HaSharon, 4510201, Israel
Abstract
Marriage and divorce in Israel is regulated by religious laws. Same-sex marriage, therefore, has no formal place in Israel. The legal system, however, has shown flexibility mainly through Supreme Court decisions recognizing obligations and benefits to same-sex couples. The lack of a religion in Israel that would accept same-sex marriage, and the lack of a secular marriage to fill the void of religious marriage systems has not meant a total invisibility of same-sex couples. On the contrary, in addition to Supreme Court decisions expressly granting rights to same-sex couples, foreign same-sex marriage can be registered as valid marriages performed abroad. More importantly, same-sex parenting has become a possibility through progressive decisions of Israeli courts.
Keywords
Same-sex marriageReligious marriage lawsCohabitationSame-sex parentingThe chapter was written in 2013. Since then there have been a number of significant changes and developments, especially regarding legal recognition of the non-biological parent and dissolution of civil same-sex marriage entered into abroad.
The status of same-sex relationships under Israeli law is somewhat schizophrenic. On one hand, Israeli family law and the formal laws that pertain to marriage and divorce in particular are conservative religious laws. On the other hand, against a traditionalist legal background, the Israeli legal system demonstrates flexibility, especially through the Supreme Court that issued a line of cases recognizing rights, obligations, and benefits that arise from same sex relationships.
This article begins with a general background of Israeli’s unique family law system. Given the complexity of this system, knowledge of its basic principles is essential to understand the multifaceted legal rules that pertain to same-sex couples and the process that leads to their formation. Additionally, as many Western legal systems’ struggle over legal recognition of same-sex relationships had a dominant constitutional dimension, the following section provides some background of Israel’s Constitutional law, especially as it pertains to matters of marriage and divorce. It clarifies why in Israel the constitutional framework provides little or limited recourse for same-sex couples.
Next, this article considers the ways secular courts in Israel have tackled the difficulties and concerns created by conservative religious laws’ governance over marriage and divorce. Secular courts first addressed these problems when faced by traditional heterosexual couples and nuclear families. However, the tools developed by the courts in response to the plight of individuals in traditional relationships were subsequently useful to individuals in non-traditional relationships, including same-sex couples. This article focuses on three main avenues developed by secular courts to bypass the religious laws and cope with the difficulties they create, and then considers their application to same-sex relationships. First, this article considers the process Israeli legal system uses to recognize civil marriage entered into abroad. Second, it addresses the recognition of the relationships of unmarried cohabitants years ahead of other Western countries. Third, it considers the narrow interpretation given to “matters of marriage and divorce,” to not include the consequences of such relationships, such as property relations and maintenance obligations. As property relations and maintenance obligations were characterized as exogenous to “matters of marriage” or “matters of divorce” over which religious laws holds exclusive sway, the secular courts could develop secular laws pertaining to these issues that apply to relationships not recognized by religious family laws, including same-sex relationships.
Lastly, the article moves from addressing the partnership relationship between same-sex adults to consider parenthood in same-sex families in Israel. It addresses the ways in which same-sex couples can become parents in Israel, including adoption and access to reproductive technologies. Finally, the article considers the ways through which same-sex parents can have their parental status legally recognized.
6.1 Legal Framework
6.1.1 Marriage and Divorce in Israel – Law and Jurisdiction
A split in law as well as a split in jurisdiction characterizes Israeli family law. In terms of law, while civil (territorial) law governs some aspects of family law, other aspects, defined as “matters of personal status” are governed by the “personal law” of the pertinent individual.1 Marriage and divorce, in the narrow sense, are considered personal status matters, and thus no civil marriage exists in Israel and no uniform territorial law applies to marriage in Israel. Rather, the personal law of the relevant parties governs marriage.
The personal law of Israeli citizens and residents is their religious law, provided they belong to a recognized religious community.2 Israel recognizes various religious communities: Jews, Muslims, Druze, and 10 Christian denominations.3 No applicable personal law applies to Israeli citizens who do not belong to a recognized religious community, either because they are members of a religious community not recognized under Israeli law, or because they do not belong to any religion.4 Thus no law applies under which they can get married. The personal law of non-resident foreign citizens is their law of nationality “unless that law imports the law of their domicile, in which case the latter shall be applied.”5
The split between the civil and religious systems on family law matters is not only in law but in jurisdiction as well. Recognized religious communities under Israeli law operate religious courts.6 Here again, some aspects of family law are under the exclusive jurisdiction of the relevant religious courts, while others are under a parallel jurisdiction of the civil system of family courts and the religious system.7 Marriage and divorce are under the exclusive jurisdiction of the relevant religious courts, excluding dissolution of inter-faith marriages or marriages of individuals who do not belong to a recognized religious community.8 Dissolution of such marriages is generally under the jurisdiction of the civil family courts.9 Civil family courts also have jurisdiction to decide on matters of marriage and divorce of same-faith couples that belong to a recognized religious community when such matters arise incidentally in proceedings before the family court.10
Notably, religious affiliation for purposes of law and jurisdiction in Israel is independent from personal beliefs and instead relies on the relevant religious laws.11 Each recognized religious community, determines whether an individual does or does not belong based on its own religious law. Thus, even those who identify themselves as secular, atheist, or agnostic as a matter of personal belief may still be considered members of a religious community for purposes of law and jurisdiction. Conversely, when the relevant religious law does not recognize individuals who see themselves as affiliated with a particular religion they do not belong to this religion for purposes of personal law.
6.1.2 Marriage, Divorce, and Israeli Constitutional Law
Constitutional rights, such as the right to equality, and the right to marry, played an important part in the struggle of same-sex couples for legal recognition in many countries, especially in obtaining access to the institution of marriage.12 This section provides an overview of Israeli constitutional law, with a focus on family matters. It explains why Israeli constitutional law can play a very limited role in the struggle for same-sex marriage in Israel, though it can play a role in guaranteeing same-sex couples other legal rights.
When the state of Israel was founded in 1948, it was assumed that the state would adopt a constitution and a bill of rights, as specifically provided in Israel’s Declaration of Independence. However, political controversies over the content of the future constitution made it clear that drafting a constitution that would gain broad-based support was not achievable for the time being.13 As a result, the state adopted a compromise known as the “Harari Resolution” in 1950, that stated that Israel would gradually enact the future constitution, chapter by chapter in the form of “Basic Laws,” so that controversies would be addressed one by one.14
Until 1992, the enacted Basic Laws addressed the structure of the State’s political and legal system and the powers of its principal institutions, and did not protect human rights.15 Therefore, they did not provide a safeguard of substantive value. In 1992, the state of affairs changed when the Israeli Knesset enacted two Basic Laws: Human Dignity and Liberty 16 and Freedom of Occupation.17 The Knesset designed both of these laws to protect human rights within their respective spheres of influence. As interpreted by the Israeli Supreme Court, these Basic Laws provide for judicial review by any Israeli court, not just the Supreme Court, of Knesset legislation, transforming Israel from a parliament-supremacy democracy to a constitutional democracy.18 Nonetheless, the so-called Israeli “constitutional revolution” of 1992 had limited impact on family law matters in general and on issues of marriage and divorce in particular.
Basic Law: Human Dignity and Liberty contains no express right to marry. Also, the right to equality and freedom of religion are absent from this Basic Law. Legislative history suggests that the omission of these rights from the Basic Law was intentional and motivated by objections expressed by some of Israel’s religious political parties. These objections stemmed from the concern that guaranteeing a right to equality, freedom of religion, and certainly an express right to marry, would bring about the eventual invalidation of existing religious family law.19
Despite the absence of an express constitutional right to marry in the Basic Law, the Supreme Court interpreted that the right to Human Dignity includes a right to marry.20 Regarding the right to equality, the Supreme Court includes the right to equality as part of a general right to Human Dignity, but only so far as this right is closely and objectively connected with human dignity.21 Under this approach, the law does not recognize the right to equality as an independently implied or non-enumerated constitutional right. Consequently, not all aspects of equality are elevated to the level of constitutional rights, as they would have, had equality been recognized as a self-sustaining constitutional right.22 The Supreme Court did not decide the issue of whether or not equal access to the institution of marriage is an integral part of the right to human dignity.23
In any event, the recognition of a Basic Right to marry and the constitutionality of some aspects of the right to equality with regard to family life have very limited effect on the laws of marriage and divorce, since legislation that predated the Basic Law is immune from judicial review as an additional “safety measure” enshrining religious family law. Article 10 of the Basic Law on Human Dignity and Liberty titled “Validity of Laws” states that “this Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.” The former chief Justice Barak qualified the effect of the Validity of Laws clause, holding that the interpretation of laws that predated the Basic Law is still affected by it because “the freezing of the validity of a law is not tantamount to the freezing of its meaning.”24 Nonetheless, this qualification also has a very limited impact on family law issues because it does not apply to religious laws, which are interpreted according to the relevant religious authorities. Thus, the Basic Law barely affects family law matters governed by religious laws
Another Constitutional issue, relevant for same-sex couples in Israel concerns the recognition of a Basic Right to divorce – a right to exit marriage. Under Jewish law, divorce requires the consent of both husband and wife.25 Thus, Jewish women and men may find themselves unable to break-free from a marriage when they fail to obtain their spouses’ consent to divorce.26 The civil system cannot directly address divorce because divorce is generally under the exclusive jurisdiction and governance of Jewish rabbinical courts and laws. Recently, however, the civil system recognized a civil tort action for Jewish women and men against their recalcitrant spouses, who decline to consent to divorce.27 Courts recognize such a tort action, inter alia, based on the recognition of a Basic Right to exit marriage and divorce as part of the Basic Right to human dignity.28 As discussed in more detail below, the recognition of a Basic Right to divorce is especially important for Israeli same-sex couples married outside of Israel and may find themselves with no available legal process to dissolve their marital bond.29
6.2 Same-Sex Formal Marriage Under Israeli Law
6.2.1 Same-Sex Formal Marriage in Israel
As noted, Israeli law provides no uniform territorial law that applies to marriage and no civil marriage exist in Israel. The personal law of the relevant parties alone governs marriage. Theoretically, if a relevant religious law of a recognized religious community recognizes same-sex marriage, then same-sex couples belonging to this recognized community could get married in Israel. In fact, however, the religious communities recognized in Israel do not recognize same-sex marriage. As a result, same-sex couples cannot marry in Israel.
6.2.2 Same-Sex Formal Marriages Celebrated Abroad
Same-sex couples are not the only couples that cannot get married in Israel due to the complete governance of religious laws on marriage in Israel.30 Therefore, since the early days of the State of Israel, couples that could not marry in Israel or did not want a religious marriage, have looked for ways to bypass the religious restrictions on marriage in Israel. One common practice is to get married abroad. The validity under Israeli law of a civil marriage celebrated abroad between two Israeli citizens and residents was unclear for over 40 years, and still is regarding some of the couples (i.e. inter-faith couples, couples who do not belong to a recognized religious community and same-sex couples).31
6.2.2.1 The Registration/Recognition Distinction
Regardless of their validity, civil marriages are registered in the Israeli population registry based on the Supreme Court’s landmark decision in Funk Shlezinger v. Minister of the Interior handed down almost 50 years ago.32 According to this decision, the registrar must enter information regarding marital status provided by applicants and accompanied by public record into the population registry. The Court reasoned that the registry merely collects statistical information, which could either be true or false. The records of the population registry do not have the force of evidence or proof as to the veracity of the data they contain, especially regarding marital status.33 According to the Court, the registration is an administrative, and not a judicial, procedure, and thus, the validity of the marriage is not within the scope of issues considered by the registrar. According to the Court, the registrar may refuse to enter information provided by a party when it is manifestly incorrect. For example, when an individual who is clearly an adult asks to be registered as a 5-year-old child.
While the Funk-Shlezinger decision may initially seem merely a formalistic decision, especially given the Court’s emphasis that it did not address the question of validity, it provided a practical solution for couples who married in a civil ceremony outside of Israel. Despite the “statistical registry only” declaration of the Court that relies on the formal status of the registry, in reality registration has broader practical implications. As a result of this decision, civilly married couples enjoy practically all economic benefits of the state that couples formally married in religious marriages in Israel enjoy.34
In 2006 the Court applied the Funk-Shlezinger precedent to same-sex couples married in a civil ceremony outside Israel in the Ben-Ari case.35 This case involved five gay couples married in Canada who requested registration in the Population Registry as married based on Funk-Shlezinger. The Ministry of Interior refused to change their registration status from “single” to “married” and they brought an appeal before the Supreme Court. The State did not challenge the Funk-Shlezinger decision, despite criticism over this decision in case-law and academic writing focusing on the “statistical registry only” argument that invokes the formal status of the registry but ignores the reality of the far broader implication of it. The State, however, did attempt to distinguish Funk-Shlezinger, arguing that same-sex marriage is a legal formation not recognized in Israel. According to the State, “marriage” within the population registry means marriage within the basic “legal formation” in Israeli law, which is marriage between a man and a woman. Funk-Shlezinger concerns legal formations recognized under Israeli law (i.e. civil marriages) where only their validity is in question.
The Court rejected the State’s argument because providing the registrar with the discretion to consider the existence or lack thereof of “legal formats” under Israeli law stands contrary to current doctrine in which the registrar’s role is an administrative and not a judicial one.36 It thus ordered the registrar to register the couples as married. The Court stated, however, in accordance with the Funk-Shlezinger line of reasoning, that the registration is not indicative of whether or not Israeli law recognizes same-sex marriage. The Court also emphasized that its decision did not address the recognition of same-sex marriage in Israel.
The Court’s emphasis that its decision does not entail the recognition of same-sex marriage should not cause alarm, as it is in line with the Funk-Schlezinger precedent. As noted, the distinction between registration and recognition entailed the de-facto recognition of civil marriage of opposite-sex couples, though the state did not provide a formal recognition. This reality can materialize for same-sex couples married abroad. Following the Ben-Ari decision, however, some articulated a concern that certain government agencies and other third parties that ordinarily rely on registration will adhere to the formal status of the registration in the case of same-sex marriages, and maintain that registration does not entail validity.37 Thus far, this has remained merely a theoretical concern.38
Notably, in this respect, the dissent in Ben-Ari, Justice Rubinstein based his decision on the reality entailed by registration rather than on its formal status. Justice Rubinstein held that we are no longer talking about a mere statistical tool, but of a social and public symbol that has extensive practical implications for the authorities as well as for the public. The average person, explained Rubinstein, does not distinguish between registration and recognition of status.
6.2.2.2 Validity of Civil Marriage Celebrated Abroad
Regarding validity of civil marriage celebrated outside Israel, the basic distinction under Israeli law has always been between couples who were foreign citizens and residents at the time of the marriage, and couples who were Israeli citizens and residents at the time of the marriage.39 In the case of civil marriage between two foreign citizens who later immigrated to Israel, where the marriage is valid according to the laws of their previous nationality and residency laws, then this marriage is valid under Israeli law.40 As for civil marriage between Israeli citizens and residents, it also seems that the Israeli Supreme Court is now moving toward full recognition of such marriages, though it is doing so very slowly and step by step.41
For many years, the Court’s position, invoked for the first time in Funk-Shlezinger and continued for over 40 years, has been that it does not decide the question of validity under Israeli law of civil marriage conducted abroad, when at least one of the parties is an Isareli citizen and resident. Nonetheless, on the same day the Court handed down the Ben-Ari decision, it issued an additional decision taking the recognition of civil marriages a step further. In Plonit v. The Regional Rabbinical Court Tel Aviv, the Court held that a civil marriage performed abroad between an Israeli Jewish man and an Israeli Jewish woman is valid under Israeli law, although Jewish law does not recognize the civil marriage as creating a valid matrimonial bond.42 As a general rule, the Court held that when a couple has the capacity to marry in Israel according to their personal law, and the marriage ceremony took place within the framework of a foreign legal system that recognizes it, then the marriage is valid under Israeli law.43 The Court left open the question of validity of civil marriage conducted abroad when the couple had no capacity to marry under Israeli law.44 Thus, the Court first addressed the plight of Israeli citizens and residents who can marry in Israel but wish to refrain from a religious marriage, so they travel abroad to marry in a civil ceremony. The Court, however, did not address the plight of Israeli citizens and residents who cannot marry in Israel either because they do not have an applicable personal law, or because their personal law does not enable them to marry the person with whom they wish to share their lives.
Until Barak’s groundbreaking ruling in the case of Plonit v. The Regional Rabbinical Court Tel Aviv, the Israeli Supreme Court had avoided deciding on the validity of civil weddings conducted abroad for over 40 years.45 Despite situations in which the court had sat in a special extended panel, especially for deciding on this issue, the Court continued to declare that the decision concerning the validity of civil marriage between Israelis conducted abroad was a matter for the legislature to decide.46 Nonetheless, in 2006 Chief Justice Barak concluded that it was time the Supreme Court started to address the validity of civil marriages conducted abroad, given that the legislator had failed to do so.47 In recognizing the validity of the marriage, at least where the parties had the capacity to marry in Israel, Chief Justice Barak relied on the constitutionalization of the right to marry as recognized in Supreme Court case law.48
In a subsequent case, given just a couple of days later, Ploni v. Plonit, the married couple belonged to different religions, the man was Jewish and the woman Christian, and thus had no capacity to marry in Israel.49 Chief Justice Barak stated that the law of the state in which the couple was married should solely determine the validity of the marriage both regarding issues of capacity to marry and the form of the marriage. Justice Barak also considered as central to argument, the fact that this approach was most compatible with the constitutional right to marry. Nonetheless, this was mere dictum as Justice Barak resolved the case, which dealt with matters of inheritance, without addressing the question of marital validity for all purposes.
It is hard to predict how these decisions will affect the status of same-sex marriages conducted abroad under Israeli law. On one hand, it seems that Justice Barak’s position suggests that Courts should recognize same-sex marriages conducted abroad for all purposes under Israeli law. Conversely, even though Justice Barak’s position was merely dictum, according to Ben-Ari, the question regarding same-sex marriage concerns more than their validity. Ben-Ari at least supposedly left open the question of whether Israeli law defines marriage as a relationship between a man and a woman or whether it recognizes the legal format of same-sex marriages. In the meantime, same-sex couples who married abroad are registered as married, and enjoy most of the social-economic rights enjoyed by couples who were married in a religious ceremony in Israel.50
6.3 Dissolving Same-Sex Marriages Performed Abroad
Here, the discussion refers merely to the narrow question of dissolving the marital bond in the sense of changing the parties’ status from “married” to “divorced” or “single.” This section does not address substantive issues of property division, spousal support, child custody, if the couple has joint children, child support, and the like. As elaborated in the following sections, given the governance of religious laws over matters of marriage and divorce, courts interpret “matters of divorce” narrowly, so that they apply only to the limited question of dissolution of the marital bond. Courts separate all other issues and consider them as neither “matters of marriage” nor “matters of divorce.”51 Thus, in this section, the discussion addresses the narrow question of dissolution, and other related issues are discussed separately.
The question regarding dissolution of a same-sex marital bond is relevant to same-sex Israeli couples married in a civil ceremony abroad as same-sex couples cannot marry in Israel. While the Supreme Court ordered the registration of same-sex marriage entered into outside Israel, it left open the question regarding the dissolution of such marriages. Though, as noted, registration in the population registry is not indicative of validity or recognition, changes in registration require either a public certificate that testifies to the change or a judicial decision determining such change. A mere statement by the applicant concerning the change is insufficient to serve as basis for a change in registration.52 The question is, which courts have jurisdiction under Israeli law to dissolve the marriage, at least in terms of ordering the change of status in the population registry. Currently, the law lacks a clear answer – a situation that is incompatible with the recognition of a basic right to exit marriage.
Israeli law makes a distinction regarding dissolution of marriage between same-faith marriages of couples who belong to a recognized legal community in Israel, and marriages that do not fall under this category such as inter-faith marriages, marriages of individuals who do not belong to a recognized legal community, and individuals who have no religion. This issue is complicated when both parties belong to the same religious community, which is a recognized religious community. Therefore, although such marriages are more common in Israel, a discussion of their dissolution occurs later.
The question seems simpler regarding inter-faith same-sex couples, couples who are not members of a recognized religious community, or couples who have no religious affiliation.53 The law governing dissolution of such marriages in Israel is Matters of Dissolution of Marriage Jurisdiction in Special Cases Law,54 which determines that in principle the civil family court has jurisdiction to dissolve the marriage in such cases.55
The Matters of Dissolution of Marriage Law defines “dissolution of marriage” as including “divorce, annulment of marriage, and declaration of a marriage as void ab initio.”56 In that manner, the Israeli system sought to provide a practical relief for inter-faith couples, or couples not affiliated with a recognized religious community, while at the same time, avoided endorsing or recognizing such marriages. Regulating the dissolution of the marriage did not depend on recognition of their validity, and a family court can dissolve a marriage bond by declaring it “void.”
At the time the legislature enacted the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law it did not consider same-sex marriage, however, there is no reason why this law will not apply to same-sex couples, provided they are inter-faith couples, or with no affiliation to a recognized religious community. Especially given that the application of the law does not implicate the validity of same sex marriage, which Ben-Ari left open. Also, the application of the Matters of Dissolution of Marriage Law to same-sex couples is compatible with the recognition of a Basic Right to exit marriage.
If the family court recognizes same-sex marriage as valid so that divorce is required to dissolve the marital bond, the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law expressly provides only one ground for granting a divorce, which is the consent of both parties to the divorce.57 In absence of mutual consent, the Law does not provide grounds for divorce. Rather, the law provides choice of law rules listed based on priority. Courts apply the rules considering the following: (a) the substantive law of the common domicile of the spouses; (b) the substantive law of the last common domicile of the spouses; (c) the substantive law of the common state of citizenship of the spouses; (d) the substantive law of the state where the marriage took place.
The Law provides that a court cannot apply any of the aforementioned laws if it applies different laws to the spouses. Such is the case if the spouses are Israeli citizens or domiciled in Israel and they belong to different religions, since the Israeli law applies the relevant personal law to each of them. Indeed, in most cases where the Law is applied the only relevant option is the substantive law of the state where the marriage took place. Furthermore, the Law does not enable the application of a law if the couple cannot obtain a divorce under its provisions.58
The question of dissolving the same-sex marital bond is more complicated when both parties belong to the same recognized religion. Allegedly, the relevant religious court has jurisdiction over divorce proceedings between the spouses, as matters of marriage and divorce are under the exclusive jurisdiction of the religious courts in Israel.59 In the past, some raised doubts regarding the jurisdiction of the rabbinical courts in dissolving civil marriages entered into abroad between Jewish spouses.60
However, in A v. The Regional Rabbinical Court Tel Aviv the Supreme Court held that the rabbinical court has jurisdiction over dissolution of marriage between two Jewish individuals, even if they married in a civil ceremony.61 The rabbinical court can either order that a Jewish divorce, a get, is required if it finds that the marriage ceremony created a valid Jewish marriage, or as a stringency, or dissolve the marriage by granting a civil divorce. The Supreme Court clarified, nonetheless, that rabbinical courts have jurisdiction only in granting the divorce itself for couples who were married civilly.62 Civil family courts reserve exclusive jurisdiction over the monetary aspects of civil marital dissolution.
Supposedly, based on A v. The Regional Rabbinical Court Tel Aviv, dissolution of a marital bond between same-sex couples who both belong to the same recognized religious community is under the jurisdiction of the relevant religious court. If this is the case, then the relevant religious court will most probably issue a judgment stating the parties are not married and hence their registration should be changed from married to single, as the recognized religious courts in Israel do not recognize same-sex marriage. On one hand, some may argue that such a ruling is not problematic, as the Ben-Ari case left open the question whether Israeli law recognizes the legal concept of same-sex marriage. On the other hand, precisely because the relevant religious courts do not recognize the concept of same-sex marriage, but define marriage as a bond between a man and a woman, there are grounds to assume that the Supreme Court will rule that jurisdiction over dissolution of same-sex marriages lies with the civil family courts. Prior precedents of the Supreme Court denied jurisdiction from religious courts when the relevant religious law did not recognize the legal concept or legal format that was under consideration.63 In fact in A v. The Regional Rabbinical Court Tel Aviv, jurisdiction to dissolve a civil marriage between a Jewish couple was granted to the rabbinical courts only after the High Rabbinical Court stated that it recognizes, albeit limitedly, civil marriage between a Jewish man and a Jewish woman.64 As religious communities will not recognize same sex marriages, rabbinical, and other recognized religious courts, will most probably not have jurisdiction to dissolve same-sex marriages. Civil family courts, which have residual jurisdiction in family matters, will probably exercise jurisdiction over these matters.65
On August 30, 2012, the first case of same-sex marriage dissolution reached the Israeli court system. The splitting couple, Uzi Even and Amit Kama, both Jewish, first submitted their dissolution application to the rabbinical court.66 The rabbinical court however, refused to open a file for the case and therefore, at the beginning of September, the couple submitted an application to the civil family court.67 On November 21, 2012 the family court issued a groundbreaking decision holding that the civil family courts have jurisdiction over dissolution of same-sex divorces in Israel, even when both spouses belong to the same recognized religion. The family court also declared the dissolution of the marriage and based on its decision the parties were registered as divorced in the Population Registry.68
6.4 Reputed Spouses
Until 2010 Israeli law provided no establishment of registered civil union. On March 2010, the Israeli Knesset, passed the Covenant Partnership Law. The act, however, provides a very limited option of civil partnership only for Israeli opposite-sex couples in cases where both partners do not belong to a recognized religious community.69 Until Israel enacted the Covenant Partnership Law, there was no entry in the population registry for civil unions or similar statuses, so same-sex civil unions entered into abroad could not be registered in the population registry. Following the enactment of the Covenant Partnership Law, Israel created a designated entry in the population registry to register covenant partnerships entered into under the law. Yet, it is highly questionable whether the population registry can register same-sex civil unions entered into abroad given the narrow scope of covenant partnerships under the law.
However, as explained in details below, under Israeli law, cohabitants, referred to as “reputed spouses,” enjoy most of the rights and benefits and are subject to the obligations as married couples. Consequently, it is possible to assume that registered civil unions entered into abroad will be subject to the rules that apply to reputed spouses. The fact that the couple registered as a civil union will make it easier for them to prove that they fulfill the requirements of “reputed spouses” for purposes of Israeli law.
6.4.1 Reputed Spouses Under Israeli Law in General
Despite the lack of a general formal framework for recognizing domestic partnership outside the marital framework, unmarried cohabitants, known under Israeli law as “reputed spouses,”70 enjoy most of the rights and benefits and are under most of the obligations as married couples. Israeli legislature originally legally recognized “reputed spouses” beginning in the early 1950s, focusing mainly on social rights.71 Where Israeli legislation is silent, the Israeli Supreme Court continues the trend of equalization, expanding the list of rights, benefits, and obligations accorded to non-married cohabitants to match those of married couples.72 The extensive legal recognition accorded to unmarried cohabitants under Israeli law is commonly explained as the civil system’s reaction to the strict religiously based restrictions on marriage.73
Until the case of Lindorn v. Karnit, the dominant view held that statutes that do not expressly refer to cohabitants, apply only to married couples. In Lindorn, however, the Supreme Court interpreted the term “partner” in the New Version of the Civil Wrongs Ordinance (New Version) and the Road Accident Victims Compensation Law, to include reputed spouses, despite the absence of an express reference to reputed spouses in these statutes. Nonetheless, the Supreme Court made clear that its decision in Lindorn did not mean that all acts of legislation that apply to married couples apply to reputed spouses as well. Rather, that decision is made on a case-by-case basis for each and every act that does not expressly refer to reputed spouses. Likewise, the Court should separately examine each right and obligation of married spouses that case law created to determine whether it applies to unmarried cohabitants. Despite these statements of a “case-by-case” evaluation, the accumulated case law suggests that courts afford reputed spouses the vast majority of rights, benefits, and obligations as married couples under Israeli law.74
A very open definition of reputed spouses and flexible criteria accompanied the extensive recognition of the rights, benefits, and obligations of reputed spouses that make it easier for couples to be considered reputed spouses. The essential criteria required by Israeli law are joint cohabitation and the running of a common household. Nonetheless, there is no formal requirement that couples share a common registered address, and in some cases couples are recognized as reputed spouses while not living together in the same residential unit.75 Additionally, most of the laws applicable to reputed spouses do not stipulate a minimum period of time for them to be recognized as such, and when they do, a relatively short time period is required which is usually 1 year.76 When legislation does not stipulate a minimum period, courts have sometimes recognized couples as reputed spouses within a very short period of time. Lastly, monogamy is not necessarily required and in several cases the Court recognized couples as reputed spouses, despite additional intimate relations.
6.4.2 Same-Sex Couples as Reputed Spouses
In recent years, Israeli case law applied many of the rights, benefits, and obligations of reputed spouses to same-sex couples. However, the Israeli Supreme Court refused to declare that the definition of reputed spouses under Israeli law includes same-sex couples.77 Instead, each act of legislation that refers to reputed spouses, whether expressly or by way of interpretation, and each right, benefit, and obligation that is accorded to reputed spouses by case-law, is examined separately, on a case-by-case basis, to determine if it applies to same-sex couples. Next, this section addresses specific contexts in which the status of same-sex couples as reputed spouses was addressed under Israeli law.
6.4.2.1 The Family Court
Israel established the family court system between 1995 and 1997 in an attempt to centralize all civil family matters under one roof.78 The Family Court Law adopts a broad definition of “family members” that includes “reputed spouses.” Nonetheless, family court judges differ on whether the law considers same-sex couples as “reputed spouses” and fall under the jurisdiction of the family court.79
These conflicting decisions have not yet been resolved, inter alia, due to the paucity of precedents in family matters since the establishment of the Family Court. The family courts’ jurisdiction is at the lowest magistrate court level. Individuals have a right to bring appeals on a family court decision to the District Court. A subsequent appeal to the Supreme Court requires permission, which is rarely given.80
6.4.2.2 Family Violence
The 1991 Prevention of Violence in Family Law,81 provides “protective injunctions” aimed to provide immediate protection to family members who suffer from family violence. The Law, phrased in gender-neutral language, adopts a broad definition of “family members” and refers specifically to reputed spouses. Here, again, conflicting decisions exist in family court as to whether the law considers same-sex couples as reputed spouses for purposes of the Prevention of Violence in the Family Law.82
6.4.2.3 Family Name
Following Supreme Court cases holding that individuals have the right to change their family names to that of their reputed spouses,83 the legislature amended Israeli Names Law in 1996 to incorporate this ruling. The rules regarding reputed spouses’ surnames applied to same-sex couples who can today change or join their surnames so that they share the same surname.84
6.4.2.4 Succession
Section 55 of the Succession Law grants reputed spouses rights of inheritance similar to spouses in cases of intestate death.85 It should also be noted that the right of reputed spouses to inherit is the only right that is conditioned on both parties not being formally married to others. Other rights of reputed spouses are given to them even if one of them, or both, is formally married to another. This legal situation was explained by the difficulties in obtaining divorce in Israel.86
A question may arise as to whether same-sex couples who married abroad – can inherit under section 11 as “spouses” or under section 55 as “reputed spouses.” Although, the inheritance rights provided under each of these sections are similar, in Ploni v. Plonit Justice Barak held that for purposes of the Inheritance Law, couples who were married abroad shall inherit under section 11 as spouses, even if their status as “married” is not considered valid for all purposes under Israeli law.87 It is an open question whether this ruling applies to same-sex couples, since in their case it is supposedly not only the validity