The regulation of marriage and divorce in Israel is perceived by many as the main obstacle in attaining a constitution for Israel. Can the Spousal Registry Law help solve the discrepancies that subsequently arise? Dr. Shahar Lifshitz, author of a new Policy Paper on the topic, gives us his personal view.
Note: Since the time of this writing, Prof. Shahar Lifshitz has become a Senior Fellow at IDI.
Six years ago, while I was still a PhD student and a lecturer at Bar-Ilan University, Dr. Yossi Beilin, then Minister of Justice, turned to the Dean of the Faculty of Law at Bar-Ilan and asked to meet with professors in the department for some sort of speed workshop. As fate would have it, despite my lesser academic standing, I was among the participants chosen by the dean. During the meeting, I gave the Minister an overview of the civilian and religious predicament which originates from the existing family law in which laws are split into two systems—civilian and religious—and a civil marriage is nonexistent. I went on to explain that, ironically, the partial solutions developed by Israeli law, for example common law marriage, often intensify rather than alleviate the situation. I then presented claims made by two religious professors, the late Professor Ariel Rosen-Zvi and Professor Pinchas Shiffman, for the need for civil marriages in Israel.
The Minister informed me that in his opinion, having been in politics for quite some time, there is no chance that civil marriage will be established in Israel any time soon. He chose to end the meeting by challenging us to find creative solutions. He said that even if establishing civil marriages in full is impossible in Israel, there must be a way to better organize laws regarding personal status so as to combine Halakhah with the religious community's wishes, on the one hand, and the secular-civilian needs on the other.
The idea of a Partnership Covenant which later gave way to the idea of a Spousal Registry occurred to me as a response to Minister Beilin's challenge. And, I expressed this idea in both my academic writing and public activities. At first, Professor Shiffman and I worked together as a team and laid down the principles for establishing a Spousal Registry. Our goal was to create an official civil system which would be recognized by the State, have civil regulations, and be available to any interested parties. We also wanted to simultaneously ensure that this form of civil marriage would not be recognized as a halakhic marriage, in order to remain sensitive to the religious community that fears having illegitimate children ("bastards") and in order to not let the lack of a solution lead to a major rift in the Jewish nation. For the record, a bastard, according to Halakhah, is one who is born to a married woman outside that marriage. Ironically, if these marriages will not be recognized according to Halakhah, this would eliminate the fear of having illegitimate children.
We then believed, as I still do, that the deep religious resistance to civil marriages is embedded in the symbolic importance that religious Jews attribute to the recognition of the State in a religious marriage; and, in this symbolic/theoretical aspect—as opposed to an existential/practical aspect—a secular compromise that would lead to a practical solution is thus optimal from a civil perspective and is a worthy compromise. Based on these understandings, we decided to draft a recommendation that would be based on two principles: preserving the status quo in which the only marriages recognized by law are orthodox, and founding a new legal body that would be called the Spousal Registrar.
According to the proposal, couples that would seek to live together with legal implications, without getting married, will register as a couple in the Spousal Registrar. An additional category will be added to the population registry, and to Israeli I.D. cards, that would indicate that these people belonged to this official category. Restrictions on registration will subsequently be civil in their nature (for example, age and familial restrictions, and the prohibition against married individuals from registering). Accordingly, individuals that were prevented from entering marriage by religious law—including Kohanim with divorcees, bastards, and interfaith couples—could now register in the Spousal Registrar. In contrast to understandings made prior to the Bar-On Committee, according to which civil marriages would be limited to precisely those individuals prevented from entering religious marriages, our proposal allows each individual to choose this legal status. In other words, this proposal would not only solve the problem for those who could not otherwise marry; it would provide an ideological alternative for those secular citizens who fundamentally oppose undergoing a religious wedding ceremony that forces them to adhere to religious regulations.
The registry will have far-reaching legal implications. In fact, registration will provide the couple with all legal rights and obligations that civil laws in Israel already give to married couples: social rights, regulations concerning inheritance, property, and alimony, the right to adopt, and more. The proposal explicitly states that religious divorce laws will not apply to those registered in the Spousal Registry and that a relevant civil procedure would lie in its stead.
We did not draft our proposal in the form of a bill, although Justice Minister Beilin passed our findings to the legislative committee in the Ministry of Justice, headed by Dr. Peretz Segal, in order for a bill to be drafted. Around that time, I published an article in Tivyon magazine entitled A Civil Reorientation in Family Law in which the idea of a Spousal Registry was first presented.
At some point, after the fall of Barak's government, it seemed that this idea was permanently shelved, but it was revived with the formation of the Bar-On Committee during Sharon's first government. At first, the Bar-Or Committee was told to limit itself to address only those individuals prevented from entering religious marriages, but when I was invited to speak in front of the Committee, I emphasized the disadvantages of this limitation. Fortunately, this limitation did not make its way into the Committee's conclusions. Even though the Bar-On Committee was eventually dismissed, the idea of the Spousal Registry continued to gain support in Israeli public discourse as did legal proposals that addressed the issue.
Unfortunately, the proposals that were publicized uncovered a flaw in the current public discourse regarding family law. As far as family law is concerned, most of the public's energy is dedicated to battling against the religious courts in attempts to evade religious law and emphasize the need of establishing civil marriages. Much to my dismay, much less of the public's energy is devoted towards discussing actual content of family laws that are beneficial from a secular-civil perspective. That is why Israeli civil law does not provide answers to central questions at the core of family law in western liberal democracies. Today, the important court rulings on family law are caught up in the struggle between the civil and religious courts, in legal technicalities that allow for acknowledging alternatives to marriage, in attempts to subjugate religious laws to civil ones. Substantial discussions on the core of the matter, and on ways to reach a legal solution, are a rarer occurrence.
The lack of a civil basis for forming family laws can also be seen through literature on the subject. The literature focuses on the need to establish civil marriages and ways to do so. Important questions are raised in this capacity, such as: who will be eligible for civil marriage—only those prevented from entering religious marriages or anyone who so desires? What will the connection between the secular and religious procedures be? Will civil marriages be required of everyone, or voluntary? Will there be civil implications for religious marriages? Will those who are already married be given the possibility of moving to a civil registry?
Nevertheless, the issue of essential attributes of secular family law is barely being discussed. This issue intrinsically contains questions raised in legal systems in which family law is a part of civil law, questions such as: Will the legal status of those legally married and those who live together without getting married (cohabitants) differ? Will civil marriages be limited to certain people? What are the legal duties and rights of spouses towards each other, and towards others? What rules and consequences will pertain to divorce?
It often seems that the fact that citizens do not speak up on this matter is linked to the notion that there is only one civil-secular way to formulate family law. However, it is wrong to think that moving to a civil-secular system will dictate the content of family law. Taking a close look at the history of civil marriage laws, at civil systems currently used throughout the world, and at the public and academic arguments surrounding this issue, will show just how many options exist and how complex choosing a particular system can be.
Adjudication on issues concerning family law necessitates a closer look at a number of serious values that address the status of a family, the children's status, gender equality, the relationship between the principle of non-intervention in a family and the need to protect the weak, the relationship between the freedom of an individual and his/her obligations towards others, the position of contractual principles, and more. Unfortunately, these issues are still in formative stages in Israeli legal discourse.
In Israel, the lack of existing legal literature on family laws in a civil system along with the complicated and partial ways in which civil family law exists, raise serious doubts as to whether or not the civil system is prepared for such a complicated task of establishing civil family laws, even if the political opportunity of implementing an official civil marriage arises. And, indeed, in many cases, legislation proposals that dealt with spousal registries or civil marriages barely contended with the issue of implementing relationships between those registered in the registry. In other cases, this was dealt with, but the solutions proposed were clearly insufficient.
There was, in fact, proposed legislation on civil marriages in which divorce would also occur in civil courts. This proposal, however, failed to mention any criteria for such divorce laws. Can you imagine what would happen if such legislation would have been passed? A couple would get married, in a civil ceremony, and then one of the spouses would seek a divorce, while the other would refuse. The courts would be devoid of any means of determining what to do. A different proposal about a registry held that either party wishing to annul the registration would simply notify the registry. Does such a one-sided immediate annulment—lacking any attempt to reconcile or assess differences, without considering what is best for the children—reflect the civil-secular world view on a matrimonial relationship?
When the Israel Democracy Institute asked that I draft a proposal for the Spousal Registry Law as part of the Ancillary laws of Constitution by Consensus, I took upon myself a dual challenge. First, as I had initially intended, this proposal would be sensitive to both religious and civil perspectives and needs. Second, this would be an opportunity to prepare an all-inclusive proposal that would contain rules of conduct of the registry and to lead public debate on these rules.
The recently published Policy Paper on the Spousal Registry imparts the draft legislation by the Israel Democracy Institute, under my direction. I later presented this proposal to the Knesset Constitution, Law, and Justice Committee during its discussions on a constitution for the State of Israel. I then explained the merits of the Institute's proposal in facing the two main challenges previously discussed.
It is important to note that the draft legislation is, in fact, a compromise. It does not purport to be a perfect proposal that answers every need of every party involved. On the contrary, it contains painful compromises from both the religious and the civil-liberal points of view. As someone religious who holds a liberal world view, I must say that the concessions made from both perspectives often left me frustrated and in distress.
Moreover, while researching this matter, I was hesitant on certain points and proposed revisions, which the Israel Democracy Institute's fellows did not adopt out of their desire to use the Spousal Registry as a means to ameliorate problems of divorce in Israel.
Despite any reservations I have, I am convinced that the Spousal Registry Law is by far superior to what currently exists, and far better than any other compromises currently discussed in Israeli public discourse. Therefore, I truly hope that it will be adopted by politicians and the general public.
Prof. Shahar Lifshitz is a Senior Fellow at the Israel Democracy Institute.
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