The Spousal Registry
Policy Paper 68
- Written By: Prof. Shahar Lifshitz
- Publication Date:
- Cover Type: Softcover
- Number Of Pages: 124 Pages
- Center: Religion and State
- Price: 45 NIS
This policy paper presents a proposal to legislate a spousal registry in Israel to remedy a legal anomaly: Despite the fact that the law
of the land is largely secular, liberal, and Western, marriage and divorce are conducted in accordance with religious law.
This policy paper presents a proposal to legislate a spousal registry in Israel to remedy a legal anomaly in Israel: Despite the fact that the law
of the land is largely secular, liberal,and Western, marriage and divorce are conducted in accordance with religious law.
In recent years there has in general been significant public involvement in disputes and controversies which characterize Israeli society and disputes concerning the relations between the Orthodox and secular communities in particular. The interest shown in these conflicts has been accompanied by a growing effort to find solutions. Within this context, we hear, inter alia, of Tzav Pius (the Reconciliation Covenant), the Kinneret Covenant, the Gavison-Medan Compact, and the list continues to grow. In the legal sphere, as part of the project for adopting a constitution by consensus, the Israel Democracy Institute seeks to formulate a constitution which will be based on broad agreement among varied sectors of the Israeli public including the Orthodox and secular communities.
One of the obstacles for those who seek social and legal regulation based on consensus relates to issues of personal status, particularly the laws of marriage and divorce. The current legal position is that it is not possible to marry or divorce in Israel by a civil process. Consequently, persons who desire to marry or divorce are obliged to do so in a religious ceremony even if they are secular. A particularly severe problem is faced by those who are not permitted to marry under religious law, such as mixed faith couples (adherents of different religions); persons having no recognized religious affiliation; persons ineligible to marry (in the case of Jews the most common example concerns Kohanim and divorcees); and members of the same gender. The law in the State of Israel does not offer these couples any official route by which they may marry. Another very serious problem is faced by those spouses – generally women – who have been refused a divorce (known as a get). Only in very rare cases will the religious courts compel a spouse who refuses to divorce to do so. Thus, in the absence of consent, the spouse wishing a divorce is bound to a relationship which he or she no longer desires.
This state of affairs has given rise to sharp criticism from a civilian point of view and is certainly intolerable from a western liberal perspective. Consequently, it is not surprising that from time to time the public discourse in Israel has generated proposals for the establishment of civil marriages. Notwithstanding that officially there are no civil marriages in Israel, Israeli law has developed a variety of alternatives to marriage. The most prominent alternatives are cohabiting with a partner outside marriage and civil marriage outside Israel. These alternatives vest the couple with a range of civil rights which are highly reminiscent of the rights vested in married couples. There are cases in which the source of the recognition granted to the rights ensuing from, and status of, the alternatives to marriage is express statutory provision. At the same time, there are also cases where the recognition of the rights ensuing from, and status of, the alternatives to marriage, or at least the expansion of that recognition, has originated from "activist" case-law, and on occasion even from a somewhat manipulative interpretation of the prevailing legal situation. Likewise, notwithstanding that officially it is not possible to conduct a civil divorce in Israel, in practical terms alternatives to divorce have developed which in certain cases lead to some of the civil consequences of divorce (such as easing physical separation, distribution of assets, sale of the matrimonial home and distribution of its proceeds, and occasionally even the establishment of a recognized spousal relationship) even with respect to spouses who have not divorced in accordance with religious law.
Often, alternatives to marriage and divorce which have developed in Israeli law have alleviated the couple's distress. Yet, deeper analysis reveals that the solutions are not complete and a significant portion of the civil problems remain unresolved. Moreover, in some cases the alternatives to marriage and divorce solve certain problems but concurrently create new difficulties and quandaries. In yet other cases, without intending to, these alternatives aggravate existing problems instead of alleviating them. Accordingly, it is clear that from a civil perspective, it is not possible to regard the existing alternatives to marriage and divorce as adequate responses to the demand for the establishment of civil marriage. At the same time, even if these alternatives are insufficient from the civil point of view, in many cases they nonetheless succeed in undermining the religious regulation of marriage laws and the fundamental principles underlying them. In this sense, the current integration of official religious law with the legal reality of civil alternatives to marriage and divorce is inadequate, since on one hand, it does not resolve the civil difficulties in full, and on the other hand it often severely infringes fundamental principles and values of religious law.
In the political arena, in the struggle between the supporters of civil marriage and its opponents – the latter are more powerful. However, even if in the near future there is little likelihood of establishing civil marriage in the full sense, the difficulties and crises created by the existing situation and the only partial successes of the present solutions make it clear that there is a real need to identify additional, more successful interim solutions. It seems that in recent years this understanding has infiltrated the public consciousness; and, accordingly, alongside the voices which have vocally called for civil marriage in the full sense, on one hand, and the opponents of any change to the existing situation, on the other, there are also intermediary positions which seek to arrive at broadly acceptable solutions.
One of the compromise proposals, initiated among others by this writer, suggests establishing a state spousal register which will be known as the spousal covenant.
This proposal does not meet the secular demand for the establishment of civil marriage. On the contrary, the proposal preserves the existing situation, in which the only marriage recognized by state law is Orthodox religious marriage. However, the proposal does seek to position the spousal covenant as a better alternative to civil marriage than existing alternatives.
Contrary to the rights of cohabitees which characteristically are granted in retrospect, those couples seeking to create a binding and recognized spousal relationship outside the framework of a religious marriage will be registered from the beginning in the spousal registrar. Registration from the start of the relationship, by reason of its institutional character and the fact that it is carried out ab initio, allows greater symbolic public recognition than the recognition accorded retroactively to the relationship of cohabitees. Moreover, whereas cohabitees today are only entitled to some of the rights ordinarily given to married couples, registration in the spousal register will vest the couple with all the civil rights enjoyed by wedded couples.
Further, the proposal is aware of the partial nature of the existing civil arrangements (thus, for example, in Israel there is no clear civil process for divorce, and likewise, in certain cases, there is no civil mechanism which enables alimony to be granted after divorce to the "domestic" spouse who was economically dependent on his or her partner during the marriage).
Consequently, the proposal insists on the need for establishing new civil procedures to meet lacunae in prevailing civil law. In this spirit, special attention is given to the procedure of annulling the spousal registration and the need to found it on an appropriate civil policy of divorce law.
As noted, the spousal covenant was born as a compromise proposal. Accordingly, this is not a proposal which purports to offer the optimal solution. On the contrary, from the civil perspective it is clear that it is necessary to establish civil marriage in the full sense. Accordingly, the willingness to exchange civil marriage for spousal registration embodies an element of secular concession. Likewise, I am aware of the erosive effect of the proposal on the existing state of affairs where the religious law and the religious courts hold an official monopoly on issues of marriage and divorce, and I am conscious of the fears that this proposal may instill in the hearts of the opponents to civil marriage. Nonetheless, when the proposal for a spousal covenant is analyzed against the background of the existing political circumstances and in comparison to the existing situation and other compromise solutions being offered, I believe that this proposal is both important and useful.
The idea of the spousal covenant has yet to be presented in a detailed and methodical manner in legal and scholarly literature. Accordingly, the primary objective of this work is to present for the first time in a detailed and methodical manner the proposal for a civil spousal covenant and to discuss its advantages and disadvantages versus persisting with the present situation and versus other compromise solutions raised in Israeli discourse. It should be noted that it is very difficult to put forward a comprehensive discussion of the spousal covenant as in recent years various formulations have been espoused for spousal registers which differ from each other in a number of significant aspects. Accordingly, concurrently with a fundamental discussion of the rationale for a register and consideration of the degree to which such a register is essential, this research will also describe in detail the draft bill establishing the spousal covenant which was recently proposed by the Israel Democracy Institute under my direction and compare it to other proposals which have been made in recent years on this matter.
The Spousal Registry: Prof. Shahar Lifshitz Explains his Proposal