Talia Einhorn (Tel Aviv University) has posted Family Unions in Israel – The Tensions between Religious Law and Secular Law and the Quest for Coherent Law. The abstract follows. –JKH
In two decisions of the Israel Supreme Court concerning family relations, the meaning of traditional concepts has come to play a vital role in the debate. The first concerned a lesbian couple who were Israeli citizens. While residing for two years as students in Los Angeles, California, one of them gave birth following artificial insemination. The other spouse adopted the child. Both were entered in the LA civil register as the child’s parents. Upon their return to Israel, they each applied to be registered as ‘mother’ of the child (the Israeli civil register admits the registration of ‘father’ and ‘mother’ but has no neutral category of ‘parent,’ as in LA). The State authorities declined, arguing that they can enter the name of only one woman as being a child’s ‘mother’ in the civil register. In the second case, several Israeli homosexual couples, who had entered into civil marriage in Toronto, Canada, applied to be registered as married in Israel. The State authorities declined, arguing that, to be registered as such in Israel, a ‘marriage’ must be between a man and a woman. Other ‘forms,’ recognized abroad, do not fit within the existing concepts of Israeli law. A same-sex relationship can only be regarded in Israel as a ‘social form’ with some legal consequences, but not as a ‘legal form.’ The Supreme Court rejected the State’s linguistic and other claims, creating, in the first case, new substantive concepts of parenthood and, in the second, pretending that the registration is only a matter of state statistics (a pretext refuted by the single dissenting opinion). These are by no means the first cases in which the Court has broken with traditional concepts of family relations, giving them different meanings to fit alternative forms.
Israeli family law could easily have become the archetype of cultural conservatism. Key aspects of family law, i.e. those defined as ‘matters of personal status,’ are subject to the personal law of the persons concerned. For Israeli citizens or residents, this is their religious law, for non-resident foreigners – the law of their nationality (unless that law imports thelaw of their domicile, in which case the latter shall be applied). For Jews, jurisdiction in matters of marriage and divorce is entrusted to the rabbinical courts, for Muslims – to the shari’a (Islamic) courts etc. Instead of having a concept of marriage of its own, Israeli law makes reference to personal religious laws which do not foresee mixed (interfaith) marriages. The law does not provide for civil marriage or divorce. In other matters of personal status,’ the family courts and the religious courts have concurrent jurisdiction. However, the family court must also apply, ex officio, religious lawin matters which are not regulated by secular legislation.
It is precisely here that the Israel Supreme Court has been able to help people who could not have a religious ceremony (because the spouse was of another faith, or due to religious impediments prohibiting marriage) or did not wish to have one, to avail themselves of Israeli private international law rules in order to have recognized and enforced at home most effects of their marriage entered into abroad. Simultaneously, the Court expanded the rights and obligations of reputed spouses (cohabitants who live as husband and wife) to help out couples who did not travel outside Israel to procure a marriage.
It might be thought that the Court has thus made the law fit the wishes and needs of the individual members of society, helping each to achieve self-fulfilment according to their private views, rather than making them shape their relationships in line with the concepts and truths dictated by society through its legislature. But this depiction seems to be elusive. The following exposition of the different ‘legal forms,’ which spouses may choose to shape their family relations, shows that the situation is in fact far from satisfactory. The time has come for the Knesset to do its share.