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Same Sex Couples - Comparative Insights on Marriage and Cohabitation pp 131–161Cite as

Same-Sex Relationships and Israeli Law

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Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 42))

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.

The 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.

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Notes

  1. 1.

    See Ariel Rosen-Zvi, Family and Inheritance Law, in Introduction to the Law of Israel 75, 75–76 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995). The Israeli application of personal laws to “matters of personal status” was inherited from the Ottoman Empire’s millet (religious community) system, which was preserved by the British Mandatory rule and later adopted by the Israeli legislature with certain amendments. Ibid., p. 75.

  2. 2.

    See Menashe Shava, Matters of Personal Status of Israeli Citizens not Belonging to a Recognized Religious Community, 11 YB Hum. Rts. 238 (1981).

  3. 3.

    The list of recognized religious communities appears in the Second Supplement to the Palestine Order in Council. Rosen-Zvi supra note 1, p. 76.

  4. 4.

    This is when no religious community sees this person as belonging to it based on its religious laws (own definition). See Pinhas Shifman, Religious Affiliation in Israel Interreligious Law, 15 Isr. L. Rev. 1, 31 (1980). Such is the case for example when an individual is born to a Muslim mother and a Jewish father, as Orthodox Judaism defines a Jew based on birth to a Jewish mother whereas Islam defines a Muslim based on the father’s Islamic affiliation.

  5. 5.

    Article 64(2) of the Palestinian Order in Council.

  6. 6.

    Rosen-Zvi supra note 1, p. 76. Several religious courts are recognized under Israeli law as having judicial authority over members of their religious communities: Rabbinic Courts (authority over Jews), Shari’a Courts (authority over Muslims), Druze Religious Courts (authority over Druze), and Courts of the Christian Communities (authority over members of the relevant recognized Christian communities). The jurisdiction of each of the religious courts is dependant upon a statutory order instituting such court and determining the scope of its jurisdiction.

  7. 7.

    Once proceedings are initiated in one of these two systems, however, it assumes jurisdiction and precludes the other’s intervention. The result has been the notorious “race for jurisdiction,” when each party seeks to precede the other in initiating legal proceedings in order to determine what court will hear a particular case. Ariel Rosen-Zvi, Forum Shopping between Religious and Secular Courts (and its Impact on the Legal System), 9 Tel Aviv U. Stud. L. 347, 348 (1989).

  8. 8.

    Jurisdiction in the Matter of Dissolution of Marriage Special Cases & International Jurisdiction Act of 1969.

  9. 9.

    See infra note 55 and accompanying text.

  10. 10.

    This authority is derived from Section 76 of the Courts Law (Consolidated Version)-1984 that states: “Where a matter has been lawfully brought before any court and a question arises therein the decision of which is necessary for the trial of the matter, the court may decide such question for the purposes of that matter even if the subject of the question is under the exclusive jurisdiction of another court or tribunal.” Thus, for example, if while an inheritance case is litigated in the family court, a question arises as to the validity of the marriage between the deceased and a woman who claims to be the widow, the family court may decide on the issue of the marriage validity for purposes of that particular inheritance case. Such a decision does not create res judicata as to the question of the marriage validity.

  11. 11.

    Rosen-Zvi, supra note 1, p. 78.

  12. 12.

    See e.g., in the U.S.: Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Goodridge v. Dep’t of Pub. Health, 798 N.E. 2d 941 (Mass. 2003); in Canada: Halpern v. Attorney General of Canada (2002), 60 O.R. (3d) 321 (Div. Gen) (Ontario); Hendricks and Leboeuf v. Quebec (Attorney General), [2002] R.J.Q. 2506 (C.S.) (Quebec); Egale Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472 (C.A.); in South Africa: CCT 60/04 Minister of Home Affairs v. Fourie 2006 (3) BCLR (CC) at 27 (S. Afr.), available at http://www.constitutionalcourt.org.za/Archimages/5257.PDF Available at http://www.saflii.org/za/cases/ZACC/2005/19.pdf. Accessed August 23, 2012.

  13. 13.

    Daphna Barak-Erez, From an Unwritten to a Written Constitution: the Israeli Challenge in American Perspective, 26 Colum. Hum. Rts. L. Rev. 309, 312–313 (1995).

  14. 14.

    Ibid., The resolution is named after its author, Yizhar Harari, M.K.

  15. 15.

    Yoram Rabin & Yuval Shany, The Israeli Unfinished Constitutional Revolution: Has The Time Come For Protecting Economic And Social Rights, 37 Isr. L. Rev. 299, 308–309 (2003).

  16. 16.

    Basic Law: Human Dignity and Liberty, 1992, S.H. 150.

  17. 17.

    Basic Law: Freedom of Occupation, 1992, S.H. 114, repealed by Basic Law: Freedom of Occupation, 1994, S.H. 90.

  18. 18.

    CA 6821/93 Bank Hamizrachi Ltd. v. Migdal et al. 49(4) P.D. 221 (1995).

  19. 19.

    See e.g., Yoav Dotan, The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel, 53 Am. J. Comp. L. 293, 304 (2005); Gidon Sapir, Religion and State in Israel: The Case for Reevaluation and Constitutional Entrenchment, 22 Hastings Int’1 & Comp. L. Rev. 617, 637–628 (1999).

  20. 20.

    HCJ 7052/03 Adalah v. Minister of Interior, 61(2) P.D. 202 (2006); 2232/03 Plonit v. The Regional Rabbinical Court Tel Aviv 61(3) P.D 496 (2006).; F.A. 9607/03, Ploni v. Plonit, 61(3) P.D. 726(2006). See also Ayelet Blecher-Prigat A Basic Right to Marry: Israeli Style, 47 Isr. L. Rev. 433 (2014).

  21. 21.

    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset 61(1) P.D. 619 (2006). About the dispute of whether a right to Equality can be derived from Human Dignity see e.g., See e.g., Hillel Sommer, The Non-Enumerated Rights: On the Scope of the Constitutional Revolution, 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997) (Hebrew); Yehudit Karp, Basic Law: Human Dignity and Freedom — A Biography of Power Struggles, 1 Mishpat Umimshal (Law and Government), 323, 347–351(1992) (Hebrew); Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel 921 (Vol I, 5th ed. 1997) (Hebrew); Yehudit Karp, Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty, 25 Hebrew Univ. L. Rev. (Mishpatim) 129, 145 (1995) (Hebrew); Dalia Dorner, Between Equality and Human Dignity, Shamgar Book (Articles, vol. 1, 2003) 9.

  22. 22.

    Movement for Quality Government in Israel case at para 30–43 to the former Justice Barak’s judgment; Adalah case at para 39 to the former Justice Barak’s judgment.

  23. 23.

    Blecher-Prigat, supra note 20 at 451–452. In Adalah, only two justices of the 11 justices on the panel (President Barak and Justice Procaccia) considered this issue. Both regarded violation of equality in the context of family life as constituting a violation of the right to human dignity. Nonetheless, “family life” and “marriage” are not equivalent.

  24. 24.

    CA 2316/95 Ganimat v. the State of Israel, 49(4) P.D. 589 (1995).

  25. 25.

    For a more detailed discussion see e.g., Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Arizona J. of Int’l & Comp. L., (2009) pp. 279, 281–282.

  26. 26.

    For the reasons why women suffer more and have more difficulty to obtain their husbands’ consent to divorce see ibid.

  27. 27.

    See Blecher-Prigat & Shmueli, supra note 25.

  28. 28.

    See e.g., FamC (Tel-Aviv) 23849-08-10 Y.K. v. B. Sh. K. (Oct. 9, 2011) (unpublished officially); FamC 35371-02-10 (Tel-Aviv) A.A L. B. v. Ch. B. (Oct. 11, 2011) (unpublished officially); FamC 9877/02(Rishon Lezion) P.E. v. P. Y. (Aug. 17, 2011) (unpublished officially).

  29. 29.

    See section 3.C infra.

  30. 30.

    Others who cannot get married in Israel are persons who do not belong to a recognized religious community and therefore have no law of marriage applicable to them and inter-faith couples since most recognized religions in Israel do not recognize inter-faith marriages with the exception of marriage between a Muslim man and a Jewish or Christian woman, which the Sharia law recognizes. In addition, various restrictions under the pertinent religious laws may also prevent parties from marrying, as is the limitation under Jewish law on the marriage between a Cohen, a descendant of the priestly clan, and a divorcee. Menachem Elon, THE PRINCIPLES OF JEWISH LAW 361 (1975).

  31. 31.

    See discussion in part 3.B.(2) infra.

  32. 32.

    HCJ 143/62 Funk Shlezinger v. Minister of the Interior, 17 P.D. 225 (1963). The Funk-Shlezinger case involved a Belgian Catholic woman and an Israeli Jewish man who were married in Cyprus and wanted to register as married in the Population Registry in Israel. The Ministry of Interior refused their request based on the argument that civil marriage of Israeli citizens is not recognized under Israeli law. The couple filed a petition against the Minister of the Interior’s decision with the Supreme Court sitting as a High Court of Justice, and the Court accepted the petition.

  33. 33.

    Section 3 of Population Registry Law, 5725–1965, 19 LSI 288 (1964–1965) (Isr.). This section provides that some details registered in the population registry constitute prima facie evidence as to their veracity; however, personal status of an individual is not one of them.

  34. 34.

    Ruth Halperin-Kaddari, Women in Israel: A State of Their Own 244 (2004). This reality triggered criticism over the Funk-Shlezinger decision. See e.g., Eitan Levontin, ‘Figment of the Imagination: Funk-Schlezinger and Civil Registry Law’ 11 Mishpat Umimshal (Law and Government), (2008), pp. 125, 144–166. Nonetheless, thus far this system was not challenged.

  35. 35.

    HCJ 3045/05 Ben-Ari v. Ministry of the Interior, 61(3) P.D. 537 (2006). Official translation can be found on the Israeli Supreme Court’s web-site: http://elyon1.court.gov.il/files_eng/05/450/030/a09/05030450.a09.htm

  36. 36.

    It should be noted that over the years the Funk-Schlezinger precedent has been expanded and applied to various contexts, including to the registration of two mothers of a child, based on a second-parent adoption in California. HCJ 1770/99 Brener-Kadish v. Minister of the Interior, 54(2) P.D. 368 (2000). See further discussion of this case infra in part 6.B.

  37. 37.

    Aeyal Gross, Israel’s Supreme Court Orders Registration of Same-Sex Marriage Conducted in Canada, Lesbian/Gay Law Notes (Dec. 2006) p. 226.

  38. 38.

    If government agencies and other parties adhere to a “statistical tool” only status of the registration in the case of same-sex couples, such couples could theoretically invoke a claim of discrimination vis-à-vis opposite-sex couples who married civilly abroad. Such a claim, however, could challenge the entire registration/recognition distinction and the “statistic registration only” argument that enabled this reality in the first place.

  39. 39.

    To simplify the discussion, I do not address couples where one of them is a foreign national, and the other is Israeli.

  40. 40.

    C.A. 191/51 Skornik v. Skornik, 8 P.D. 141 (1954).

  41. 41.

    The law is unclear in the case of couples who were Israeli citizens but foreign residents at the time of the marriage. The Skornik decision itself concerns a couple who were both foreign citizens and residents. Most of the Israeli scholarly writing on this issue limits this decision to this specific case, and does not extend its holding to cases of Israeli citizenship but foreign residency. Nevertheless, in HCJ 2232/03 Plonit v. The Regional Rabbinical Court Tel Aviv, 61(3) P.D. 496 (2006) Chief Justice Barak refers to Skornik as determining the validity of civil marriages conducted abroad by either couples who were foreign citizens or foreign residents at the time of the marriage (paragraph 23 to Chief Justice Barak’s opinion). This interpretation, however, is disputed.

  42. 42.

    HCJ 2232/03 Plonit v. The Regional Rabbinical Court Tel Aviv, 61(3) P.D. 496 (2006). Official English translation is available at http://elyon1.court.gov.il/files_eng/03/320/022/a16/03022320.a16.htm

  43. 43.

    See Paragraph 26 to Chief Justice Barak’s opinion.

  44. 44.

    The Court’s opinion, delivered by President Barak, considered three alternative approaches that were developed in case-law and scholarly writing regarding the validity of such marriages under Israeli law. The first approach ignores the fact that the marriage ceremony was conducted abroad, stating that it does not alter the applicability of religious/personal law in matters concerning marriage, including the determination of a marriage’s validity. This approach relies on the following line of reasoning: Article 47 of the Order-in-Council, which determines the application of personal law to questions of personal status, of which marriage and divorce stand at the core, is part of Israeli private international law and establishes an entire arrangement. The applicability of this article does not depend on the nationality of the relevant parties, or on national character in any way. Thus, wherever the parties were married, regardless of their nationality, the validity of their marriage in Israeli courts shall be determined according to their personal law. This approach is identified with Justice Agranat’s approach in C.A. 191/51 Skornik v. Skornik, 8 P.D. 141 (1954) and with Professor Menashe Shava’s approach. Menashe Shava, Civil Marriage Celebrated Abroad: Validity in Israel, 9 Tel-Aviv U. Stud. L. 65 (1989). Thus, where the relevant personal law of the parties does not recognize a civil marriage ceremony as creating a valid matrimonial bond, the marriage is not legally valid. The second approach distinguishes between questions of form and questions of capacity to marry. Whereas questions concerning the form of the marriage are governed by the law of the place where the wedding was performed (locus regit actum), questions that concern substance, meaning the capacity of the parties to marry, are governed by the law of their domicile at the time of the marriage, which for Israelis refers to their personal (religious) law. This approach is based on the English rules of private international law, which was incorporated into Israeli law by virtue of article 46 of the Order-in-Council. This approach considers article 47 of the Order-in-Council to be part of Israel’s internal municipal law. This approach was introduced by Justice Witkon in the Skornik case, as well as in the District Court of Jerusalem in C.C. (Jerusalem) 2/85 Kleidman v. Kleidman, 1987(b) P.M. 377. Under this approach a distinction is made between those who have the capacity to marry in Israel in a religious ceremony, but chose a civil ceremony abroad, and those who could not marry in Israel and were forced to marry abroad. The third and final approach does not distinguish between form and capacity but rather considers both issues according to the law of the place where the wedding was performed. According to this approach, subject to limitations of public policy, the law of the country where the marriage ceremony took place governs the validity of the marriage. This approach is associated with Justice Zusman’s approach, expressed in obiter dictum in Funk Shlezinger and advocating for the adoption of the American approach to private international law.

  45. 45.

    Beginning with Funk Shlezinger.

  46. 46.

    See e.g., HCJ 51/80 Cohen v. Rabbinical High Court of Appeals, P.D. 35(2) 8 (1980). The then president of the court, President Landau, created a special panel of seven Justices intending to resolve, among other things, the question of the validity of a foreign marriage in Israel. At that time, when the Israeli Supreme Court sat in an extended panel, it usually sufficed with five justices. The then President Landau explained his unusual decision to expand the panel in the Cohen case by the need to resolve a significant question of great import. Cohen, 35(2) P.D. at 10. However, he declared that in retrospect the question of the validity of the marriage did not arise. Ibid.

  47. 47.

    Interestingly, this decision was given just a few months prior to Justice Barak’s retirement.

  48. 48.

    See text accompanying supra note 20.

  49. 49.

    F.A. 9607/03, Ploni v. Plonit. 61(3) P.D 726 (2006).

  50. 50.

    See section 4.B infra.

  51. 51.

    As the Israeli system described these issues as separate and not necessarily related to marriage, these substantive issues are applied irrespective of the marital status of the parties so that similar but not identical rules are applied to cohabitants. See discussion infra in section 4.

  52. 52.

    Sections 16, 17, 19 of the Population Registry Law, 1965, 19 L.S.I., (1964–1965), pp. 288–289.

  53. 53.

    Remember that religious affiliation is not based on self-identification of the individual, but is rather by the relevant religious community, if it is a recognized religious community. See supra note 11 and accompanying text.

  54. 54.

    See Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, 23 L.S.I..

  55. 55.

    In cases where one or both of the parties belong to a recognized religious community, the family court must inquire with the relevant court or courts whether under their religious laws, a religious dissolution of the marital bond is required to enable the relevant party to remarry in Israel. In case the relevant religious law requires a religious dissolution, then the matter shall be referred to the religious court. The religious court will have jurisdiction over dissolving the marriage but not over ancillary matters such as economic consequences of the marital bond. This scenario is irrelevant for same-sex couples, as all the religions recognized in Israel do not recognize same-sex marriage, and thus do not consider whether “dissolution” of the marriage is required for the parties to be able to remarry in Israel, which means marry in a religious ceremony to a partner of the opposite sex.

  56. 56.

    Section 6 of the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law.

  57. 57.

    Section 5(c) of the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law.

  58. 58.

    Ibid., section 5(c).

  59. 59.

    See supra note 8 and accompanying text.

  60. 60.

    The doubts stemmed from the wordings of section 1 of the Rabbinical Courts Jurisdiction Law that determines the jurisdiction of the rabbinical courts over matters of marriage and divorce. The section states: “Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State shall be under the exclusive jurisdiction of rabbinical courts”. [emphasis added – A.B.P.]. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law-1953, 7 L.S.I 139. The doubts concerned the words “in Israel” – whether they refer only to the Jews that are supposed to be in Israel or whether they relate to matters of marriage and divorce, and the Jews. Even if the latter approach is accepted, once the “matters of divorce” are in Israel, rabbinical courts have jurisdiction, regardless of whether the marriage took place. Nonetheless, this interpretation may affect the rabbinical court’s jurisdiction in case it does not recognize the validity of the civil marriage since in such a case no “divorce” is taking place in Israel and the matter of marriage was not done in Israel as well. The Supreme Court did not resolve the interpretation of section 1 of the Rabbinical Courts Jurisdiction Law and the words “in Israel”. See HCJ 3/73 Cahanoff v. the Rabbinical Court, 29(1) P.D. 449 (1974); HCJ 573/77 Zak v. the Rabbinical Court, 32(1) P.D. 281 (1977); Shava, supra note 44 at 66–67.

  61. 61.

    The Court’s judgment endorsed the High Rabbinical Court’s judgment in this matter and its position on civil marriage. The High Rabbinical Court stated that the Jewish law, the Halakha, contains rules that apply to non-Jews Noahides and they also refer to marriage and divorce. Noahides or B’nei Noach, Children of Noah in Hebrew. Noahide Laws refer to the seven laws of Noah, given by God to all mankind. Although Jewish Law does not recognize a civil ceremony of marriage as creating a valid Jewish marital bond, the Noahide rules recognize civil marriage at least for limited purposes, even if it was conducted between a Jewish couple, a man and a woman. Noahide rules enable a rabbinical court to grant a divorce which is different from the Jewish divorce – the Get, to Jewish couples who were married civilly. The divorce regime for Noahide marriages is a no-fault regime, and the ground for the judgment of divorce is a finding that the marriage was irretrievably broken.

  62. 62.

    Some rabbinical courts challenge this ruling, especially in cases where they find that a Jewish divorce is required. See e.g., Case No. 764411/1 (rabbinical court, Netanya, 3 October 2010).

  63. 63.

    See e.g., CA 3077/90 Plonit v. Plonit, 49(2) P.D. 578 (1995); Ruth Halperin-Kaddari, Towards Concluding Civil Family Law – Israel Style, 17 Mehkarei Mishpat 105, 154 (2001).

  64. 64.

    Paragraph 29 to Justice Barak’s judgment in HCJ 2232/03 Plonit v. The Regional Rabbinical Court Tel Aviv, 61(3) P.D. 496 (2006).

  65. 65.

    Additional reason provided by the Court for deciding that jurisdiction to dissolve a civil marriage between a Jewish man and a Jewish woman lies with the rabbinical courts is also irrelevant regarding same-sex couples. As noted, even a civil marriage ceremony between a Jewish man and a Jewish woman might require a Jewish divorce at least as stringency. Whether or not this is the case can only be done on a case-by-case basis. Since dissolution of the marriage needs to be effective, in the sense that the parties be eligible to remarry in Israel that is, in a religious ceremony, a decision must be made if a get is required, and this can only be done by a rabbinical court. Since the religious courts do not recognize the concept of same-sex marriage and see them as void, no religious dissolution might be required.

  66. 66.

    Gay couple turns to rabbis for divorce, Ynet News, available at http://www.ynetnews.com/articles/0,7340,L-4276046,00.html. Joint Application for Divorce by Consent, submitted to the Tel-Aviv rabbinical court [on file with author].

  67. 67.

    Application for a Declaratory Judgment submitted to the family court in Ramat-Gan [on file with author]. I thank Adv. Judith Meisels, who represents Uzi Even and Amit Kama, for providing me with the court documents.

  68. 68.

    FamC 11264-09-12 Plaintiffs v. Ministry of the Interior (Nov. 21, 2012) (unpublished officially).

  69. 69.

    Partnership Covenant for the Religionless Law, 2010.

  70. 70.

    The literal translation is “known in the public as spouses.”

  71. 71.

    Rosen-Zvi, supra note 1 at 98; Menashe Shava, The Property Rights of Spouses Cohabiting Without Marriage in Israel – A Comparative Commentary, 13 Ga. J. Int’l & Comp. L. 465, 468 (1983).

  72. 72.

    See e.g., C.A. 52/80 Shachar v. Friedman P.D. 38(1) 443 (1984) (holding that the then existing presumption of community property applied to married couples should be applied to unmarried cohabitants as well); C.A. 2000/97 Lindorn v. Karnit, 55(1) P.D. 12 (1999).

  73. 73.

    However, by equating the legal status of unmarried cohabitants to that of married couples, the Israeli system ignores the fact that not all the unmarried cohabitants in Israel were barred from marrying under the religious laws of marriage in Israel, or were merely reluctant to form the religious institution of marriage. Israeli law failed to realize that some of these couples chose not to get married, as they rejected the institution of marriage. See e.g., Shahar Lifshitz, The External Rights Of Cohabiting Couples In Israel, 37 Isr. L. Rev. 346 (2003–2004).

  74. 74.

    The Court continued down this path in CA 2622/01 Manager of Land Betterment Tax v. Levanon, 37(5) P.D. 309 (2003), holding that tax exemptions for the transfer without remuneration of an asset other than a residential apartment from an individual to his partner should be applied to cohabiting and married couples equally. See also Lifshitz, Id.

  75. 75.

    Lifshitz, Ibid., pp. 409. LCA 3497/09 Ploni v. Plonit [unpublished].

  76. 76.

    Lifshitz, Ibid., pp. 407–408.

  77. 77.

    HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz 48(5) P.D. 749 (1994). Official translation can be found on the Israeli Supreme Court’s web-site: http://elyon1.court.gov.il/files_eng/94/210/007/Z01/94007210.z01.htm

  78. 78.

    The Family Courts Law, 1995, S.H. 393. Prior to the establishment of the family court system the District Court exercised jurisdiction over civil family matters.

  79. 79.

    For cases holding same-sex couples as reputed spouses for purposes of the Family Court Law see e.g., FC (Tel-Aviv) 6960/03 K.Z. v. State of Israel (2004); FC 3140/03 (Tel-Aviv) In the matter of R.A. & L.M.F (2004); FC (Beer-Sheva) 8510/01 In the matter of A & G (2002). For cases refusing to recognize same-sex couples as reputed spouses for purposes of the Family Court Law see e.g., FamC (Tel-Aviv) 16610/04 A v. Attorney-General (2005).

  80. 80.

    Prior to the establishment of the Family Court, civil family matters were under the jurisdiction of the District Court, so that an appeal to the Supreme Court was a matter of right.

  81. 81.

    The Prevention of Family Violence Law, 1991, S.H. 138.

  82. 82.

    Cf. FamC (Haifa) 32520/97, Plonit v. Almonit (1997) (holding that the Prevention of Family Violence Law applies to same-sex couples) and FamC (Ramat-Gan) 1630/08 Ploni v. Almoni (2008) (holding that same-sex couples are not to be considered as reputed spouses for purposes of the Prevention of Family Violence Law).

  83. 83.

    HCJ 693/91 Efrat v. Commissioner of the Population Registry, 47(1) PD 749 (1993); HCJ 6086/94 Nizri v. Commissioner of the Population Registry 49(5) PD 693 (1996).

  84. 84.

    Talia Einhorn, Same-Sex Family Unions in Israeli Law, 4 Utrecht L. Rev. (2008), pp. 222, 227.

  85. 85.

    The Succession Law, 1965, 19 L.S.I. 58.

  86. 86.

    See e.g. Blecher-Prigat & Shmueli, supra note 25, pp. 298–299. In case of inheritance, once there is a formal spouse, that spouse inherits, even if the spouses are separated and have other partners. Nevertheless, on August 2012, Judge Shifra Glick from the Tel-Aviv family court denied a wife’s claim to inherit after the spouses were separated for over 40 years. Estate File 108091/08 Estate of Y.A. v. R.A (Aug. 11, 2012) (unpublished officially).

  87. 87.

    F.A. 9607/03, Ploni v. Plonit, 61(3) P.D.726 (2006).

  88. 88.

    CA (Nazareth) 3245/03 Anonymous v. The Custodian Gen. (2004) [emphasis added – A.B.P].

  89. 89.

    According to Israeli law, a precedent by the Supreme court binds all the lower courts, although it does not bind the Supreme Court itself. A precedent set by the District Court instructs and directs the lower jurisdictions family courts, in this case, but they can deviate from it if they present good reasoning for doing so.

  90. 90.

    Translation is taken from International Gay and Lesbian Human Rights Commission asylum Documentation Program – Status of Sexual Minorities: Israel: http://209.85.229.132/search?q= cache:QVI-_4RS3JoJ:www.asylumlaw.org/docs/sexualminorities/Israel%2520CU%2520SO.pdf+ 3245/03+%22attorney+general%22+%22not+to+appeal%22&cd=1&hl=iw&ct=clnk&gl=il

  91. 91.

    Estate File (Be’er Sheva) 1320/08 Ploni v. Plonit (Aug. 23, 2010) (unpublished officially).

  92. 92.

    Information provided by Adv. Dan Yakir, Chief Legal Counsel Attorney for the Association for Legal Rights in Israel (ACRI). ACRI asked to file amicus brief to the appeal proceedings in the Be-er Sheva District Court.

  93. 93.

    NI (TA) 3536/04 Raz v. National Insurance Institute, (Feb. 28, 2005) (unpublished officially).

  94. 94.

    MA (TA) 369/94 Steiner v. IDF (1996).

  95. 95.

    LabC (TA) 3816/01 Levy v. Mivtahim.

  96. 96.

    As noted above, since religious law is often patriarchal in a way incompatible with modern liberal values, Israeli civil court judges have sought jurisdiction over matters relating to family life and have attempted to subject these matters to civil secular laws. One method of doing so is by characterizing various matters as civil, and giving a narrow interpretation to personal status matters. For example in developing the presumption of community property the Supreme Court characterized property relations as exogenous to “matters of marriage” over which religious laws would hold sway, and instead as questions of civil property, the provenance of secular laws. The presumption of community property was originally developed based on contractual principles according to which spouses implicitly consented to jointly own property accumulated during their marriage. Framing the issue in terms of an implied contract assisted the court in portraying the issue as a civil, rather than a personal status matter. Also, since the community property presumption was characterized as exogenous to “matters of marriage” and based on “implied contract” it was easy to apply it to unmarried cohabitants as well. See C.A. 52/80 Shachar v. Friedman P.D. 38(1) 443 (1984).

  97. 97.

    The Spouses (Property Relations) Law, 5733–1973, 27 LSI 313 (1972–1973) (hereinafter: “The Spouses Property Relations Law”).

  98. 98.

    The Family Law Amendment (Maintenance) Law, 1959, 13 L.S.I. 73 (hereinafter: “the Maintenance Law”).

  99. 99.

    LCA 8256/99 Plonit v. Ploni,. 58(2) P.D 213 (2004).

  100. 100.

    Ibid., p. 238.

  101. 101.

    HCJ 3045/05 Ben-Ari v. Ministry of the Interior, 61(3) P.D 537 (2006).

  102. 102.

    Adoption of Children Law, 1981, S.H. 293 [hereinafter: Adoption Law].

  103. 103.

    CA 10280/01, Yaros-Hakak v. Atty. Gen., P.D. 59(5) 64 (2005). See discussion of this case in Section 6.B.

  104. 104.

    Guidelines of the Attorney General regarding Adoption by Same-Sex Couples [Hebrew]: http://www.justice.gov.il/MOJHeb/News/imuz.htm

  105. 105.

    Court Grants Gay Couple Right to Adopt 30-Year-Old Foster Son: http://www.haaretz.com/hasen/spages/1070060.html

  106. 106.

    Adoption of Children Law, 1981, 35 L.S.I.360.

  107. 107.

    See discussion in part 6.B. infra.

  108. 108.

    HCJ 2078/96 Vitz v. Minister of Health (unpublished officially).

  109. 109.

    1996, S.H. 1577, 176.

  110. 110.

    HCJ 2458/01, New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of Health, 57(1) P.D. 419 (2002).

  111. 111.

    Ruth Zafran, More Than One Mother: Determining Maternity for the Biological Child of a Female Same-Sex Couple--The Israeli View, 9 Geo. J. Gender & L. 115 (2008).

  112. 112.

    Information provided by Adv. Na’ama Zoref, who represented the couple, as well as other couples who underwent this procedure. Since, there was a medical justification for fertility treatments, the National Health Insurance also covered theses treatments, although, according to Adv. Zoref, it required the intervention of the legal advisor of the Health Ministry to get the funding.

  113. 113.

    http://www.ynet.co.il/articles/0,7340,L-3812367,00.html [Hebrew].

  114. 114.

    Ibid. Egg Donation Law, 2010, section 39.

  115. 115.

    Even in a case where there was a clear need for fertility treatments, the Health Ministry did not approve a procedure in which one partner provides the egg and the other carries the pregnancy.

  116. 116.

    HCJ 5771/12 Moshe v. Approvals Comm. for Surrogate Motherhood Agreements (Sept 11, 2013).

  117. 117.

    A further hearing is a rather unique Israeli invention. Under British Mandatory rule, rulings of the local Supreme Court could be appealed to the Privy Council in London, England. This option was obviously eliminated upon the establishment of the State of Israel and its independent judicature. In a further hearing, a panel of five or more Supreme Court judges hears a matter on which the Supreme Court has already ruled in a panel of three or more judges. In a way, the further hearing was established as a substitute for the additional option of appeal to the Privy Council. Chanan Goldschmidt, Further Hearing: Theoretical and Empirical Aspects, 35 Isr. L. Rev. 320, 328–329 (2001). A petition to have a further hearing is made by a litigant, and the Chief Justice or a judge empowered by a Chief Justice decides whether to accept the petition. There is no vested right to a further hearing, and it should only be granted when “the Supreme Court makes a ruling inconsistent with a previous ruling of the Supreme Court or where the importance, difficulty, or novelty of a ruling made by the Supreme Court justifies, in their view, such a further hearing.” See Sec. 30 of the Courts Law [Consolidated Version] 1984, 38 L.S.I. 271.

  118. 118.

    FH 4252/00 Interior Minister v. Brenner Kaddish (2008).

  119. 119.

    FamC (Tel Aviv) 60320–07 T.Z. v. Attorney General (March 4, 2012) (unpublished officially).

  120. 120.

    The Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law, 1996, S.H. 176 [hereinafter Surrogacy Law] statute legalizes only gestational (full) surrogacy meaning that the egg to be used cannot be that of the surrogate mother. The egg can be either the egg of the intended mother or the egg of a donor. The sperm to be used must, however, be the sperm of the intended father. The basic premise of the Surrogacy Law is that the intended parents are the legal parents of the ensuing child. To formalize this principle, the intended parents must apply for a “parenthood order” within a week of the child’s birth. The Surrogacy Law instructs the court to grant the order unless it is persuaded that such an order would be contrary to the best interests of the child. The parenthood order recognizes the intended parents as the child’s parents in all respects.

  121. 121.

    Ruth Zafran, More Than One Mother: Determining Maternity for the Biological Child of a Female Same-sex Couple - the Israeli View, 9 Geo. J. Gender & L., (2008), 115, 159.

Bibliography

Books

  1. Elon, Menachem. 1975. The principles of Jewish Law. Jerusalem: Keter Publishing House.

    Google Scholar 

  2. Halperin-Kaddari, Ruth. 2004. Women in Israel: A state of their own. Philadelphia: University of Pennsylvania Press.

    Google Scholar 

  3. Rubinstein, Amnon, and Barak Medina. 1997. The constitutional law of the State of Israel, vol. I, 5th ed. (Hebrew).

    Google Scholar 

Articles

  1. Barak-Erez, Daphna. 1995. From an unwritten to a written constitution: The Israeli challenge in American perspective. Columbia Human Rights Law Review 26: 309.

    Google Scholar 

  2. Blecher-Prigat, Ayelet, and Benjamin Shmueli. 2009. The interplay between tort law and religious family law: The Israeli case. Arizona Journal of International and Comparative Law 26: 279.

    Google Scholar 

  3. Blecher-Prigat, Ayelet. 2014. A basic right to marry: Israeli style. 47 Israel Law Review 433.

    Google Scholar 

  4. Dorner, Dalia. 2003. Between equality and human dignity, Shamgar Book 9 (Articles, vol. 1).

    Google Scholar 

  5. Dotan, Yoav. 2005. The spillover effect of bills of rights: A comparative assessment of the impact of bills of rights in Canada and Israel. American Journal of Comparative Law 53: 293.

    Google Scholar 

  6. Einhorn, Talia. 2008. Same-sex family unions in Israeli law. Utrecht Law Review 4: 222.

    Google Scholar 

  7. Goldschmidt, Chanan. 2001. Further hearing: Theoretical and empirical aspects. Israel Law Review 35: 320.

    Google Scholar 

  8. Halperin-Kaddari, Ruth. 2001. Towards concluding civil family law – Israel style. Mehkarei Mishpat 17: 105.

    Google Scholar 

  9. Karp, Yehudit. 1992. Basic law: Human dignity and freedom — A biography of power struggles. Mishpat Umimshal (Law and Government) 1: 323 (Hebrew).

    Google Scholar 

  10. Karp, Yehudit. 1995. Several questions on human dignity under the basic law: Human dignity and liberty. Hebrew University Law Review (Mishpatim) 25: 129 (Hebrew).

    Google Scholar 

  11. Levontin, Eitan. 2008. Figment of the imagination: Funk-Schlezinger and civil registry law. Mishpat Umimshal (Law and Government) 11: 125.

    Google Scholar 

  12. Lifshitz, Shahar. 2003–2004. The external rights of cohabiting couples in Israel. Israel Law Review 37: 346.

    Google Scholar 

  13. Rabin, Yoram, and Yuval Shany. 2003. The Israeli unfinished constitutional revolution: Has the time come for protecting economic and social rights. Israel Law Review 37: 299.

    Google Scholar 

  14. Rosen-Zvi, Ariel. 1989. Forum shopping between religious and secular courts (and its impact on the legal system). Tel Aviv University Studies in Law 9: 347.

    Google Scholar 

  15. Rosen-Zvi, Ariel. 1995. Family and inheritance law. In Introduction to the law of Israel 75, eds. Amos Shapira, and Keren C. DeWitt-Arar. Hague: Kluwer Law International.

    Google Scholar 

  16. Sapir, Gidon. 1999. Religion and state in Israel: The case for reevaluation and constitutional entrenchment. Hastings International and Comparative Law Review 22: 617.

    Google Scholar 

  17. Shava, Menashe. 1981. Matters of personal status of Israeli citizens not belonging to a recognized religious community. Israel Yearbook on Human Rights 11: 238.

    Google Scholar 

  18. Shava, Menashe. 1983. The property rights of spouses cohabiting without marriage in Israel – A comparative commentary. Georgia Journal of International and Comparative Law 13: 465.

    Google Scholar 

  19. Shava, Menashe. 1989. Civil marriage celebrated abroad: Validity in Israel. Tel-Aviv University Studies in Law 9: 65.

    Google Scholar 

  20. Shifman, Pinhas. 1980. Religious affiliation in Israel interreligious law. Israel Law Review 15(31).

    Google Scholar 

  21. Sommer, Hillel. 1997. The non-enumerated rights: On the scope of the constitutional revolution. Hebrew University Law Review 28: 257 (Hebrew).

    Google Scholar 

  22. Zafran, Ruth. 2008. More than one mother: Determining maternity for the biological child of a female same-sex couple–the Israeli view. Georgetown Journal of Gender and the Law 9: 115.

    Google Scholar 

Cases

  1. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

    Google Scholar 

  2. C.A. 191/51 Skornik v. Skornik, P.D. 8 141 (1954).

    Google Scholar 

  3. C.A. 52/80 Shachar v. Friedman, P.D. 38(1) 443 (1984).

    Google Scholar 

  4. C.A. 2000/97 Lindorn v. Karnit, 55(1) P.D. 12 (1999).

    Google Scholar 

  5. CA 6821/93 Bank Hamizrachi Ltd. v. Migdal et al. P.D. 49(4) 221 (1995).

    Google Scholar 

  6. CA 2316/95 Ganimat v. the State of Israel, P.D. 49(4) 589 (1995).

    Google Scholar 

  7. CA 3077/90 Plonit v. Plonit, P.D. 49(2) 578 (1995).

    Google Scholar 

  8. CA 2622/01 Manager of Land Betterment Tax v. Levanon, P.D. 57(5) 309 (2003).

    Google Scholar 

  9. CA (Nazareth) 3245/03 Anonymous v. The Custodian Gen. (2004).

    Google Scholar 

  10. CA 10280/01 Yaros-Hakak v. Atty. Gen., P.D. 59(5) 64 (2005).

    Google Scholar 

  11. C.C. (Jerusalem) 2/85 Kleidman v. Kleidman, P.M. 1979(b) 377 (1985).

    Google Scholar 

  12. CCT 60/04 Minister of Home Affairs v. Fourie 2006 (3) BCLR (CC) at 27 (S. Afr.).

    Google Scholar 

  13. EF (Estate File) (Be’er Sheva) 1320/08 Jhon Dow v. Jane Dow, [Aug. 23, 2010] (unpublished officially).

    Google Scholar 

  14. EF (Estate File) (Tel-Aviv) 108091/08 Estate of Y.A. v. R.A., [Aug. 11, 2012] (unpublished officially).

    Google Scholar 

  15. Egale Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472 (C.A.).

    Google Scholar 

  16. F.A. 9607/03 Ploni v. Plonit., P.D. 61(3) 726 (2006).

    Google Scholar 

  17. FamC (Haifa) 32520/97 Roe v. Doe (1997).

    Google Scholar 

  18. FamC (Beer-Sheva) 8510/01 In the matter of A & G (2002).

    Google Scholar 

  19. FamC (Tel-Aviv) 6960/03 K.Z. v. State of Israel (2004).

    Google Scholar 

  20. FamC (Tel-Aviv) 3140/03 In the matter of R.A. & L.M.F (2004).

    Google Scholar 

  21. FamC (Tel-Aviv) 16610/04 A v. Attorney-General (2005).

    Google Scholar 

  22. FamC (Ramat-Gan) 1630/08 Roe v. Doe (2008).

    Google Scholar 

  23. FamC (Tel-Aviv) 23849-08-10 Y.K. v. B. Sh. K. [Oct. 9, 2011] (unpublished officially).

    Google Scholar 

  24. FamC (Tel-Aviv) 35371-02-10 A.A L. B. v. Ch. B. [Oct. 11, 2011] (unpublished officially).

    Google Scholar 

  25. FamC (Rishon Lezion) 9877/02P.E. v. P. Y. (Aug. 17, 2011) (unpublished officially).

    Google Scholar 

  26. FH 4252/00 Interior Minister v. Brenner Kaddish (2008).

    Google Scholar 

  27. Goodridge v. Dep’t of Pub. Health, 798 N.E. 2d 941 (Mass. 2003).

    Google Scholar 

  28. Halpern v. Attorney General of Canada (2002), 60 O.R. (3d) 321 (Div. Gen) (Ontario).

    Google Scholar 

  29. HCJ 143/62 Funk Shlezinger v. Minister of the Interior, P.D. 17 225 (1963).

    Google Scholar 

  30. HCJ 3/73 Cahanoff v. the Rabbinical Court, P.D. 29(1) 449 (1974).

    Google Scholar 

  31. HCJ 51/80 Cohen v. Rabbinical High Court of Appeals, P.D. 35(2) 8 (1980).

    Google Scholar 

  32. HCJ 693/91 Efrat v. Commissioner of the Population Registry, P.D. 47(1) 749 (1993).

    Google Scholar 

  33. HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz, P.D. 48(5) 749 (1994).

    Google Scholar 

  34. HCJ 6086/94 Nizri v. Commissioner of the Population Registry, P.D. 49(5) 693 (1996).

    Google Scholar 

  35. HCJ 1779/99 Brener-Kadish v. Minister of the Interior, P.D. 54(2) 368 (2000).

    Google Scholar 

  36. HCJ 2458/01, New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of Health, P.D. 57(1) 419 (2002).

    Google Scholar 

  37. HCJ 7052/03 Adalah v. Minister of Interior, P.D. 61(2) 202 (2006).

    Google Scholar 

  38. HCJ 3045/05 Ben-Ari v. Ministry of the Interior, P.D. 61(3) 537 (2006).

    Google Scholar 

  39. HCJ 2232/03 Plonit v. The Regional Rabbinical Court Tel Aviv, P.D. 61(3) 496 (2006).

    Google Scholar 

  40. HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, P.D. 61(3) 619 (2006).

    Google Scholar 

  41. HCJ 2078/96 Vitz v. Minister of Health, (unpublished officially).

    Google Scholar 

  42. Hendricks and Leboeuf v. Quebec (Attorney General), [2002] R.J.Q. 2506 (C.S.) (Quebec).

    Google Scholar 

  43. LabC (TA) 3816/01 Levy v. Mivtahim.

    Google Scholar 

  44. LCA 8256/99 A v. B, P.D. 58(2) 213 (2004).

    Google Scholar 

  45. LCA 3497/09 John Dow v. Jane Dow, [May 4, 2011] (unpublished officially).

    Google Scholar 

  46. MA (TA) 369/94 Steiner v. IDF (1996).

    Google Scholar 

  47. NI (TA) 3536/04 Raz v. National Insurance Institute, [Feb. 28, 2005] (unpublished officially).

    Google Scholar 

Legislation

  1. Adoption of Children Law, 1981, 35 L.S.I. 360.

    Google Scholar 

  2. Basic Law: Human Dignity and Liberty, 1992, S.H. 150.

    Google Scholar 

  3. Basic Law: Freedom of Occupation, 1992, S.H. 114.

    Google Scholar 

  4. Basic Law: Freedom of Occupation, 1994, S.H. 90.

    Google Scholar 

  5. Egg Donation Law, 2010.

    Google Scholar 

  6. Jurisdiction in the Matter of Dissolution of Marriage (Special Cases & International Jurisdiction) Act of 1969.

    Google Scholar 

  7. Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, 23 L.S.I..

    Google Scholar 

  8. Palestinian Order in Council, Articles 46, 47, 64(2).

    Google Scholar 

  9. Partnership Covenant for the Religionless Law, 2010.

    Google Scholar 

  10. Population Registry Law, 5725–1965, 19 LSI 288 (1964–65) (Isr.).

    Google Scholar 

  11. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law-1953, 7 L.S.I 139.

    Google Scholar 

  12. The Courts Law (Consolidated Version), 1984, 38 L.S.I. 271.

    Google Scholar 

  13. The Family Courts Law, 1995, S.H. 393.

    Google Scholar 

  14. The Family Law Amendment (Maintenance) Law, 1959, 13 L.S.I. 73.

    Google Scholar 

  15. The Prevention of Family Violence Law, 1991, S.H. 138.

    Google Scholar 

  16. The Spouses (Property Relations) Law, 5733–1973, 27 LSI 313 (1972–1973).

    Google Scholar 

  17. The Succession Law, 1965, 19 L.S.I. 58.

    Google Scholar 

  18. The Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law, 1996, S.H. 1577, 176.

    Google Scholar 

Others

  1. Edelman, Ofra. 2009. Court Grants Gay Couple Right to Adopt 30-Year-Old Foster Son, Haaretz, Mar. 11, www.haaretz.com/hasen/spages/1070060.html.

  2. Gross, Aeyal. 2006. Israel’s supreme court orders registration of same-sex marriage conducted in Canada, Lesbian/Gay law notes 226.

    Google Scholar 

  3. International Gay and Lesbian Human Rights Commission, asylum Documentation Program – Status of Sexual Minorities: Israel, available at www.asylumlaw.org/docs/sexualminorities/Israel%20CU%20SO.pdf.

  4. www.ynet.co.il/articles/0,7340,L-3812367,00.html [Hebrew].

  5. Yoram Yarkoni, Gay couple turns to rabbis for divorce, Ynet News, July 9, 2012, www.ynetnews.com/articles/0,7340,L-4276046,00.html.

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  1. Sha’arei Mishpat Law School, Hod HaSharon, 4510201, Israel

    Ayelet Blecher-Prigat

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    Macarena Sáez

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Blecher-Prigat, A. (2015). Same-Sex Relationships and Israeli Law. In: Sáez, M. (eds) Same Sex Couples - Comparative Insights on Marriage and Cohabitation. Ius Gentium: Comparative Perspectives on Law and Justice, vol 42. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9774-0_6

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