Civil Marriage in Israel
There is currently no possibility to have a civil marriage in the State of Israel.
After the establishment of the State, the directive from the days of the British Mandate was adopted, although part of it was replaced by Israeli law. Nevertheless, sections of the directive are still valid even today. Article 51 in the King’s speech in The Palestine Order in Council, 1922-1947 states as follows:
Subject to the provisions of Articles 64 to 67 inclusive jurisdiction in matters of personal status shall be exercised in accordance with the provisions of this part by the courts of the religious communities. For the purpose of these provisions matters of personal status mean suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation of minors, inhibition from dealing with property of persons who are legally incompetent, and the administration of the property of absent persons.
We can see that in matters of “personal status,” which also include marriage and divorce, the religious court has the authority to decide on them and the verdict that it shall reach is the religious law.
From this we can see that there is absolutely no possibility to have a civil marriage ceremony in Israel.
Affiliation with a Religion
Affiliation with a certain religion will be determined by that religion.
It is possible that a person belongs to two religions (a person whose mother is Jewish and father is Muslim). In cases like this when that person has dual religion, the question is which religious law applies to that person?
In the case of dual religion, the test employed is the “effective religion test,” in which we examine the behavior and actions of the person and see which is the effective and prominent religion in his life. The religion to which he is most attached is the religion that applies to that person (Al-Safadi vs. Binyamin).
A person who belongs to a certain religion cannot claim that he does not want the law or jurisdiction of that religion to which he belongs to apply to him in terms of personal status.
For example: when a Jewish couple have a private civil marriage ceremony, they cannot claim that they do not want the Jewish law or the jurisdiction of the rabbinical court to apply to them (Rogozinsky vs. The State of Israel). Therefore, as we will see below, when the couple wants to divorce they will be forced to go to the rabbinic court for this purpose.
Marriage and Divorce of Jews
Since marriage and divorce are related to personal status, for Jewish couples the authority to decide on these topics belongs to the rabbinical court and the law that applies here is Jewish law.
The Rabbinical Jurisdiction Law (Marriage and Divorce), 1953 states as follows:
- “Matters of marriage and divorce for Jews in Israel, citizens or residents of the State, will be under the sole jurisdiction of the rabbinical courts.”
- “Marriage and divorce of Jews will take place in Israel in accordance with Torah law.”
Torah law does not recognize the following types of marriage at all:
- Marriage of Jews in a non-religious ceremony (civil marriage); however, in the case of divorce one must turn to the rabbinical court in order to receive a divorce ruling (Supreme Court on “Noah sons”)
- Mixed marriage (only one of the spouses is Jewish)
- Same-sex marriage
The only way for the couples listed above to get married is through a civil marriage ceremony, something that is impossible in the State of Israel. However, and as will be explained further on, different marriage options exist.
It is important to note that in marriage and divorce, even people belonging to other religions in Israel are subject to the religious law and religious court of the religion to which they belong.
Civil Marriage Abroad and Registration with the Population Registry in Israel
Since there is no civil marriage in Israel, the only way to have this type of marriage is to do so outside of the country. When a couple marries through a civil marriage in a foreign country, this marriage is accepted as valid only in regards to registration with the Population Registry in Israel.
In the case of Funk-Schlesinger vs. The Minister of Interior it was decided that registration in the Population Registry is a technical matter, thus if evidence of marriage is brought to the Manager’s Office (for example: marriage certificate from the place it was issued), they must register the couple as married in the Population Registry.
Even same-sex couples who got married in a civil ceremony outside of Israel will be registered in the Population Registry as married after presenting a marriage certificate as evidence that the marriage took place (Ben-Ari vs. Director of the Population Administration).
Drafting a Prenuptial Agreement by a Couple Married in a Civil Ceremony
Couples who married in a civil ceremony can draft a prenuptial agreement (according to Property Relations Between Spouses Law, 1973 ) and bring it to the family court for approval, so as to prove that they are a married couple. Couples can present the marriage certificate they posses or, alternatively, they can present their registration with the Population Authority as married (Cohen vs. The Attorney General of Israel).
Spousal Support in Civil Marriage
Spousal support is connected with civil status and therefore religious law applies to it. Since, as a rule, Jewish law does not recognize civil marriage, no obligation of alimony to the any of the spouses applies.
Israeli law has made two rulings on this matter:
- The spouses were Israeli citizens at the time of marriage
In case 8256/99 Anonymous vs. Anonymous it was ruled that the matter of “civil alimony”
would apply in the event that the couple separated:
The couple is not two passers by who encounter because of a car accident. The couple wanted to live a shared life together. The demands of integrity, considerations of decency, and a sense of justice by Israeli society lead to the conclusion that the obligation of paying alimony applies. This obligation has been recognized as a matter of public interest and must also apply to spouses, citizens and residents of Israel who have married in a civil ceremony outside of Israel while their marriage does not take place according to Jewish law.
We see that it is possible that the financially “strong” spouse may be required to pay alimony to
the “weak” spouse after the separation, and this is by virtue of the good faith principle.
- The spouses are citizens of the country in which they were married (not Israeli citizens)
When there is one party that proves weakness and financial need and the religious law of the
second party exempts him from spousal alimony, it will be possible to require him to pay it by
virtue of the “human dignity” principle which is based on a fundamental law: Human Dignity
and Liberty. In such a case, that spouse will be required to pay alimony according to the
provisions of the Family Law Amendment (Child Support), 1959.
Child Support in Civil Marriage
Child support is part of the matters related to civil status, and thus the religious law of each one of the parents applies to it. In the event that the religious law exempts a parent from paying child support, the provisions of the Family Law Amendment (Child Support), 1959 will apply to that parent, just as it states in Section 3(B) of the law:
A person who is not obligated to pay alimony for his minor children and the minor children of his spouse according to the provisions of the law that apply to him personally, or no law applies to him personally, must pay their alimony, and the provisions of this law will apply to those alimonies.
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