Ruling challenges right of homosexual to partner’s estate

By DAN IZENBERG
October 7, 2010 04:54

Beersheba Family Court judge refuses to recognize landmark district court ruling; ACRI: Decision sets back gay rights ‘many decades.’

3 minute read.



Ruling challenges right of homosexual to partner’s estate

gay flag 88. (photo credit: AP)

A Beersheba Family Court judge refused on Tuesday to recognize a landmark district court ruling on the inheritance rights of homosexual couples and rejected the petition of a man who demanded part of the estate of his alleged partner after the partner’s death.

The case involved a man who claimed to have a right to part of the dead man’s property for various reasons, including the fact that the two had shared their lives for many years and were known in the homosexual community as a couple.

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According to the law, the names of litigants in family court may not be revealed.

Dan Yakir, the legal adviser of the Association for Civil Rights in Israel, charged that the decision, handed down by Judge Yeshayahu Tischler, “is trying to turn back judicial law by many decades. Its implication is to discriminate against same-sex couples, precisely in a reality in which many homosexual couples hide in the closet.

“The judges ought to take into consideration the complexity of this situation and not bang more nails into the closet.”

The landmark decision that first recognized the right of a homosexual partner to inherit his mate’s property was handed down in 2004 by the Nazareth District Court, in an appeal against a lower court ruling that had rejected the request. In a two-to-one decision, Deputy Nazareth District Court President Nissim Maman and Judge Gabriell Levy ruled that even though the inheritance law refers to the marriage of a male and a female, the aim of the law was to grant inheritance rights to those who lived together and shared their lives, whether in heterosexual, common-law or homosexual situations.

“The interpretation of the law that I favor is that the expression ‘man and woman’ served the lawmaker because of lack of awareness that other, more complex, situations might exist.

It was a verbal way of saying that anyone who maintains a family life and is not married should enjoy the rights granted by the law,” Maman wrote. “Thus, members of the same sex living in common- law situations are also included.”

Tischler rejected the man’s inheritance claim on several grounds. He did not necessarily have to reject the Nazareth District Court ruling in order to do so.

However, he specifically referred to Maman’s ruling in order to dispute his arguments and provide another reason for rejecting the petition before him.

“I will roll over seven times and still not understand how one can ‘stretch’ the linguistic interpretation of the expression ‘man and woman’ to one that includes same-sex couples,” Tischler wrote.

Furthermore, he added, “The basic assumption of [Maman’s] ruling is that the spirit of the times has changed, that social values have changed. Since the [inheritance] law was passed, we have started to live more openly, more enlightened, more liberal and that now the ‘spirit of the times’ is ripe for interpretation, whereby the term ‘man and woman’ ‘tolerates’ an interpretation so that the intention [of the law] is any couple, even if they are of the same sex.

“And I wonder: Where does this come from? Indeed, perhaps the public is more tolerant today regarding the reality of same-sex couples than it was when the law was passed in 1965.

“But can it truly be said that this reality reflects the accepted values and norms of society? My opinion is that the legitimate interpretation of the expression ‘man and woman’ allows for only one conclusion: male and female. Any other interpretation seems to me to be forced, even if it comes to serve the aim of advancing liberal values and social openness.”

Tischler added that “life experience has taught us that if the key does not fit the lock, we are left with the key alone and the lock alone.”

Only the Supreme Court is empowered to establish binding legal precedent.

There is nothing to prevent the lower courts from passing conflicting rulings.


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