Gay divorce approved for second time in Israel's history

Court sidesteps issue of gay marriage since not clear Israeli law could recognize it.

By YONAH JEREMY BOB
Gay Pride flags 370 (photo credit: Ronen Zvulun / Reuters)
Gay Pride flags 370
(photo credit: Ronen Zvulun / Reuters)
Tel Aviv Family Court Judge Naftali Shilo handed down the second court decision in the country’s history approving the divorce of a homosexual couple, on Monday.
In December 2012, a three judge panel of Yehezkel Eliyahu, Amit Kama and Uzi Even, also of the Tel Aviv Family Court, handed down the first such decision.
Their decision set no binding precedent, and the issue had not been ruled on since.
“It is important because with no binding precedent, another decision in this spirit plus additional such decisions can start to create more of a clear trend,” said Professor Ruth Halperin- Kaddari, head of the Rackman Center for the Advancement of the Status of Women.
The names of the couples are under a gag order.
There was, however, a question that preceded the approval of a gay divorce: by doing so, one might acknowledge gay marriage. Shilo took a conservative legal route to arrive at his conclusion.
Halperin-Kaddari said that the court’s decision showed a somewhat greater “hesitation,” in that the court did not simultaneously recognize the couples’ gay marriage in order to approve their divorce.
Rather, the court said that it would sidestep the issue of gay marriage since it was not clear that Israeli law could recognize it, and that it was approving the divorce by merely ordering the Registrar to strike the couple’s married status from its list.
The court said that its main concern was that the law needed to provide a way for the couple to get divorced.
Since it was unclear whether the foreign country where they were originally married, or the rabbinical courts, would even hear the issue, the practical resolution, of removing them from the Registrar’s list of married couples, rested with the Israeli civil courts.
The court said, therefore, it was giving a declarative order for the Registrar to remove them, without formally recognizing their marriage, other than the fact that they had been registered.
Both of the court decisions quoted Halperin-Kaddari as having fleshed out the theory that the Israeli civil courts obtain “residual” jurisdiction of the issue, by the failure of the other competing jurisdictions to contemplate the issue at all.
The court focused heavily on the procedural issue that gay couples must go through in order to get their divorces approved, but Halperin-Kaddari said that this part of the court’s opinion was “a fiction, and was more forced.”
The court said “it does not recognize gay marriage, but also gives declarative relief.”
She said that this distinction from the court was essentially a “purely legal question with little real world significance inside Israel” and that the existence of a certain number of gay married persons in Israel made such legal fine points obsolete.
In December 2012, Eliyahu wrote that the court approved the gay divorce since the registration of the marriage showed recognition of the marriage, and that recognizing the right to divorce was merely part of recognizing rights that sprang from the marriage.
Both court rulings relied on the High Court of Justice’s Ben- Ari case.
In that case, the court ordered the official population registrar to register five homosexual couples who had been married in Canada as married, instead of single.
Eliyahu said that it was inconceivable that the courts would permit a homosexual couple to get married and then prevent that couple from dissolving the marriage, thus remaining trapped together.
The court stated that such a result would violate fundamental rights and liberties of the individual, underlying the basic laws, as well as the state’s basic values of justice and equality.
In other words, approving divorce was “just the other side of the coin” of having permitted homosexual marriage.