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
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
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.
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
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
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
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
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
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
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.
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.
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