The High Court of Justice on Tuesday handed down a landmark decision declaring for the first time that civil marriages by Israeli Jews conducted abroad are legally valid in Israel and establishing a clear civil divorce procedure for such couples.
According to current Israeli law, the state will only recognize the marriages of Jewish Israeli citizens wishing to marry in Israel if it is performed by the Rabbinate. Civil marriage does not exist.
Many Israeli couples who do not want to be married by a rabbi wed abroad, in countries that are prepared to marry couples where neither partner is a citizen of that country.
According to routine practice, Israeli couples who marry abroad may register themselves at the Interior Ministry as married in the Population Registry and on their identity cards. To all intents and purposes, the state regards these couples as married, even though until now there has been no clear statement about the legality of this practice.
Furthermore, there has been no consistent practice in Israel as to how such couples may divorce. According to the law, only the Rabbinate may divorce couples, even those who were not married according to halacha [Jewish law].
In some cases, the Rabbinate has treated divorce applications from couples married in civil marriages abroad as if they had been married halachically. In other cases, it has declared that the couple was not married in the first place and that no divorce was necessary.
Tuesday's landmark High Court ruling came in the wake of a petition submitted in 2003 by an Israeli Jewish woman who was married to an Israeli Jewish man in a civil ceremony in Cyprus. In 2002, the man filed a request in the Tel Aviv District Rabbinical Court, asking it to issue a declaration stating that the two were not in a state of marriage because they had not been married in accordance with halacha. The court granted the request. The woman appealed the decision to the Supreme Rabbinical Court.
The Supreme Rabbinical Court ruled that the lower court could not suffice with a declaration that the couple was never married. It ordered the lower court to hand down a formal ruling dissolving the marriage.
In response, the woman petitioned the High Court of Justice demanding that the new ruling be overturned because it was based solely on the husband's request for a divorce and various other reasons.
The High Court then asked the Supreme Rabbinical Court for clarifications regarding its ruling. In its response, the Supreme Rabbinical Court told the High Court that a member of a couple married in a civil marriage could not remarry until the civil marriage was dissolved. The Rabbinical Court was the only institution that could dissolve such a marriage and it had to do so by handing down an explicit ruling dissolving the marriage. It could not declare that there had never been a marriage. The Supreme Rabbinical Court also stated that a sufficient cause for dissolving the marriage was that the relations between the couple were irreparable.
In their ruling on Tuesday, a panel of three justices headed by retired Supreme Court President Aharon Barak accepted the principles of the Supreme Rabbinical Court decision. It also added several clarifications. According to the Supreme Rabbinical Court ruling, the rabbinical courts may grant a divorce in the sense that each partner would be free to remarry. However, such a divorce, which was not a full halachic divorce, could not deal with the financial and other "internal" arrangements that the couple must reach in the process of splitting up. These matters would be dealt with by the civil courts according to the Contract Law and similar legislation, the justices ruled.
Secondly, Barak wrote that the religious courts must take civil marriages seriously when deciding whether to allow them to dissolve. "The religious court must do everything possible to continue the civil marriage between the sides," wrote Barak. "These marriages receive legal backing whose aim is to safeguard the stability of the marriageâ€¦Civil marriages create a family cell which is worthy of the support and protection of the judicial system."
Attorney and Rabbi Gilad Kariv of the Progressive Movement's Religious Action Center welcomed the ruling.
"The High Court of Justice has granted a complete certificate of legitimacy to Israeli-Jewish civil marriages abroad and determined for the first time that the secular and religious courts must recognize these marriages as valid," he said. "The High Court recognized that given the importance of the right to family life and the fact that thousands of Israelis choose to marry abroad, we must recognize the validity of such marriages."
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