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Marriage and Divorce in Israel*

  • Isaac S. Shiloh

Extract

The Israel Law of Marriage and Divorce is unique in many aspects. In European and European-based systems of law, the rivalry between Church and State ending in the triumph of the State over the Church is a matter of past history. Ecclesiastical courts were long ago deprived of jurisdiction in matters of marriage and divorce. Canon law, nevertheless, continues to this day to be the source of the law of the land in this field in all jurisdictions of both Roman civil and common law, even after the pollution and dilution in varying degrees of such source by the secular powers. Principles rooted in canon law were incorporated wholesale in the secular law of the land, and thus made to apply to the entire population irrespective of individual religious affiliation. The continuous activity of a single system of lay courts dealing with matrimonial issues in the course of its general preoccupation with the administration of justice, utilizing a single set of laws of evidence and rules of procedure, gradually welded the principles taken over from the canon law and die law emanating from other sources into one homogeneous body.

Israel alone, among all Western systems of law, retains the law relating to the creation, incidences and termination of the matrimonial status in its almost unadulterated form of religious precepts, and maintains a ramified system of religious tribunals for the administration thereof. This enables nearly all to achieve either marital bliss or, if necessary, the happiness resulting from the dissolution of a miserable marriage in the manner sanctioned by the authorities of their own religious denomination.

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1 Article 9 of the Mandate for Palestine contains the following provision: “Respect for the personal status of the various peoples and communities and for their religious interests shall be fully guaranteed.” The rigidly conservative attitude of the British Mandatory legislator may also be attributed to an over-literal interpretation of the above provision. Nevertheless, whenever the Mandatory Power saw reason to deviate from the strict injunctions of the Mandate, it found a way to do so.

2 But, while under the Mandatory regime the legislator took care not to “abrogate” any part of the Mejelle, based as it was on Moslem religious law (see Meron, , “The Mejelle Tested by its Application1970 5 Is.L.R. 203) and merely declared that certain sections “shall no longer apply in Palestine”, the Israel legislator has no such qualms.

3 Compare the form of oath of office taken by judges of the civil courts with that taken by members of the rabbinical courts as set out below. The difference between them was the result of a long and bitter struggle for the assertion of the supremacy of religious law in its own sphere. Judges Law, 1953, sec. 11: “I undertake to keep faith to the State of Israel and its laws, to do justice, etc.”; Rabbinical Court Judges Law, 1955, sec. 10: “I undertake to keep faith to the State of Israel, to do justice, etc.”. It will be noticed that an express undertaking to abide by the laws of the State of Israel, i.e. the whole body of secular law, is omitted in the formula of the oath of office taken by Rabbinical court judges. This is, of course, a mere notional concession to the extreme sensitivity of organized Orthodox public opinion, revealing to what length the legislature is prepared to go for the sake of internal peace and cohesion. Any judgment by a Rabbinical court given in disregard of a secular norm, could of course be of no effect and in certain cases, could even render the judges of the Rabbinical court who are party thereto liable to criminal prosecution.

4 By the Treaty of San Remo at the end of World War I.

5 United Nations, General Assembly, Resolution (181 (II) (A) on the Future Government of Palestine, adopted at the 128th plenary Meeting, Nov. 29, 1947.

6 Personal Status (Consular Powers) Regulations, sec. 4(b) Drayton, , The Laws of Palestine III, p. 2605.

7 They are the following communities: (a) Eastern (Orthodox); (b) Latin (Catholic); (c) Gregorian Armenian; (d) Armenian (Catholic); (e) Syrian (Catholic); (f) Chaldaean (Uniate); (g) Jewish; (h) Greek Catholic Melkite; (i) Maronite; (j) Syrian Orthodox. Some of the Christian communities are no more than splinter sects with a negligible following in Israel, lacking a separate body of canon law of their own and do not maintain religious courts of their own. Such minor communities utilize the services of religious courts of major Christian communities akin to them in dogma and background and adhering to a common or similar body of canon law. Christian communities enumerated under (d), (e), (f) and (j) above do not maintain religious courts of their own in Israel.

8 1962, 17 L.S.I. 27.

9 By Order under the Palestine Order-in-Council, 1922–1947, dated April 19, 1970 published on May 7, 1970 in 1970 K.T. 2557, p. 1564. The Evangelical Episcopal Church was recognized in Jordan, and recognition in Israel follows so as not to abridge the rights and privileges of members of this Church nearly all of whom came under Israeli jurisdiction after the Six Day War. Adherents of the Evangelical Episcopal Church living in Israel number about 900. The Evangelical Episcopal Church does not at present maintain any religious court in Israel.

10 a) Moslem Religious Courts. Art. 52 of the Palestine Order-in-Council. “Moslem Religious Courts shall have exclusive jurisdiction in matters of personal status of Moslems who are Palestinian citizens or foreigners who under the law of their nationality are subject in such matters to the jurisdiction of Moslem Religious Courts…” b) Jewish Religious Courts. Art. 53 of the Palestine Order-in-Council. “The Rabbinical Courts of the Jewish Community shall have exclusive jurisdiction in matters of marriage and divorce and alimony…of members of their Community other than foreigners…” c) Christian Religious Courts. Art. 54 of the Palestine Order-in-Council. “The Courts of the several Christian Communities shall have exclusive jurisdiction in matters of marriage and divorce and alimony…of members of their Community other than foreigners.…”

11 (1955) 9 P.D. 1361.

12 In P.S. 208/70 Cf. Shava, M., “The Law of Jurisdiction in Cases of Annulment of Marriage (Special Cases): 1969”, (1970) 26. HaPraklit, 302 at p. 307.

13 In a recent case (P.S.T.A. 1221/68, judgment delivered on May 5, 1970—not yet reported) the District Court of Tel Aviv dealt with a petition for annulment of a marriage celebrated in Egypt in a Syrian Orthodox Church between two Israeli nationals domiciled in Israel, the groom being a member of the Greek Orthodox Community and the bride a Jewess. The case was referred to the District by the President of the Supreme Court acting under the provisions of art. 55 of the Palestine Order-in-Council, 1922, shortly before the Jurisdiction in Matters of Dissolution of Marriage (Special Cases) Law, 1969, came into force, but was argued thereafter. The position of the District Court trying to find a body of law applicable was most unenviable and the following observations by the court on the matter may perhaps merit quotation:

“Thus we see that it does not suffice to invest the District Court with jurisdiction in matters of dissolution of marriage. It is imperative to lay down substantive rules to guide the court when dealing with matters entrusted to it by virtue of such jurisdiction. In other words: There is a need for a general civil law in the field of dissolution of marriage. Secular laws of marriage and divorce throughout the civilized world are anchored in religious law and it seems that it would also behove us to base the secular law in this field upon the rules of Jewish law. But the legislator would perhaps be wiser if—at least for the present and only as regards divorce and dissolution of marriage—he would refer the District Court to the rules of divorce and dissolution of marriage in Jewish law, excluding naturally rules of specific religious character which in any event could not apply whenever at least one of the parties is a non-Jew. A comparison between the rules of Jewish Law (exclusive of rules of a specific religious character) and the secular laws obtaining in civilized countries throughout the world will show that the Jewish Law in this field surpasses others in liberality and compassion. The proclamation thereof as the law of the land would thus inure to the benefit of the population as a whole.”

14 See Marriage and Divorce (Registration) Ordinance, sec. 2, Drayton, , The Laws of Palestine II, pp. 903904.

15 Cf. n. 6 supra.

16 See e.g., Funk Schlesinger v. Minister of Interior (1962) 17 P.D. 225; Skornik v. Skornik (1954) 8 P.D. 141.

17 Yadin, U., “Law of Succession”, (1966) 1 Is.L.R. 132. In a recent judgment of the District Court of Tel Aviv (P. 1180/69—not yet reported), it was suggested that succession rights between unmarried couples living together as husband and wife as provided by the Succession Law of 1965 (secs. 55 and 57 (c)) derive from the attitude adopted by the Jewish law toward such relationships. Intercourse with intent to create a valid marriage is one of the three methods of contracting a valid marriage under Jewish law. This specific method was discouraged and is no longer practised; but wherever its elements are duly proved the results would amount to a valid marriage according to Jewish law and—in the case of Jews—by the general law. The ex post facto recourse to this dormant rule of law enabling a marriage to be established in such circumstances in order to regularize the relationship between the parties for purposes of succession lacks the elements of repugnance inherent in this method as considered a priori. To quote the above judgment: “It is perhaps permissible to go as far as to say: The legislator aimed—in as much as the succession law applies to Jews—to revive the institution of Jewish law called ‘marriage by intercourse’ in order to regularize the relationship of unmarried couples living together as husband and wife at least after the death of one of the parties, and to invest such relationship with the legal results flowing from ordinary marriage in respect of property rights. The institution of ‘;marriage by intercourse’ was resorted to after long abeyance for the purpose of recognition by the Halacha of civil marriages between Jews, especially in countries where the authorities place difficulties in the way of religious marriages…. Indeed, from earliest times spokesmen of the Halacha frowned upon this method of contracting a marriage and labelled as ‘impudent’ those who resorted thereto. But that concerned a priori cases. Ex post facto cases are different, for here resort to this institution has for its purpose merely the provision of a lawful understructure to a situation which otherwise would lack a legal framework and is even considered by many as immoral. The purview of section 55, applying as it does to gentile and mixed couples as well, is wider than the extent of the specific Jewish law institution of marriage by intercourse, but this fact would not be a valid consideration for negativing the adoption of the idea of ‘marriage by intercourse’ as a guideline for the secular law in suitable circumstances.”

18 Marriage Age Law, 1950, (as amended), 4 L.S.I. 158–160.

19 Criminal Law Amendment (Plural Marriages) Law, 1959, 13 L.S.I. 144.

20 Passed on June 24, 1969, L.S.I. 150. This law abolished section 9(1) of the Civil Wrongs Ordinance, 1944, which provided that “no action in respect of any civil wrong committed before or during the subsistence of a marriage shall be brought by either party thereto or any person representing his or her estate against the other party thereto or any person representing his or her estate”. Sec. 9 (1) embodied the rule of common law in force at the time of the enactment of the Civil Wrongs Ordinance, 1944. That rule was later abolished in England by the Law Reform (Husband and Wife) Act, 1962. See Livneh, (1970) 5 Is.L.R. 457.

21 Per Justice Berinson in Berger v. Director of Estate Tax (1965) (II) 19 P.D. 240 at 246.

22 Bricker v. Bricker (1966) (I) 20 P.D. 589; Bareli v. Director of Estate Tax (1969) (I) 23 P.D. 393. This doctrine was to a certain extent imported from English case law, cf. Rimmer v. Rimmer (1952) 2 All E.R. 863; National Provincial Bank Ltd. v. Ainsworth (1965) 2 All E.R. 472; Cobb v. Cobb (1955) 2 All E.R. 696. See also notes by Yadin, U. in (1969) 25 HaPraklit, 442, and P. E., (1970) 5 Is. L. R., 145.

23 On July 7, 1969.

24 See note 19 above.

25 Forms of wife's separate property in Jewish Law.

26 See Elias v. State of Israel (1969) (I) 23 P.D. 562. Falk, Zeev W., “Marriage and Divorce”, Publication No. 9, Faculty of Law of the Hebrew University, Jerusalem, 1961 (in Hebrew), pp. 111et seq.

27 Mk. 10: 9, 11.

28 “Whosoever shall put away his wife saving for the cause of fornication causeth her to commit adultery; and whosoever shall marry her that is divorced committeth adultery.” Matt. 19:9.

29 Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953; Criminal Law Amendment (Plurality of Marriages) Law, 1959.

30 Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953, secs. 3, 4.

31 I.e., the issue of a union between Jewish parents which is void ab initio in Jewish law because of incest or adultery.

32 Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953, sec. 7.

33 Women's Equal Rights Law, 1951, 5 L.S.I. 171–72.

34 See (1967) 2 Is. L. R. 435.

35 Joseph v. Joseph (majority judgment), (1969) (I) 23 P.D. 804. Affirmed by the Supreme Court on Further Hearing (F.H. 23/69 on July 2, 1970), reported in Ha'aretz, August 11, 1970.

36 Criminal Law Amendment (Plurality of Marriages) Law, 1959, sec. 7.

37 Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953, sec. 6.

38 Yeb. 110b; Git. 33a; BB 48b.

39 See Freimann, , Seder Kidushin VeNissuin (On Marriage Procedure) (in Hebrew), (Jerusalem: Mossad Harav Kook, 1945), 391. This learned treatise also contains a comprehensive account of attempts made in Rabbinical circles in recent generations to amend the law in this field.

40 Cf. Berkovitz's monograph, Rabbi E., Conditions in Marriage and Divorce (in Hebrew) (Jerusalem: Mossad Harav Kook, 1966).

41 From the 'Amidah Prayer, Daily Prayer Book.

42 Is. 1:26

* Lecture delivered at the First International Congress of Jewish Lawyers and Jurists, Sept. 2, 1969. Tel-Aviv. Revised July 1970.

** LL.B. (Hons.); of the Middle Temple, Barrister-at-law, Judge of the District Court; Tel-Aviv.

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
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