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A Marriage of Inconvenience: For Many in Israel, Marriage and Family Are Not Legally Recognized

This article is reprinted with permission of Ha'aretz and may not be reproduced without its permission. Visit www.haaretz.com.

Despite there being a special court for family affairs, there is no definition of the term "family" in the laws of the State of Israel, claims attorney Irit Rosenblum, the chair of Mishpaha Hadasha (New Family). "This is typical in the State of Israel," she continues, "a country which doesn't have a definition of its own borders."

Mishpaha Hadasha, which began its activities in 1999, was founded by a group of 25 lawyers specializing in family law, among them Prof. Michael Corinaldi, the dean of the law school at the Kirya Ha'academit. Its members are protesting the fact that in the State of Israel there is a steadily increasing number of people who cannot get married and cannot exercise their right to have a family. The organization's Tel Aviv offices received some 10,000 appeals in 2000.

The list of categories of marriages barred by Jewish law and for other reasons is long. It includes, among others, some 250,000 immigrants from the CIS, who are not Jewish or whose Jewishness is doubted by the religious establishment; many Ethiopian immigrants; marriages prohibited by Jewish halakha [religious law] such as that of a kohen [of priestly descent] and a divorcee; marriages involving illegitimate children; mixed couples - and in the future, also the children of Jews and Arabs and of Jews and non-Jews who met abroad or in Israel (volunteers or foreign workers).

As a result, explains Rosenblum, a situation may arise where a woman lives with a partner without getting married because the existing system prevents her from doing so. The woman raises children and is absolutely certain this is her family, but she can't define herself as a family. "The system doesn't recognize her as a family and designates her as a common-law wife, and on her identity card, she'll continue to be listed as divorced," says Rosenblum.

According to Mishpaha Hadasha, for a family to exist as such, three elements are necessary: Firstly, there must be an emotional element that encompasses the concept of free choice whereby a person chooses a mate of his own free will; secondly, there must be a technical element where the couple maintain a shared household; and the third element is that the couple resides under one roof. The family unit exists on the basis of these three elements.

"Clearly," stresses Rosenblum, "the emotional element also has to exist between parent and child. And that means that a single-parent family also has the right to exist. Children aren't required to have a family. A family can have a relationship between a couple and a relationship between a parent and a child, but the two need not be intertwined. A family can exist without children and a family can exist without a couple relationship."

In order to fill in the void created by the absence of a definition of family, Mishpaha Hadasha has formulated a draft bill of a basic law. The bill grants every person the right to a family that is not dependent on any external factor, or any religious and/or secular establishment. "Therefore, the basis of the choice, decision and recognition of a family lies with the individual," states Rosenblum.

The formulators of the draft were assisted, among other things, by a collection of French laws called "le pacte" (the pact), which defines family rights. Says Rosenblum, "France, which is essentially a conservative country, expanded its view of the family unit in a way that includes almost all the options for relationships between people, regardless of the sex of each of the partners.

Attorney Rosenblum, 43, who serves as the deputy chair of the Shoham local council, has a conventional family; she is married and the mother of three children. However, she recognizes the suffering of others who are left out by the lack of definite family laws in Israel. Rosenblum complains, "Jews aren't the only ones eligible for the right of return, non-Jews and the relatives of Jews are also eligible for it. The moment non-Jews were allowed to live in Israel, their needs and desires when it comes to establishing a family unit should have been addressed. The requirement of converting isn't a solution because the Jewish religion isn't a missionary religion. Anyone who advocates conversion as a condition for marriage damages an elementary human right. Israeli society today consists of a mixture of different nations and peoples with a variety of religions and ideologies, whose needs cannot be ignored."

Single-sex families created a new problem. To this day, the State of Israel does not recognize the existence of a single-sex family. On one hand, the legal system issued rulings and legal guidelines pertaining to inheritance in single-sex families and from their formal status it is possible to learn something about the relationships of single-sex couples; but on the other hand, it made sure not to get involved in the meaty issue of the place of single-sex family units in important aspects of life.

Mishpaha Hadasha's assessment, based on data from the Central Bureau of Statistics and the National Insurance Institute, is that the classic family unit of a Jewish man and woman married according to Jewish religious law, represents 58 percent of the total population; the remaining 42 percent are people who cannot form a recognized family unit. "For them," notes Rosenblum, "the State of Israel does not offer a solution. They suffer discrimination, albeit on differing levels: a single-parent family is not discriminated against the same way a family of foreign workers is; the problems of a common-law family are different than those of a mixed couple.

"The legal system has a hard time coping with these cases, whose numbers continue to increase," warns Rosenblum. "As long as marriages and divorces in Israel are a religious affair, these people cannot marry. The two systems, the religious and the secular, are doing them an injustice. The income tax regulations, for example, state that only married couples will be considered a couple; that means that a divorcee who met a kohen not only is disqualified and cannot marry him, but also doesn't benefit from the tax credits. The religious law in this case also has financial ramifications."

Couples that cannot get married in Israel choose one of two familiar options: getting married outside the borders of the state and correspondence marriages. Getting married abroad, despite the growing demand for doing so--in 2001, 5,000 Israeli couples got married in Cyprus--is not the solution for everyone. Correspondence marriages, usually through Paraguay, are risky--the Ministry of Interior is working to make them conditional on a trip abroad by one half of the couple.

Registering civil marriages

Last May, Mishpaha Hadasha approached the minister of religious affairs and asked him to appoint, by virtue of the authority granted to him by the marriage and divorce registry regulation, civil marriage registrars. The minister confirmed receipt of the letter, but did not respond to it in a manner Mishpaha Hadasha deemed suitable. The High Court of Justice has three pending appeals submitted by the organization. In one appeal, submitted some two years ago, Mishpaha Hadasha asked that foreign consuls be allowed to conduct civil marriage ceremonies for people from their country by virtue of an authority that is recognized in many countries around the world. Several years ago, the attorney general sent a letter to foreign consuls asking them to refrain from conducting civil marriage ceremonies in Israel.

Around a year ago, the organization submitted another appeal to the High Court of Justice regarding an individual case: a Jewish Israeli woman and a man who had emigrated from the CIS and who claimed to be Jewish. The rabbinical court asked the man for proof of his Jewishness. The State of Israel did not offer this couple any option other than getting married abroad. The High Court of Justice instructed the rabbinical court to open a marriage registry file, which was done, but the problem was still not resolved as the rabbinate was clarifying the question of the man's Jewishness. Two weeks ago Mishpaha Hadasha submitted another appeal against the Chief Rabbinate council for the elimination of the right of "rabbinical courts to clarify Jewishness." Following the High Court of Justice ruling on disqualified marriages, the organization uncovered regulations for registering marriages in the rabbinical courts, stating that new immigrants who arrived in Israel after 1990, will not be registered for marriage until after their Jewishness has been clarified. According to the organization, the rabbinical courts' power to clarify Jewishness is illegal.

Mishpaha Hadasha is working together with a coalition of other organizations that advocate free choice in marrying and are pushing for legislation that will allow registry of civil marriage and divorce. Rosenblum acknowledges the efforts of these organizations in the Knesset were not particularly successful due to political and coalition pressures and the considerable power of the religious and ultra-Orthodox parties. "At this stage, we're ready to agree to more open-ended ideas than those we advocate," says Rosenblum. "Just as a solution was found for burials inside Jewish cemeteries, we're even willing to have the rabbinical court set up its own internal mechanism to register the marriages of people who aren't Jewish according to the halakha."

Hebrew for "Jewish law," it's the body of Jewish religious law including biblical law (those commandments found in the Torah), later Talmudic and rabbinic law, as well as customs and traditions.

Joseph Algazy writes for Ha'aretz.

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