The Israel Legal System and its Effects on Marriage

The Israeli legal system organizes their courts into a system of general and specialized courts.^[1] Included in specialized courts, which are granted limited jurisdiction, are their religious courts.^[2] Israel is unique in its use of religious courts; they existed when the territory was still under Ottoman control through the 16^th and 20^th centuries and their use was continued when Israel became its own sovereignty.^[3] Matters of family law, marriage, and divorce are typically under the jurisdiction of religious courts, or rabbinical courts, which also use religious law.^[4] This outdated system allows for discrimination based on religious belief, perpetuates gender inequality, and is judicially inefficient.

Israel does not permit civil marriages.^[5] Marriages are conducted in rabbinical courts only, and in accordance with their religious affiliation.^[6] In Jewish marriages, both persons must be Jewish and heterosexual. Israel does not allow for mixed-religion marriages or same-sex marriages.^[7] If both partners are registered as not having a religious affiliation, they are permitted to enter into a civil union.^[8] Israel does recognize same-sex marriage and marriages of non-religious persons if they choose to marry abroad; for persons who wish to be married that are not in a heterosexual and same-religion relationship, this is the only option. This creates financial barriers to marriage. Despite being subjected to religious law, many Israelis do not practice a religion. About 65% of Israeli’s state that they do not consider themselves to be religious.^[9] Still, they must adhere to requirements for marriage and divorce proceedings as well as child and spousal support that are based in religious texts.

The system of the continued use of religious law and the existence of religious courts perpetuates gender inequality in Israel. Unlike the secular courts, women are not permitted to serve as rabbis or judges in rabbinical courts.^[10] Therefore, women do not decide any matters regarding family law, custody, marriages, or divorce. Women also cannot officiate Jewish marriages, which must be done by a rabbi.^[11] In ultra-Orthodox societies, women are second-class citizens; they enforce policies of gender segregation and there is strict adherence to traditional gender roles. At the Western Wall, women are segregated and cannot worship the same as the men can because of gendered modesty. Allowing religious texts to govern family and personal law in Israel perpetuates the idea that men and women are not equal in society.

In addition to being discriminatory, the system is inefficient. It is sometimes difficult to ascertain which court has proper jurisdiction of some issues in personal law when they intersect with matters typically governed by civil law. Although marriage and divorce are always controlled by religious courts and religious law,^[12] there are also considerations such as property ownership, alimony, and child support. For issues of property disputes, the matter can be adjudicated in either religious or civil courts, but only civil law must be used. For child and spousal support, religious courts have jurisdiction but either civil law or religious law may be used.^[13] Additionally, rabbinical courts tend to decide identical legal issues differently from civil courts, with civil courts being more generous towards women.^[14] Having multiple court systems creates confusion for the parties, lawyers, and judges.

1. The Judiciary: The Court System, Israel Ministry of Foreign Affairs, https://mfa.gov.il/mfa/aboutisrael/state/democracy/pages/the%20judiciary-%20the%20court%20system.aspx#:~:text=Israel%20is%20a%20unitary%20state,district%20courts%20and%20magistrates’%20courts. ↑
2. Id. ↑
3. Id. ↑
4. Ruth Levush, Israel: Spousal Agreements for Couples Not Belonging to Any Religion-A Civil Marriage Option, Library of Congress (Sept. 2015), https://www.loc.gov/law/help/marriage/spousal-agreements-israel.php (last visited Dec. 2, 2020). ↑
5. Id. ↑
6. Id. ↑
7. Ariel David, Who Would You Be Allowed to Marry in Israel Today?, HAARETZ (Mar. 6, 2014), https://www.haaretz.com/jewish/.premium-could-you-marry-in-israel-1.5250455. ↑
8. Id. ↑
9. Israel Among Least Religious Countries in the World, Haaretz (Oct. 1, 2018) https://www.haaretz.com/israel-china-among-least-religious-nations-1.5350737. ↑
10. Anat Scolnicov, 25 Neth. Q. Hum. Rts. 569, 585 (2007). ↑
11. Supra note 4. ↑
12. Id. ↑
13. Israel Judicial Branch: Rabbinical Courts vs Civil Courts, Jewish Virtual Library, https://www.jewishvirtuallibrary.org/rabbinical-courts-vs-civil-courts-in-israel. ↑
14. Id. ↑