Lawyers
Same-sex marriage
A proud marriage
Currently, the legal situation in Israel does not allow same-sex couples to marry. This is due to the fact that weddings are performed according to religious law, which does not recognize such marriages. Nevertheless, there is a procedure that allows marriages between partners of the same sex to be registered at the Ministry of the Interior.
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
The situation in Israel vis-a-vis the world
In Israel, marriages are governed by religious law, and since those laws do not recognize same-sex marriages, LGBT couples cannot marry there.
In many countries around the world, it is possible to marry regardless of the identity of the spouses. Many Countries of the Western world, including England, Brazil, Argentina, Ireland, Denmark, Sweden, France, Norway, Iceland, New Zealand, Portugal, Wales, Scotland, Uruguay, Finland, and all the states of the United States.
For example, in the United States in 2015 a ruling was issued from the Supreme Court that recognized same-sex marriages and stated that the Constitution guarantees equal protection to all citizens of the United States. Therefore, states cannot prohibit or not recognize marriages between same-sex partners. In discussing the United States, it is not common to find a federal ruling that binds all 50 states, and therefore their obligation to recognize and make same-sex marriage legal is considered historical.
As a result of the same decision (Obergefell v. Hodges, 135 S. Ct. 2584), As well, the supreme judges of Israel relied on their ruling in the High Court of Justice case 7339/15 in which the Association for the Preservation of Individual Rights and others petitioned against the Minister of the Interior and the Knesset in order to change the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1973 – 1953. A special emphasis should be placed on the first section in order to allow and spouses of the same gender to be recognized as married in Israel.
According to section 2 of the law, “Jewish marriages and divorces shall be conducted in Israel according to Torah law”, which negates the ability of same-sex couples to marry. Following deliberations, the Honorable Vice President (retired) Rubinstein determined that the petition should not be accepted for a variety of reasons, many of which relate to the authority of the court as a judicial authority in contrast to the Knesset as the legislative authority.
In response to Judge Baron’s request for explanation of the current situation, the Honorable Judge joined in with his comments: In matter of marriage, the halachic monopoly is deeply rooted in the heritage of the ancestors and is intended to protect important and unique values for the people of Israel, including the sanctity of the Jewish family. However, it cannot be denied that the arrangement in question violates the rights of entire groups in the population to have a family life.” (See paragraph 1 of the judgment).
As a result, even though she acknowledged that the legal situation negatively impacts same-sex couples, she joined the opinion of the Honorable Vice President (retired) Rubinstein, but not before offering a positive message for the future: The time may come, however, when the time will call for the examination of the adaptation of personal status laws to the contemporary reality and the social, cultural, religious mosaic it is composed of. This kind of judicial review has already led to the recognition of marriages between same-sex couples in many countries of the world.
What is the current situation in Israel?
In Israel, the religious law governs marriage laws, and in the absence of recognition of this law in same-sex marriages, the state cannot also recognize them. As an alternative, in many countries in the world it is possible to recognize the marriage of LGBT couples, and this opened the possibility for those who had been married in these countries to receive this recognition in Israel as well.
It is therefore possible for same-sex couples to register as married couples in the population registry after marrying in a country that recognizes this type of marriage. It is the clerk’s obligation to update the marital status in the registry and he cannot refuse to do so on the grounds that they are of the same gender. Registration in the registry, however, is primarily symbolic and does not confer all rights enjoyed by spouses who are not of the same sex.
For practical purposes, the current legal system in Israel provides the opportunity to enjoy the rights and obligations of public figures, among other things, before the various authorities in the country, such as the Tax Authority, National Insurance, and of course also before the court for the purpose of drafting a financial agreement and preserving other aspects of a shared life.
What about divorce? It is noteworthy that the ruling states that since the rabbinic courts do not recognize the institution known to the public, decisions regarding LGBTQ couples are made in a civil court, as opposed to married couples, which have the decision regarding divorce made by the rabbinical court (HCJ 89/673 Meshulam v. Beit The Great Rabbinical Law, P.D. (5 (594) 1991). In order to obtain a divorce for same-sex couples that married abroad and were registered as married in the population registry in Israel, a family court application is required.
In Conclusion
While it is not possible to marry same-sex couples in Israel (yet), it is possible to get married in countries where it is possible and be registered in the population registry as a married couple.
In order to ensure the acceptance of all the rights that are due to couples who wish to marry, as well as to settle issues regarding raising children, such as a judicial parental order or the appointment of a guardian among the spouses for the purpose of making decisions with the authorities regarding a minor child, it is highly recommended to consult a lawyer who will protect your interests in a field characterized by legal uncertainty about the future.
Mor & Co.’s Department of Family Law, Inheritance, and Guardianship provides comprehensive support to families.
