Recognition or Non-Recognition of Foreign Civil Marriages in Israel

Abstract

The State of Israel determined by legislation that matters of personal status including marriage and divorce are subject to personal law, namely religious law. Since the applicable law is personal and not territorial, it varies from person to person and is not uniform as under civil law. This simply means that Israel has no separation of religion and state in matters of divorce and marriage. Religion is the only determining factor in these matters. Thus, marriages prohibited by religious law do not take place in Israel. This is true of all four major religions in Israel: Christianity, Islam, the Druze religion, and Judaism. The discussion under Israeli law should have ended here with regard to civil marriage performed in a foreign country, especially marriage prohibited by Jewish law such as marriage between spouses only one of whom is Jewish, or marriage of a same-sex couple. Prohibited marriage has no place in a state in which religious law prevails in matters of status. However, the Israeli courts, unlike the legislature, have more of a civil orientation than a religious one. They look for ways to bridge the gap between religious law and the rules of private international law that seek to recognize or respect civil legal actions carried out in a foreign country. In some cases, the courts have recognized the status of civil marriages even where such marriages are prohibited by state law. In order to avoid the serious conflict between religious law and the domestic rules of private international law, the court has explained that this is not a matter of personal status but rather an administrative question which purely concerns the Population Registry. For example, same-sex couples can today be registered as married couples in the Population Registry if they were married in a civil ceremony in a foreign country. The decisions made in these matters are greatly disputed and reflect the constant prevailing tensions regarding Israel not only as a Jewish state (characterized by religious law), but also as a democratic state (characterized, among other factors, by recognition of the rules of private international law). Although the Basic Laws stipulate that Israel is both, in practice these values conflict and often collide. This tension is clearly reflected in, and may be analyzed through, the issue of civil marriages performed in a foreign country and prohibited by religious law in Israel.