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Published online by Cambridge University Press: 16 February 2016
When our Sages searched for an analogy to a situation in which a compromise or balance had to be found between two opposing forces pulling in opposite directions, they invoked the picturesque image of the “muleteer and the camel driver”. The muleteer runs behind the animal and prods him with the stick in his hand, whereas whoever drives the camel must walk in front of him, tugging gently at the halter. A person who has been charged with driving both a mule and a camel at the same time must, therefore, walk between the two and accustom himself to a middle way of walking which will more or less suit both beasts.
This analogy came to mind when I was asked to review the main trends in family law in Israel. Here we have a system afflicted with legal schizophrenia, for within it, two different juridical systems — that of religious law (or laws) and that of secular law — are struggling and pulling in opposite directions. To find a balance or compromise between these two is the major part of the task with which the legislator, and also the judge, is charged, and it is a mission which is not always successfully accomplished.
1 M. Erubin 3, 4.
2 See Rashi ad Erubin 35a s.v. harei ze hamar gamal. This expression was used by Silberg J. in Haklai v. Minister of the Interior (1963) 17 P.D. 2048, at 2060, in his discussion of the phenomenon of private marriages performed in order to circumvent religious law, and for a description of “anti-religious marriage cloaked in the veil of a religious ceremony”.
3 As stated by Levontin, , On Marriages and Divorces out of the Jurisdiction (Jerusalem, 1957, in Hebrew) 17Google Scholar.
4 Id.
5 Shifman, , Family Law in Israel (Jerusalem, 1984, in Hebrew) 19et seq.Google Scholar
6 Family Law Amendment (Maintenance) Law, 1959 (13 L.S.I. 73).
7 Spouses (Property Relations) Law, 1973 (27 L.S.I. 313), enacted in the wake of case law which created the presumption of partnership between spouses and which in its turn was based, inter alia, on the Women's Equal Rights Law, 1951 (5 L.S.I. 171), section 2 of which, as interpreted by the Supreme Court, abolished the rights of the husband in his wife's property as specified by Jewish law. See, in general, Rosen-Zvi, , The Law of Matrimonial Property (Jerusalem, 1982, in Hebrew)Google Scholar.
8 According to the case law, the determination of paternity is not a matter of personal status: Boaron v. Regional Rabbinical Court Tel-Aviv-Jaffa et al. (1972) 26(ii) P.D. 727.
9 Adoption of Children Law, 1981 (35 L.S.I. 360), which replaced the Adoption of Children Law, 1960 (14 L.S.I. 93).
10 Capacity and Guardianship Law, 1962 (16 L.S.I. 106).
11 See Chap. 2 of the above Law.
12 Succession Law, 1965 (19 L.S.I. 58).
13 Marriage Age Law, 1950 (4 L.S.I. 158).
14 Penal Law, 1977, sees. 176-180, (L.S.I. Special volume) which replaced the Penal Law Amendment (Bigamy) Law, 1959 (13 L.S.I. 152).
15 Penal Law, 1977, sec. 181. This offence was first established in the Women's Equal Rights Law, 1951, sec. 8(b).
16 Declarations of Death Law, 1978 (32 L.S.I. 67), sec. 6(a). This Law replaced the Declarations of Death Law, 1952 (6 L.S.I. 40).
17 Englard, , Religious Law in the Israel Legal System (Jerusalem, 1975) 139et seq.Google Scholar
18 Shifman, , “State Recognition of Religious Marriage: Symbols and Content” (1986) 21 Is.L.R.501, at 505–6Google Scholar.
19 The famous Skornik decision, (1954) 8 P.D. 141; 2 S.J. 327.
20 Shlesinger v. Minister of the Interior (1963) 17 P.D. 225.
21 It is therefore no wonder that Witkon J., who was on the bench in the Shlesinger case (ibid.), saw fit to comment at a later occasion (Tepper et al. v. State of Israel (1974) 28(ii) P.D. 7, at 9) that “the question is not whether the courts in Israel recognise the validity of a marriage between a Jew and a non-Jewess”, adding — in reliance on the above Shlesinger decision — that “in fact, the validity [of such a marriage] has long been recognized, when it takes place overseas”. It was Kahan J. who reminded Witkon J. of his own words in the Shlesinger case, according to which the question of the validity of the marriage was left for further consideration, and the decision was made only on the basis of factors in the area of administrative law relating to the limited function of the registration clerk (loc. cit., 17-18).
22 (1969) 23(ii) P.D. 477; Special volume S.J. 35.
23 Haklai v. Minister of the Interior, supra n. 2, at 2089, as per Landau J.: “I see no cause for complaint about the conduct of the petitioners because of the ruse they used, in conducting this “private” wedding ceremony. Our State promises all its citizens freedom of conscience. The petitioners are not religiously observant, and according to state law, they are at liberty to conduct themselves thus. They wish to live together and to bear children who will not be tainted with the social stigma of illegitimacy, and they find themselves faced with a prohibition which is totally religious-ritualistic, in that it is based on ancient concepts of the elevated status of the priest in the holy ritual. It is difficult to reconcile the imposition of such a prohibition upon a nonbeliever, with freedom of conscience and the freedom of action that that freedom involves”.
24 Rudnizki v. Supreme Rabbinical Court of Appeals et al. (1970) 24(i) P.D. 704, at 713.
25 On this matter, the criticism of Prof. Levontin in his book (supra n. 3, p. 13 ff.) is still relevant.
26 See Family Law in Israel, supra n. 5, at 103 et seq.
27 Yager v. Plavicz (1966) 20(iii) P. D. 244, at 249: “The legislator deemed it appropriate to entitle the reputed wife — even if she was married to another man — to various benefits. Are we at liberty to place ourselves above the legislator and to rule that the basis for according these rights — the agreement to live as man and wife — is weak and uncertain? Can there be two categories of morality and public good, one in the legislation and one in the case law?” (emphasis added). See also Versne v. Cohen (1983) 37(i) P.D. 529, at 532.
28 State of Israel v. Faster (1962) 16 P.D. 102; 4 S.J. 288, in which a decision was handed down which extended the status of reputed spouse to those partners who are still married to others, in reliance on “elementary notions of decency and fairness”, and on the assumption that such interpretation would suit every state and would not affect the application of personal law.
29 This point was discussed extensively in my article, supra n. 18.
30 Family Law in Israel, supra n. 5, at 226 et seq.
31 See, e.g., the decision of the Jerusalem Rabbinical Court cited in my article, “Paternity of Children Born By Artificial Insemination” (1980) 10 Mishpatim, 63, at 66, n. 16Google Scholar. The Court ruled there that “the wife, in agreeing to be inseminated with the semen of another, acted faithlessly towards the Lord and towards her husband, and she is therefore obliged to agree to divorce her husband …” And see the decision of the Supreme Rabbinical Court in App. 49/5745 of 4 Teveth, 5746 (unpublished), in which it was ruled by R. Ovadia Yosef (majority opinion) that even when the husband encourages the wife to undergo artificial insemination from a donor who is not her husband, he is exempt from maintenance of the child, “and even though he acted improperly, in any case she too, is held responsible for her actions, and she ought to have objected to his suggestion that she undergo artificial insemination from a donor, thus causing an outrage in Israel”. The woman cannot be regarded as suffering any injury if the husband is absolved from the obligation of maintaining the child, for it is only out of the woman's pity for the child that she sustains the child, whereas in fact, she is not obliged to support the child and “can throw her to the welfare institutions”!!!
32 See my article, supra n. 31, at 81.
33 On this matter, see Levinger, , “Will Civil Marriage Indeed Split the Nation?” (1966) Avanim 65(which reappears in his book, Between Routine and Innovation (Jerusalem, 1973, in Hebrew) 103Google Scholar) and see my comments on the halakhic analysis of the writer in his book, Doubtful Marriage in Israel Law (Jerusalem, 1975, in Hebrew) 97, n. 20Google Scholar. In principle, it may be said that according to the majority, there is no real fear of bastardy as a result of civil marriage and divorce, even if, in the first instance, the wife is obligated to obtain a get because of the prohibition of a married woman marrying another (and see, e.g., Iggrot Moshe, Even Haezer 2:19Google Scholar).
34 See Falk, , The Divorce Action by the Wife in Jewish Law(Harry Sacher Institute for Legal Research and Comparative Law, Hebrew University of Jerusalem, 1973, in Hebrew)Google Scholar.
35 Shifman, , “Property Relations Between Spouses” (1976) 11 Is.L.R. 98Google Scholar; Procaccia, , Bankruptcy Law and Civil Legislation in Israel (Jerusalem, 1984, in Hebrew) 57–61Google Scholar; Rosen-Zvi, The Law of Matrimonial Property, supra n. 7, at 286-94; Tedeschi, , “Balancing of Resources and Co-ownership Between Spouses” (1980) 15 Is.L.R.436, at 439–42Google Scholar.
36 For a summary of the later rulings on this subject, see Sadan v. Sadan (1982) 36(iv) P.D. 169.
37 See Shifman, , “Jewish Law in the Decisions of the Courts” (1987) 13 Shenaton HaMishpat HaIvri371, at 372–3Google Scholar.
38 Kot v. Kot (1984) 38(iii) P.D. 197.
39 Boaron v. Regional Rabbinical Court Tel-Aviv-Jaffa et al., supra n. 8; Mor v. A. (1976) 30(i) P.D. 218, at 220; Amram v. Skornik (1977)31 (i) P.D. 29, at34; Peretz v. Assoulin (1983) 37(ii) P. D. 838.
40 This ruling was made in Kutik v. Wolfson (1951) 5 P.D. 1341, and it took root in many decisions of the courts.
41 Sharon v. Levi (1981) 35(i) P.D. 736.
42 On the whole issue, see Shifman, , Family Law in Israel, Vol. 2(Jerusalem, 1989, in Hebrew) sec. 13 et seq.Google Scholar
43 23 L.S.I. 274.
44 Sec. 5(c) of the Law.
45 Sec. 9 of the Succession Law, 1965.
46 Sec. 42 of the Law.
47 On the tangle caused as a result of sec. 42 of the Law, according to which “the first heir may deal with what he has received as his own and the second shall only take what the first has left”, see Resnik v. Resnik (1976) 30(i) P.D. 749, and also Tedeschi, “Testamentary Dispositions and Mistake of Law” (1976) 11 Is.L.R. 591.
48 For a lengthy discussion of this point, see Shifman, supra n. 42, sec. 72 et seq.
49 Consuelos v. Turgeman et al. (not yet published).
50 Shiftman, “State Recognition of Religious Marriage: Symbols and Content”, supra n. 18.
51 Levontin, supra n. 3, at 50, and cf. Silberg, , Personal Status in Israel (Jerusalem, 1957, in Hebrew) 211Google Scholar.
