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Marriage and Cohabitation in Israeli law

Published online by Cambridge University Press:  12 February 2016

Pinhas Shifman
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In Israel, in the field of the law of personal status, at the center of which stand the laws of marriage, the law is not territorial but personal, and the law applying to an individual changes in accordance with his religious affiliation. Consequently, any discussion of the comprehensive position of Israeli law on the institution of marriage would seem to be impossible, for Israeli law lacks its own, independent regulations on matters of marriage. The law of the State on these matters has been likened to a mirror, having no image of its own and serving only to reflect the religious law. In this mirror, various laws are reflected, and it is difficult to find in them a common denominator of the differing and contradictory conceptions they express towards the institution of marriage.

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Articles
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Israel Law Review , Volume 16 , Issue 4 , October 1981 , pp. 439 - 460
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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References

1 Levontin, A., On Marriages and Divorces Outside Israel (Jerusalem, 1957, in Hebrew) 17, 50.Google Scholar

2 Goitein, and Ben-Shemesh, , Muslim Law in Israel (Jerusalem, 1957, in Hebrew)Google Scholar; Vesey-Fitzgerald, S., Muhammadan Law (London, 1931) 34–51 Google Scholar; Fyzee, , Outlines of Muhammadan Law (London, 1964) 85 Google Scholar et seq.

3 Abbo, J.A., The Sacred Canons (St. Louis, 1952) vol. 2, p. 160 Google Scholar et seq.

4 See Shifman, P., Doubtful Marriage in Israeli Law (Jerusalem, 1975) 35–38.Google Scholar

5 Levontin, supra n. 1, at 55.

6 Glendon, M.A., Slate, Law and Family, (Amsterdam, 1977) 4–9.Google Scholar

7 For an analysis of the problem from the viewpoint of different legal systems, see Eekelaar, J.M. & Katz, S.N., Marriage and Cohabitation in Contemporary Societies (London, 1980).Google Scholar See also the articles in (1981) 29 Am.J.Comp.L. 217–391.

8 Wolff, M., Private International Law (2nd ed., London, 1950) 313–316.Google Scholar

9 With respect to Jewish law, see Scherschewsky, , Family Law (Jerusalem, 1967) 33, 39, 109–11, 347Google Scholar; on Canon law, see Abbo, supra n. 3, at 392; on Islamic law, see Fitzgerald, supra n. 2, at 50–1; Pearl, D., A Textbook on Muslim Law (London, 1979) 56–7Google Scholar.

10 Scherschewsky, id., at 203–6.

11 In Jewish law, marriage consists of two separate acts, called kiddushin and nissu'in respectively. The kiddushin … is an act performed between a man and a woman which leads to a change in their personal status, i.e., from bachelorhood to a status which remains unchanged until the death of either party or their divorce from one another. However, the kiddushin alone does not bring about all the legal consequences of this change of status as all those will follow only from a further act between the parties, namely the nissu'in… The act of nissu'in requires that the bride, after completion of the kiddushin, be brought to the bridegroom under the huppah before two competent witnesses, for purposes of the marriage proper, i.e. the nissu'in “according to the law of Moses and of Israel”. ( Elon, Menachem, ed., The Principles of Jewish Law, (Jerusalem, 1975) 356, 357Google Scholar). See also Scherschewsky, id., at 39.

12 Marriage Age Law, 1950, sec. 1 (4 L.S.I. 158); Penal Code, 1977, sec. 175 (previously Penal Law Amendment (Bigamy) Law, 1959, sec. 1), and on the legal position concerning bigamy before the enactment of that section see (1952–3) 8 P.M. 135, and the critique of Globus, , “Does Marriage Without the Wedding Ceremony Constitute Bigamy?” (1954) 10 HaPraklit 55.Google Scholar

13 See in particular Rodnizki v. Great Rabbinical Court et al. (1970) (I) 24 P.D. 704.

14 Aboutboul v. Kleiger, (1965) (I) 19 P.D. 429, 446.

15 Ibid.

16 Penal Code, 1977, sec. 347.

17 Marriage Age Law, 1950.

18 Penal Code, 1977, sec. 349.

19 The Committee's recommendation for the new version of the Penal Code was that in sec. 345 of the Code, the expression “who is not his wife” should replace the word “unlawful”, because in the opinion of the Committee, the Mandatory legislator intended the word “unlawful” to mean that the parties were not married. However, the recommendation was not accepted in the final version passed by the Constitution and Legislation Committee of the Knesset.

20 Cohen v. State of Israel, (1981) (III) 35 P.D. 281.

21 Bechor J. in Cohen v. State of Israel, id. at 292.

22 Ben Porath J. tended to this view in the Cohen case (at 293) and it was accepted by J., H. Cohn in Cohen v. State of Israel (1981) (I) 35 P.D. 371.Google Scholar

23 Bromley, P.M., Family Law (London, 1976) 23, 114 Google Scholar; Clark, H.H., Law of Domestic Relations (St. Paul, 1968)Google Scholar; Note, “The Marital Rape Exemption (1977) 52 N.Y.U.L.R. 306.

24 See n. 23.

25 This distinction, between first degree and second degree rape, was drawn a number of years ago in the State of Delware, U.S.A. Where the parties had had intimate relations in the past, or if they were married, the assailant could only be convicted of the lesser offence of second degree rape.

26 As opposed to this, if the couple was separated, the husband's immunity against rape (in the first degree) might not apply. See sources cited in n. 23 and n. 24 above.

27 See judgment of Silberg, J. in Risenfeld v. Yaakovson , (1963) 17 P.D. 1009 Google Scholar, 1021.

And see Rubinstein, A., The Enforcement of Morality in a Permissive Society (Jerusalem & Tel Aviv, 1978) 131 Google Scholar et seq.; Gavison, R., “Enforcement of Morals, Damages for Breach of Promise to Marry and the Obligation to Give Reasoned Decisions” (1977) 8 Mishpatim 282 Google Scholar, 292 et seq.

28 Cohn J. in About bout v. Kleiger, supra n. 14.

29 Cf. the famous decision of the Supreme Court of the State of California, U.S.A. in the case of Marvin v. Marvin (1977) 18 Cal. 3d 660. 134 Cal. Rptr. 815, according to which an agreement regulating the financial relations between a man and woman who live together without being married will not be invalidated unless the consideration for the agreement was the cohabitation per se. The approach of the courts in Israel is that the fact that the parties were not married does not, of itself, invalidate such an agreement in every case.

30 Cf. Nissim v. Yuster (1970) (I) 24 P.D. 617.

31 See in particular Yagar v. Palvich (1966) (III) 20 P.D. 244.

32 Cf. Englard, I., Religious Law in Israel Legal System (Jerusalem, 1975) 168–177.Google Scholar

33 “Adultery is applicable only to a married woman” (Rashi, (Rabbi Shlomo ben Yitzhak: 1040–1105, France) Deut. 5:17), but see below for the consequences of infidelity on the part of the husband in the Jewish divorce laws.

34 Goitein and Ben-Shemesh, supra n. 2.

35 According to the Canon law, adultery of one of the parties is sufficient cause for separation, Abbo, supra n. 3, at 392–9.

36 Shulkhan Arukh, Even Ha'ezer 11:1.

37 It is noteworthy that this cause is not independent, but is derived from other causes such as the obligation of maintenance borne by the husband. (On the basis of the verse “pursues whores and loses money”, Proverbs 23:3, it was explained that in the end he will lose his money and not maintain his wife, and therefore there were those who held that a person who pursues whores is forced to divorce his wife: Rema (Rabbi Moses Isserles: 1520–1572, Poland), Shulkhan Arukh, Even Ha'ezer 154:1, and some learned this from the husband's duty to have sexual relations with his wife (and from the suspicion that his wife wil! be loathsome in his eyes, for “forbidden fruits are sweeter and the bread of others tastier”). See 1 P.D.R. 139; 8 F.D.R. 254.

38 On the whole problem, see Tedeschi, G., “Crisis of the Family and Attitude of the Orthodox” in Studies in Law in Memory of Abraham Rosenthal, Tedeschi, G., ed. (Jerusalem, 1964, in Hebrew) 282, 318–25.Google Scholar

39 The judgments of Silberg J. in Yagar v. Palvich, supra n. 31, and Kister J. in Pereti v. Helmut (1966) (IV) 20 P.D. 337.

40 The judgment of Berinson J. in Yagar v. Palvich, supra n. 31.

41 See a summary of the cases on this matter and an analysis by Y. Kahan J. in Helmut v. Pereti (1971) (II) 25 P.D. 35, 38–40.

42 Cf. Kister, J. in Natan v. Abdullah (1970) (I) 24 P.D. 455 Google Scholar, 468, according to whom the infidelity of one of the couple should not be viewed as sufficient proof of the irretrievable breakdown of the marriage.

43 On this subject, see especially Rheinstein, M., Marriage, Stability, Divorce and the Law (Chicago, 1972)Google Scholar; Glendon, M.A., State, Law and Family (Amsterdam, 1977)Google Scholar; Chloros, A.G. (ed.), The Reform of Family Law in Europe (Kluwer, 1978).CrossRefGoogle Scholar

44 See e.g. Witkon, J. in the Rosenzweig case ((1955) 9 P.D. 1542 Google Scholar, 1559–1560): The circumstances of this terrible affair leave no shred of doubt that the wife is entitled to divorce her husband, but despite this she was denied—for fear of a “forced” bill of divorce—the only opportunity she had to rebuild her ruined life. I feel it necessary to point this out, if only to emphasize that we are powerless to help.

45 On the problems of enforcing morality in this field, see R. Gavison, supra n. 27 at 291–8.

46 In Great Britain, a law in 1969 instituted the test of “irretrievable breakdown” as entitling a person to a divorce, but it linked it to defined causes for divorce which serve as proof of such a breakdown. As opposed to this, in various states in the U.S.A., the “no fault divorce” in fact serves as a device to obtain divorce on demand. See Glendon, supra n. 43, 227–33. And see Wheeler, M., No Fault Divorce (Boston, 1974).Google Scholar

47 See my article, “The English Law of Bigamy in a Multi-Confessional Society: The Israel Experience” (1978) 26 Am.J.Comp.L. 79.

48 State of Israel v. Passler (1962) 16 P.D. 102, 105.

49 But see Layish, A., Women and Islamic Law in a Non-Muslim State (Jerusalem, 1975) 76.Google Scholar

50 See the dispute between Maimonides (1135–1205, Spain, Egypt) Hilkhot Issurei Biya 15A and the Rabad (Rabbi Abraham ben David 1125–1198, France) (critical scolia there). According to Maimonides, “In all the negative strictures, no one Hilkhot I shut, ID, as opposed to the scolium of the Rabad there, who distinguishes between a “harlot serving all men” who is forbidden in that she is “married”, and a woman “particular to one man” i.e. a concubine, who is not, in his opinion, forbidden. But many disagree with this view: Rema, Shulkhan Arukh, Even Ha'ezer 26a.

51 Sasson v. Sasson et al. (1959) 13 P.D. 2096.

52 Rodnizki v. Great Rabbinical Court, supra n. 13.

53 On the problem in general see P. Shifman, supra n. 4.

54 In this context, the following comment is interesting from an anthropological point of view: “Marriage cannot be defined as the licensing of sexual intercourse, but rather as the licensing of parenthood”. B. Malinowski, “Parenthood—the Basis of Social Structure”, cited in Davis, K., Marriage and the Family, Human Society, (New York, 1948–1949) 401.Google Scholar

55 Cretney, S.M., Principles of Family Law (London, 1976) 421.Google Scholar

56 See Jolowicz, H. F., Roman Foundations of Modern Law (Oxford, 1951) 183–201.Google Scholar

57 Krause, H.D., Illegitimacy, Law and Social Policy (New York, 1971)Google Scholar; Saano, V. V., Study of Discrimination Against Persons Born Out of Wedlock (U.N., New York, 1967)Google Scholar.

58 Tedeschi, G., “Duty of Maintenance in Israel Civil Law” (1975) 6 Mishpatim 242, 252.Google Scholar

59 See e.g. Capacity and Guardianship Law, 1962, sec. 28 (16 L.S.I. 106) and my article, n. 60 below, at 198–9. See also the Adoption of Children Law, 1960 (14 L.S.I. 93).

60 Shifman, P., “The Status of the Unmarried Parent in Israel Law” (1977) 12 IS.L.R. 194.CrossRefGoogle Scholar

61 In actual fact, even with the child of a married woman, the tendency is not to view this presumption as absolute. On this matter, see my article, “Paternity of Children Born by Artificial Insemination” (1980) 10 Mishpatim 63, 80–4.

62 In the language of the Midrash (Vayikra Rabbah 33:7): “Their fathers are sinners and they suffer—how is it their fault? His father had a forbidden union, how did he sin, and what is his blame?” The Midrash, which attributes these words to “Daniel Hayata” (Daniel the Tailor) (who apparently symbolizes public sentiments), did not hesitate to interpret the verse in Ecclesiastes 4:1: “And I sat and I saw all the oppressed under the sun, and lo!, tears flow from the oppressed and they cannot be comforted”, as applying to mamzerim, hoping that the blemish will be obliterated in the future: “And the Lord said, I must comfort them, for in this world, they are marred… but in the world to come… they will be as pure gold”.

63 Especially as a result of the rule: “The children of a married woman, even one who committed adultery, are presumed to be ‘legitimate’, since most of her sexual relations are with her husband”: Maimonides, , Hilkhot Issurei Biya 15 Google Scholar, Sh. Ar. Even Ha'ezer 4:15. And it was the practice not to seek out mamzerim and not to check them out, and even if the family was discovered, post factum, to be tainted, they carried it no further, based on the principle that “A family who has mingled—has mingled” (Kiddushin 71 A), and Rashi loc. cit; Rema, Even Ha'ezer 2:5).

64 We are referring to a technique of annulling marriages, whereby the husband sends a bill of divorce to his wife by means of an agent, and he cancels the agency unlawfully: By this means, the marriage is annulled, by virtue of the principle “Every marriage requires the approval of the Rabbis, and the Rabbis withdrew their approval of this marriage”. This technique may be used when the marriage has not yet terminated in a divorce. See Responsa, Maharasham (Rabbi Shalom Shvadron: 1835–1911 Google Scholar, Galicia) 6:9, on Gittin 33A, and Tosafot loc. cit. s.v. “ve'afkina”; Hechal Yitzhak, Even Ha'ezer 2:9.

65 Eizik (Schick) v. Minister of the Interior (1971) (I) 25 P.D. 544, 550.

66 Gzareson, R.H., Conflict of Laws (London, 1977) 226–30Google Scholar; A. Levontin, supra n. 1, at 55–61.

67 See Spouses (Property Relations) Law, 1973, secs. 1, 2 (27 L.S.I. 313).

68 On this, see, inter alia, Elon, M., Religious Legislation (Tel Aviv, 1968) 119–54Google Scholar; Friedman, D., “The Common Law Wife in Israel Law” (1973–4) 3 Iyunei Mishpat 459 Google Scholar; Shelah, H., “The Reputed Spouse” (1975) 6 Mishpatim 119.Google Scholar

69 Tenants' Protection Law (Consolidated Version) 1972, secs. 20–25 (26 L.S.I. 204).

70 E.g. under the State Service (Benefits) Law (Consolidated Version), 1970 (24 L.S.I. 57).

71 Succession Law, 1965, sec. 55 (19 L.S.I. 58).

72 See Yagar v. Palvich, supra n. 31.

73 Shifman, P., “Property Relations Between Spouses” (1976) 11 Is.L.R. 98, 100.Google Scholar And see sec. 3 of the Law (supra n. 67).

74 Zmulun v. Minister of the Interior (1966) (IV) 20 P.D. 645, 660, 668.

75 Stale of Israel v. Passler, supra n. 48.

76 See e.g. State Service (Benefits) Law (Consolidated Version), 1970, secs. 4, 26. But see sec. 31 of the Law.

77 In other legal systems which give social rights to the de facto spouse, these rights are sometimes terminated not only upon remarriage, but also upon the commencement of a permanent relationship with another partner. This does give rise to practical difficulties of proof and definition. See J. Eekelaar, infra n. 82, at 254–5; R. Deech, “The Case Against Legal Recognition of Cohabitation” in Eekelaar and Katz (eds.), supra n. 7, at 302. On other advantages of cohabitation over marriage in Common Law systems, see Bruch, C.S., “Non-marital Cohabitation in the Common Law Countries” (1981) 29 Am.J.Comp.L. 217, 242–3CrossRefGoogle Scholar, and see, for further comparison, Douthwaite, G., Unmarried Couples and the Law (Indianapolis, 1979).Google Scholar

78 Evidence Ordinance (New Version) 1971, sec. 3 (2 L.S.I. [N.V.] 198).

79 Harnon, E., Laws of Evidence, Part 1 (Jerusalem, 1972) 86–7Google Scholar; Feller, S.Z. and Harnon, E., “Evidence Ordinance Amendment (no. 6) Bill, 1967” (1968) 24 HaPraklit 94–7.Google Scholar

80 E.g. Tenants' Protection Law (Consolidated Version) 1972, sec. 1 (definition of “spouse”), and secs. 20–25.

81 E.g. Succession Law, 1965, sec. 55; Names Law, 1956 (10 L.S.I. 95).

82 On this, see Shifman, P., “Wife's Right to Maintenance in a Void Marriage” (1976) 6 Mishpatim 514.Google Scholar

83 See Eekelaar, J., Family Law and Social Policy (London, 1978).Google Scholar

84 See esp. M.A. Glendon, supra n. 6; Sundberg, J., “Marriage or no Marriage—The Directives for the Revision of Swedish Family Law” (1971) I. & Comp. L.Q. 223.CrossRefGoogle Scholar