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State Recognition of Religious Marriage: Symbols and Content

Published online by Cambridge University Press:  16 February 2016

Pinhas Shifman
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It is generally thought that the rule of religious law regarding marriage and divorce is a concession on the part of the State of Israel to religious interests. It is assumed that the religious population derives great satisfaction from the fact that the State ostensibly bows down to religious law, declining to exercise its jurisdiction on this matter. The non-observant citizen is widely considered the victim of this arrangement. He is forced to take part in a religious ceremony which is foreign to him and, in such an intimate realm of his life, must render himself of the services of a religious authority that represents concepts and symbols which he adamantly rejects. It is true that this sensitivity to “religious coercion” and freedom of conscience is apparent as regards the Jewish population, whereas there is less of a tendency to increase government intervention in the religious and legal autonomy of non-Jewish religious communities.

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Research Article
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Israel Law Review , Volume 21 , Issue 3-4 , Summer–Autumn 1986 , pp. 501 - 528
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1986

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References

1 See Tedeschi, G., “Transition from Secular to Religious Matrimonial Status and the Retroactive Application of the Latter”, in Studies in Israel Private Law (Jerusalem, 1966) 212, at 215–217 Google Scholar. For a conceptual analysis of the significance of the recognition of religious law by State law, see Englard, I., Religious Law in the Israel Legal System (Jerusalem, 1975) 49 Google Scholar. The author further elaborates on the unfounded assumption that secular law refrains from interfering in matters of marriage and divorce.

2 See, for example, the late Justice Sussmann's statement: “One must also consider the viewpoint of a person who does not wish to appear before a religious authority. Religion is a matter of faith, and it elevates the soul of a believing person. What is the point of the appearance of a non-believer before a religious authority?” (Segev v. The Rabbinical Court and Others (1967) 21(ii) P.D. 505, 555) For an analysis of the concept of “believious compulsion” in this context, see Shelach, C., Freedom of Religion and Conscience in Israeli Law, (Jerusalem, 1978, in Hebrew) 84 Google Scholar; see also Shetreet, S., “Freedom of Conscience and Religion” (1972) 3 Mishpatim 467 Google Scholar.

3 An example of this is the tendency of the Supreme Court to give wide interpretation to the powers of the non-Jewish religious courts, as opposed to the restrictive interpretation conferred on the authority of the Rabbinical Court. Compare, for example, the ruling of Justice Berinson in Hatar v. The Druze Religious Court (1973) 27(i) P.D. 449 with his ruling in Kahanof v. The Tel-Aviv Rabbinical Court and Others (1975) 29(i) P.D. 449. See also Cohen, Y., “Rabbinical and Secular Jurisdiction” (1976) 7 Dinei Israel 25–28 Google Scholar.

4 See, for example Y.Z. Minzberg, Responsa Shearit Israel, Even Ha'Ezer No. 7. When the author was asked if it is permissible to hold a religious marriage ceremony for a couple that does not observe the Sabbath, he answered: “If we do not do so, they will live together without marriage or will marry in a civil ceremony; we will thus allow them to detach themselves from the house of Israel”. See also the explanation forwarded in n. 7.

5 Leibowitz, Y., Judaism – The Jewish People and the State of Israel (Jerusalem, 1975, in Hebrew) 161–162, 171–172, 187–188 Google Scholar. Leibowitz's assumption that the obligation of fidelity between spouses can not be morally or socially established seems less acceptable than the possibility that a woman still defined as married by religious law, insofar as she has yet to receive a divorce from her husband, will no longer socially be considered married, if for example, they have been separated for a long time. Notwithstanding, from the perspective of Jewish law the woman's adultery does not necessarily cause a child born therein to be considered a bastard, since a child who is born to a married mother enjoys the presumption that the woman's husband is his father (Maimonides, Hilkot Issurei Biya 15: 26; Sh.Ar. Even Ha'Ezer 4:15).

6 See, for example, Levinger, J., From Routine to Renewal (Jerusalem, 1973, in Hebrew) 100–102 Google Scholar; Urbach, E., “Is There Competition Between Religious and Secular Judaism?” (1972) Mahalachim 3, at 6–7 Google Scholar.

7 These interests include not only the desire to minimize mixed marriages, but the prevention of a national split into two groups that will refrain from intermarriage, as well as the wish not to weaken the identification of the religious public with the State or render it a separate, extremist sector. Moreover, inasmuch as the Rabbinate is granted the sole authority to officiate at marriage ceremonies, it cannot ignore the social significance of its approach and must adopt a moderate attitude toward those under its jurisdiction. Therefore, it is possible to understand, for example, the effort made by Rabbi Goren to release the “brother and sister” of the taint of mamzerut ( Goren, S., Ruling on the Brother and Sister (Jerusalem, 1973, in Hebrew))Google Scholar or the lenient attitude of the Rabbinate toward the Ethiopian Jews. While requiring them to undergo the ritual immersion, it did not reject them as Jews, as in the case of the Karaites. In these cases, civil marriage would not have constituted a solution, since the parties desired religious approval of their marriages. Withdrawal of the Rabbinate's monopoly over marriage and divorce will lead to a “market situation” in which religion is a commodity equal in value to other ideologies, and the citizen is free to choose not only a secular ideology, but those religious values and norms acceptable to him, rejecting those which he finds less palatable. A “market situation”, enabling a wide variety of Jewish identities to coexist side by side, facilitates extremist separation. See Friedman, M., Society and Religion (Jerusalem, 1978, in Hebrew) 396–398 Google Scholar.

8 See, for example, Justice Agranat's ruling in the Skornik case, which maintains that, inasmuch as Jewish law is the national law of every Jew, it is “artificial and unrealistic” to claim it is purely religious in character. “Since according to this perception it emerges that non-believing Jews … are forced to obey the Jewish law merely because it is the law of their religion … ” See (1954) 8 P.D. 141, at 175–176. See also Justice Landau's ruling in the Segev case (supra n. 2, at 557), which criticizes the position of those who oppose the participation of a rabbi in marriage ceremonies for ideological reasons. In his view, “The majority of the people, in other words, even many that are not religious”, will have a rabbi officiate at their weddings, because “they are not repulsed by a ceremony according to the custom of their forefathers”. In contrast, see the understanding toward conscientious objection in the rulings of Justice Berenson and Justice Etzioni in Rogozinski and Others v. The State of Israel (1972) 26(i) P.D. 129, 134, 137.

9 It cannot be denied that there have been attempts to restore some of the foundations of the Jewish religious heritage (universal–moral values, and even some ceremonial aspects), while rejecting other foundations of strictly religious character, or those deemed unsuited to modern times. Yet it seems that such efforts have not received full ideological and pragmatic formation. Even in the Reform movement, the degree of employment of Jewish law is ultimately left to the judgment of each rabbi; this is indicative of the absence of modes through which it could fulfil its vague aspiration to adapt the Jewish tradition as required by the times. However, the sharp differentiation between “religious” and “secular” is not precise, insofar as it ignores interim categories, such as those sometimes termed “traditionalists”, and further ignores important differences within the different sectors. There is a continuum of different ways of life between the two extremes; most of the nation belongs to neither. Nonetheless, for the purposes of this analysis, we shall employ the general distinction between religious and secular.

10 See, for example, Justice Landau's ruling in the Haklai case, which dealt with a private marriage between a Cohen and a divorcee. In his opinion there is no reason for outrage: “They encounter a prohibition of religious and ritual nature, based on antiquated concepts of the precedence of the Cohanim (priests) in the Holy Temple's labour. The imposition of this prohibition upon a non-believing person is hardly reconcilable with freedom of conscience and the freedom of action embodied therein”. (1963) 17 P.D. 2048, 2069.

11 Of course, a person who accepts the burden of religious law finds adequate justification for the imposition of the prohibition in the very command of the law. The difficulty derives from those who do not wilfully obey religious law. On the clash between the position of religious law that all must bow to its dictates and the view that imposition of religious prohibitions upon non-believers is immoral, see Goldman, E., “The Relationship Between Morals and Religious Law” (1967) 33 Deoth 169, at 172Google Scholar; Shifman, P., “Unsatisfactory Law” (1972) 41 Deoth 23 Google Scholar.

12 See Levinger, Y., “Will Civil Marriage Divide the Nation?”, (1961) Ovnayim 65 Google Scholar.

13 On various ways of circumvention see Shifman, P., Family Law in Israel (Jerusalem, 1984, in Hebrew) 226–242, 250–254 Google Scholar, and Shifman, “Unsatisfactory Law”, supra n. 11.

14 See Shifman, Family Law in Israel, supra n. 13, at 188-198.

15 It seems that this is only one expression of a general phenomenon, whereby foundations and symbols of traditional religion are adopted selectively by society while ridding them of their religious significance, in order to create a new cultural value system. This system is perceived by C. Liebman and E. Don-Yehiya as “civil religion”, the role of which is to increase social integration, grant legitimacy to social order and motivate members of society to achieve central political goals. The main concept of “civil religion” in Israel is that the State of Israel is a Jewish state. Liebman, C. and Don-Yehiya, E., Civil Religion in Israel (California, 1983)Google Scholar. One of the dangers reducing traditional religion to a national product intended to maintain Jewish existence is that this encourages the development of nationalist occupations. See Kurtzveil, B., “Judaism as a Manifestation of the National–Biological Desire for Life”, in Our New Literature – Continuity or Revolution (Jerusalem, 1960, in Hebrew) 190, at 219 Google Scholar.

16 See, for example, State Service (Benefits) Law (Consolidated Version), 1970 (24 L.S.I. 57), secs. 4, 26. This phenomenon is not limited to pensions, but covers a wide variety of economic benefits. For example, maintenance out of the estate given to the spouse or the reputed spouse is denied upon his or her marriage, but not pursuant to cohabitation out of wedlock. See The Succession Law, 1965 (19 L.S.I. 58), sec. 57(a)(1).

17 Shifman, Family Law in Israel, supra n. 13, at 155-159.

18 The State of Israel v. Pessler (1965) 19 P.D. 102, at 105; see also Shifman, Family Law in Israel, supra n. 13, at 163-166.

19 There are Muslims who seek to hide their new marriages and present them as relations of “reputed spouses”. See Guda v. The State of Israel (1983) 37(i) P.D. 85: “The marriage takes place according to the laws of Islam, but without registering it according to State law. It is facilitated by fictitious registration of divorce from the first wife, so that the registry reads that the man is married to only one woman, or the marriage takes place without any registration whatsoever. The additional wife or wives appear before the State authorities as reputed spouses”. It should be noted, however, that there is no possibility of conviction of bigamy if no ceremony took place. The law provides that it does not matter whether the new marriage is valid or void; the only question is whether a wedding took place, inasmuch as it is generally considered a recognized ceremony. See Shiftman, Family Law in Israel, supra n. 13, at 177-178. For this reason, the ruling of the Beer-Sheva District Court (State of Israel v. Alzariaya (1986) II P.M. 336), in which a Muslim Bedouin who had lived with another woman prior to the approval of his divorce from his previous wife was convicted of bigamy, seems erroneous. The Court based the conviction on the fact that the man had admitted paternity of the children of the second woman, arguing that Muslim law views such an admission as creating marital ties. It seems that even if there were grounds to see him as married to the second woman, the only relevant consideration according to the law is whether he actually married her. Once the law forfeited the validity of the new marriage as a basis for conviction, the existence of the marriage ceremony becomes the foundation therein. Therefore, there is no need to enter the dispute regarding the accuracy of the Court's ruling in terms of Muslim law, just as there is no need to examine the question of whether the mens rea element of the offence exists in such circumstances, if the accused was not aware of the repercussions of his behaviour under personal law. It should be noted that a parallel question is likely to arise regarding Jews; however, as of yet nobody has conceived of convicting a married man living with a “reputed spouse” of bigamy on the grounds that cohabitation creates presumption of marriage.

20 While according to the ruling of the Beer-Sheva District Court in the Alzariaya case (id.) it is possible to convict a Muslim of bigamy even in the absence of a marriage ceremony, this appears erroneous from the perspective of secular law. Regarding Muslim law, the Court did not express awareness of the distinction between the possibility that admission of paternity creates ipso facto marriage and the possibility that admission of paternity creates a rebuttable presumption of marriage. The first possibility was rejected in Justice Kister's ruling in the guardianship case of Hassan v. Binyamin (1963)35 P.M. 243, in which he determined that “ … when a child is born to a man and woman, both of whom admit that he is their son … this does not create marriage … but aids in establishing presumption of marriage if the woman claims that she is married”.

21 See the Income Tax Ordinance (New Version), 1 L.S.I. [N.V.] 145, secs. 65, 66.

21a 27 L.S.I. 313.

22 Shifman, P., “Property Relations Between Spouses” (1976) 11 Is.L.R. 98 Google Scholar.

23 Cohen and Others v. The Attorney-General (1985) 39(i) P.D. 673, at 686; Shava, M., The Personal Law in Israel (Tel Aviv, 1983) 221 Google Scholar. This dilemma can be avoided if one accepts the opinion that the Spouses (Property Relations) Law did not invalidate the presumption of co-ownership, which continues to apply to couples that married after the commencement of the Law. See Shifman, supra n. 22; see also Procaccia, U., Bankruptcy Law and Civil Legislation in Israel (Jerusalem, 1984, in Hebrew) 57 Google Scholar. Many, however, differ with this position. See Rosen-Zvi, A., The Law of Matrimonial Properly (Jerusalem, 1982, in Hebrew) 286–294 Google Scholar; see also Tedeschi, G.. “Balancing of Resources and Co-ownership Between Spouses” (1980) 15 Is. L.R. 436. at 439, 442 Google Scholar.

24 This does not apply regarding the inferiority of the spouse vis-à-vis other creditors of the estate when the total worth of the estate is insufficient in order to fulfil the rights of all of the creditors. See the Succession Law, 1965. sec. 104(a)(4), as it was amended by the Spouses (Property Relations) Law. 1973, sec. 16. Notwithstanding, a “financial agreement” can include agreement on co-ownership of assets during the marriage, thus decreasing the size of the estate.

25 See Shachar v. Friedman (1984) 38(i) P.D. 415.

26 This is what happened in the case of Reis v. The Rabbinical Court (1973) 27(i) P.D. 25. The High Court of Justice, anxious to prevent the Rabbinical Court from exceeding its authority, was not willing to accept the contention of the husband's attorney whereby: “In this case the husband is prejudiced. The wife, after divorcing the respondent according to the laws of her country of residence, can marry whenever she wishes, while the husband, living in Israel and subject to its special marital laws, cannot marry except by a dispension by the Rabbinical Court”.

27 See, for example, Shifman, Family Law in Israel, supra n. 13, at 36-38. For the possibilities of solving cases like the Reis case, see ibid., at 97-98.

28 In other realms where State law recognizes the authority of a religious institution, secular recognition sometimes includes conditions that limit its freedom of action. These conditions would not be in effect if the religious institution relied on its voluntary status. See, for example, the Kashrut (Prohibition of Deceit) Law, 1983 (37 L.S.I. 147), which forbids the presentation of a restaurant as kosher without a certificate of proof. The law confines the considerations of the rabbi supplying the certificate, allowing him to take into account the dietary laws only (sec. 11).

29 While it is likely that religious persons may be able to find their own means of circumvention (such as the dispension of a hundred rabbis outside of Israel), it is not clear whether such methods can always be readily employed.

30 On the concept of a social problem in this context, see Tabory, E., “Religious Rights as a Social Problem in Israel” (1981) 11 Israel Yearbook on Human Rights 256, at 258 et seq Google Scholar.

31 See Shifman, Family Law in Israel, supra n. 13, at 119-120.

32 See Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 (7 L.S.I. 139), secs. 6 and 7. Notwithstanding, it is necessary to point out that the availability of the secular apparatus in order to enforce religious obligations includes secular supervision and control of the considerations of the secular authorities. See Silberg, , Personal Status in Israel (Jerusalem, 1957, in Hebrew) 387–389 Google Scholar; see also Shifman, Family Law in Israel, supra n. 13, at 201-202.

33 On the lack of clarity resulting from the absence of identification of those certified to perform marriage ceremonies, see Shifman, Family Law in Israel, supra n. 13, at 209-225.

34 For an analysis of the institution of reputed spouses, see Shelach, C., “The Reputed Spouse” (1973) 6 Mishpatim 119 Google Scholar; Friedmann, D., “The ‘Unmarried Wife’ in Israeli Law” (1973) 3 Iyunei Mishpat 459 Google Scholar; Elon, M., Religious Legislation (Tel-Aviv, 1968, in Hebrew) 119–154 Google Scholar; Shifman, Family Law in Israel, supra n. 13, at 116-119, 163-166, 276.

35 For an analysis of the problem from the perspective of various systems of law, see Eekelaar, J. and Katz, S., eds., Marriage and Cohabitation in Contemporary Societies (Toronto, 1980)Google Scholar.

36 See, for example, Justice Berenson's ruling in Yeger v. Pelvitz (1966) 20(iii) P.D. 244, at 247: “The fact that they were once reputed spouses does not make them always reputed spouses. This situation of reputed spouses is a fact and, like any other fact, it too can change and become invalidated by the circumstances. If one of them does not wish to continue to be with his or her partner, he or she cannot be coerced to do so. What existed terminates, and only the agreement between the parties remains …”

37 In certain situations, such as a couple prevented from marrying by the Rabbinate, it is perhaps possible to attribute to the parties the intention of creating a tie of obligatory significance. Only on this basis is it possible to justify the comment of Justice Barak in Versano v. Cohen (1983) 37(i) P.D. 529. Referring to a divorced woman who lived with a man of cohanic (priestly) status without marriage, who “through no fault of her own, had been thrown out of the apartment where they had lived together”, the judge noted that he had been willing to base the woman's right to support after their separation on an implicit agreement, “whose content changes, of course, according to the circumstances”. He continued: “I was willing to consider whether there were grounds for granting the woman … compensation for the damages caused her as a result of breach of an implicit contract whereby a reasonable period of time must be allowed for the separation procedures between the parties”. Yet, the judge failed to rule on this matter, since “it was not proven that damage had indeed been incurred, or that an implicit commitment of support had been given, according to the evidence of the case in terms of the relationship between the parties and considering the short period of their relationship” (pp. 531-532). Compare Friedmann, supra n. 34, at 459, 470, and n. 58 there. A different situation ensues, of course, in the case of parties who have contracted an explicit agreement, in which they assumed commitments in the event of separation, or parties who married without being aware (or at least one of them was not aware) of the invalidity of the ceremony. See Shifman, Family Law in Israel, supra n. 13, at 290.

38 There are some writers who forecast that, in the future, it will be possible, and even necessary, to forgo legal marriage, concentrating on the social phenomenon of cohabitation and the legal problems that derive therein. This forecast is contingent upon the continuation and extension of the phenomenon of cohabitation without marriage. See E.M. Clive, “Marriage: An Unnecessary Legal Concept?”, in Eekelaar and Katz, eds. supra n. 35. at 71-81.

39 Compare the decision of the New York Court of Appeals in Avitzur v. Avitzur, 58 N.Y. 2d 108, 446 N.E. 2d 136 (1983), whereby the Court decided to enforce a condition which had been included in the couple's marriage contract, entailing a mutual commitment to appear before a Rabbinical Court in the event of a conflict regarding divorce. The Court concluded this, despite the fact that the only divorce recognized by State law is civil divorce. See also the law legislated in New York in 1983 on this issue. According to sec. 253 of the New York Domestic Relations Law, civil divorce will not be extended to anyone who refuses to cooperate regarding religious divorce. This is not the place to elaborate on the question of the law's constitutionality in terms of separation of Church and State.

40 See Leibowitz, Y., Faith, History, and Values (Jerusalem, 1982, in Hebrew) 189 Google Scholar. He writes: “From the perspective of religious law it is irrelevant what kind of marriages are recognized by the secular authority, and it is the institutional interest of the Orthodox rabbinical institutions to retain their monopoly … I aspire to the cancellation of this status of the Orthodox, and that observant Jews will live their personal life in accordance with religious law, regardless of the recognition extended by the secular authority”.

41 See Tedeschi, G., “On the Choice between the Religious and Secular Law in the Legal System in Israel”, in Studies in Israel Law (Jerusalem, 1960) 238 Google Scholar.

42 For example, this is the case in France, that sought to formulate the idea of secularization of the institution of marriage and remove its control by the Church. A similar process took place in several Communist countries that, during the first stage of the establishment of the new regime, attempted to totally withdraw the tradition that anchored the institution of marriage in religion. This approach led Czechoslovakia, for example, to refuse to recognize the validity of religious marriages, even when they took place abroad. See Palsson, , International Encyclopaedia of Comparative Law, vol. III, ch. 16, p. 40 Google Scholar.

43 For example, the persons certified to officiate at marriages in Australia include registered religious clergy, after being recognized by the authorities. Performance of marriage by an uncertified official is a criminal offence; yet, the validity of the marriage is not denied if one or both of the parties believed that the official was entitled to perform the marriage, and the marriage ceremony is indicative of their desire to be married by law. See Finlay, H.A., Family Law in Australia (Sydney, 1983) 112–113, 125 Google Scholar. Similarly, in most of the United States a religious official requires a special State appointment in order to entitle him to perform marriage ceremonies. See Clark, , Law of Domestic Relations (St. Paul, 1968) 39, 42 Google Scholar.

44 For example, West Germany and other countries in Western Europe.

45 See Don-Yehiya, E. and Liebman, C., “Separation of Religion and State – Content or Slogan” (1972) 5 Molad 71–89 Google Scholar.

46 Glendon, M.A., “Marriage and the State: The Withering Away of Marriage”, (1976) 62 Virg. L. R. 663 CrossRefGoogle Scholar; Glendon, M.A., State Law and Family (Amsterdam, 1977)Google Scholar.

47 The granting of political expression to the religious system and its channeling to political horizons was intended to remove its threatening power toward the State, and lessen the tension of the conflict between religion and state. Control by cooptation is one of the methods new states employ when it is necessary to bridge the gap between loyalty to primordial ties, such as religion, community, race, etc., and identification with the State. See Geertz, C., The Integrative Revolution: Old Societies and New States (New York, 1963)Google Scholar. On the other hand, it is clear that the reliance of the religious sector on the strength of the State is a manifestation of its internal weakness, from both the organizational and ideological perspectives. See Englard, supra n. 1, at 30-31.

48 The objection of an unobservant person to his participation in a religious ceremony is a conscientious objection of principle, while the harm to the religious person as a result of the State's recognition of religious marriage is, in certain situations, damage to interests and not to conscience. As noted, however, it is possible to conceive of a demand for separation between the civil and religious dimensions for religious reasons.

49 See Shifman, Family Law in Israel, supra n. 13, at 209; for the text of the “Jerusalem Ban”, see Schereschewsky, B., Family Law (Jerusalem, 3rd ed., 1984, in Hebrew) 569–571 Google Scholar.

50 See Shifman, Family Law in Israel, supra n. 13, at 210, n. 7.

51 Tsonen v. Shtell (1983) 37(ii) P.D. 762.

52 Shifman, Family Law in Israel, supra n. 13, at 236-242; see also the comments of Rosen-Zvi, A., “P. Shifman: Family Law in Israel – Family Law in Israel as a Schizophrenic Field of Law” (1986) 15 Mishpatim 476, at 491–492 Google Scholar.

53 Shifman, ibid., at 162.

54 Ibid., at 161-162.

55 See, for example, Justice Silberg's ruling in Genor v. The Attorney-General (1954) 8 P.D. 833, at 839: “If the hold is removed, and anyone who wishes to is allowed to perform marriage ceremonies, even if he is totally ignorant… the inevitable result will be lawlessness and chaos in matters of marriage and divorce – marriage of relatives, bigamy, marriage without marriage at all – leading ultimately to a situation in which registrars of marriage and even the courts … will be unable to function in this mess …”

56 Shifman, Family Law in Israel, supra n. 13, at 220.

57 See Marzuk v. Minister of Interior (1970) 24(ii) P.D. 628.

58 See Siho v. The Karaite Religious Court and Others (1977) 31(i) P.D. 31; Shifman, P., “Personal Status of Persons Not Belonging To Any Recognized Community” (1977) 8 Mishpatim 162 Google Scholar.

59 Shifman, Family Law in Israel, supra n. 13, at 217-218; Englard, I., “Law and Religion in Israel” Am. J. Comp. L. (forthcoming)Google Scholar.

60 Palsson, L., Marriage and Divorce in Comparative Conflict of Laws (Leiden, 1974) 242–243 Google Scholar.

61 On the special position of Italian law on this matter, and the disagreement in the literature regarding the possibility of creating a concordat outside of Italy, see Palsson, ibid., at 243-245.

62 (1954)8 P.D. 141 at 176, 177.

63 M. Silberg, supra n. 32, at 244.

64 G. Tedeschi, supra n. 1, at 216, n. 6.

65 Palsson, L., Marriage in Comparative Conflict of Laws: Substantive Condition (The Hague, 1981) 137 CrossRefGoogle Scholar.

66 The approach of Justice Agranat in the Skornik case was adopted by the law regarding the offence of bigamy, for purposes of which it does not detract if the previous marnage is valid “only according to the religious law upon which it took place” (Penal Law – 1977, L.S.I. Special Volume, sec. 178(1)). The Supreme Court previously reached the conclusion that the accused was innocent in these circumstances. (Hershenhorn v. The Attorney-General (1954)8 P.D. 300.

67 Levontin, A., On Marriages and Divorces Out of the Jurisdiction (Jerusalem, 1957, in Hebrew) 117 Google Scholar; Shifman, Family Law in Israel, supra n. 13, at 251-252.

68 Eekelaar, J., Family Law and Public Policy (London, 1978) 52–58 Google Scholar.

69 It is possible to conceive of an arrangement whereby a widow will continue to receive a pension, even if she has remarried, in order to discourage widows from remaining alone. Such an arrangement, however, requires extension of the economic base of the pension. In other realms the continued granting of benefits, regardless of whether the spouse has married, arouses questions regarding the justice of the solution, in light of the interests of other parties. The extension of support from an estate until the spouse's death, for example, even if he or she has remarried, is prejudicial to the interests of inheritors and is not necessarily justified from the social perspective, which is the guiding principle therein. See the Succession Law 1965, sec. 57(A)1, according to which the spouse of the bestower is entitled to support “as long as he or she is widowed; however, the Court is entitled to extend a single grant to the widow of the bestower upon her remarriage if it deems it appropriate under the circumstances of the case, taking into account the rights of the children of the bestower of the inheritance”. Regarding determination of the widow's damages, it was ruled that the fact that the woman became the “reputed wife” of another man must be taken into consideration as a circumstance limiting the damage. (See Gabai and Others v. Wallis and Others (1981) 35(i) P.D. 449). In other countries, a parallel problem has arisen regarding the right of a divorced woman to receive alimony from her ex-husband. In some of the United States, concepts similar to “reputed spouse” were employed in order to withdraw or lessen alimony to a divorced woman living with another man without marriage. See, for example, the law in New York, which authorizes the Court to cancel an alimony decree if it has been proven that:“… the wife is habitually living with another man and holding herself out as his wife, although not married to such man”. (Domestic Relations Law, sec. 248). The problem with the formulation of the law is that it obligates imposture as if the parties were legally married; one judge viewed this as ridiculous. (Northrup v. Northrup, 402 N.Y.S. 2d. 997, 1001; 373 N.E. 2d. 1221, 1225). In Israel a different result was reached, emphasizing the factual aspect of the relationship, with the objective of extending the rights of “reputed spouses”. See Rosenberg v. Shtesel (1915) 29(i) P.D. 505. See also the law of California: “… there shall be a rebuttable presumption, affecting the burden of proof, of decreased need for support if the supported party is cohabiting with a person of the opposite sex … holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section”. On the differences of opinion in U.S. judicial interpretation regarding the question if cohabitation is sufficient grounds for termination of support, or whether proof that the needs of the recipient are now less is requisite, see Green, and Long, , Marriage and Family Law Agreements (1985 Supplement) (Colorado, 1985) 11–14 Google Scholar.

70 Prof. Tedeschi referred to this problem in his comments on the draft of the Law of the Individual and the Family: “The legislation should … refrain from indirect encouragement of concubinage, such as prescribing that a widow will lose her pension if she remarries, or making the tax laws more severe in the case of a married woman, than in that of an unmarried woman”. See Tedeschi, “Comments on ‘The Individual and the Family Bill’” in Studies in Israel Private Law, supra n. 1, at 307, 322.

71 Shifman, Family Law in Israel, supra n. 13, at 156.

72 Regardless of whether the marriage is invalid by law because it constitutes bigamy or for any other reason.

73 See Tedeschi, G., “Crisis of the Family and Attitude of the Orthodox”, in Studies in Law in Memory of Abraham Rosenthal (Jerusalem, 1964, in Hebrew) 282, at 325–326 Google Scholar. On the various explanations for the motivation for the recognition by the law of “reputed spouses”, see Shelach, supra n. 34, at 130.