The Ironies of Gay Divorce in Israel

by | Dec 20, 2012

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

By Dr Amir Paz-Fuchs

It is a rare occasion that decisions by Family Courts in Israel receive front page headlines, as well as media attention abroad. But such an occasion materialized last week when a Ramat Gan Family Court approved a divorce between two gay men, Prof. Uzi Even and Dr. Amit Kama.

To understand why this decision received such attention, it is necessary to realize that this was, in effect, the first time a civil court in Israel ever approved a divorce. Israeli law grants religious (Jewish, Muslim, Christian) courts a monopoly over marriage and divorce. Over the years, Israeli citizens have managed to circumvent this restriction by petitioning the court to recognize marriage ceremonies conducted in other countries. The individuals entitled to employ this route were, initially, those who were not able to wed under religious law; then individuals who were entitled to marry under domestic, religious law but still married abroad. In 2006, the Supreme Court ruled that gay men and women who married abroad should be recognized as married by Israeli authorities. Following this ruling, Prof. Even and Dr. Kama, who married in Canada , were able to be registered as married in Israel.

Moving from marriage to divorce, however, we find that the situation is (even) more difficult. Many countries view marriage predominantly as a ceremonial and formal institution, but perceive divorce as requiring judicial discretion. So while the right to marry in Canada, for example, is granted even to tourists, Canadian courts do not have jurisdiction over non-residents who wish to divorce there. Many Israelis, in fact, do not realize that this is the case, thinking that by marrying abroad they manage to circumvent the religious courts completely. Only later do they realize that if they registered as married in Israel and decide to divorce, they are forced to do so in religious courts, and under religious law.

When Even and Kama realized this, they filed for divorce in the Rabbinical court in Tel-Aviv, which does not recognize gay marriage at all. The court refused even to accept the court fees (a precedent in its own right), submitting that it had to rule on the preliminary issue, namely: whether it had jurisdiction to rule over a marriage that it illegal under Jewish law. Not wanting to wait, Even and Kama filed for divorce in a civil court, which ruled in their favour.

And now – back to the headlines. A notable feature of all the legal commentaries that addressed the ruling was the dominance of one word: irony. David Foster Wallace once wrote that “the great thing about irony is that it splits things apart, gets up above them so we can see the flaws and hypocrisies and duplicates”. There are at least three levels of irony hovering above the ruling and the general legal status of gay men and women in Israel.

Irony 1: Prior to the decision, the legal status of gay men and women in Israel was such that they could marry, but could not divorce.

Irony 2: Following the decision (subject to appeal), it may well be the case that gay couples will be treated more favorably than heterosexual couples. While many citizens of Israel may prefer to turn to civil courts in the case of a divorce, the court’s ruling may lead to this right being awarded only to gay couples. This reason is that the ruling is based on Ruth Halperin-Kaddari’s “non-recognition” thesis. According to this thesis, since religious courts refuse to recognize gay marriages, they lose jurisdiction over all relevant aspects including, of course, divorce.

Irony 3: But perhaps the decision would be understood more broadly, in a manner that conflicts with the reasoning given by the court (which is rarely a true limitation, in any case)? In such a case, the court may be seen as awarding the right of all couples, gay or straight, to dissolve their marriage in a civil court. That would be dramatic development indeed. The irony here is, however, that while a narrow interpretation of the ruling would probably be treated with what Alon Harel referred to as “detached tolerance”, a more principled, wide ranging change of policy may well lead to a backlash, an issue discussed (in the American context) in Karl Laird’s earlier post. As Harel notes, tolerance of the gay rights movement in Israel was possible “because the legal changes were perceived as insignificant, given the deeply conservative nature of the Israeli society. Yet, the very success of the gay legal revolution to bring forward issues of sexuality the political discourse undermined the conditions that facilitated its success.”

Dr Amir Paz-Fuchs is an Associate Research Fellow at the Centre for Socio-Legal Studies, Oxford

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