The Road to Civil Marriage in Israel Runs Through Same-sex Divorce

In Israel, even Jewish couples who were married outside of the country can only be granted a divorce by the Rabbinate. Thus, same-sex couples who wish to separate find themselves in a legal lacuna.

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When Roy Koritschoner says he’s divorced, “People ask straightaway, ‘You were married? To a woman?’ I reply, ‘No, to a man’ – and there’s a surprised look.”

Koritschoner, 36, lives in Tel Aviv and is single according to his ID card. He married his then-partner in Canada in 2009, but the two didn’t update their family status in the Israeli Interior Ministry’s Population Registry. After they separated, they dragged the ministry into the family court in Tel Aviv, which ruled last June that, “Plaintiffs and respondent agreed to a declarative ruling that will state the parties are not married.” To whom – each other? To the Interior Ministry? Is the ambiguity deliberate?

In strictly legal terms, this was not exactly a divorce, just as it wasn’t a marriage from the state’s viewpoint. But the imprecise terminology is almost unavoidable, given the legal complications in the country over same-sex marriage – and even more so over its dissolution.

“Civil marriage does not exist in Israel, and the laws of marriage and divorce are subject exclusively to the laws of personal status, so that one can be married or divorced only in accordance with halakha (religious law),” attorney Judith Meisels explains in a forthcoming article for an anthology on LGBT rights in Israel. Over the years, she adds, Israel has registered civil marriages performed outside the country, “thereby creating something of a solution for those who cannot or do not wish to be married according to halakha.” This practice, however, does not address the dissolution of such marriages.

Civil divorce in the country is reserved exclusively for cases where partners of two different religions are involved. “Heterosexual couples from the same [religious] community are compelled to be divorced in a religious court of the community to which they belong, even if, for ideological reasons, they chose to be married in a civil ceremony,” Meisels notes. A same-sex couple cannot obtain a divorce in a religious court, as the religious establishment does not acknowledge their marriage to begin with.

“A trap is thus created,” she says. “A same-sex couple can register their marriage, but they are trapped for all time in that union, because they cannot be divorced, not in Israel and not in the country in which they were married. [In most countries, you have to be a resident in order to divorce there, while marriage registration is often possible for foreigners.] A situation was created in which same-sex couples who were married abroad and whose marriage foundered, lived separately but continued to be registered as married in the Population Registry, as none of them thought of filing for divorce in Israel.”

Until one couple dared.

Prof. Uzi Even and Dr. Amit Kama met in 1986. Kama, who now teaches communications at the Jezreel Valley academic college, was a student of 26 at the time, 20 years younger than Even, a nuclear scientist. “We travelled the whole road together, from criminal offense [the ban on same-sex sexual acts was only repealed by the Knesset in 1988] to wedding to divorce,” Kama says, in a conversation in his Tel Aviv apartment. (He and Even were interviewed separately.)

The two set a number of legal precedents during their 23-year partnership. In 1994, in the wake of their demand, Tel Aviv University, where Even taught chemistry, equalized the rights granted to the partners of faculty irrespective of sexual orientation. A year later, they were registered as the foster family of a youth who was thrown out of his home when he came out of the closet. In 2009, the court allowed them to adopt their son legally. (“We were perhaps the first same-sex couple in the world to do that, in a case where neither of us was the boy’s biological father,” Kama notes.) Even was also the first openly gay person to be elected to the Knesset (on behalf of the left-wing Meretz party), and many restrictions on gay individuals serving in the Israel Defense Forces were lifted thanks to his efforts.

The Even-Kama wedding, in Toronto in 2004, made the front page of Haaretz, although their marriage was only acknowledged in Israel after the unprecedented 2006 decision in which Israel’s High Court of Justice ordered the Interior Ministry to formally register the marriages of same-sex couples who wed abroad. Not surprisingly, then, when their relationship broke down, Even and Kama enshrined their new status thanks to yet another legal precedent: In 2012, they became the first same-sex couple to obtain a divorce in the country. As such, they also became the first Jewish couple in Israel who were divorced not via the Chief Rabbinate but in a civil court.

Was this a declarative divorce, to show that it can be done?

Even: “The need to create a precedent arose because I met someone else, who is not an Israeli citizen. But the Interior Ministry stated that he could not remain with me in Israel unless I got a divorce. I turned to the Rabbinate, who didn’t know what to do.”

Kama: “The separation was forced on me, but I thought that if I agreed to a divorce, I would definitely earn a place in heaven.”

Parting was hard, Kama says, but “the divorce itself went smoothly.” A few days later, he recalls, “I went to the Interior Ministry to change my status. They didn’t bat an eye.” Even notes that he will be returning to the Interior Ministry next month to change his status again, after marrying his current partner in the Netherlands last spring.

“I believe divorce is a basic right in the same way that marriage is,” Meisels says. She took the Even-Kama divorce case pro bono, “because I hoped it would be a precedent leading in the future to civil marriage and civil divorce in Israel. Just as you have a basic right to choose with whom you want to share your life, you also have a basic right to choose who you do not want to share your life with.”

Conflicting principles

In recent years, the right to marry legally has been the focus of the LGBT struggle worldwide. In 2001, the Netherlands became the first country to allow same-sex marriage, and many others have followed suit. But the decision that made the biggest global splash was probably by the United States Supreme Court in June when, by a 5-4 vote, the court ruled that same-sex marriage is a constitutional right.

The LGBT struggle in Israel is closely tied to international developments, but also has its own distinctive aspects, given the dominant role of Judaism and Zionist ideology in life here. The murder of Shira Banki and the stabbing of five others in the Jerusalem Gay Pride Parade last month, along with obnoxious comments made by certain politicians and the ultra-Orthodox media, were a cogent reminder that before struggling for the right to be divorced, the local LGBT community needs to ensure its right to live securely in general.

“Everything that happens in the United States wields an influence of one kind or another here,” Meisels observes, “but at this stage, with the political situation in Israel, I find it hard to believe that the influence will be direct and immediate. The principles on which same-sex marriage rest in the United States conflict with the principles on which the State of Israel is founded – namely, the separation of religion/church and the state. But the disparity between the conservative law and the public, which for the most part is not conservative and not religious, creates a need for creative alternative solutions, such as the Even-Kama ruling. In regard to divorce, same-sex couples now have an advantage over heterosexual couples, for whom no equivalent progress has been created and who must turn to rabbinical courts.”

Attorney Michal Eden, who specializes in LGBT rights, is more optimistic. “International changes influence the courts here,” she says, in a conversation conducted in the office she owns with attorney Ira Hadar. “We integrate foreign rulings in our work. In my opinion, the growing recognition of LGBT families will ultimately pave the way for civil marriage in Israel.”

From the moment local law allowed formal registration of same-sex marriages, even if avoiding the consideration of their substantive legal validity, it was clear the issue of same-sex divorce would also crop up. But these are not two ends of the same stick.

Meisels: “In contrast to marriage, which is an administrative act and can be performed outside Israel – thus bypassing the fact that civil marriage in Israel is not recognized – divorce is a judicial-jurisdictional act, which is regulated abroad by strict conditions in each country. Many countries allow foreign visitors to hold marriage ceremonies, for example, but that is very different than allowing divorce. Even if it were possible to obtain a divorce abroad, the question would still arise of Israel’s recognition of the international authority of that country to dissolve the marital bonds of an Israeli couple.”

The fact that only the Rabbinate can grant a divorce to a Jewish couple has created a legal lacuna here. “How will divorce be granted to a couple when the court in question does not acknowledge their ability to marry?” Meisels asks, noting that the legislature has not created a path for civil marriage. “This is discrimination not only against gays but against the whole secular public,” she adds. “But this route was opened because gays have no other recourse.”

Reliable data on the scope of same-sex marriage and divorce in Israel are difficult to find. Central Bureau of Statistics data are based on the 2008 census – before local law acknowledged the option of same-sex divorce. Statistics promised by the Population Registry had not arrived by press time. Rulings in these cases are handed down without identifying details, and couples going through divorce proceedings aren’t eager to talk.

Meisels knows only of three local rulings involving same-sex divorce, including the Even-Kama precedent: “You need to have the case of a couple who, since 2006, has married, registered, separated and wants a divorce. The Even-Kama ruling is not only the first but also the most far-reaching. [Tel Aviv Family Court] Judge Yehezkel Eliyahu addressed the nonrecognition phenomenon, according to which a court that doesn’t acknowledge the validity of a marriage cannot deal with its dissolution. I had many soul-searching discussions with Uzi and Amit about how to proceed. We didn’t really want the rabbinical court to deal with the divorce, but we thought that if we didn’t start there, we would be faulted for applying to a court that lacks proper authority. The rabbinical court’s response played into our hands. I called them every morning to find out about the status of the case. They refused to charge a fee or stamp the documents. Thus, we were able to tell the family court that no judicial instance was prepared to hear our case.

“In addition,” she continues, “the judge maintains that because the family court has already acknowledged the rights of same-sex couples even if they do not marry – the common-law institution, for example – it is only natural for it to deal with the same-sex family unit, rather than the rabbinical court. These are significant statements, because the other rulings [regarding same-sex divorce] do not contain recognition of the same-sex family unit. In one ruling, there is actually a regression.”

That case concerned a Jewish-Israeli lesbian couple who got married in Connecticut. When the relationship broke up, one of them filed for divorce in the family court. But because they hadn’t registered their marriage at the Interior Ministry, a hearing on its dissolution first demanded a hearing on its substantive validity. And as in the Koritschoner case, the judge declared that the two women were not married to begin with, and so did not dissolve the marriage. “The judge rendered the decision in a technical way and refrained from deciding on the substantive validity of the marriage,” Meisels says.

In Israel today, can same-sex couples who were married abroad and have registered their union in Israel obtain a divorce or not?

Meisels: “Family court rulings are not binding precedents. The state considered whether to appeal the ruling in each of the cases, and in my view decided against, because the appeal would have gone to the district court, whose decisions are binding on lower courts. Still, even if these three rulings are not binding, there is a trend.”

And baby makes three

Although same-sex parenthood has become almost taken for granted in Israel, the pressures and difficulties involved in having children, which undermine relationships and in some cases even cause a breakup, are a new phenomenon within the LGBT community.

Eden: “In an LGBT family, whether the couple is married or not, one of the parents will always have a nonbiological relationship vis-à-vis the child, unless one of them is a transgender person. Even when LGBT marriages become possible here, one parent will have to undergo a procedure to legalize his parenthood. If that procedure is long and expensive, and the state does not allow every person to undertake it, there will be many families among us where children are growing up with one father and another father, and everyone believes the institution is stable and strong – until, heaven forbid, a crisis occurs, such as death or separation, accident or illness. We encounter full-fledged tragedies.”

The rising number of alternative family units is consistent with the LGBT baby boom. However, the law is apparently not yet disposed to deal with this new reality.

“Only in California and Canada has a discourse begun lately about certain circumstances in which harm to the child could occur, and in that case a third parent has to be recognized in order to see to his well-being,” Eden relates. “Adults decide to bring a child into the world in the knowledge that all of them will be equal parents, but the state does not allow this framework. The matter only arises when tragedy strikes.”

A case in point involves Rahel Algavassi, now 43 and a homemaker from Nes Tziona, and Fabiola Bohadana, both of whom worked in the Neveh Tirza women’s prison in the 1990s.

“Fabi was a security guard and I was a warder,” Algavassi recalls. “I was still in the closet. Two or three years after I left the Israel Prison Service, someone told me that Fabi had given birth to a son, and I called to congratulate her. We were friends for six years, until we became a couple.” Six months later, they started living together and raised their two children (“both of whom emerged from Fabi’s womb”) together – Evyatar, now 16, and a daughter, Noam, 14.

A few years later, they decided to expand the family, and Algavassi gave birth to Julie. In December 2010, when Julie was 10 months old, Bohadana perished in the Mount Carmel forest fire disaster. Algavassi, who continues to live with the three children in the Nes Tziona apartment she shared with Bohadana, hadn’t legalized their relationship in any form. She fought for recognition as a widow and for Julie to be registered as an orphan.

“Noam saw that a Facebook memorial wall for Fabi said, ‘Survived by two children,’ meaning she no longer had a mother or a sister,” Algavassi says. After Algavassi approached them, the Finance Ministry and IPS quickly amended this: Algavassi was registered as a widow and receives both an allowance from the National Insurance Institute and Bohadana’s pension. However, Algavassi says, the Defense Ministry “refused to recognize Julie as an orphan, claiming she had a living biological mother and father. But this child was created from the love between Fabi and me, and was born from a desire to expand the family unit.”

This was the start of a bureaucratic nightmare, as she explains. “Julie’s preschool teacher was interrogated, and people in the family, and there were forms and a letter from the doctor, and the father. They just kept digging, wanting more and more.” Finally, after three years, the Defense Ministry agreed to register Julie as an orphan, after Algavassi filed suit via attorney Eden.

Double dads

Another Israeli gay couple, Doron Mamet-Meged – who runs Tammuz, a surrogacy agency – and his partner, Doron Gidoni-Meged, requested the state’s recognition as equal parents of their two children, ignoring the issue of who actually fathered the children. They met a decade ago, were married in Canada in 2007, and are jointly raising Talia, 7, and Matan, 4, both of whom were born through surrogacy in the United States.

A year and a half into their relationship, they decided to expand the family. Mamet-Meged relates that he was then a “typical high-tech employee.” He sold an apartment he had bought with a bonus from work, found a surrogacy agency in Boston and paid $140,000 for the procedure. “In the first pregnancy we implanted two embryos, one from my sperm and the other from my partner’s sperm [in the surrogate mother]. One of them was successful, we didn’t know which. We didn’t want to do a paternity test, but Israel demanded it in order to grant the child Israeli citizenship.” (If the couple refused, their child would not have been registered as Israeli.) They kept the results of the test secret from others, and afterward the nonbiological parent adopted Talia as his daughter.

“On the day Talia was born, I resigned from the high-tech company and founded Tammuz, named for an Akkadian fertility goddess,” Mamet-Meged says. Since then, Tammuz has been involved in facilitating about 450 births.

After Matan’s birth, the partners refused to do a paternity test, and the Interior Ministry declined to formally register the child. The couple petitioned the High Court, requesting that Matan’s civil status be determined not by a test that proves his biological connection to one of them, but on the basis of a birth certificate and a legal declaration from the United States, attesting that they were the parents. If the partners make no differentiation in regard to parenthood, they argued, why should the ministry compel them to declare otherwise?

But the court thought differently. “For now, Matan is not an Israeli citizen,” Mamet-Meged says. “So we pay health insurance privately and can only register him for kindergarten at the city hall, not via the Internet. There is all kinds of nonsense involved.”

“When we were out with the stroller,” he continues, “one of the first questions people routinely asked was, ‘Whose child is he?’ or ‘Who’s the father?’ I learned quite quickly that the answer is actually given not to the questioner but the child. So we insisted that the reply is, ‘We both are.’ Some then asked, ‘Who donated the sperm?’ And we said, ‘We did!’ And to those who were really persistent, we replied that we prefer not to say. We also wanted to control the way the genetic situation would be made known to the children and avoid a situation in which the neighbors’ daughter would say to my daughter, ‘That one is your father and that one is not.’ We told the children themselves from the start. I will have no problem with them telling the world, when the day comes, out of acceptance and understanding.”

This is all a matter of principle for Mamet-Meged – not only in regard to his family unit, but also as part of the larger struggle against discrimination in the country. As with marriage, Israeli law does not allow same-sex couples to bear children via surrogacy here, but the Interior Ministry acknowledges surrogate children born overseas, after biological kinship is proved.

“When a rule is laid down that entails genetics, which applies to both sides for heterosexual couples but not in the same way for two fathers, that amounts to discrimination against an entire group,” says Meisels, who was the lawyer in Mamet-Meged’s case, too.

“It’s clear to me,” Mamet-Meged says, “that if we split up tomorrow, the children are 100 percent mine. And his, too. I would not forgo anything related to either of them.”