“We live together, in co-dependence. It’s worked for so many years. I think we’re one of the oldest couples in Israel,” says Idit Fishbein, 88, of Tel Aviv. Her sister Gina, 93, nods in agreement.
A petition they submitted recently to the Labor Court against the National Insurance Institute (NII) is trying to change the conventional approach to “common-law spouses.” First off, sexual relations are not necessary to define a partnership; living together and caring for each other are more important. It is too early to tell what will become of the suit, or whether, if the petition brings about a precedent-setting verdict, the sisters will live to enjoy it.
Gina and Idit Fishbein were born in Leipzig, Germany and immigrated with their parents to Israel in 1936. In the mid ‘60s their father died and some 30 years later their mother died as well. Gina worked in El Al’s offices and Idit was a beautician. The sisters lived with their parents until they died and after that continued to live together, sharing the same apartment and bank account. Neither married or had children. They even bought adjacent burial plots in a kibbutz in central Israel. In recent years they have been sharing an apartment in an old age home in Tel Aviv. Some of the cost is funded by their old age pension allocations, taken from their joint account.
However, the sister who outlives the other will have difficulty paying the sum alone, hence the importance of being recognized as common-law spouses. This would entitle the remaining sister to receive a “survivor’s pension” – half of the deceased sister’s pension from the NII.
Idit Fishbein says she heard on the radio a few years ago that common-law spouses who lose their partner will also be paid a survivor’s pension. That’s when she first got the idea to apply for common-law status.
“I said to Gina: we are in fact a couple, only without the sexual relations of course.” In 2009, a same-sex couple was recognized by law as being common-law partners, even though the pair didn’t live in the same apartment all the time.
“We prepared so well for old age, took care of every detail. I can’t leave Gina alone. I was born to look after her,” says idit.
“I don’t have the strength to fight any more,” says Gina. “But Idit says she’s going all the way. I’m lost without her.”
Idit and Gina Fishbein. Recration photo: Ilan Assayag.
For the past six years the sisters have been asking NII to recognize them as common-law spouses in order to receive a survivors’ pension, but their requests have been denied. About a year ago NII director general Prof. Shlomo Mor-Yosef met them, but his answer was the same.
“The legal situation today does not enable giving you a survivor’s pension, since the law doesn’t refer to your circumstances,” Mor-Yosef wrote to the sisters. “I understand your arguments and indeed changing the existing legislation could entitle you to the pension,” he wrote.
“Until that letter we received offensive replies,” says Idit, “to the effect that ‘common-law spouses’ was only for homosexuals and lesbians. Also that inspectors would come to check how many beds we had at home. I explained that we’re sisters who live together, that a couple is a matter of living together. But they wouldn’t listen,” she says.
She is also angry with Mor-Yosef for his letter. “Why is he sending us to the Knesset? Who do I know there? We’re citizens of the state. We haven’t taken advantage of anyone. All we ask is what we’re entitled to.”
In the sisters’ case the survivor’s pension would amount to some 1,600 shekels ($424) a month.
The Elderly and Holocaust Survivors Clinic at Bar-Ilan University is assisting the sisters in their struggle against NII. The clinic is focusing on the legal interpretation of the “common-law spouses” definition and mainly on whether conjugal relations are a necessary condition for recognizing a family unit.
A petition submitted by the sisters some three weeks ago to the Tel Aviv Regional Labor Court maintains that previous rulings of various courts indicate that the such relations are not a necessary condition.
“These foundations [sexual relations] are impossible to measure and reducing them or even their total absencedoes not necessarily rule out [the definition of common-law spouses],” argues attorney Aviad Igra, of the legal clinic.
“Over the years the conditions required to recognize partners as common-law spouses have been softened,” he writes. Couples who did not share the same bed and didn’t have sexual relations have also been recognized as common-law partners, the petition says.
“The current situation is unreasonable and even constitutes an absurdity, because the petitioners have been living together and running a joint household for decades, while other couples, who perhaps have sexual relations – again, this is not necessary – can be recognized as common-law spouses within a very short period,” the petition says.
For example, a few years ago the court recognized a couple who lived together for four months as common-law spouses. Another verdict issued by the Supreme Court stressed that a couple’s subjective approach to their relationship determines whether they are common-law spouses or not, rather than the conventional view.
The petition says the issue in itself is evasive and changes with time. Examining the sisters’ way of life will show that they see their relationship “as a partnership based on mutual responsibility. Their fates are bound together, they cooperate fully and share their resources equally, so that each serves as a safety net for the other.”
The law is intended to help people who are supported by another after the supporter passes away,” says Igra. “There is and should be no connection to the intimate relations component. In fact, in certain conditions a survivor’s pension is given to children as well,” he says.
“I’m not going to give in to NII, especially after so many years have been wasted on arguments about sex,” says Idit.
“Every time I tell our story it’s so outrageous I get angry again,” she says. “We’re a couple to all intents and purposes, without the sexual relations. Why should we be punished by NII? Some couples don’t help each other, or wait for one of them to die, yet they will get the allowance. It drives me crazy. If an intimate relationship is living together, then we’ve been doing it for decades,” she says.