Rabbi Eliezer MelamedThe writer is Head of Yeshivat Har Bracha and a prolific author on Jewish Law, whose works include the series on Jewish law "Pininei Halacha" and a popular weekly column "Revivim" in the Besheva newspaper. His books "The Laws of Prayer" "The Laws of Passover" and "Nation, Land, Army" are presently being translated into English. Other articles by Rabbi Melamed can be viewed at: www.yhb.org.il/1
Marriage in accordance with the law of Moshe and Israel is a sacred value. Still, we feel the distress of couples who cannot or do not want to wed halakhically and are attentive to their demand for recognition.
Yesh Atid’s proposed “marital covenant” bill harms the singularity of halakhic marriage and the Jewish character of the state. Protest and criticism aside, however, we are not interested in impinging upon individual freedoms and people's right to choose how to live.
We therefore propose: while strengthening Jewish family values, there should be legislation establishing the option of a domestic partnership agreement. The domestic agreement will be based on the principle of freedom. It will be established via notarized signature and may be dissolved unilaterally by either party.
The Concept of Family in Judaism
Marriage is sacred value in the Jewish tradition. The bond between kallah and chatan, bride and groom, is called kiddushin, which means “sanctification.” Under the chuppah, the wedding canopy, we recite the blessing: “Blessed are You, God, Who sanctifies His people Israel through chuppah and kiddushin.”
Through the mitzvah of marriage, the natural desire and love that God created between man and woman is elevated and sanctified in a Divine covenant, thus expressing a spark of the Divine unity within our world. In this manner, the world is continually redeemed from the torments of isolation, separation, and division.
At every wedding, the Divine ideal is expressed in the world, bringing us another step closer to the redemption of Israel and the entire world. This is what our Sages meant when they stated: “One who brings joy to a chatan and kallah becomes worthy of the Torah given at Sinai, and it is as if he rebuilt one of the ruins of Jerusalem” (Berakhot 6b).
Similarly, the bond between God and Israel at the time of redemption is compared to the relationship between the chatan and kallah, as Scripture states: “As the chatan rejoices over the kallah, so shall your God rejoice over you” (Isaiah 62:5).
This is also what our Sages meant when they stated that God’s holy name imbues a proper Jewish marriage: “When husband and wife are worthy, the Shekhina (Heavenly presence) is among them; when they are not worthy, fire consumes them” (Sotah 17a). Rashi comments on this: “’worthy’ (‘zakhu’) – that they travel the path of integrity. Neither he nor she commits adultery.” For this reason, when there is crisis and suspicion between husband and wife, God commanded that His name – written in holiness – be erased (in the Sotah ritual), in order to bring domestic harmony (Nedarim 66b). Through the erasure of God’s holy name, written on parchment, His name will continue to be part of the couple’s shared life.
Through this expression of unity and sanctity in the framework of love and devotion between a married couple, additional life is brought into the world, and the couple merits fulfilling the mitzva of procreation.
Due to the immense importance of marriage, the Torah contains over fifty mitzvot that deal with its reinforcement. One of the six orders of the Mishna (Seder Nashim) deals entirely with marital life. It is thus understandable that the wedding procedure is comprised of numerous halakhot – as is the divorce procedure when, God forbid, their shared home is ruined.
The Humanitarian Problem
Today, many residents of the State of Israel cannot marry ke-dat Moshe ve-Yisrael (in accordance with the law of Moshe and Israel) – some because of their personal status, others because they do not believe in Israel’s Torah. Having lived together for years, such couples are distressed that their domestic relationship is not recognized by the state. They may wish to buy an apartment, but no bank gives them a mortgage. Let’s say a woman is hospitalized; her companion may want to take care of her, but since he is not officially recognized as her spouse, it is made hard for him to even visit her, and under the principles of confidentiality, he is not given information or consulted on key decisions. He feels terrible. And in the case of death, he suddenly becomes a stranger with no legal status.
Some of these problems have indeed been solved through amendments and various legal rulings. The problem can also be resolved by registering the marriage in a foreign country like Cyprus. However, some people are prevented from doing so because of the hassle or cost involved, and others are offended that they are not allowed to define themselves as spouses outside the framework of Jewish law. They wish to be recognized as spouses though civil registration only, as is done in numerous countries.
The Current Bill: Eliminating the Jewish Character of the State of Israel
Recently, the Yesh Atid faction proposed the “Marriage Covenant” (Brit Ha-nisu’in) Bill, whose purpose is to create a civil marriage option parallel to the currently accepted marriage procedure – with all its rights and obligations, principles and details. To that end, the bill proposes that the state appoint a set of registrars and establish a procedure to apply for registration while giving everyone the right to express opposition to the registration.
The bill also specifies that divorce be executed by a complex procedure that grants the courts authority to prevent the dissolution of the “covenant” until the resolution of all monetary disputes, or if the court believes that marital harmony (shalom bayit) can be restored. In the absence of a mutual consent, proceedings can last a year or more.
This may not be their intention, but the purpose of the bill as currently worded is clear: to eliminate the special status of Jewish tradition in all matters pertaining to family life, thus annulling Israel’s status as a Jewish and democratic state. This law expresses the democratic part of the equation while ignoring the Jewish vision, which is the primary motive for the willingness of Jews to give up their lives in the struggle for the establishment and survival of the state. After all, Jews are permitted to hold Jewish weddings in every country in the world. If civil unions in the State of Israel are deemed equal to marriages consecrated by Jewish tradition, in what sense is it a Jewish state?
For the sake of full disclosure, I admittedly prefer that the State of Israel be defined simply as a “Jewish state.” There is no reason to add “democratic,” because all values are included in the term “Jewish.”
How to Balance these Values
While we believe that the State of Israel must have a Jewish character, we also do not wish to cause grief to anyone. Nor do we claim the authority to interfere with one’s personal life and tell him who to live with, or how. It is our religious and moral duty to criticize lifestyles that are halakhically and morally improper, but out of respect and love for all humans, and acknowledging the value of freedom that is based on God-given freedom of choice, we must recognize their right to choose their own lifestyle.
Some may claim that there is a religious duty to oppose and interfere with any type of relationship that fails to abide by halakha. I cannot expand upon this now, but it seems that such an obligation existed when there was full public consensus favoring such a lifestyle, and even isolated offenders agreed to it in principle, though their urges overcame them. But in a situation like ours, the principle of freedom prevails, and our sole remaining duty is to protest against manifestations that oppose halakha. Moreover, an individual who fails to act in accordance with halakha should be judged favorably, for we do not know that we would have done any better had we grown up under the same conditions that he did.
The question therefore is: how do we strengthen the Jewish character of the state without harming those who do not wish to live according to halakha? This question is likely to trouble us for many years – even when the religious become a majority in the state – since the question is of a religious and moral nature, and not merely a question of political power.
A Proposed Solution
To begin with, it should be enshrined in a Basic Law that for Jews in the State of Israel there is one mode of marriage: according to the age-old accepted Jewish halakha. In other words, marriage ke-dat Moshe ve-Yisrael is the sole path to establishing a family in Israel. This negates any proposal for the creation a new civil institution of marriage.
This is because marriage is a sacred concept, based on the longstanding foundations of halakha, and the state must not desecrate it by means of alternatives or ceremonies that are not faithful to this tradition.
Additionally, there should be legislation affirming that the State of Israel will work to reinforce family values ke-dat Moshe ve-Yisrael, according to the Laws given to Moses and Israel, including strengthening the status of rabbinical courts and increasing the number of rabbinical court judges so they may respond promptly to all needs.
Similarly, family values based on Jewish tradition should be emphasized throughout the educational system, though without harming or insulting anyone who acts or thinks differently.
On the other hand, it should be established that any two people are entitled to sign a domestic partnership agreement that grants them all privileges derived from shared life, like a family. It is not appropriate to call this agreement a “covenant” (“brit”) because the word ‘brit’ expresses sanctity and eternity, whereas the state must allow even partnerships that are devoid of holiness, and or, commitment to the eternal. Thus, the appropriate name for such an arrangement is “domestic partnership” (“shutafut zugit”).
The Domestic Partnership Agreement
The signing of a joint partnership agreement can be performed before any notary public. The notary will offer them a standard, monetary partnership agreement, with an option to broaden or restrict the partnership at their discretion.
Notarization will obligate the Interior Ministry to register their status on their identity cards as “living in a domestic partnership.” With this notarization, they will be entitled to all financial privileges due a married couple. It is also their right to celebrate this partnership as they see fit.
In contrast to the Yesh Atid proposal, which attempts to create a system that parallels traditional Jewish marriage while making the process of registering and dissolving the union more difficult, and places the couple in a state where, according to some poskim (arbiters of Jewish law), a get (bill of Jewish divorce) will be required to dispel any doubt, and raising serious questions of mamzerut (offspring who will be stigmatized and prevented from marrying most Jews according to halakha), the domestic partnership agreement should be based on the concept of freedom.
Accordingly, each of the partners will be entitled to dissolve the partnership unilaterally by signing a document before a notary public and submitting it to the Interior Ministry. If freedom is what we want, then freedom we shall have! No foot-dragging or extortion. Since the domestic partnership is an expression of mutual willingness, without any obligation to God or to the ancient tradition of Israel, when the willingness ends, so does the partnership. Notarization and registration at the Interior Ministry is intended to grant the couple recognition, and not to create unnecessary burdens.
Of course, if the partners so desire, they may sign an agreement that is difficult to dissolve; the state must not interfere with agreements between the parties.
In the event of monetary disputes, they will be adjudicated in the courts, but this will not delay the dissolution of the partnership, which shall take effect the moment one of the partners decides to do so. In the event of disputes concerning the raising of children, the courts will rule on the basis of the child’s best interests.
The Proposal Hinges on Both Components
This proposal is of value provided that both sides of the political spectrum feel that they benefit from it. Those faithful to the Torah benefit in that the status of halakhic marriage is strengthened in the State of Israel, via its incorporation as a major educational value and through the allocation of all resources necessary for the optimal functioning of the marriage and divorce system in the rabbinical courts. Liberals benefit in that the individual gains recognition of his right to define himself and his life, and this self-definition is honored by the state through the granting of rights equal to those given to couples married halakhically.
If this proposal gains the support of the political representatives of Israel’s religious population, and anyone then complains about personal discrimination within the system of Jewish marriage and divorce, it will be clear that he has but one intention: to undermine the status of Jewish tradition in the State of Israel, and not out of concern for anyone’s welfare.
Nevertheless, those loyal to the Torah will still need to work to improve the functioning of the rabbinical courts and clarify important issues, such as coerced divorce and prenuptial agreements, according to the path of the Torah.
Translated by Yonatan Behar and Elli Fischer from the (Hebrew language) Besheva weekly.