Open Zion

11.08.13

Israeli Attorney Suggests Common-Law Marriage As an Act of Civil Disobedience

In response to the Israeli Rabbinate's monopoly on marriage in Israel, the author suggests an act of civil disobedience.

Common-law marriage is an act of protest against a corrupt system of religious marriage and divorce in Israel. Israel’s system of marriage and divorce constitutes a commercial industry that sustains itself through exclusion, discrimination and commercialization of family life. The bureaucracy at its center is a greedy arrangement that profits not only from marriages but also from the religious-status investigations, divorce proceedings, alimony hearings and custody battles under who jurisdiction it monopolizes. At its heart is a business model that keeps Jewish citizens a captive audience.

The rabbinate, which is a government-paid body, has a monopoly over family life. By criminalizing marriage they didn't authorize, they ensure their entrenched power and a healthy income. Therefore I propose that couples in Israel of all faiths, genders and statuses take back the authority over their union from an oppressive religious system and live as common-law spouses as an act of civil disobedience.

Common-law marriage is an act of protest against a system of marriage and divorce that profoundly violates its Jewish citizen’s freedom of conscience. Because marriages performed by individuals other than rabbis authorized by the Rabbinate are illegal, secular Jews and adherents of egalitarian streams of Judaism cannot choose officiating rabbis consistent with their beliefs. Instead, they must choose between a religious marriage that contradicts their convictions, having a religious ceremony that answers their spiritual needs but is not recognized by law, or living as a common-law couple without a marriage certificate. Why should we obtain a license from the state to have our life partnership recognized? Isn’t that a violation of freedom of conscience?

Common-law marriage is a challenge to a system of marriage and divorce that profoundly violates its Jewish citizen’s religious freedom. While Israel protects freedom of religion for all faiths; no citizen has the right to freedom from religion. The absence of separation of religion and state means that couples that fall outside the de facto definition of family in Israel, a man and a woman of the same religion eligible for marriage with the orthodox religious rituals required for government recognition - can’t marry nor register as a couple.

No civil marriages are conducted in Israel. Those who wish to marry someone of a different religion or of the same sex must marry abroad or live as common-law spouses without a marriage certificate. Right now there are 400,000 Israelis, who cannot marry in Israel because they do not meet the Rabbinate's requirements. Religious jurisdiction over personal status ironically makes Israel the only democracy to legally discriminate on the basis of religion.

Common-law marriage is a response to invasion of privacy by the government. Common-law partnership offers privacy and autonomy in a world of increasing intrusion and regulation. I propose ‘privatizing’ marriage. Not in the capitalist sense of letting a corporation profit from government authority, but by restoring civil liberties taken from the individual and appropriated by the government.

Common-law marriage is an expression of personal autonomy. Couples should be free to choose who holds the authority over their unions according to their beliefs. Those who choose religious marriage should be able to marry with the clergy of their choice and have their marriage registered by the state. Those who wish to have a civil union should be able to marry by an officer of the state. And those who wish to remain independent of government or religious authority can choose common-law partnership over a marriage license.

Common-law partnership makes the couple, and not the government or religious institution, the authority in family life. Common-law partnerships have their own independent authority and validity. Their legitimacy is distinct from religious or civil marriage, whose authority is drawn from an external source, the state or religious institution. Common-law partnership empowers individuals to take control over the most personal sphere of life by removing government or religious intervention in family life. It makes the couple the master of their own destiny.

Common-law marriage is the future of marriage. An accelerated process of ‘privatization’ of family life is currently taking place. Couples live entire lifetimes and raise children together free of legal marriage. When the validity of the relationship is internal, and the couple only reports its existence to the authorities without asking permission from the government or from a religious institution to wed, the relationship is more genuine, natural and intimate. This powerful conceptual change empowers and validates the relationship from within and not by external forces. It is the essence of freedom itself. Once that understanding is reached, and the demand for freedom in family life is voiced, family life can become our private domain and individual prerogative.