Family Law

 

HCJ 781-15

 

 

Petitioners:	Etai Arad Pinkas Yoav Arad Pinkas Anon. Anon. Anon. Anon. The Association of Israeli Gay Fathers Tammuz International Surrogacy Agency Ltd.

v.

 

Respondents:	1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996
	2. The Knesset

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior, IsrSC 61(2) 202 [2006] https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

[22]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 [2006].

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

[42]     HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56(3) 640 [2002].

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

[49]     HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security, (June 13, 2017).

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

[53]     HCJ 142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 [1990].

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

[56]     HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57(1) 235 [2002].

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20^th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise – a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3^rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13^th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cf.  Sessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).

 

 

 

CA 419/84

 

Appellant:       Shmuel Tuchmintz

                                    v.

Respondent:    Lorna Carmel (Tuchmintz)

 

In the Supreme Court sitting as Court of Civil Appeals

[Feb. 28, 1985]

Before Justices M. Bejski, S. Levin, A. Halima

 

[1]        MP 215/83, HCJ 247/81 A. Sefati v. P. Sefati, IsrSC 37(2) 181

[2]       CA 490/77 Natzia v. Natzia, IsrSC 32(2) 621

[3]        CA 4/80 Munk v. Munk, IsrSC 36(3) 421

 

Appeal of the judgment of the Tel Aviv-Jaffa District Court (Judge S. Aloni) of May 30, 1984 in OM 280/84. Appeal denied.

 

The Appellant pro se

M. Morgenstern on behalf of the Respondent

 

Justice M. Bejski

1.         The Respondent petitioned the Tel Aviv-Jaffa District Court by originating motion for the enforcement of the Appellant’s obligation to purchase a 3 room apartment for her, and for the appointment of a receiver to execute that obligation. The proceedings and hearing were very abridged, and not only were the parties not examined on their affidavits, but there was almost no recourse to summations. In its judgment, the trial court ordered the Appellant to fulfil the said obligation, and appointed Advocate Shloush as a receiver, granting him the necessary authorities for the sale of the apartment known as parcel 548/7 in section 6630. The appointment of the receiver would enter into force in six months, if by that time the Appellant had not purchased an apartment for the Respondent in accordance with the obligation.

            Thus, the appeal before us.

2.         The obligation concerned is found in paragraph 12 of a divorce agreement that the parties signed on Aug. 15, 1978, in which, in dozens of paragraphs and subparagraphs, they arranged the complex of their relations in contemplation of a divorce and the future of their two daughters. From among all the matters addressed by the agreement, we are concerned only with the arrangement concerning the apartments: the Appellant undertook to purchase for the Respondent, at his expense, and within one year of the divorce, an unfurnished, 3 room apartment in the area of Neve-Avivim in Tel Aviv, which would be registered in its entirety in the Respondent’s name. Upon the fulfillment and performance of this obligation, the Respondent is required to convey to the Appellant, without consideration, the rights registered in her name to a 5 room apartment in which the spouses resided with their daughters, and to transfer its exclusive possession to him. At the signing of the agreement, the Respondent signed a notarized irrevocable power of attorney that empowered a lawyer to act on her behalf to do everything that may be necessary for performing her obligation. A consent decree was granted to the divorce agreement in PS 2737/77, and the spouses were divorced by a get [Jewish bill of divorce – trans.]. In the meantime, also as agreed, the Respondent and the daughters continued to live in the spouses’ 5 room apartment, without any change in the registration, until the Appellant would purchase a 3 room apartment for the Respondent. The large apartment is registered in the name of both parties, in equal parts.

            However, the Appellant did not purchase a 3 room apartment for the Respondent – not within a year of the divorce, and not in the following years – and that is what led the Respondent to initiate the proceedings by originating motion, as stated above, and the judgment which the Appellant challenges.

3.         In his affidavit, which serves as defense pleadings, the Appellant raised only one defense claim, which is that after signing the divorce agreement, and before the passage of the year mentioned in paragraph 12, the Respondent gave notice that she wished to remain in the large 5 room apartment. In support of that, the Appellant appended a note in the Respondent’s handwriting, dated July 10, 1979, on which is written:

I have decided to stay in the apartment where I’m living at 9 Rav Ashi St. which is owned half by me and half by Sammy. I have decided to stay here indefinitely, and Sammy and I have to write up a contract regarding to that when I come back from the States.

            The Appellant adds in his affidavit that he and the Respondent reached an agreement that she would remain in that apartment until the younger daughter would reach majority (she is now 10 years old), and accordingly, the obligation under paragraph 12 above in regard to the purchase of a 3 room apartment would be postponed, in addition to other accompanying conditions. There is no written support for the version regarding the agreement to postpone the purchase of the apartment, and even the Appellant speaks only of a parol agreement. However, according to the wording of the Respondent’s note, quoted above, it is clear that she intended to draft a written agreement upon her return from the United States. And although some four years have elapsed since, no written agreement has been drafted.

            The honorable trial judge did not refer in any way to the Appellant’s version, and made no finding in that regard, stating:

Even if I were to accept the Respondent’s (the Appellant before us – M.B.) claim, that would not suffice to prevent granting the request before me.

            And the granting of the suit was briefly explained as follows:

It was not argued that a new agreement rescinded the Respondent’s obligation, and it was not argued that this new agreement is permanent, and that on its basis the Plaintiff could never demand the performance of the said obligation. Moreover, if an agreement was reached that contradicts a valid judgment, the Respondent could have submitted a request to amend the judgment on a claim of changed circumstances, for as long as the judgment stands and has not been amended, there is no reason not to execute it.

4.         The Appellant raises the objection that inasmuch as he was not examined on the version presented in his affidavit in regard to the postponement of the date for purchasing the 3 room apartment, he met his evidentiary burden in regard to the later parol agreement to change paragraph 12 of the divorce agreement, and nothing prevents proving the rescission or change of a written agreement by spoken statement and witnesses when the rescission or change is later, since such evidence does not contradict the written agreement (Y. Sussman, Civil Procedure (Boursi – Peretz & Tuvim, 4^th ed., 5734, 386 (Hebrew)), and a distinction should be drawn between a claim against a document and a claim against a lawsuit or a defense. While there is a presumption that the document represents all that was agreed at the time it was made, such a presumption does not exist in regard to what transpired thereafter. “Even a very detailed contract may be rescinded by an oral agreement of a few words, and why should this additional meeting of wills not be given force if there is reliable testimony to it?” (E. Harnon, Law of Evidence (Academic Press, vol. I, 5732) 167 (Hebrew)).

            However, in the present case we do not know if the Appellant’s version was found reliable, in the absence any reference to it in the judgment that is based on a finding, and even on such an assumption, the Appellant could overturn a final judgment issued in proper proceedings, only by means of a separate suit. The Respondent’s attorney agrees with this conclusion, adding that a duly rendered judgment is not normally overturned indirectly and incidentally, but requires a separate suit for that specific purpose (MP 215/83, HCJ 247/81 [1] at p. 185). The argument, as raised, is not so unambiguous from a purely procedural perspective, inasmuch as the Appellant does not at all argue for the overturning of the judgment or the rescission of the agreement given thereupon, nor does he does even argue for the rescission of paragraph 12 thereof, but rather argues as to the agreement in regard to the postponement of one of the obligations.

            Even before addressing the procedural question, how can the Appellant support his version in regard to postponing performance, if even under the most generous assumption in his favor that what he claimed in his affidavit was adequately proved and believed (which, as noted, was not held), the question would remain as to whether the Appellant can substantively prove what he seeks to prove, which is another argument made by the Respondent’s attorney.

5.         A divorce agreement given the force of a judgment is a property agreement in the sense of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Law), which establishes in sec. 2(d) that “An agreement between spouses confirmed by a judgment for divorce of a religious court shall be treated as a property agreement confirmed under this section.” According to sec. 1 of the Law, not only must the property agreement itself be in writing, but “any variation of such an agreement shall be in writing”. And in addition to the requirement that both the property agreement and any change in it specifically be in writing, there is the additional requirement under subsecs. (a) and (b), which establish:

2.         (a)        A property agreement and any variation thereof require confirmation by the District Court…or the religious court which has jurisdiction in matters of marriage and divorce of the spouses.

             (b)      Confirmation shall only be given after the civil or religious court has satisfied itself that the spouses have made the agreement or variation by free consent and in understanding of its meaning and effects.

            While the parties before us married before the Law entered into force, and sec. 14 states that sec. 3 and the other provisions of Chapter Two will not apply to spouses who married prior to the Law’s entry into force, it was already held in CA 490/77 [2] at p.  624, that “the significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2.” Section 1 of the Law speaks of a property agreement made between spouses, and indeed, when the agreement before us was made, the parties were spouses. The section does not require that they also be in the same status of spouses at the time of making a change in a property agreement. But as far as the writing requirement for a change in a property agreement is concerned, the requirement under secs. 1 and 2 and the writing requirement, both for the property agreement itself and for changes thereto, is not merely evidentiary but is primarily substantive, and the legislature did not suffice only with the writing requirement, but further added provisions as to the need for its confirmation by a judicial instance, as stated in CA 4/80  [3] at p. 428:

…a property agreement is not valid unless a judicial instance is satisfied that the agreement was made with free consent, without pressure, and that both parties understood exactly what was concerned and the possible effects of their signing the agreement.

            And Justice S. Levin added in that same matter, at p. 429:

The proceeding that is the subject of the appeal is similar to the proceeding for making a will before an authority under sec. 22 of the Succession Law, 5725-1965, and the purpose of reserving the confirmation authority specifically to a judicial instance is to make certain that it is irreproachable, that the parties to the agreement understood the meaning of the agreement and its effects, and signed of their own free consent.

6.         As we have seen, the Appellant does not even argue that postponing the date established in section 12 of the agreement in regard to purchasing the apartment, which undoubtedly constitutes a variation of a property agreement, was made in writing as required under section 1 of the Law. I any event, the requirements of section 2 in regard to the court’s confirmation of a variation, after being satisfied that the parties understood the meaning and effect of the variation, and that is was made with free consent, were not met. Reliance upon the note in which the Respondent expresses her desire to continue to stay in the 5 room apartment does not even meet the writing requirement, as it expressly states that she would have to write an agreement in that regard when she returns from the United States, and that was never done, let alone was any request made to the court in this regard. We find that the substantive conditions in regard to changing a property agreement were not met, and it is of no consequence in which proceeding this claim is raised, whether in a separate suit or as a defense in response to the Respondent’s suit, since the result would be the same, i.e., that the Appellant cannot rely upon a written document that would prove the change in regard to postponing the date regarding which he argues. Therefore, this argument must ultimately be denied in whatever proceedings.

7.         The Appellant raised another argument in regard to the Respondent’s lack of good faith in performing the agreement, in knowing that the sale the apartment at the present time is subject to land appreciation tax in a considerable amount that the Appellant claims he cannot afford. It would seem that this is the true reason why the Appellant needs to postpone the sale of the apartment until the sale will be tax exempt. He expressly stated this when he tried to negotiate a mutually agreed arrangement without success.

Not only was no groundwork laid that would show the fault of the Respondent, and whether at some earlier time the sale would have been free of land appreciation tax, but this argument is not relevant to the subject of this proceeding, and there is no need to address it.

In summary: this appeal should be denied, and the Appellant should be charged for the Respondent’s costs and legal fees in the amount of 500,000 shekels, with interest and linkage in accordance with the Adjudication of Interest and Linkage Law, 5721-1961.

 

Justice S. Levin

            I concur.

Justice A. Halima

            I concur.

 

Decided in accordance with the opinion of Justice Bejski.

Given this day, 7 Adar 5745 (Feb. 28, 1985).

           

 

CA 490/77

 

Appellant:       David Natzia

                                v.

Respondent:    Aliza Natzia

 

 

In the Supreme Court sitting as Court of Civil Appeals

[June 7, 1978]

Before: Justices A. Witkon, M. Etzioni, and D. Bechor

 

Appeal of the judgment of the Jerusalem District Court (Acting President A. Landa) of June 1, 1977, in Application File 39/76 (Application File 434/73, PS 171/72).

Y. Ben Melech for the Appellant

Y. Hovav for the Respondent

 

Abstract

The appeal focused upon the dismissal of the Appellant’s request to enforce a condition of a divorce agreement with the Respondent concerning the erection of a wall to divide their apartment.

The Supreme Court held:

A.        (1)        Section 2 of the Spouses (Property Relations) Law, 5733-1973, which requires the confirmation of a property agreement by a civil or rabbinical court, also applies to spouses married prior to the enactment of that law.

(2)        The Spouses (Property Relations) Law, 5733-1973, is very strict in regard to a property agreement between spouses that establishes the relationship between them and also obligates in regard to the future.

(3)        Approval of divorce agreement does not constitute confirmation of a property agreement unless it meets the requirements of sec. 2 of the Spouses (Property Relations) Law, 5733-1973.

(4)        The performance of an agreement duly executed between parties who agreed to divorce does not, itself, obligate the parties to divorce.

Judgment

 

Justice Bechor:

This is another step in a sad dispute in ongoing civil and criminal proceedings between spouses for years. The parties are a husband and wife who married many years ago and raised children, but who have been disputing for no few years, and who are unable to live together or divorce, or at least agree to live separately under agreed conditions.

            Among the children of the couple are the daughter Ronit, who is still a minor, born on Sept. 13, 1962. In 1973, the Appellant was ordered to pay maintenance for the Respondent and the daughter Ronit, who is with the mother. The Appellant has a house at 5 HaChish Street in Jerusalem that comprises a large apartment in part of which the Respondent and Ronit currently reside. This house appears to compose a not-insignificant part of the dispute between the parties. A few years ago, the Respondent lived in part of the apartment, and afterwards he rented it to tenants who have since left.

            On July 1, 1975, the Respondent and Ronit filed Motion 434/75 in the District Court, in which they asked to order the Appellant to bring about the removal of the tenants he had installed in part of the apartment after an order was granted prohibiting him from entering the apartment. The court refused to grant the order ex parte, and on July 6, 1975, a hearing was held in the presence of both parties. In the course of the hearing, they agreed to a temporary arrangement according to which the hearing would be adjourned until July 18, 1974, and if no other order would be granted that day, the Appellant would be permitted to rebuild the wall that had been in the apartment on June 25, 1975, and the wife would be prohibited from demolishing the wall. At the request of the attorneys for the parties, the court approved the said agreement “only as a temporary arrangement”, and gave it the force of a court order. What is concerned is a wall that divides the apartment in two, dividing between the part in which the Respondent and Ronit reside and the other part, which was erected by the Appellant and which the Respondent demolished on June 25, 1975. On July 18, 1975, no order was granted, and the next hearing was held on July 24, 1975, at which the attorneys for the parties appeared, along with the Appellant in person, and informed the court that the parties had arrived at a compromise in accordance with a written agreement, and submitted the document, personally signed by both parties and marked “A”, and requested that the court approve the compromise and issue a consent decree. The judge issued a decree in this language:

Upon the agreement of the parties and at their request, and being satisfied that the compromise arrived at by the parties is in the interest of the minor, I approve the compromise and grant it the force of a judgment. Given July 24, 1975.

            That agreement was a divorce agreement (as the parties referred to it in the heading), and its primary provisions were that the parties would divorce, Ronit would remain in the custody of the Respondent, and the Appellant would pay maintenance in the amount of IL 500 per month. The agreement also includes detailed instructions in regard to the apartment, of which the main point, in short, is that the apartment would be divided in two, the large part (Part A), the part in which the Respondent resides with Ronit, would be registered in the Respondent’s name as her property and would be in her possession, and the second part (Part B) would be registered in the name of the Appellant and the couple’s daughters in equal parts. It was also agreed that the Appellant would have the right to build on the roof, and that Part B would be rented as an unprotected tenancy by the Respondent, who would receive the income for 10 years from receiving the divorce, as long as she did not remarry, and that after 10 years, she would receive half the income, once again as long as she did not remarry. It was also agreed that “if the wife marries and/or allows another man to reside in the house permanently, the apartment would be divided in practice by the husband”, who would rent out Part B and receive the income therefrom. It was further stated in section 11: “The husband undertakes to demolish the walls that he built, and to restore the apartment to sound condition”.

            On the day of the issuance of the said judgment, the Respondent’s attorney and the Appellant himself jointly filed a request with the Rabbinical Court asking that it arrange the granting of the divorce. Thereafter, hearings were scheduled that were adjourned from time to time due to the non-appearance of the Respondent or her attorney, or due to a request for a postponement by them. It turns out that the Respondent had changed her mind in the meantime, and did not want to accept a divorce, and the matter has not been arranged to this day. In the eleventh hearing before the Rabbinical Court, at the beginning of 1976, the Respondent and her attorney informed the court that the agreement had been coerced and that she is not willing to accept the divorce under the terms of the agreement of July 24, 1975, while the Appellant and his attorney requested that the court obligate her to accept the divorce. The court adjourned the matter for consideration and decision, and it appears that a decision has not yet been rendered. On April 8, 1976, the Respondent  filed a request in the District Court, numbered 281/76, in which she asked for a declaration that the divorce agreement was void because it was obtained under pressure by the Appellant that she could not resist. That request has not yet been addressed.

            On January 15, 1976, the Appellant filed a motion (No. 29/76) in which he asked “to compel the Respondent by imprisonment and/or fine and/or both together to carry out the judgment given in Motion 434/75 on July 24, 1975”. The motion was scheduled for a hearing, and in the course of the hearing it became clear that the purpose of the Appellant’s request was, primarily, to rebuild the wall between the two parts of the apartment, inasmuch as the obligations of the parties could be carried out without arranging the divorce. In the first decision of Dec. 27, 1976, the learned President rejected the preliminary arguments of the Respondent’s attorney objecting to the request. In an additional hearing held thereafter, the Respondent’s attorney raised additional legal arguments. The learned President accepted them and denied the Appellant’s request in a quasi in limine decision, without hearing evidence, and thus the appeal.

            In his decision, the learned President stated that the agreement of July 24, 1975, as well as the temporary agreement of July 6, 1975, are property agreements in the sense of the Spouses (Property Relations) Law, 5733-1973, and therefore require confirmation in accordance with that law. Inasmuch as they were not so confirmed, they are not binding. Section 2(a) of the above law establishes that a property relations agreement requires confirmation by the District Court or by the religious court that has jurisdiction over the  marriage and divorce of the spouses. Section 2(b) of the Law establishes that the said confirmation shall not be granted unless the civil or the religious court has satisfied itself that the spouses made the agreement or the variation “by free consent and understanding of its meaning and effects”.

            The attorney for the Appellant argued that the said law does not apply to the agreements between the parties because they married prior to the Law’s entry into force on Jan. 1, 1974. There is nothing to that argument. Section 14 of the Law establishes that sec. 3 of the Law, as well as the provisions of Chapter Two of the Law, shall not apply to spouses who married prior to the Law’s entry into force. The significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2.

            As for the conditions that must be met before the court can confirm a property agreement under sec. 2 of the Law, it should be noted that subsec. (c) establishes that authentication by the marriage registrar can take the place of court confirmation in the case of a property agreement made before the marriage or at the time of its solemnization. Additionally, subsec. (d) establishes that an agreement between the parties that was confirmed by a judgment for divorce of a religious court shall be treated in accordance with the same rule as an agreement confirmed under sec. 2 of the law. Here we should note that in regard to authentication by the marriage registrar and confirmation in a divorce decree, it is not stated that the authenticator or confirmer must first be satisfied of those things upon which confirmation of a property agreement by a court is conditioned. It may be that the very occasion of the wedding or the divorce confers clear significance to the agreement, and therefore the condition to particularly ascertain whether the parties understand the meaning of the agreement and its effects was not stipulated. The situation is different in regard to the relations between the spouses during the period of the marriage, and there is no doubt that over the course of many years of marriage, spouses make all kinds of transactions and agreements between themselves in regard to some item of their property, and it is doubtful that every such matter should be granted the status of a property agreement in the sense of this law. The law is very strict in regard to a property agreement between spouses that establishes the relationship between them and also obligates in regard to the future. It also justifies the requirement that the court ascertain not only that the spouses freely made the agreement, but that they did so understanding its meaning and effects. The regulations promulgated pursuant to the law were also made in this spirit. Regulation 1 establishes that spouses who wish to obtain the confirmation of such an agreement will submit (in the plural form) it to the court. Regulation 2 establishes that the confirmation be given by the judge in his chambers, in the presence of the spouses, after the judge explained the meaning of the agreement in simple, clear language, and ascertained whether they made it of their free will. Regulation 3 establishes that the confirmation be made on a copy of the request, and that it record that the parties were given the appropriate, proper explanations, and that in the opinion of the court, the agreement was made with free consent.

            In this case, the agreement of July 24, 1975 was given the force of a judgment by a consent decree, and that force was given by the learned President himself, who, in his decision that is the subject of the appeal, established that when he did so, he did not consider the Spouses (Property Relations) Law, 5733-1973, and was not asked to do so. And who better than he can say whether or not that was given as confirmation in accordance with that law. It is also clear from the decision itself that what the learned President was asked to do, and what he did, was to consider the question whether the agreement was to the benefit of the minor who was a party thereto, and nothing more. Therefore, the learned President was correct in his decision that this was a property agreement that was not duly confirmed, and that is, therefore, not binding.

            It is doubtful that such a property agreement can be executed only in part, even if duly confirmed. It is, indeed, true that the Respondent is the one who refuses to accept the divorce, but as long as the religious court has not required her to accept the divorce, and she does not accept it, the Appellant is unwilling to convey the property that he undertook to convey to her under the agreement. As already stated above, the Appellant’s purpose at this stage is to erect a wall between the two parts of the apartment so that he can rent it or use Part B of the apartment as he wishes. Clearly, the District Court cannot compel the Respondent to accept the divorce, which is a matter for the Rabbinical Court, even if there is an enforceable agreement between the parties. Moreover, the performance of an agreement duly executed between parties who agreed to divorce cannot, itself, obligate the parties to divorce (see: Schereschewsky, Family Law, 2^nd ed., p. 277). And as for performing the rest of the agreement other than granting the divorce – the Appellant is unwilling to do this. Moreover, under the agreement, the Appellant undertook to demolish the walls that he built, and the Respondent has the right to receive the rent from Part B of the apartment for ten years, as long as she has not remarried, and under sec. 6(f) of the agreement, the apartment will be divided in practice only “if the wife marries and/or allows another man to reside in the house permanently”. Clearly, this section refers to marriage to another man and not, as the Appellant’s attorney argues, to a situation in which the Respondent is a married woman by reason of being married to the Appellant.

            The Appellant’s attorney argues that the agreement of July 24, 1975 was given the force of a judgment, and therefore it is a binding judgment that should be executed. This is not so, because the transaction in its entirety cannot be executed by the District Court, and inasmuch as the very existence of the agreement does not oblige the Respondent to accept a divorce, the court lacks authority to order the divorce even if there was a binding agreement between the parties, and the divorce is the grounds and basis of the agreement that was given the force of a judgment. In addition, and as already stated above, the learned President ruled that there was no judgment that constitutes confirmation of a property agreement between spouses.

            The Appellant’s attorney further argued that even if the agreement of July 24, 1975 is not binding, the agreement of July 6, 1975 should be executed inasmuch as no other order was granted on July 18, 1975. The learned President also deemed the agreement of July 6, 1975 as a property agreement that had not been duly confirmed. But even were it not a property agreement that requires confirmation by law, which I am not saying, it was only a temporary arrangement, as the attorneys of the parties declared, and as was expressly recorded in the decision. After that, the parties agreed to a different arrangement, and in any case, now – three years after that temporary agreement and that temporary decision – there is no longer reason to enforce the agreement and the decision in contempt-of-court proceedings under the circumstances and in light of the developments that have since taken place. While it is true that the Respondent refuses to divorce, it would appear that the dispute is about the conditions. As already stated, divorce proceedings remain pending in the Rabbinical Court, and the Respondent has also filed a request to rescind the agreement of July 24, 1975 on the grounds that her consent was given due to pressure that she could not resist. It should also be noted that the Respondent resides in the apartment with their minor daughter, and other daughters, including a handicapped daughter, live with her, as well.

            In light of this, it is decided to deny the appeal and to charge the Appellant with the Respondent’s costs of the appeal in the amount of IL 5,000.

            Given this 2^nd day of Sivan 5738 (June 7, 1978).

Civil Further Hearing 1558/94

 

 

 

Petitioner:       Victoria Nafisi

                                    v.

Respondent:    Simantov Nafisi

 

 

In the Supreme Court

[Aug. 25, 1996]

Before: President A. Barak, Deputy President S. Levin, and Justices E. Goldberg, T. Orr, E. Mazza, M. Cheshin, T. Strasberg-Cohen, Z. E. Tal, D. Dorner

 

Supreme Court cases cited:

[1]       CA 2/77 Z. Azugi v. M. Azugi, IsrSC 33 (3) 1

[2]       CA 6821/93, LCA 1908/94, LCA 3364/94 United Mizrachi Bank Ltd. v. Migdal Cooperative Village et al., IsrSC 49 (4) 221 [English: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

[3]       CA 602/82, CA 628/82 Estate of Omar Khalil Abdallah Abu-Nia et al. v. Mandelbaum et al. and cross-appeal, IsrSC 37 (3) 281

[4]       HCJ 243/88, HJCApp 168/88, HJCApp 170/88 Consuelos v. Tourjeman, IsrSC 45 (2) 626

[5]       LCA 3920/90 – unpublished

[6]       CA 65/88 Aderet Shomron Ltd. v. Hollingsworth GmbH, IsrSC 45 (2) 600

[7]       CA 778/77 T. Farkash v. M. Farkash, IsrSC 33 (2) 469

[8]       CA 126/80 Guardian Eastern Insurance Co. Ltd. v. Rossman & Co. Ltd. and cross appeal, IsrSC 36 (3) 296

[9]       CA 1915/91, 2084/91, 3208/91 A. Yaacobi v. N. Yaacobi et al.; E. Yaacobi v. A. Yaacobi; Moshe Knobler v. Mazal Knobler, IsrSC 49 (3) 529

[10]     CA 755/85 Estate of the Late Salem Shaman v. Estate of the Late Saada Shaman et al., IsrSC 42 (4) 103

[11]     CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz), IsrSC 39 (1) 287

[12]     CA 45/90 S. Abada v. T. Abada, IsrSC 48 (2) 77

[13]     CA 490/77 D. Natzia v. A. Natzia, IsrSC 32 (2) 621

[14]     CA 753/82 A v. B and cross appeal, IsrSC 37 (4) 626

[15]     CA 486/87 M. Avidor v. L. Avidor, minor et al., IsrSC 42 (3) 499

[16]     CA 370/87 Estate of Tinka Esther Madjar v. Estate of Victor Madjar et al., IsrSC 44 (1) 99

[17]     CA 291/85 A. Awalid v. Z. Awalid, IsrSC (1) 215

[18]     HCJ 1000/92 H. Bavli v. Great Rabbinical Court et al., IsrSC 48 (2) 221

[19]     CA 767/77 Ben Haim v. Cohen, IsrSC 34 (1) 564

[20]     CA 265/84 Mizrachi v. State of Israel, IsrSC 40 (3) 163

[21]     CA 598/85 Mastura Kahana v. Meir Kahana et al., IsrSC 44 (3) 473

[22]     CA 587/85 Stark v. Birenberg and cross appeal, IsrSC 41 (3) 227

[23]     CA 260/89 Levi v. Hepner, IsrSC 46 (4) 391

[24]     CA 657/76 The Authority under the Victims of Nazi Persecution Law, 5717 – 1957 v. Hisdai, IsrSC 32 (1) 778

[25]     HCJ 282/88 Awad v. Prime Minister & Minister of the Interior et al., IsrSC 42 (4) 424

[26]     CA 524/88, 525/88 “Pri Ha’emek” – Cooperative Agricultural Assoc. & 30 others v. Sedeh Yaakov – Moshav Ovdim of the Po’el Hamizrachi for Cooperative Agricultural Settlement et al., IsrSC 45 (4) 529

[27]     HCJ 98/69 Bergman v. Minister of Finance, IsrSC 23 (1) 693 [English trans: http://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance]

[28]     CA 253/65 Bricker v. Bricker and cross appeal, IsrSC 20 (1) 589

[29]     CA 595/69 M. Afta v. A. Afta et al., IsrSC 25 (1) 561

[30]     CA 718/89 Haifa Quarries Ltd. v. Chen-Ron Ltd. and cross appeal, IsrSC 46 (3) 305

[31]     CA 4638/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd., IsrSC 49 (2) 265 [English trans: http://versa.cardozo.yu.edu/opinions/state-israel-v-apropim]

[32]     HCJ 1601-1604/90, HCJApp 1890/90 Shalit v. Peres et al., IsrSC 44 (3) 353 [English trans : http://versa.cardozo.yu.edu/opinions/shalit-v-peres]

[33]     FH 29/84, FH 30/84 Kossoy v. Bank Y.L. Feuchtwanger Ltd. et al. ; Filco Finance and Investment Co. v. Bank Y.L. Feuchtwanger Ltd. et al., IsrSC 38 (4) 505

[34]     HCJ 1635/90 Schereschewsky v. Prime Minister, IsrSC 45 (1) 749

[35]     CA 630/79 Z.B. Lieberman v. E. (Mendel David) Lieberman, IsrSC 35 (4) 359

[36]     CA 6926/93 Israel Shipyards Ltd. V. Israel Electric Co. Ltd. et al., IsrSC 48 (3) 749

[37]     CA 806/93 Y. Hadari v. S. Hadari (Darchi), IsrSC 48 (3) 685

[38]     CA 300/64 M. Berger v. Estate Tax Director, IsrSC 19 (2) 240

[39]     CA 135/68 T. Bareli et al. v. Estate Tax Director, Jerusalem, IsrSC 23 (1) 393

[40]     CA 3095/91Emanuel Lidor v. Director for the Land Appreciation Tax, 5723-1963, IsrSC 47 (5) 816

[41]     CA 3666/90, CA 4012/90 Zukim Hotal Ltd. v. Netanya Municipality, Netanya Municipality v. Tzukim Hotal Ltd., IsrSC 46 (4) 45

[42]     HCJ 143/62 Funk-Schlesinger v. Minister of Interior, IsrSC 17 225

[43]     CrimA 4912/91, 5434/91, 5513/91 Talmi et al. V. State of Israel, IsrSC 48 (1) 581

 

English cases cited:

[44]     In re Egerton’s Will Trusts; Lloyds Bank Ltd. V. Egerton [1956] Ch. 593

[45]     Buchanan v, Rucker (1808) 103 E.R. 546 (K.B.)

[46]     In re Annesley Davidson v. Annesley [1926] Ch. 692

[47]     United Australia Ltd. V. Barclays Bank Ltd. [1941] A.C. 1 (P.C.)

 

Further Hearing in a matter decided by a three-member panel of the Supreme Court (Justices D. Levin, E. Mazza, Z.E. Tal) on March 3, 1994, in CA 2199/91. Petition granted by majority opinion, Justices E. Mazza and Z.E. Tal dissenting.

T. Pardo for the Appellant

M. Cohen for the Respondent

 

 

 

 

 

Judgment

 

Justice E. Goldberg:

1.         A judgment delivered in CA 2199/91[1] unanimously granted the appeal and reversed the judgment of the trial court that declared, on the basis of the community property presumption, that Victoria Nafisi (hereinafter: the Petitioner) and Simantov Nafisi (hereinafter: the Respondent)  jointly own a store in Tel Aviv registered in his name, and a sum of $320,000 deposited in two bank accounts opened in his name.

2.         The relevant facts in this matter are as follows:

            In 1944, the Petitioner and the Respondent married in Iran, which was their domicile. In 1979, at the time of Khomeini’s seizing power, the Respondent visited Israel. In the course of his visit, he purchased a store in Tel Aviv, which was registered in his name (hereinafter: the store). In 1983, the couple immigrated to Israel with their five children. They lived in an apartment in Holon, which was registered in both names. Soon after their immigration to Israel, the Respondent opened two bank accounts in his name – one in the Barclay’s Discount Bank and one in Bank HaPoalim – and deposited money that he had brought from Iran, in the amount of $320,000.

            In 1987, a rift developed in the marriage, following which the Petitioner sought a declaratory judgment stating that the store and the money deposited in the bank were jointly owned. We would further note that despite the souring of the relationship between the spouses, they did not dissolve the marriage, and they continue to live under the same roof.

3.         The primary provision addressed by the appeal was sec. 15 of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Law), which states:

Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement.

            In the appeal that is the subject of this further hearing, my colleague Justice Mazza held, on the basis of the majority opinion in CA 2/77 Z. Azugi v. M. Azugi (hereinafter: the Azugi case [1]), that nothing in principle prevents the application of sec. 15 of the Law to spouses who married in a foreign country prior to the enactment of the Law, as long as there is no infringement of vested rights. In the case before us:

While the spouses…indeed married prior to the Law’s entry into force, they immigrated to Israel, and the properties in dispute were acquired in Israel after the Law went into force…Under these circumstances, they do not hold vested rights that would be subject to the choice-of-law that preceded sec. 15…and in any case, the community property presumption cannot apply to their relationship (ibid., p. 96).

            Justice Mazza than proceeded to consider whether the Respondent had a clam to community property under sec. 15 of the Law. The possibility of a community-property claim by virtue of an agreement as stated at the end of sec. 15, was dismissed, inasmuch as:

The Respondent did not premise her suit on an agreement as defined in the final clause of sec. 15 of the Law. Had she done so, she would have had to explain the substance of the agreement, the manner of its drafting, and the place it was formed. She would also have had to show that the agreement (in terms of its content and the manner of its drafting) were “in accordance with the law of their domicile at the time of making the agreement”. I say this only to rule out the presumption (which, in the absence of such a claim, is only theoretical) that even an implied agreement may, under the circumstances, be deemed an agreement as defined at the end of sec. 15. To my mind, I am of the opinion that spouses (like the Appellant and the Respondent) who married abroad and immigrated after the Law’s entry into force, who ask to apply the Israeli community property presumption to their financial relations, cannot suffice with less than the forming of a property agreement as defined by the Law, as only such an agreement would be “in accordance with the law of their domicile at the time of making the agreement”.

…

As stated, it is my opinion that an essential condition for the validity of an agreement as defined in the section – however it may have been drafted – is that it be in accordance with the law of the domicile of the spouses at the time of the making of the agreement. As for an agreement made in Israel, the fulfilment of this condition is derived from the question whether the agreement was made prior to the Law’s entry into force or thereafter (ibid., pp. 96-97).

            Similarly, Justice Mazza rejected the possibility of viewing the assets the that are the subject of the proceedings as community property by virtue of Iranian law, which was the law of the domicile of the spouses at the time of the solemnization of their marriage, as stated at the beginning of sec. 15 of the Law. This, as the Petitioner did not prove that Iranian law granted her community-property rights in property acquired by the Respondent and registered in his name. Justice Mazza further held that the legal vacuum created by not meeting the evidentiary burden as to  Iranian law cannot be filled by the presumption of identity of foreign law[2] for two reasons:

The first reason concerns its severance from the legal source of the presumption: after all, the presumption is but one of the rules of English private international law. In the present matter, which is governed (in sec. 15 of the Law) by a special choice-of-law provision, the said rules do not apply, and the presumption of identity, as one of those rules, does not apply.

However, that reason is not sufficient. At least, so it would appear according to Prof. Shava in his aforementioned book (M. Shava, Personal Law in Israel (Massada, 3^rd ed., 5752 – E.G. (Hebrew)) p. 493. After summarizing the rules and conditions established by the case law for the application of the presumption of identity, the learned author notes the difficulty in relying upon the said presumption in matters of inheritance in view of the provision regarding the independence of the law under sec. 150 of the Succession Law, 5725-1965. But later, he further states “that this obstacle can be overcome if we say that the local court shall apply the provisions of domestic law (in our case, the provisions of the Succession Law) in a case in which the foreign law is not proved, not by virtue of the “presumption” derived from English law by means of art. 46 of the Palestine Order-in-Council, but rather by a creation of the domestic case law, according to which – in a case in which the foreign law is not פroved, and upon the fulfilment of the above cumulative conditions – the domestic law should be applied as written”. It appears to me (and this is an additional reason for my approach) that in spousal property relations subject to sec. 15 of the Law, even direct recourse to domestic law is not possible, inasmuch as sec. 15, itself (as part of the domestic law), directs us to the foreign law. In so doing, the legislature expressed its view that sharing (or non-sharing) of spousal property does not create (according to the well-known distinction of Prof. Levontin) “floating” rights in regard to which the presumption of the existence of an identical legal arrangement in all common law systems applies, but rather rights that by their very definition are anchored in the particular law in which they were created (for a detailed discussion of the distinction between “floating” rights and “anchored” rights in regard to recourse to the presumption of identity, see Shava, ibid., pp. 456-466). Under these circumstances, recourse cannot be made to the provisions of domestic law, inasmuch as such recourse to its provisions would be contrary to the express provisions of sec. 15 (ibid., pp. 98-99).

            All the above led to the conclusion that the Respondent did not meet the burden of proving that she had a community property right, although Justice Mazza went on to express his dissatisfaction with the conclusion he had reached, stating:

The result I have reached is required by law. However, it is not a desirable result. I, too, agree that in accordance with the criteria of Israeli law, were it not for the express instruction of sec. 15 of the Law, what was proven in regard to the “tenure and nature” of the Appellant’s and Respondent’s life together (the Azugi case, p. 30) would suffice for the application of the community property rule. The result is undesirable due to the difference derived by law in regard to the substance of the norm that will decide the existence of community property in regard to couples married in Israel, as opposed to couples who immigrated to Israel after marriage. The accepted, prevailing norm in Israel is that of community property. This norm applies to most couples married in Israel. In the absence of evidence to the contrary, it applies to couples married before the enactment of the Law by virtue of the community property presumption established by the case law. And in the absence of a property agreement, it applies to couples married after the enactment of the Law by the statutory arrangement for resource balancing. But this norm does not apply to spouses who married abroad, even if they immigrated to Israel immediately after their marriage, tied their future to it, and purchased all of their common property there (ibid., p. 100).

            Justices D. Levin and Tal concurred, with the latter noting:

…the question whether the end of sec. 15 of the Spouses (Property Relations) Law specifically requires an express agreement, or whether an “implied agreement” would suffice, can be left for the appropriate time, inasmuch as no argument in regard to an “implied agreement was raised in the present matter.

4.         I share the view that nothing prevents applying the provisions of sec. 15 of the Law to spouses who married before its enactment, as long as their vested rights are not infringed. A choice-of-law principle is categorized as a procedural rule, and this character permits its application to proceedings occurring after its enactment, even if the event itself occurred earlier, as long as vested rights are not infringed as a result, as noted. In the present case, our starting point is that the assets were acquired after the enactment of the Law, and there is no fear of infringing vested rights. Thus, the Petitioner’s community property right in regard to the assets will be examined in light of the legal system indicated by the choice-of-law principle established in sec. 15 of the Law.

 

A Claim of community property by virtue of the first clause of section 15 of the Law

5.         The initial clause of sec. 15 of the Law establishes that, as a rule, the law of the domicile of the spouses at the time of the solemnization of the marriage will apply to their property relations (in the present case, Iranian law). The Petitioner did not prove the content of Iranian law. Does that necessarily lead to the denial of her suit (to the extent that it is premised upon that initial clause of the section), or can she enjoy the presumption of identity? As we know, foreign law is perceived as a fact that must be proved, and a failure to meet the burden of proof works against the party bearing that burden. Thus, the first question regards the circumstances in which it is appropriate to place the burden of proving the foreign law upon a party that seeks to rely upon it, and under what circumstances is it proper to place that burden upon the opposing party. On the proper allocation of the burden, it has been said:

Several considerations apply to the division of this burden between the parties to a case. One consideration is that the existence of a fact or of a situation is more reasonable. In such a case, the tendency is to impose upon the person claiming the opposite of such a situation the burden of showing that the situation is different in the case under discussion. An additional consideration springs from the recognition that in conditions of uncertainty, the burden of proof will be imposed in a manner that will narrow the risk that the decision will be erroneous. Thus for example … in civil proceedings the burden of proof is placed on the person who is making a claim against another, as he is arguing for a change in the status quo… (CA 6821/93, LCA 1908/94, LCA 3363/94 United Mizrahi Bank Ltd., v. Migdal Cooperative Village et al., [2] pp. 576-577 [English trans: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village, para. 8 of the opinion of E. Goldberg, J.].

6.         In the present matter, we should ascertain under what circumstances – if any – the presumption that the provisions of the foreign law are identical to the provisions of domestic law is more likely. For if it is, then the presumption of identity arises, which transfers the burden of proving the foreign law from the party seeking to rely upon it to the shoulders of the opposing party.

            If the party seeking to rely upon the foreign law shows a “solid evidentiary basis” for the identity of the laws, for example, that the foreign law and the domestic law derive from the same system of laws, then it is possible to apply the presumption of identity (see: CA 602/82, 628/82 Estate of Omar Khalil Abdallah Abu-Nia v. Mandelbaum et al. and cross appeal [3] p. 288). However, it is possible that a petitioner who is unable to rely on the foreign law by establishing a solid basis in regard to the identity of the foreign law and the domestic law, may still enjoy the presumption of identity if he can prove that “the elementary concepts of justice in regard to the subject matter at hand are uniform and acknowledged throughout the world” (Shava, ibid., p. 487), as this uniformity serves to show that the provisions of the foreign law are consistent with the accepted arrangement in most states – including the state in which the dispute is adjudicated – and are not at variance with it. We should clarify by explaining that under such circumstances, applying the lex fori by virtue of the presumption of identity does not express recognition of the  special status of the lex fori, but rather derives from the presumption that the provisions of the lex fori reflect a “universal principle accepted in all civilized countries” (HCJ 243/88 Consuelos v. Tourjeman [4] IsrSC 45 (2) 626, 635), including the country whose law is indicated by the choice-of-law rule. We would further note that the burden of proving this preliminary assumption grounding the presumption of identity – i.e., that we are concerned with a general principle of law – falls to the party seeking to rely upon the provisions of the foreign law.

            I am not unaware of the approach that urges the general application of the presumption of identity as long as the content of the foreign law is not proven (see: LCA 3920/90 [5]; CA 65/88 Aderet Shomron Ltd. v. Hollingsworth GmbH [6] 606; CA 778/77 T. Farkash v. M. Farkash [7] 473; CA 126/80 Guardian Eastern Insurance Co. Ltd. v. Rossman & Co. Ltd. and cross appeal [8] 298). However, it is doubtful whether this approach has gained acceptance in the principles of private international law, which do not support a preference for domestic law, nor is it supported by the law of evidence. After all, if the presumption of identity is not more probable, what is the theoretical justification for shifting the burden of proof!? In his opinion that is the subject of this hearing, my colleague Justice Mazza points out our separation from the legal source of the presumption of identity. However, I am of the opinion that Foundations of Law, 5740-1980, does not present an obstacle before a party seeking to rely upon the presumption of identity in the sense we have discussed. Not only does sec. 2(b) of Foundations of Law instruct us that the repeal of art. 46 of the Palestine Order-in-Council, 1922, “shall not derogate from the law which was accepted in Israel before the coming into force of this Law”, but also – and this is the main point – the law indeed sought to unfasten the tether that bound the Israeli legal system to the Common Law, but not to prohibit adopting appropriate legal arrangements from the Common Law.

            Similarly, I do not think that the provision of sec. 15 of the Law that establishes the choice of law in property relations presents an obstacle to implementing the presumption of identity. To my mind, it is doubtful that the special provision in regard to the choice-of-law rules severs the Israeli law of property relations from the principles of private international law in general, inasmuch as such a separation would create a large vacuum in the domestic law. Even were we to understand sec. 15 of the Law as creating such a vacuum, nothing prevents us from filling it by the theoretical principles for the proper attribution of legal burdens of proof – which we addressed above – by creating a presumption of identity.

7.         What we have said thus far brings us to the second reason presented by Justice Mazza, according to which recourse to the provisions of domestic law contradicts the express provision of sec. 15 of the Law, which directs us to the foreign law. That view is justified, in my opinion, to the extent that is directed against the comprehensive adoption of the presumption of identity. However it is does not properly apply to implementing the presumption of identity when there is a basis for assuming that the provisions of the domestic law are identical to the provisions of the foreign law, inasmuch as we have already shown that the application of the provisions of the domestic law under such circumstances does not derive from recognizing the special status of domestic law, but rather results from the view, supported by the evidence, that its application is equivalent to applying the provisions of the foreign law.

8.         Having established that nothing in principle prevents employing the presumption of identity in a case in which the assumption that the laws are identical is more probable, we must now examine whether there are grounds for assuming that the provisions of Iranian law are similar to the provisions of domestic law in the field of property relations. The legal provisions that establish the character of the property arrangements between spouses reflect a society’s conception of distributive justice, and cultural conceptions regarding equality between the sexes. Therefore, there is no reason to assume that these represent a general legal principle. In CA 1915/91, 2084/91, 3208/91 A. Yaacobi v. N. Yaacobi; E. Yaacobi v. A. Yaacobi; Moshe Knobler v. Mazal Knobler (hereinafter: the Yaacobi-Knobler cases) [9] [1995] IsrSC 49(3) 529, the opinion was expressed (under the heading “Other Legal Systems”) that most western countries, among them Switzerland, West Germany, Scandinavia, the Common Law countries, including England, Scotland, Ireland, Canada, Australia, and forty-two states of the United States, as well as the District of Columbia, all chose the method of separation of assets and deferred distribution, in which the division of the couple’s total property is deferred until the dissolution of the marriage, while some apply variations by which the division is not automatically equal, but rather the court has discretion to divide property in some other proportion, and applying special rules for the residence … such that in choosing a system of deferred community property, the Israeli legislature finds itself in the good company of the overwhelming majority of western countries” (ibid., 585-586).

            In view of the above, it may be that no difficulty arises in regard to the identity of laws as far as the aforementioned western states are concerned. However, it is clear that the presumption cannot be applied when the choice-of-law rule points to the laws of a non-western state. Having rejected the basis for assuming that the social and cultural climate of this state is identical to that of western states, the presumption as to the identity of Iranian and Israeli law in regard to property relations lacks support. And once the assumption of similarity between Iranian and Israeli property-relations law is undermined, there is no justification for deviating from the rule that the burden of proving the foreign law falls upon the party that seeks to rely on it.

9.         I am aware that in CA 755/85 Estate of the Late Salem Shaman v. Estate of the Late Saada Shaman (hereinafter: the Shaman case) [10] 107, the presumption of identity was applied by virtue of a presumption of identity between Israeli and Yemenite law, even though Yemen is not counted among the western states. This is what was stated there:

Having been held that the foreign law was not proven, the Israeli law will apply by virtue of the presumption of identity. According to Israeli law, as stated, the community property presumption will also apply to the property acquired in Yemen.

            Justice Mazza was of the opinion that the present case should be distinguished from the Shaman case, as:

That case expressly held that sec. 15 cannot apply to the community-property dispute in regard to property of the late spouses. Under those circumstances, the burden of proof of the foreign law was upon the party that denied the presumption of community property and argued that there were vested rights on the basis of the foreign law. Indeed, in the present matter – as in the matter of Shaman – positive evidence was required for the content of the foreign law, but the situation was reversed: it was not the Appellant who had to prove that Iranian law (as it was at the time of the couple’s marriage) established a different arrangement than the presumption of community property in Israeli law, but rather the Respondent (if she wished to base her right on Iranian law) had to prove that Iranian law granted her a right of community property (ibid., p. 98).

            I do not believe that the “reversal” can serve to distinguish the Shaman case and the present case. The reversal of the burdens of proof is a direct result of the application of the community property presumption by means of the presumption of identity. In other words, the allocation of the burdens cannot serve as a criterion for the proper application of the presumption of identity, inasmuch as the allocation of burdens is a consequence of the application of the presumption. I am, therefore, of the opinion that it is possible to reconcile the willingness to apply the presumption of the identity of Yemenite and Israeli law in the property relations in the Shaman case, even though an adequate evidentiary basis was not laid for the identity of Yemenite law and domestic law, as the adoption of the approach that argues for universal application of the presumption of identity regarding which I expressed my doubts.

            The result of all of the above is that the Petitioner cannot rely upon the presumption of identity, and her action for community property must be denied to the extent that it is based upon the initial clause of sec. 15.

 

A cause for  community property on the basis of the end of sec. 15 of the Law – The validity of the form of the agreement

10.       Having found that the Petitioner did not succeed in proving a community-property right in the property registered in the Respondent’s name under Iranian law (the initial clause of sec. 15 of the Law), we will now consider whether she can claim community property by virtue of an agreement made in accordance with the law of their domicile at the time of its making (as stated at the end of sec. 15 of the Law). On the factual assumption, on which I take no stand at this point, that a community property agreement was made at the time of the couple’s immigration to Israel, there would be no doubt that their domicile would be Israel, and therefore the question of the validity of the agreement – including the validity of its form – would be decided in accordance with Israeli law.

            Section 23 of the Contracts (General Part) Law, 5733-1973, states: “A contract may be made orally, in writing or in some other form, unless a particular form is a condition of validity by virtue of law … ”. Section 23 thus establishes the principle of freedom as to form. However, that principle retreats before special enactments that establish a substantive requirement of form.

            Section 1 of the Law states:

An agreement between spouses regulating their property relations between them (hereinafter referred to as a “property agreement”) and any variation of such an agreement shall be in writing.

            Section 2 of the Law limits the freedom of contract of spouses by making the validity of a property agreement contingent upon confirmation by the institutions listed in the section. Section 3(a) of the law states:

Where the spouses have not made a property agreement … they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property arrangement conforming to the provisions of section 2.

            The writing requirement established under sec. 1 of the Law has been construed to be a substantive requirement (see: CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz) [11]).

            Therefore, there can be no doubt that the validity of an agreement that arranges the property relations between spouses who were Israeli domiciles at the time of their marriage, and who married after the enactment of the Law, is contingent upon the fulfilment of the provisions of the first chapter. Thus, the question we should focus upon is whether the validity of an agreement arranging the property relations between such spouses who married prior to the enactment of the Law is also contingent upon the provisions of Chapter One.

            Section 14 of the Law states that the provisions of Chapter Two shall not apply to spouses who married before the Law’s entry into force. Therefore, facially, it would seem that the provisions of Chapter One should apply to them. However, it would be unreasonable to make the validity of the form of an existing contract – i.e., one made before the enactment of the Law – contingent upon meeting the conditions of Chapter One. That is so because it would retroactively invalidate the community property presumption, while the possibility of filling the void by a resource balancing arrangement under sec. 3 would be prevented by the provision of sec. 14 of the Law. The legislature should not be understood as trying to correct the distortion involved in retroactive application of sec. 3 by the even more egregious distortion that would result from the community property presumption no longer applying under sec. 1 of the Law, while the balancing arrangement would not apply due to sec. 14 of the Law. In other words, there is a close relationship between the provision of sec. 3 and the provisions of Chapter One. Not retroactively applying sec. 3, which addresses the consequences of not fulfilling the provisions of Chapter One, significantly supports the conclusion that the provisions of Chapter One do not apply retroactively. In this spirit, this Court indeed held that the community property presumption, which was developed by the case law, would continue to apply to spouses who married before the enactment of the Law, and it does not require a written instrument or the confirmation of any authorized body, as would be required under Chapter One (and see in this regard: the Azugi case [1]; CA 45/90 S. Abada v. T. Abada [12]).

11.       The above refers to implied agreements made before the enactment of the Law. The Law preserves the property system that existed prior to its enactment, and does not retroactively annul agreements made before it was enacted. However, is an agreement made after its enactment, by spouses married before its enactment, subject to the provisions of Chapter One? In this matter, this Court held:

Section 14 of the Law establishes that sec. 3 of the Law, as well as the provisions of Chapter Two of the Law, shall not apply to spouses who married prior to the Law’s entry into force. The significance of this provision is that sec. 2, which is in the first chapter of the Law, applies even to spouses who married prior to the Law’s entry into force. Therefore, a property agreement between such spouses, made after the Law’s entry into force, is subject to the provisions of the first chapter of the Law, including sec. 2 (CA 490/77 D. Natzia v. A. Natzia [13] 623-624).

Also see: CA 419/84 S. Tuchmintz v. L. Carmel (Tuchmintz), supra.

            This conclusion is supported by examining the explanatory notes to the bill, which explain that the function of the transitional provision was that “the property relations between spouses who were wed before the entry into force of the new law would not change due to the enactment of the law, and the resource balancing arrangement will not apply to them unless they agreed to it in a marrital agreement made after the new law’s entry into force, in accordance with sec. 2(c) [i.e., sec. 2 of the Law – E.G.]” (from the Spouses (Property Relations) Bill, 5729-1969, p. 337).

            To summarize: the provision of sec. 14 of the Law subjugates an agreement arranging the property relations of spouses made after the enactment of the Law to the provisions of Chapter One. This is the case regardless of whether the spouses wed before the enactment of the Law, or whether they wed thereafter. In other words, the determining date for the application of the provisions of Chapter One to spouses who were Israeli domiciles at the time of the solemnization of their marriage is the date of the agreement, and not the date of the wedding.

12.       Having established that every agreement arranging property relations made between local spouses subsequent to the enactment of the Law must meet the requirements of Chapter One, we will now consider whether there are grounds for negating this requirement for a property agreement made after the enactment of the Law by spouses who were foreign domiciles at the time of their marriage, regardless of whether they married before or after its enactment.

            The traditional conception of the nature of choice-of-law rules is:

Actually, the traditional rules do not choose between specific laws, but rather between legal systems as such. They only point us to the right address, i.e., to the legal system whose laws will decide the fate of the dispute. This referral, at least in theory, is made without consideration of the content of the specific law that will apply, and without regard for the substance of the concrete result of the litigation. The traditional school of thought conceives choice of law as a purely mechanical process (A. Shapira, Comments on the Nature of Choice-of-Law Rules in Private International Law, 10 Iyunei Mishpat 275, 282 (5744-45) (Hebrew)).

            However, even if there is a different view, the sole purpose of the choice-of-law rule in the matter before us is to point us clearly to a specific legal system, without purporting to change the scope of application of the legal provisions to which it refers. Thus, the question of the scope of incidence of the provisions of Chapter One of the Law will be answered in the course of ascertaining the purpose of those provisions in every case in which the agreement is made by Israeli domiciled spouses.

13.       Is the application of the provisions of Chapter One to spouses who were foreign domiciles at the time of the solemnization of their marriage consistent with the purpose of restricting the freedom as to form and the freedom of contract of spouses who make an agreement arranging their property relations when they are Israeli domiciles? Our civil legislation comprises a number of provisions that restrict the principle of freedom of form. The form restriction is intended to ensure the resolve of the contracting parties when a fear of lack of resolve is inherent to the nature of the agreement (sec. 5(a) of the Gift Law, 5728-1968), or where the scope of the agreement and its consequences require that it be made without a looming  doubt as to the resolve of the parties. In such circumstances, writing serves to guarantee the seriousness of the parties (sec. 8 of the Land Law, 5729-1969). The Spouses (Property Relations) Law goes even further, and in addition to the limitation on form, it also restricts the spouses’ freedom of contract by requiring that the agreement be confirmed by a designated authority, as stated in sec. 2 of the Law.

            The scope of a property agreement between spouses is very broad when what is concerned is the entirety of the assets accrued in the course of a marriage as a result of their joint efforts. However, it would appear that this, alone, would not suffice to justify the restrictions upon the form and freedom of contract. After all, the Law does not require that spouses who married prior to its enactment, and who are caught in the net of the community property presumption, put the implied community property agreement in writing.  Additionally, the Law attributes agreement to its resource balancing arrangement to spouses who married after its enactment, as stated in sec. 3. The explanatory notes to the Law state in regard to this provision, which constitutes a statutory agreement (or if one prefers, a consensual fiction), that “the idea that spouses who did not make a prenuptial agreement agree to the resource balancing arrangement brings the law closer to the Jewish law view that permits spouses to arrange their property relations” (Spouses (Property Relations) Bill, p. 334). It is further explained, at p. 335, that the provisions of the arrangement “are intended to correspond to the likely intent of most spouses, and to normal cases of harmonious, long-term  married life”. As we see, not only is an agreement on community property by means of balancing not required, despite its scope,  to meet the provisions of Chapter One, but the law assumes the existence of such agreement as so natural that the “omission” of the spouses is viewed as agreement to share rights. They are required to draft an agreement, as defined in sec. 1 of the Law, only if they wish to change that agreement (on dispositive law as a means for saving the costs of contracting, see: U. Procaccia, A Contract? A Thing? A Law! The Constructive Contribution of Economics to Blurring Fundamental Legal Concepts, 18 Mishpatim 395, 401-406 (Hebrew)).

            As we see, the scope of the agreement itself does not justify imposing a general restriction upon the freedom of form and freedom of contract. Additionally, the justification for these restrictions should be derived from the nature and scope of the agreement, with emphasis on the former. Only when the agreement establishes an arrangement that deviates from the principle of community property through balancing, as expressed in the community property presumption and the resource balancing arrangement established in the Law, is there a fear of the oppression of the rights of one of the spouses that would, by means of the agreement, reduce his rights in property acquired by joint effort. It is the oppressive nature of such an agreement that raises the fear of a defect in the desire of the oppressed party that justifies “evidence” of resolve. In that spirit, Prof. Rosen-Zvi wrote:

The writing requirement, the confirmation and authorization, are not merely of a formal and form-related nature. These are substantive requirements that are vital to the validity of such an agreement, such that a property agreement must be in writing and must be confirmed by a civil or religious court … these requirements derive from the special relationship between spouses, which, prima facie, create a fear of undue influence, and from the significant influence of a property agreement upon a broad spectrum of family relations for most of the Israeli population (A. Rosen-Zvi, The Law of Matrimonial Property (Microsure, 1982) 302 (Hebrew)).

            A proper social policy required that the doubt as to the spouses’ real desire be removed before the law would recognize the power of an oppressive agreement to institute changes in the complex of the spouses’ rights. Limiting the form of the agreement – and primarily, limiting freedom of contract – acts to guarantee that the spouse whose rights are prima facie oppressed, understood the nature of the agreement and its consequences. Inasmuch as the justification for limiting the freedom of form and contract is derived from the combination of the nature and scope of the agreement, there is no theoretical justification for imposing those restrictions when what is concerned is an a priori agreement to community property by means of balancing.

            Deputy President Elon addressed this, obiter dicta, in stating:

This careful, strict approach to drawing conclusions on a spouse’s waiver of one of its property rights in favor of the other spouse can also be derived, by analogy, from the legislature’s policy in the Spousal (Property Relations) Law, 5733-1973 … As we know, the Law establishes a resource balancing arrangement  between spouses, the main thrust of which is that each of the spouses is entitled to half the value of the spouses’ property (as detailed in the Law). An agreement between spouses that is intended to change this sharing established by the Law, must be set out in writing and confirmed by a civil or religious court, after the meaning of the agreement between them and its effects have been explained to the spouses (secs. 1 & 2 of the Law) (CA 753/82 A v. B and cross appeal [14], pp. 633-634).

            In a similar spirit, a later judgment stated:

The uniqueness of a “property agreement” as compared to a regular agreement between spouses is that the existence of a “property agreement” between the spouses overrides the application of a resource balancing arrangement under Chapter Two of the Spouses (Property Relations) Law (CA 486/87 M. Avidor v. L. Avidor, minor et al. [15] p. 506).

            In conclusion, the content and nature of the agreement are closely tied to the scope of the provisions of the first chapter, such that the application of the provisions restricting the freedom of form and contract should be limited to cases in which the agreement is intended to deviate from the system of community property by means of balancing.

14.       When the spouses were foreign domiciles at the time of their wedding, the law of their  domicile at the time of the solemnization of their marriage applies, rather than the Israeli community property arrangement, in accordance with the initial clause of sec. 15.

            Similarly, the statutory agreement in regard to the application of resource balancing, under sec. 3 of the Law, does not constitute an agreement in accordance with sec. 15 of the Law, as the freedom to make an agreement, granted the spouses under sec. 15 of the Law, is inconsistent with the nature of the statutory agreement. President Shamgar addressed this in the Yaacobi and Knobler cases [9]:

While the legislature attributes to the parties, ex lege, agreement to resource balancing when they have not made an arrangement, it is difficult to accept that under such circumstances of automatic reliance on statutory provisions, as opposed to simply making an agreement, we are concerned with full, real consent in the contractual sense. The resolve and understanding of the nature of the matter by the parties to whom the initial clause of sec. 3 applies, cannot be compared to those of regular parties to an actual contract, and they certainly should not be compared to those spouses who choose to deviate from the resource balancing arrangement and make a “property agreement” that in addition to the regular contractual requirements, comprises a substantive writing requirement (ibid., 558).

            The resource balancing arrangement does not apply to spouses who were foreign domiciles at the time of their marriage. Therefore, when an agreement is made between spouses who were foreign domiciles at the time of the solemnization of their marriage, and who became Israeli domiciles at the time of the making of the agreement, the agreement assumes a different character that changes it from an instrument that removes the spouses from the community property arrangement through balancing to an instrument that creates that arrangement. That change in the purpose and nature of the agreement removes the suspicion as to the resolve of the spouses. Therefore, the justification for restricting the freedom of form and contract is undermined.

            In summary, the purpose for which limitations were placed upon the form of contracts and the freedom of contract does not justify extending those limitations to an agreement between spouses who married while they were foreign domiciles in order to create community property by means of balancing. The proper policy therefore supports limiting the scope of incidence of the provisions of Chapter One, such that they not apply to such spouses.

15.       The provisions of Chapter One do not support a distinction between an agreement creating a community property regime and one that stipulates thereon such that they not so apply to the spouses.

            Justice Mazza relied upon Justice Elon in the Azugi case [1], pp. 14-15, from which we learn:

…in regard to spouses who married abroad and immigrated to Israel before the first of January 1974, that is, prior to the entry into force of the Spouses (Property Relations) Law, 5733-1973, if and when the factual circumstances indicate that the spouses intended, by implied agreement, to establish that their property relations be in accordance with the community property rules that apply in Israel in the manner that they apply to all spouses who are Israeli domiciles, then that community property agreement, although only implied, is valid, inasmuch as it was made in accordance with the law of their domicile, which was, upon their immigration to Israel, the community property regime.

            This statement emphasized the possibility of creating an implied community property agreement between spouses who immigrated to Israel before the enactment of the Law. However, it should not be understood as saying that spouses who immigrate to Israel after the enactment of the Law must make a property agreement as defined under sec. 1 of the Law, inasmuch as that case concerned spouses who married in 1957, immigrated to Israel in 1967, and separated in 1969. In other words, all of the events that might possibly delineate the boundaries of Chapter One took place prior to the Law’s enactment. For a similar reason, I do not believe that the statement, “the law that applies to the community property arrangement of the couple before us – who married abroad, immigrated to Israel, and purchased real property in Israel prior to the enactment of the Spouses (Property Relations) Law, 5733-1973 – is the Israeli case-law community property rule” (CA 370/87 Estate of Tinka Esther Madjar v. Estate of Victor Madjar et al. [16], p. 101), requires the conclusion that spouses who immigrated to Israel after the enactment of the Law must make a property arrangement as defined under sec. 1 of the Law.

            In CAA 291/85 A. Awalid v. Z. Awalid [17], p. 218, it was argued that upon the couple’s immigration to Israel in 1981, they made a community property agreement. The argument was factually rejected on the merits, with the clarification that:

The “agreement” addressed [in sec. 15 of the Law – E.G.], includes an implied community property agreement.

            Thus, the case law did not preclude adopting the approach that spouses who were foreign domiciles at the time of the solemnization of the marriage need not make an agreement arranging their property relations as defined in sec. 1 of the Law. This is so if they made the agreement after the enactment of the Law, and all the more so if they made it prior to the enactment of the Law.

Community property by virtue of the end of Section 15 – An agreement made upon the spouses’ immigration to Israel          

16.       We now arrive at the factual question (that was, until now, an assumption) whether the spouses made an implied agreement in regard to community property when they immigrated to Israel. Spouses who married in Israel prior to the enactment of the Law are subject to the community property presumption under which spouses who purchase property through their joint effort and from a common purse intend that ownership will be in common. President Shamgar addressed the background of the creation of the community property presumption in HCJ 1000/92 H. Bavli v. Great Rabbinical Court et al. (hereinafter: the Bavli case) [18] p. 254:

The community property presumption became a legal principle by a combination of the value of equality as an expression of our general constitutional view, and particularly, the Equal Rights of Women Law, together with the principles of contract law – especially the rules concerning the creation of contractual relations and their conditions – and the Israeli approach to the laws of equity as seeking to give just, fair expression to the relationship between spouses and the property acquired by their joint effort, each in his own area.

The Court developed the principles of the community property presumption on the basis of a socio-economic reality in which the separate but simultaneous, coordinated effort of each of the spouses leads to the creation of ownership that should be viewed as common and equally divisible … In other words, the law gives its seal of approval to a complex of relations that sprouted from the ground of our conception of interpersonal, moral and social relationships.        

            In the Bavli case [18], Deputy President Barak noted that the legal tool of the community property rule:

… was intended to realize a social objective. It is intended to yield social justice. It is based upon the equality of the sexes. It is nourished by the idea that spouses contribute equally to the family’s welfare (ibid., p. 229).

17.       In these proceedings, we need not decide whether the theoretical basis of the community property presumption is the conjectured intention of the spouses (the Bavli case [18] p. 254), or perhaps, the imputed intention of the spouses (the Yaacobi and Knobler cases [9] pp. 579-580). It suffices that it is unanimously held to derive from our social and cultural conceptions, which hold up the standard of equality between the sexes. The right to equality, which led to the community property presumption, is what grounded the Law’s resource balancing arrangement. The difference between the property regime under the community property presumption and the property regime established by the Law, which is expressed in the timing and character of the partnership, does not express a lowering of the status of the principle of equality, but rather reflects the need to balance the principle of equality and the principle of the certainty of ownership (see in this regard, the 1966 Report of the Public Committee on Community Property of Spouses, chaired by Justice Sussman). The deep-rootedness of the right to equality in Israeli society, from which the right to shared ownership derives, is what requires that spouses who immigrate to Israel are presumed to seek integration rather than separation from Israeli society, and therefore, they, too, adopt the principle of equality between the sexes and its derivative of shared ownership of property acquired in the course of marriage, in the absence of evidence to the contrary.

18.       The assumption that the spouses intended to adopt the property regime prevalent in Israel, upon which the implied agreement is based, does not lead to an unambiguous conclusion as to the character of the partnership and its timing, inasmuch as we have two coexisting forms of partnership in rights through balancing: one is the resource balancing regime, which is of a deferred obligatory character, while the second is the community property presumption, which is characterized by immediate ownership of rights. Here, we must take an additional step, and say that the conclusion in regard to an implied agreement derives from the presumption that, at the time of their immigration to Israel, the spouses seek to adopt its lifestyle, and it may, therefore, be assumed, absent evidence to the contrary, that the content of the agreement is consistent with the character of the property model that applies to local spouses of similar character. Since we are concerned with an implied agreement between spouses who married before the enactment of the Law, the assumption is that they – like local spouses who married prior to the enactment of the Law – intended to establish an immediate community property regime.

19.       A separate question is that of the scope of the property included in the implied agreement. Inasmuch as the bank accounts were opened after the spouses immigrated to Israel, it can be said that the rights of the spouses to the money crystallized when the accounts were opened, at a time when they were already subject to the community property presumption, as explained above. While the agreement to sharing the monies is not reflected by the opening of the accounts solely in the husband’s name, it is clear from the doctrine of implied agreement that the rights are not established on the basis of their formal registration. This, inasmuch as the trial court was not prepared to find that the Respondent held exclusive rights to the money prior to the couple’s immigration to Israel.

20.       That is not the case in regard to the store that was purchased in 1979, prior to the couple’s immigration to Israel. In regard to this property, the question arises whether the above implied agreement also extends to property purchased prior to the couple’s immigration to Israel, when the rights to that property then belonged entirely to one of the spouses.

            The principle of joint effort, which is a necessary premise of the presumption in regard to the spouses’ agreement to sharing the rights through resource balancing, indeed exists here. But I do not believe that this principle suffices for the retroactive imposition of the community property presumption upon property purchased prior to the couple’s immigration to Israel.

            When the rights to property are entirely vested in one of the spouses, evidence of his waiver is required. The proper fundamental approach is “that in order to infer a waiver from a person’s conduct, that conduct must be clear, resolute, and unambiguous” (CA 767/77 Ben Haim v. Cohen [19] p. 570; and CA 265/84 Mizrachi v. State of Israel [20] p. 167). This strict fundamental approach is inconsistent with the application of a presumption, which is an evidentiary leniency, in order to infer the existence of an implied waiver. The strength of the presumption that spouses seeking to integrate into local society adopt a community property regime is adequate when the initial division of rights to a property is concerned, but that presumption is undermined when evidence of a waiver of rights to a property that have already vested in one of the spouses is required.

21.       The approach that recognizes the possibility of implied waiver of vested rights leads to an infringement of those rights. While it would seem that the consensual element blunts the sting of the possibility of unintentional infringement of vested rights, the doubt as to the resolve of the “implied waivor” – that we addressed above – raises the fear of allowing an infringement of vested rights without his consent. Thus, we find criticism of the retroactive application of the community property presumption:

In effect, by means of a legal construct, the community property presumption is indirectly applied retroactively to assets acquired by the spouses when  they were subject to the law of a foreign domicile … the fortress of vested rights is thus rendered theoretical and merely in  principle. In practice, it cannot protect them. They are exposed to harm because the community property presumption applies even to them (Rosen-Zvi, ibid., p. 240).

            We would further point out that Prof. Levontin’s draft choice-of-laws bill also refrained from recognizing an implied waiver of rights vested by virtue of the prior law that applied to the spouses, even though it recognized the validity of an implied agreement. Thus, for example, it was suggested that sec. 9(5) establish that a resource balancing arrangement apply – like the balancing arrangement under the Law – only to assets acquired as of the outset of the couple’s residency in Israel:

                        …

(4)       If a resource balancing arrangement applies … it will apply to assets in Israel and abroad that were acquired as of the beginning of its entry into force, and it will be immaterial whether or not the spouses were Israeli domiciles at the time of their marriage, whether or not, at that time, they had a shared residence, whether or not they married in Israel.

(5)       An implied community property agreement attributed under Israeli law to spouses maintaining a shared household will come into force as of the beginning of the residency of the spouses in Israel, and it will comprise assets in every place.

(A. Levontin, Choice of Law – A Draft Law with Brief Introduction and Explanatory Notes (Ministry of Justice, 5747) 45; emphasis added – E.G.).

            The Explanatory Notes to the draft (p. 46) explained:

A defendant whose domicile was never in Israel (that is, that Israeli law was not his personal law), is not generally made subject to the balancing requirement of Israeli law, except in regard to his assets that were acquired as of the beginning of his domicile in Israel, in order to prevent retroactivity…

Not only does the Israeli resource balancing arrangement, under the Spouses (Property Relations) Law, 5733-1973, begin in principle from the beginning of Israeli domicile, but that is also the case in regard to an “implied resource-balancing agreement imputed by Israeli law to spouses maintaining a shared household”.

22.       To this we should add that in the initial clause of sec. 15, the legislature revealed its intention that, as a rule, property relations between spouses should be governed by the provisions of the law of their domicile at the time of the solemnization of their marriage. An exception to this rule is was established at the end of the section, by which the spouses may make an agreement in accordance with the law of their domicile at the time of the solemnization of their marriage. Recognition of “implied waiver” of vested rights, when that waiver is inferred from the fact of the change of the couple’s domicile to that of a society in which the principle of equality prevails, deprives the initial clause of sec. 15 of any content, and in effect, turns the exception established in the second clause into the rule. Moreover, sweeping recognition that a change of domicile constitutes evidence of implied waiver of rights vested prior to the change of domicile effectively “rewrites” the connecting link established by sec. 15 of the Law, and turns it into the domicile of the spouses at the time of the proceedings. It is superfluous to say that such rewriting cannot be the result of judicial interpretation, but must result from express legislation. In this spirit, it has been stated:

This approach would result, in the majority of cases before Israeli courts, in the automatic application of Israeli law, and is difficult to reconcile with the choice of law rules of sec. 15. Moreover, had the legislator wished to provide that change of domicile includes a change of the law relating to matrimonial property,  surely he would have said so in so many words, and not left the matter to be inferred from a “notional agreement” between the parties. (C. Goldwater, Some Problems Relating to Choice of Law in Matrimonial Property, 16 Is.L.Rev.368, 374 (1981).

            Moreover, the problem with adopting this interpretation is obvious in view of the fact that the drafters of the The Individual and the Family Bill in which sec. 15 of the Law is sec. 192 of the Bill, knowingly rejected “imposing the ‘community property by law’ arrangement upon new immigrants”. The reason for rejecting that arrangement was a fear that “this automatic change in property affairs that applied not only in regard to a foreign ‘legal’ arrangement, but also to an arrangement that that couple would have established by agreement prior to immigrating to Israel (The Family and the Individual Bill [sic] (Ministry of Justice, 5716-1955) 216-217).

            The conclusion to be drawn from the above is that it would be improper to hold that an agreement of spouses to community property in regard to assets that belonged to one of the spouses is inherent in the very transfer of the couple’s domicile to Israel, just as it would be improper to hold that spouses who uproot from Israel to a country in which property separation prevails, thereby agree to the application of property separation even to property acquired in Israel. We should note that our refraining from comprehensively adopting that view does not necessarily lead to the conclusion that a claim of community property in regard to assets acquired under foreign law will never succeed, whether by proving the existence of an agreement to that effect, or by applying the community property or the resource balancing arrangement by virtue of the presumption of identity when the spouses were domiciles of a western country at the time of the solemnization of their marriage, as explained in para. 8, above.

23.       The Azugi case [1] gave expression to the view that the community property presumption comprises assets acquired under the law of the domicile of the spouses at the time of the solemnization of their marriage. As Justice Barak wrote there, at p. 30:

Inasmuch as the choice-of-law rules in the present case are premised upon the need to protect the vested rights of the spouses, there is no reason not to give full credit to an agreement – explicit or implied – between the spouses that might “infringe” these rights. The tenure and nature of the married life of the husband and wife, in the present case, can serve to lead to the inferring in Israel of an implied agreement between them to community property, not only in regard to new assets acquired in Israel after their immigration to Israel, but also to assets acquired in Morocco following their marriage, and prior to their immigration to Israel.

            A crack in this comprehensive approach, and recognition that the “presumption of implied waiver” of rights acquired under the law of the domicile of the spouses at the time of the solemnization of their marriage must be buttressed by evidence, can be discerned in the Shaman case [10]. In that case, President Shamgar found support for retroactively applying the presumption in the special nature of the disputed property, which was a residential apartment. He stated, at pp. 108-109:

In view of the facts of the present case, it can be said that even if, for the sake of argument, we were we to accept the Appellant’s claim that we are concerned with property that was completely owned by the late husband, from the circumstances of the case we can infer an intention of co-ownership thereof, which crystallized in the course of the marriage. We are concerned with a property that was the residence of the decedents. They lived in that apartment from the time of its purchase (1950) until their deaths (the husband in 1975, and the wife in 1983) …

Under the above circumstances, it is my opinion that we can conclude the existence of an implied agreement in regard to community property – an agreement that crystallized at some point in the course of thirty years of married life in Israel – in regard to the disputed property, i.e., the residential apartment, which served as the late couple’s residence that entire period.

            I agree with this approach, which recognizes the weakness of imposing the community property presumption when its application is required in regard to rights acquired by one of the spouses in their entirety in accordance with a former law, and the need to find additional support in the evidence, as in this manner we can overcome the difficulties we addressed above.

24.       In the absence of evidence as to the content of Iranian law in the area of property relations, we cannot decide that the rights to the store were acquired by the Respondent in their entirety by virtue of Iranian law, just as we cannot decide that they were community property by virtue of Iranian law. All that can be said is that the Plaintiff cannot rely upon the argument that the registration of the rights in the Respondent’s name, in 1979, does not reflect a change in the status of the rights upon the couple’s immigration to Israel in 1983, according to which the Respondent impliedly waived the exclusivity of his rights to the store, and agreed to their equal redivision. Thus, the examination must focus upon the spouses’ state of mind at the time of the acquisition of the property, i.e., the original division of the rights.

 

Cause of action by virtue of the second clause of sec. 15 – An agreement made at the time of acquisition of the assets

25.       Can the Respondent succeed in arguing that an equal division of the rights to the store was already agreed at the time of the purchase of the store (prior to the couple’s immigration to Israel)? As noted, the second clause of sec. 15 of the Law recognizes the ability of the parties to stipulate in regard to the law of their domicile at the time of the solemnization of their marriage, as long as the agreement is made “in accordance with the law of their domicile at the time of making the agreement”. However, no evidence was adduced to show that Iranian law recognizes the competence of spouses to regulate their property relations in a property agreement.

            A review of Israeli statutes that comprise special provisions on the subject of private international law indicates a tendency to grant primacy to the principle of domicile in matters of personal status (see: sec. 17 of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 135 of the Succession Law, 5725-1965; sec. 6 of the Jurisdiction in Matters of Dissolution of Marriage (Special Cases and International Jurisdiction) Law, 5729-1969; sec. 80 of the Capacity and Guardianship Law, 5722-1962; as well as sec. 15 of the Law). The preference for the domicile principle over the nationality principle was explained in the explanatory notes to the Succession Law Bill, in that this principle –

… is more just, and in the circumstances of Israel, more effective. The ties of a person who established his domicile outside the country of his nationality to the laws of his domicile are stronger and more concrete than his ties to the laws of the country that he abandoned, although remaining one of its nationals. This is all the more so in Israel, which is a country of immigrants (Succession Law Bill (Ministry of Justice, 5712-1952) 156).

            The flexibility of the domicile principle thus expresses the individual’s expectations inhering in the choice to dissociate from a particular social regime and adopt another in its place (see: CA 598/85 Mastura Kahana v. Meir Kahana et al. [21]).

26.       Having addressed the justification for preferring the domicile principle in legislation on matters of family status – including sec. 15 of the Law – we will now turn to an examination of the meaning of the term “domicile” in sec. 15 of the Law. In this regard, we must determine whether weight can be attributed to the couple’s intention to move their domicile to another country in the framework of “domicile”, before they have realized their intention. In other words, can we, in such a case, view them as domiciles of the country they intend to establish as their domicile? Indeed, the case-law of this Court exhibits a tendency to transfer the center of gravity in the definition of “domicile” in sec. 135 of the Succession Law from the subjective to the objective. In other words, it is “not the person’s intention or situations in the past that establish a person’s domicile at a given time, but rather that place to which the person is tied form a factual-practical perspective, i.e., the place to which he is tied by the most factual connections” (CA 587/85 Stark v. Birenberg and cross appeal [22] p. 230; CA 260/89 Levi v. Hepner [23] p. 393). However, I do not believe that the said objective perspective is exhaustive in the present matter, in which “the meaning of that term may vary when it appears in different laws, in accordance with the content of the law in its entirety, and its general purpose” (CA 657/76 The Authority under the Victims of Nazi Persecution Law, 5717 – 1957 v. Hisdai [24] p. 781). Justice Barak addressed this, stating:

It is superfluous to state that it is often difficult to locate a specific point in time upon which a person ceases permanent residence in a country, and there is surely a period of time when the center of a person’s life seems to float between his prior place and his future place (CA 282/88 Awad v. Prime Minister & Minister of the Interior et al. [25] p. 433).

            In a similar vein, see A. Vita, Private International Law: Nationality and Domicile, 8 Hapraklit 352, 358 (5712) (Hebrew), published before the enactment of the Succession Law.

27.       The advantages and disadvantages of the approach that suffices with the future intentions of the spouses to settle in a particular country was addressed by the learned Dicey and Morris in regard to whether, in establishing the domicile of a couple, weight should be attributed to the intention of spouses to tie their future to another country at the time of the solemnizing of their marriage, stating:

The second problem is whether one should have regard to the intention of the parties at the time of the marriage as to their future home. This concept is sometimes called the “intended matrimonial home” … Its advantage is that it looks to the future, to the country in which the marriage will be centred and which will have the greatest concern with the marriage and the property relations of the spouses. Its disadvantage is that it produces uncertainty. What happens if the parties change their minds or if they do not immediately move to the new country? What law governs their matrimonial property rights until they make the move? (A.V. Dicey and J.H.C. Morris, On the Conflict of Laws (London, 12^th ed., by L. Collins, 1993) 1069).

            The answer to the question whether consideration should be given to the spouses’ intention to settle in another country in the future should be derived, inter alia, from the weight that the statute attaches to their expectations and desires. If the statute respects those, why should it close its eyes to the expression of their real intention to leave one social regime and adopt another in its place? In this spirit, the learned Dicey and Morris suggest, ibid., pp. 1069-1070:

The weight to be given to the parties’ intentions depends to a large extent on the answer to a third question. If the law of the matrimonial domicile is applied by reason of a fixed and independent rule, there is little scope for the intended matrimonial home. If, on the other hand, the basic rule is that the parties can choose the governing law, and the matrimonial home is no more than a pointer to what their choice is likely to be, there is no reason why the intentions of the parties regarding their future home – and the carrying out of those intentions – should not be regarded as indications of their intentions regarding the governing law.

            The fundamental approach in the matter of personal status grants weight to the desires and expectations of the spouses, and this consideration underpinned the preference for the domicile principle. This approach deserves reinforcement where we are concerned with an agreement that arranges the property relations of spouses. Therefore, in establishing the definition of “domicile” of the spouses, weight should be given to their intention to tie their fates to another country, and adopt its lifestyle and social principles, as long as this intention is serious and clear.

28.       The conclusion to be drawn from the above is that the subjective element, that is, the serious, clear intention of the spouses to establish themselves in another country, can serve as a criterion for establishing the “domicile” of the spouses in the present matter. The seriousness of the intention and its decisiveness can be expressed, inter alia, in the period of time that passed until the spouses moved to their intended destination. Thus, to my mind, it can easily be said that during the period immediately preceding the spouses’ immigration to Israel, while preparing for immigration, Israel can be viewed as their domicile for our purposes, even though they did not yet physically live there (in this regard, see Dicey & Morris, ibid., p. 1070).

            This legal construct can serve to overcome not only the problem of form and validity of the agreement. Having found, on the basis of the spouses’ clear, serious intention to immigrate to Israel, that they should already be conceptually viewed as Israeli domiciles, the presumption follows that having formed that intention, they agreed to adopt the property regime prevailing in Israel in regard to assets acquired thereafter from joint effort – both those that “immigrated” to Israel with them, and those acquired in Israel in anticipation of their immigration.

29.       While, in the present case, some four years elapsed from the time of the purchase of the store and the date of the spouses’ immigration to Israel, that does not require the conclusion that they had not formed a  clear intention to immigrate to Israel at the time of the purchase of the store, and that Israel was not yet considered their “domicile”.

            It cannot be denied that four years is not a short time, and that English courts refused to declare the existence of serious intent to settle in another country when two years had passed prior to a couple’s immigration to that country (see: In re Egreton’s Will Trusts; Lloyds Bank Ltd. v. Egerton (1956) [44]). Nevertheless, in the present case, special weight should be given to the proximity of Khomeini’s rise to power and the couple’s decision to immigrate to Israel. We learn of the causal connection of those facts from the Respondent’s statement that their property “was transferred to Israel primarily after the Khomeini revolution there, such that in 1983 we also fled for our lives from Iran” (para. 4 of the Respondent’s affidavit), and that the spouses began to put their plan into motion with the purchase of the store. On the basis of this concrete intention to immigrate to Israel, there is no reason, in the present case, not to view Israel as their “domicile” at the time of the purchase of the property, and thus the provisions that recognize the spouses’ competence to stipulate as to property relations apply to the implied agreement to community property in regard to the asset.

30.       I would note that the Plaintiff explained her petition to the trial court in stating that “a clear intention to create full partnership in all the property was implied by the spouses’ lifestyle and their relationship” (sec, 3 of her petition), and there is no reason not to grant the Petitioner the requested remedy on the basis of the developing this cause.

31.       For the reasons stated above, I would grant the petition and declare that the Petitioner is entitled to half the ownership of the store, and to half of the sum deposited in the two bank accounts.

            The Respondent will pay the Respondent’s legal fees in the amount of NIS 10,000.

 

President A. Barak:

            I concur with the conclusion of my colleague Justice Goldberg. I arrived at this result by a different route than that of my colleague. I will briefly explain my thinking.

1.         The facts of the present case “activate” several legal systems and several property relations regimes. The parties married (in 1944) in Iran. At the time, they were subject to the Iranian property relations regime. The husband visited Israel (in 1979) and purchased a store, which was registered in his name. At that time, the Spouses (Property Relations) Law (hereinafter: the Property Relations Law) was in force. The question is whether that store is subject to Iranian law (as the law of the domicile at the time of the solemnization of the marriage), or the Israeli community property rule (as the law to which Iranian law points by renvoi, or as the law of the place where the store is located, or as the lex fori). The spouses immigrated to Israel (in 1983). Subsequent to their immigration to Israel, the husband opened two bank accounts in his name, in which he deposited money that he had brought with him from Iran. The question is whether that money is subject to Iranian law (as the law of the domicile at the time of the solemnization of the marriage), or whether it is subject to the Israeli community property rule (as the law to which Iranian law points by renvoi, or as the lex fori, or as the law of current domicile). Answering those conflictual questions, and others, raises the question of the scope of incidence of the Property Relations Law over the store and the bank accounts. In regard to the bank accounts, we can assume that they were opened with the husband’s money, which he brought from Iran, But the accounts were opened in Israel after the enactment of the Property Relations Law. A question also arises as to the scope of rights vested under the foreign law, which the Property Relations Law does not infringe (in accordance with the interpretation given in the Azugi case [1]).

2.         All these questions – some of which were addressed in the comprehensive opinion of my colleagues Justice Mazza (in his opinion in the judgment that is the subject of this Further Hearing)  and Justice Goldberg (in this further hearing) – can be left for consideration at another time. The reason for this is that whatever the choice-of-law rule may be in regard to property relations between spouses married abroad prior to the enactment of the Property Relations Law, it is a dispositive law. It applies in the absence of an agreement between the parties. The parties are at liberty to decide upon a different arrangement, and Israeli law will credit that arrangement – subject to Israeli public policy and other specific Israeli law (see: Levontin, supra, pp. 17-45, and see: Dicey & Morris, supra, at 1068). The content of the agreement between the parties can be conflictual, that is, it may refer to a legal system that differs from that indicated by the rules of private international law. Thus, for example, the spouses before us could have agreed, after immigrating to Israel, that their property relations be established in accordance with Israeli law or Jewish law or English law or Iranian law. Similarly, an agreement between spouses need not refer to a foreign legal system, but rather to some content of a property relationship between them. Therefore, the spouses could have agreed, after immigrating to Israel, that the property relationship between them would be one of equality or some other division acceptable to them. And as noted, all subject to Israeli public policy or some other provision of a specific Israeli law.

3.         The next step in my thinking is this: anything that the parties can agree to expressly, they can agree to impliedly. There is no requirement that the agreement be in written or any other form. All that is required is that it be an agreement between the parties (sec. 23 of the Contract (General Part) Law). Two arguments can be raised against this step. The first is that one might say that the agreement between the parties deprives one of them, or both of them, of rights that they had under the applicable law in the absence of the agreement. In view of the nature of the agreement, it is appropriate that it be made expressly and in writing. This argument fails. Every agreement comprises some change in the normative relationship between the parties, and in the absence of an express provision requiring a special form, the agreement of the parties suffices to achieve that normative change. The second argument is that the Property Relations Law requires that a property agreement be in writing (sec. 1), and must be confirmed by a judicial instance (sec. 2). This argument is incorrect. The requirements of writing and of confirmation by the court concern a “property agreement” as defined by the Property Relations Law, whereas we are not at all concerned with a “property agreement”. After all, cases in which the conflictual law is decided in accordance with the general conflictual principles, and not by the Property Relations Law, are not governed by the Property Relations Law and the provisions of secs. 1 and 2 thereof. That is the situation, inter alia, in all those cases in which the Property Relations Law infringes rights vested in one of the spouses prior to the enactment of the Law (in 1973) (see the Azugi case [1]). In those cases for which the conflictual law is decided in accordance with the provisions of sec. 15 of the Property Relations Law – that is, in regard to property acquired after the enactment of the Property Relations Law by spouses married before its enactment – that provision itself establishes that the parties may determine their own normative regime “by agreement”. Here I must take exception to the approach of my colleague Justice Mazza that an “agreement” for the purposes of sec. 15 of the Property Relations Law means a “property agreement”. In this matter, I agree with the approach of Justice Elon in the Azugi case [1], according to which:

… the term “agreement” in sec. 15 has its general meaning, and need not be in writing – as required under sec. 1 in regard to a property agreement – rather, any agreement whatsoever, whether in writing or parol, whether express or implied, can serve to establish the property relations between the spouses, as long as the agreement is in accordance with the law of their domicile at the time of its making (ibid., p. 14).

            Two reasons ground my position. First, from a linguistic perspective, the Property Relations Law clearly distinguishes between “agreement” (addressed by sec. 15) and “property agreement” (defined in sec. 1). Justice Elon correctly pointed out that “the second clause of sec. 15 states ‘agreement’, and not ‘property agreement’” (ibid.). Second, in terms of the legislative purpose,  this interpretation yields a just and proper result. Indeed, my colleague Justice Mazza himself noted that his conclusion “is not a desirable result”. It infringes the equality of women (cf. the Bavli case [18]). It is at odds with the autonomous will of the parties. As opposed to this, my interpretation realizes the fundamental conceptions of Israeli society in regard to the autonomy of personal will and the equality of the sexes. These views are presumed to underlie the purpose of the Property Relations Law (see: CA 524/88, 525/88 “Pri Ha’emek” – Cooperative Agricultural Assoc. & 30 others v. Sedeh Yaakov – Moshav Ovdim of the Po’el Hamizrachi for Cooperative Agricultural Settlement et al. [26] p. 561). Indeed, equality “is the soul of our entire constitutional regime”  (HCJ 98/69 Bergman v. Minister of Finance [27] per Landau, J.). We presume that it is the purpose of every law to advance and preserve this principle. In the judgment under review in this further hearing, my colleague Justice Mazza was of the opinion that this approach devoids sec. 15 of the Property Relations Law of all meaning. I am not of that opinion. It suffices to recall all those cases in which parties immigrated to Israel, and a dispute the arose in such a manner that the community property rule did not apply.

4.         The final part of my legal construction is this: the community property rule accepted in Israel is one of partnership based upon the idea of an agreement between the parties. It is not a statutory (obligatory or dispositive) rule imposed upon the parties regardless of their will. It is a case-law rule that is founded upon an agreement between the parties (see: CA 253/65 Bricker v. Bricker and cross appeal [28]; CA 595/69 M. Afta v. A. Afta et al.[29]). I addressed this in one of the cases, noting:

This partnership derives from the resolve attributed to the parties, as reflected by their marital relationship. That marital relationship itself creates a presumption of community property … the community property presumption … employs a contractual construction that concerns an (implied) agreement between the parties, according to which they are equal partners in rights … (the Bavli case [18] pp. 228-229).

            And note that the consensual view is not a fictional explanation of a statutory rule that draws its force from the legislature. It is a real explanation for a case-law rule that draws its force from the agreement. In the past, this view was founded upon the theory of implied condition. “The intention of co-ownership of the property can be inferred from the conduct of the spouses in accordance with the manner of their married life” (CA 253/65 [28] ibid., p. 599, per Agranat, P.).    We can now base this view upon the principle of good faith (established under sec. 39 of the Contracts (General Part) Law), which fills the gaps in an agreement between the parties (see: CA 718/89 Haifa Quarries Ltd. v. Chen-Ron Ltd. and cross appeal [30] p. 312; CA 4638/93 State of Israel v. Apropim Housing and Promotions (1991) Ltd. [31). In accordance with this principle, we can give expression, first and foremost, to the subjective fundamental assumptions at the foundation of the relationship between the spouses, without need for recourse to a fiction concerning their real intentions. Where the fundamental assumptions of the parties are unproductive, we can employ objective criteria to fill in what the parties left out on the basis of the good-faith principle. Inter alia, these criteria draw upon the fundamental principles of Israeli law. One of those fundamental principles is that of equality. In this manner, we achieve a social objective that brings about social justice (see: the Bavli case [18] p. 229).

            I am aware of the problems associated with basing the community property rule on contract (see: Rosen-Zvi, supra, 249). I do not believe that those problems are relevant to the present matter. Indeed, if the contractual construct can deliver the community property rule across the raging sea of the provisions of the Land Law in particular, and civil codification in general, I see no reason why the it would lack the power to deliver the community property rule across the raging river of conflict law. We can revisit this matter in the future, and consider whether we might base the community property rule upon the general power of an Israeli judge to develop the law in conjunction with the statutory law, without need for the contract construct. “The history of broad areas of our law – characterized as a mixed system – is a history of judicial creativity … in which the Court developed the law” (HCJ 1601-1604/90, HCJApp 1890/90 Shalit v. Peres et al. [32] pp. 366-367).  “Just as a common law developed in England that did not consist merely of the interpretation of terms, we have also developed the independent possibility of developing  common law that is not necessarily the product of the simple interpretation of terms” (FH 29/84, FH 30/84 Kossoy v. Bank Y.L. Feuchtwanger Ltd. et al. ; Filco Finance and Investment Co. v. Bank Y.L. Feuchtwanger Ltd. et al. [33] p. 511, per Shamgar, P.). Indeed, “we recognize the power of the Court to create and develop an ‘Israeli Common Law’”  (HCJ 1635/90 Schereschewsky v. Prime Minister [34] p. 859). That is judicial power that draws upon our legal tradition. By that means, it is possible – should it be found appropriate – to grant a more comprehensive character to the community property rule, in addition to its contractual character. That would be the mature fruit of “judge-made law, delivered on the birthing stool of this Court” (CA 630/79 Z.B. Lieberman v. E. (Mendel David) Lieberman [35] p. 368).

5.         We can now proceed from the general to the specific. The spouses in the present case immigrated to Israel (in 1983). The trial court found that they met the conditions of the community property rule. They lived together, maintaining a regular lifestyle, in a joint effort. We infer that while in Israel, they (impliedly) agreed that their assets were community property. While it is true that part (perhaps most) of the property was brought from Iran, that is immaterial. The agreement between the parties does not distinguish between property acquired in Iran after the marriage, and property acquired in Israel after the marriage. Indeed, the spouses maintained a continuous, shared life for over forty years. Israeli law is ready to infer from that continuity – if based upon joint effort and a regular lifestyle – an agreement to community property. In the absence of special data, there is no reason to draw a distinction – a distinction that is particularly difficult in view of the difficulty in “trace” the property – between property acquired prior to immigration to Israel and property acquired thereafter. The very same agreement applies to the property in both cases. For my part, I ruled in the Azugi case [1] that the community property rule applies to property acquired before marriage. The present case is easier, as all of the property was acquired after marriage. I see no logic, in terms of the community property rule – and in terms of the consensual basis upon which it is founded – to distinguish between property that the parties brought with them from abroad, and property accumulated in Israel.

6.         In conclusion, upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel. This agreement takes precedence over the application of conflict-of-laws rules, and establishes the regime for the division of their property. That regime applies to property acquired after their marriage but before their arrival in Israel, as well as to property acquired in Israel after the marriage. For these reasons, I concur with the result arrived at by my colleague Justice Goldberg.

 

Justice T. Strasberg-Cohen:

            I accept the position of my colleague President Barak, according to which, in the circumstances of the present case, the spouses should be deemed as agreeing to maintaining, in Israel, a community property relationship, and that agreement – and not the choice-of-laws rules – decides the regime for the division of their property, including property acquired before their arrival in Israel.

            I therefore concur with the result arrived at by my colleagues the President and Justice Goldberg.

 

Justice D. Dorner:

1.  Section 15 of the Spouses (Property Relations) Law (hereafter – the Law) states:

Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations such relations in accordance with the law of their domicile at the time of making the agreement.

The question that arises in this petition is whether an agreement pursuant to the aforementioned section 15 can also be an implied agreement, the existence of which is inferred on the basis of the community property presumption in regard to the couple’s assets.

2.         Like my colleague Justice Goldberg, and for the same reasons, I am also of the opinion that as far as this question is concerned, the date upon which the couple married – whether before or after the Law came into force – is of no relevance.

3.         In the Yaacobi and Knobler cases [9], I expressed my opinion that the community property presumption applies to all couples that are residents of Israel.  In the instant case, I am of the opinion that an agreement under sec. 15 of the Law – which allows spouses to establish and change their property relationship – can be an implied agreement, and it can be proven with the aid of the community property presumption. This is a desirable result. It can prevent the imposition of foreign law that does not recognize the community property presumption in upon a couple residing in Israel for many years, simply because they immigrated to Israel after the Law came into force.

It seems to me very doubtful that this result can be achieved on the basis of the approach that rejects the application of the community property presumption to spouses whose property relations are regulated by the Law, inasmuch as if the Law annulled the community property presumption in regard to spouses to which the Law applies, how can spouses who immigrated to Israel after the Law came into force continue to acquire rights on the basis of the presumption?

4.         For these reasons, I concur in granting the petition, as stated in the opinion of my colleague Justice Goldberg.

 

Justice M. Cheshin:

 I concur with the opinion of my colleagues Justice Goldberg and President Barak, and Justice Strassburg-Cohen and Justice Dorner. Their decision is my decision, and their conclusion my conclusion. But inasmuch as my way is my way, I will say some things about the tortuous path that I followed in reaching my destination. I will begin with the basic relevant facts.

 

The basic facts and the relevant law

2.         The basic facts of the matter are as follows: The Petitioner and the Respondent married in 1944 in Iran, where they resided. They lived in Iran for nearly forty years, and they bore five children. In 1979, while visiting Israel, the husband purchased a store in Tel Aviv, and registered it in his name. In 1983, the family members immigrated to Israel, and purchased an apartment that was registered in the names of both spouses. About four years after immigrating to Israel, and after the rift in their relationship, the wife filed suit against her husband for co-ownership of the assets that the husband had registered exclusively in his name: the store, and two bank accounts in which over 300,000 dollars that the husband had brought with him from Iran were deposited.

3.         Even those who have not been favoured with a vivid imagination will sense that we are dealing with a simmering cauldron of hard questions in the fields of family law and private international law, Israeli law and Iranian law, all stirred together. Bearing in mind that the Spouses (Property Relations) Law (hereafter – the Law) came into force in 1974 – against the background of the community property presumption that preceded it – we further realize that contract law and the provisions of case law and the Law are added to the stew. It is a complex maze, there are many traps, and who can find the way out? My colleagues Justices D. Levin, Mazza and Tal, sitting in the appeal, walked through the labyrinth and arrived at an exit on the south side. And now, my colleagues Justice Goldberg, President Barak, Justice Dorner and Justice Strasberg-Cohen, who also found their way through the tangle, exited in the north.  I, too, stumbled about in the dark, and bumped my head against the walls. At the end of this examination, I will suggest what appears to be an appropriate path for resolving the issues that arise in this matter, but before charting a course for exiting the intertwining trails of the maze, I would like to make some preliminary observations, which set the groundwork for all the issues examined in my opinion, and in the opinions of my colleagues, as well.

 

The interim application of the Law and its application to couples married abroad

4.         The Law is as its name states: It is intended to arrange the property relations between spouses, and its core is in its second chapter, which treats of the balancing of spousal resources. The resource balancing arrangement under the Law is different from the community property presumption created by the case law before the commencement of the Law (see the Yaacobi and Knobler cases [9]), and a transition provision was inherently required to separate the past from the future. The transition provision is to be found in section 14 of the Law, which states:

Transitional provision

14. Section 3 and the other provisions of Chapter Two shall not apply to spouses who married before the coming into force of this Law.

In other words: the balancing of resources established in the Law will apply only from the day that the Law enters into force. The date of entry into force was established as Jan. 1, 1974 (in accordance with section 19 therein). We thus know that spouses who married prior to the Law will be subject to the rule that existed prior to the Law (whether as a rule unto itself or whether as “vested rights”) – at least insofar as assets that were acquired until the commencement of the Law – and the balancing of resources provisions of the Law will not apply to them. The rule prior to the Law was – and is – as we know, the community property presumption as created and developed by the case law: case law that predated the Law, and case law that developed, and that even gained force and intensity, after the Law.

5.         Spouses in Israel are thus divided into two classes: those who married prior to the Law (i.e., prior to Jan. 1, 1974) – who are subject to the community property presumption that held before the Law, and those married following the Law (i.e., after Jan. 1, 1974) – who are subject to the provisions of the Law (and we will not here enter into the bitter debate conducted in the Yaacobi and Knobler cases [9] in regard to the parallel application of the community property presumption even after the entry of the Law into force). So much for the situation of Israeli residents.

And what of the case of couples who resided outside of Israel at the time of their marriage, and who became Israeli residents after their marriage? Are they subject to the rule that predated the Law or to the rule established by the Law? Some, it would appear, take the view that the rule that applies to “Israeli” couples also applies to couples who resided abroad at the time of their marriage and immigrated to Israel. In other words: the question of the application of the rule predating the Law (including the principle of vested rights) or the rule established by the Law will depend upon the question of whether they married prior to Jan. 1, 1974 or after that date. If they married (in Israel or abroad) before Jan., 1 1974, their rights will be mutually governed by the rule that applied before the Law (at least in regard to assets acquired up until that date), whereas if they married after Jan. 1, 1974, they will be subject to the rule under the Law.

I reject this opinion from the outset. In my opinion, as regards spouses who married abroad and are not Israeli domiciles, the Law was never intended to apply to them, and indeed will not apply to them. Let us recall the words of Lord Ellenborough in the famous case of Buchanan v. Rucker (1808) [45] at 547:

Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction?

With slight adjustments, and stated in the negative and not merely as a (rhetorical) question, the same can be stated in our case as well. Indeed, the substantive provisions of the Law were intended to apply only to those domiciled in Israel at the time of the solemnization of their marriage, and not to the residents of the entire world. This is clear from the provisions of section 15 of the Law (which we shall consider hereinafter) - which makes the application of the Law contingent upon “the law of their domicile” of the couple – and so is it clear from other laws that treat of the same material (for example, the Capacity and Guardianship Law), which also are contingent upon the place of a person’s domicile (in the absence of any need, we will not now consider the distinction – if there is one – between a person’s “place of residence” and “domicile”). And see also M. Shava, Choice of Law in Property Relations between Spouses, 6 Iyyunei Mishpat (1978-79) 247, 268ff (hereinafter – Shava, Property Relations); M. Shava, Personal Status Law in Israel, 3^rd ed., (Massada, 1992) 355ff (hereinafter – Shava, Personal Status).

6.         What we have said leads to an ineluctable conclusion: the substantive provisions of the Law will apply only to spouses whose domicile at the time of the solemnization of their marriage is in Israel, whereas the provisions of the Law will not apply ab initio to spouses whose domicile at the time of the solemnisation of their marriage is not in Israel. In regard to the latter, it makes no difference whether they were married before or after Jan.1, 1974, inasmuch as their property relations are governed – ab initio – by a legal system that is not in force in Israel (s.v. Tobago, Island of). As for spouses whose domicile was outside of Israel at the time of their marriage, and who later became Israeli domiciles, these fall into two categories. One category comprises those who became Israeli domiciles before the commencement of the Law: These are governed, in principle, by the Israeli law in force prior to the Law, including the principle protecting vested rights (and we will not now consider the dispute surrounding this issue in the Azugi case [1]). In other words: spouses who, at the time of their marriage, were domiciled outside of Israel, who subsequently – prior to the Law – became Israeli domiciles, litigating before an Israeli court after the Law, will be subject, in principle, to that law that would have applied to them had they litigated prior to the Law. The Law was not intended to change the mutual rights of such spouses, and the rights and obligations that existed prior to the Law will continue to exist as they were even in the period following that Law.

The second category comprises spouses who were domiciled outside of Israel at the time of their marriage (whether the marriage took place before the commencement of the Law, and certainly where the marriage took place after the commencement of the Law), and who became Israeli domiciles after the Law. As far as these are concerned, we must address ourselves to the provisions of the Law, and firstly, to the provisions of section 15 therein, which treats of private international law. Inasmuch as the property relations of these spouses involve a substantive foreign element, they and we must – first and foremost – pass through the gate of private international law established in section 15 of the Law, and this gate will direct our continued course.

7.         And what of our case? True to our approach, we say that the decisive date is the day upon which the Nafisis became Israeli domiciles. That date was in 1983, that is, significantly later than the commencement of the Law (as noted, the law entered into force on Jan. 1, 1974). That being the case, we can conclude that in seeking the normative framework applicable to the property relations between the spouses, we will first encounter the Law, and first and foremost, the provisions of section 15 therein, which treats of private international law. Thus, the point of departure of my journey, and that of my colleagues, is to be found in section 15 of the Law. However, as we shall see further on, what we have said in regard to spouses married outside of Israel will be of particular importance.

Thus far, introductory remarks on the interim application of the Law.

 

The international application of the Law to spouses domiciled outside of Israel at the time of their marriage

8.         The Nafisis were married in Iran, became Israeli domiciles after the Law came into force, and thus two legal systems can be involved in their matter: Iranian and Israeli. On the subject of the international application of the Law, that is, on the subject of the involvement of several legal systems claiming or that might claim primacy over the others, section 15 of the Law, which treats of “private international law”, establishes:

Private International Law

15. Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage, provided that they may by agreement determine and vary such relations such relations in accordance with the law of their domicile at the time of making the agreement.

Thus, according to the Law, in regard to the legal norms that will apply to property relations between spouses, we put before us two alternatives, respectively, in accordance with the precedence established by the Law: First and foremost, the “law of their domicile at the time of the solemnization of the marriage” will apply to the property relations between the spouses, however – and this is the second alternative – the spouses are free to determine or vary the regime established under the Law of their domicile at the time of their marriage, as long as the agreement is in accordance with the law of their domicile at the time of its making.

9.         The source and legal nature of the alternative arrangements established by section 15 of the Law are different: whereas the first alternative is one that is imposed upon the spouses by virtue of the law (ex lege), that is: the property relations between them will be regulated by legal system A, over the contents of which they have no control, while the second alternative is one that derives from two sources. This alternative is primarily founded upon the agreement of the parties (ex contractu), but this agreement must be valid under the law of the parties’ domicile at the time of its making. On the methodology of the two alternatives we will note that it first elaborates the alternative deriving from law, and afterwards elaborates the alternative of agreement, but this chronological arrangement does not testify to the legal priority of the first over the last. On the contrary, the legal preference is rather for the second alternative – the agreement alternative – while the first alternative - that of the law - will only hold subject to the second alternative.

10.       Inasmuch as the provisions of section 15 of the Law instruct us that one of the two said alternatives will apply to the Nafisis, we must examine these two alternatives one at a time, and attempt to find the way to answer the questions that have been put before us.

 

“Property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage”

11.       This is the first alternative established in section 15 of the Law in regard to private international law: The property relations between spouses shall be governed by the law of their domicile at the time of the solemnization of the marriage. This requires the conclusion that the property relations between spouses will continue to be determined by the laws of that state even if their place of domicile changes (and until they make another agreement between them as stated in the final clause of section 15). This is the immutability doctrine, the doctrine that establishes a hard, rigid choice of laws, a doctrine that plants itself in the rules of one, single legal system. See, for example, Dicey and Morris, supra, at 1066, 1081-1087; Shava, Property Relations, at 269-272. The Nafisis domicile was Iran at the time of the solemnization of their marriage. Section 15 of the Law therefore instructs that Iranian law governs their property relations. In other words: The property relations between the Nafisis will be decided according to this alternative - from now and forever – in accordance with the rules of Iranian law, unless they agree otherwise, as stated in the final clause of section 15.

12.       If we are in agreement that the law of domicile of the Nafisis at the time of the solemnization of their marriage shall govern their property relations – and in the case of the Nafisis, this means the Iranian system of law – we still have not decided and do not know whether this referral to a foreign legal system is one of these three: one, to the substantive domestic part of that law, i.e., to the rules in force in Iranian domestic law in regard to the property relations regimen that applies to Iranian spouses; two, the reference is not just to  Iranian domestic law but to that legal system, including its rules of private international law; three, the reference may be to the Iranian legal system – including its rules of private international law – but with various restrictions upon referring from the Iranian system to a third system (if we should encounter such a referral). The legislature did not enlighten us as to which of these it chose, and we must find our own way. As is well known, different legal systems take different routes – and for different matters – and a variety of considerations can dictate whether we go straight, or to the right or left. We also know that, in principle, the following three doctrines are accepted in the world’s legal systems: the doctrine that states that referral to a foreign legal system means referral to the domestic law of that system (the doctrine that rejects renvoi); the doctrine of partial renvoi (single renvoi); and the “The Foreign Court Theory”, see, e.g., Dicey and Morris, supra, at p. 70 ff; M. Shava, The Position of Domestic Law in the matter of Renvoi in the area of Personal Status, 5 Iyyunei Mishpat (1976-77) 268, 268-271 (hereinafter – Shava, Renvoi) (Hebrew); Shava, Personal Status, p. 90 ff.

13.       Some of my colleagues seem to assume that the provisions of sec. 15 of the Law are intended to refer us to foreign domestic law – in our case: Iranian law – which is to say that we are required to apply to the property relations between spouses those substantive rules that the foreign legal system applies to the people of that state, while rejecting possible renvoi. This would seem to be the view of our colleagues Justices Mazza and Goldberg, and it would seem that this was also the view of our colleague Justice Elon in the Azugi case [1]. This also appears to be the view of Prof. Shava (Shava, Renvoi, p. 279; Shava, Personal Status, p. 396).

14.       I am not comfortable with that conclusion, and unlike my colleagues, I do not view it as a royal decree. As for myself, I do not know why we should construe the referral (in sec. 15 of the Law) to “the law of their domicile” of the spouses at the time of the solemnization of the marriage as necessarily referring to the domestic law of that legal system. If we are ordained to anchor ourselves to a “historical” legal system, let us soften the blow somewhat. To my way of thinking, the foreign court theory, also known as “double renvoi” doctrine, or the “total renvoi” doctrine, is immeasurably preferable, and it is the doctrine established in English law in the famous case of In re Annesley, Davidson v. Annesley (1926) [46]. As we know, this doctrine establishes that the referral to the foreign legal system is to the legal system as a whole – including its rules of private international law – and the Israeli court will sit as if it were sitting in the state whose legal system we have turned, and in the very matter currently before the court. See, e.g., A.V. Levontin, Choice of Law and Conflict of Laws (Leyden, 1976) (hereinafter – Levontin, Conflict of Laws). This doctrine does not plant us, as if for eternity, in the domestic rules of the foreign legal system – the legal system that was the legal system of the spouses at the time of their marriage, but which has since become foreign to them (and perhaps even repugnant) – it permits flexibility in establishing the property relations between the spouses, and is suitably adaptable to the changes that have taken place in the lives of the spouses since they married (although it is not as flexible as the full-mutability method or the partial mutability method).

For example, at the time of their marriage the couple were domiciled is Ruritania, but it was their intention, at the time of their marriage, to leave Ruritania and settle in Utopia. That is what they intended, and that is what they did. Now they are litigating a matter of spousal property relations in Israel. Under Ruritanian law – including its rules of private international law – the property relations between the spouses are supposed to be decided in accordance with Utopian law, as the law of their intended matrimonial domicile. On the assumption that the property relations law under Ruritanian domestic law differs from the property relations law in Utopia, which law shall we apply? Under the doctrine that rejects renvoi – that is, if we construe the opening clause of section 15 as referring to the domestic law of Ruritania – we will have to apply the domestic law of Ruritania to the property relations of the spouses, whereas under “the foreign court theory” we will apply Utopian law. What shall we do? To my thinking, there is no good or proper reason to construe section 15 of the Law as if the legislature had commanded us to apply the domestic law of Ruritania, particularly when Ruritania itself instructs me to apply the law of Utopia. This is but an example of why we should prefer the “the foreign court theory” – and even the doctrine of single renvoi – over the doctrine that utterly rejects renvoi, a doctrine that construes the referral to foreign law as a referral to the rules of its domestic law.

It is not my intention to say – and I have not said – that the foreign court theory is flawless. All that I have said is that I find this doctrine to be preferable to the alternative doctrine of referring – as if “now and forever” – to the substantive rules of a foreign legal system: foreign to the forum, and at the time of litigation, foreign to the litigants, as well.

15.       Having said all that, we are left where we started. The reason is that neither what the legal system in Iran established at the time the Nafisis married, nor what the legal system in Iran established when the couple left Iran and settled in Israel, was adequately proved to the trial court. That being the case, we cannot address the provisions of the opening clause of section 15, whether we construe it as referring to the domestic law of Iran, or whether we construe it as adopting the foreign court theory. Mrs. Nafisi cannot, therefore, rely upon the provisions of the opening clause of section 15 of the Law. The assets under discussion are registered in the husband’s name, and in order to acquire half of them, she must point to some legal source that grants her a right. Not having proved the Iranian law – as required by the opening clause of section 15 – Mrs. Nafisi cannot anchor her right in that rule. What remains, then, is for her to try to set anchor in the provisions of the concluding clause of section 15 of the Law – the one that treats of an agreement made between the spouses themselves, in the hope that therein she may find grounds for the right she is claiming.

 

“They (the spouses – M.C.) may by agreement determine and vary (property relations – M.C.) in accordance with the law of their domicile at the time of making the agreement”

16.       The opening clause of section 15 of the Law provides that property relations between spouses shall be subject to the law of their domicile at the time of the solemnization of their marriage. However, the concluding clause of section 15 instructs us:

…they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the agreement.

This provision of the Law is the legal provision that is hotly disputed by my colleagues, and I shall now add to the dispute – for a noble purpose, of course. But before I shoot arrows from my quiver in every direction, I will say a few words about the construction of the term “agreement” in the concluding clause of section 15 of the Law.

17.       My colleague Justice Mazza is of the opinion that in regard to those whose domicile is Israel, the meaning of this “agreement” (if made after the commencement of the Law) is a “property agreement” as provided by the Law, inasmuch as only thus will it be an agreement “in accordance with the law of their (the spouses – M.C.) domicile at the time of making the agreement”. As opposed to this, my colleagues President Barak and Justice Goldberg are of the opinion that this “agreement” includes an “agreement” in accordance with the provisions and the meaning of contract law – including an implied agreement – and without all the “pomp and circumstance” associated with a “property agreement” as provided by the Law. We should further note that Justice Elon was the first to express his opinion – in the Azugi case [1], at p. 14 – that an “agreement” in the context before us means any “agreement”, including an implied agreement. I concur with the latter view, and with the reasons expressed by my colleagues in its support, and I would like to add a note of my own to their sage words.

Here are two spouses born where they were born, and married where they were married, and one day they made their way to the land of Israel “to build and be built”.[3] The couple immigrated to Israel prior to the commencement of the Law, established their domicile, and lived in Israel in peace and tranquillity for twenty years, until Satan came to their home. And once Satan came to dwell with them, discord grew and increased until it reached the courthouse doors. The couple had not made a property agreement, neither when they married nor in their previous domicile. It never occurred to them. They lived in peace and tranquillity, and why would such a couple make a property agreement? So it was in their domicile abroad, and so it was in Israel. Twenty years, and no property agreement. Needless to say, over time the couple became part of Israeli society: the husband pursued his pursuits, and the wife pursued her pursuits, and they became an inseparable part of their surroundings at work, in society, in joy and in sorrow. An ordinary Israeli couple. Until the dispute that began and the separation that followed. Had these spouses been Israelis from the outset, there would be no problem establishing that they had created an “implied agreement” to co-ownership of the assets that they had acquired in the course of their marriage. While they had not made a “property agreement” between them, they had indeed made an agreement – an “implied agreement”. Now, in coming to construe the legislative act, in order to give substance to the “agreement” in the final clause of sec. 15 of the Law, the question arises: What reason is there to limit this “agreement” specifically to a “property agreement”? What justification can there be for such a restriction of the language of the Law? We have searched tirelessly and found none.

Such is the case in regard to spouses who immigrated to Israel before the Law, and so in regard to spouses who immigrated to Israel after the Law. Imagine, for example, that a certain asset was registered in the husband’s name alone, and one day the couple went and registered it in both their names. There can be no doubt that such registration would be valid, and their co-ownership of that asset would be realized. What difference is there between this example and an “implied contract” based upon the circumstances of the case, by which the couple deemed the asset to be co-owned and so treated it? And if that be the case, why should we not say that the law should follow life, after all, was the law not given that we might live by it? If this is how life flows, should we not assume that the law is meant to go with the flow, down the river, and not against the current and up the mountain? The Law - at least in the case before us - was not intended to educate the country’s residents, but rather to adapt itself to the prevailing views of Israeli society: to prefer the principle of equality and reject views that were common in past centuries – views still common today in certain societies – as to the inferior status of women in married life. All of this together must, in my opinion, lead us to interpret the law in the manner adopted by my colleagues Justices Elon, Barak and Goldberg, as saying that the term “agreement” in the concluding clause of sec. 15 of the Law comprises a plain agreement. And an implied agreement falls within that meaning.

Thus far I have walked arm in arm with my colleagues President Barak and Justice Goldberg, with whom I agree as to the construction of the term “agreement” in sec. 15 of the Law. At this juncture our paths diverge: If my colleagues’ path is to the left, then I shall go to the right, and if they will take the right, then I will go to the left.

18.       I agreed that the term “agreement” in the final clause of sec. 15 of the Law means an agreement in accordance with the general law of contract – a plain agreement – and an agreement, as we all know, also means an implied agreement. However, what is an “implied agreement” - particularly within the context of the final clause of sec. 15 of the Law? To my mind, I have no doubt that an agreement in the context before us - an agreement, including an implied agreement – means a real agreement, an agreement that can be understood from the circumstances of the case at hand. An implied agreement is like an express agreement – although it is created by conduct and actions rather than by speech and words. When Reuben gets on the bus, he no doubt impliedly agrees to pay the fare, and should he claim at the end of the ride: “I didn’t know” that I was supposed to pay for the ride, we will dismiss his claim as false. If Simon fills a bag with vegetables laid out on a stand in the market, he no doubt impliedly agrees to pay for the vegetables, and a claim that “I didn’t know” that I was supposed to pay for the vegetables, because I thought they had been put there as a gift for passers-by, will be dismissed as empty words. And the same will hold true for a person who calls a plumber to his home and refuses to pay when the work is done, claiming that there had been no advance agreement that he had to pay. These are all – all of these and others like them – examples of true agreements, agreements that meticulously and carefully fulfil the conditions required for forming agreements in accordance with the law of agreements. They are called “implied agreements” – to distinguish them from express agreements – but this distinction between agreements of one type and agreements of another type is nothing but a distinction that describes the methods for creating the agreement. The distinction is of no legal consequence in regard to the very existence of the agreement, except insofar as the manner of proof is concerned. The agreement is implied in fact by the circumstances of each and every case.

19.       Alongside the “real” implied contract – that contract that is implied in fact – we find the implied contract that is not “real”, the one that is called an implied contract but is not an implied contract: it is neither a contract nor is it implied. It is a commonly known phenomenon that in developing the law, the courts made use of the method of implied contract in order to advance the creation of norms and in order to do justice to the parties. Thus, for example, English law developed the legal field of unjust enrichment, a field of law that for many years was based upon the technique of implied contracts that were called quasi-contracts. The nature of “quasi-contract” was hotly debated for many years, but on one thing all were agreed: whatever the scope of “quasi-contract” may be, a contract it is not (cf. CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Company Ltd. et al. [36] at p. 768).  That “quasi-contract” was a “contract” implied in law. In other words, it was a formal legal device that the courts employed to give (new) meaning to the law. It was not a “real” contract, a contract like all contracts, that is, a norm or a set of norms that Reuben and Simon sought to create for themselves – of their own will – in order to regulate their relationship. It was not a contract at all. It was a formal legal pretext for a system of facts that required an appropriate substantive solution.

Indeed, in those cases the courts did not examine the factual picture presented to them in an attempt to infer an agreement between Reuben and Simon, as courts do when they seek to examine and discover whether or not an implied agreement was formed between Reuben and Simon. The facts were clear, and all knew that no contract had been formed between the parties, not express and not implied. The question that the courts addressed was whether, on the basis of the agreed assumption that there was no contract between the parties, it would be proper to grant Reuben relief against Simon. Would it be proper to create a new legal entity, a right, that will wrap itself in a robe called contract (or “quasi-contract)?  Here the court does not infer an intention to form a contract from the circumstances. However, since the form is that of contract (or quasi-contract), the court imputes to the parties an intention to form a contract, an intention that all are aware did not exist and was created solely for the purpose of the formal legal pattern. A real implied contract derives from the circumstances of the case, whereas an implied contract that is not real is one that we apply to the circumstances of the case “for the glory of the law”.

The unreal implied contract – or if you prefer: the fiction of the implied contract – served as a valuable tool in the development of the law, like every other fiction intended to improve and advance the legal system. However, every fiction – as good, beautiful and noble as it may be – is just what it is called: it is a fiction, it is not the truth. The day comes when every fiction must depart the legal stage. Legal wisdom is knowing when the appropriate time has come to ask a particular fiction to relinquish its place. And a fiction that walks among us after it has fulfilled its role will not only bring no benefit, it may even do harm.

20.       My colleagues President Barak and Justice Goldberg are of the opinion – each in his own way – that the provision of the concluding clause of sec. 15 of the Law may be decisive in our matter, that is: the Nafisis agreed between them – impliedly, of course – upon co-ownership of their property, and therefore Mrs. Nafisi is entitled to what is hers. I strongly disagree with this. In my opinion, the provision of sec. 15 is concerned with a real agreement between the spouses, and in the matter of the Nafisis, there is no evidence of the forming of a real implied contract between them for the co-ownership of their property – a contract that is implied in fact – but the opposite.

 

The community property presumption and the spouses – the meaning of “agreement” in sec. 15

21.       The question whether the Nafisis “agreed” to co-ownership of their property is strongly tied to the community property presumption created by the case law in regard to property relations between spouses, and we must therefore say a few words regarding the case law. Reading the case law will show us that a fine distinction must be drawn between the substantive elements that created the community property rule in regard to spousal property, and the formal legal frameworks into which the case law cast the substantive elements. Indeed, we find that, not infrequently, contract law provided the formal legal framework for advancing the law, however we do not find that contract law was – in truth – properly employed. We discussed this in CA 806/93 Y. Hadari v. S. Hadari (Darhi) [37], as we stated there, at p. 699:

3 … it is appropriate that we distinguish between the substantive grounds that give life to the community property rule – that give it life and nourish it – and the formal legal frameworks that serve us: between the contents of the bottle and the bottle itself, between the level of principle and the level of legal technique. Truth be told, it may be said that the areas nourish each other, and the distinction between them is neither sharp nor easy. Moreover, some principles are easily categorized both on the one level and on the other (like the element of intent), and at times employ the very same term (“intent”) on one level or another without distinguishing between the two. It would nevertheless appear appropriate to distinguish between the principles that serve the system, and to add and locate the various levels of abstraction.

4. As for the substantive elements – those elements that create the law and steady it in place, these elements were not born under one roof, but came from different places. It would appear that the main principle is to be found in the need to act decently, fairly and justly with the wife who is, as a rule, the one who may end up disadvantaged in the absence of the community property rule. These three, each in it own right, gave birth to the principle of equality (equity is equality), and to this group the element of intent was added. Along with all of these resides the pledge of a life together that the spouses made (whether by marriage or not by marriage), which has existed from time immemorial, since God created man - male and female He created them: “Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh” (Genesis 2:24).

Thus it was in living together – under the warm sun and in the cold, in joy and in sorrow – and certainly thus in property. In our opinion, the substantive elements are not all to be found at the same level of abstraction, and there may be differences of opinion on the question of whether one element or another is to be located here or somewhere else.

As for the formal legal framework, it would seem that it lies somewhere between contract and property law (and with them the laws of trust in the broad sense), and through them all the main support is the element of intent, primarily the intention of the spouse who is the owner of the property (but not only his intention).

And also see what I stated there, at pp. 700-704.

22.       However, a careful historical examination of the case law shows that since the emergence of the community property rule, the element of “implied contract” did not play a central role, but served as a formal legal refuge, and the substantive elements – the elements of equality, decency, fairness, justice and equity – crowded together, one beside the other, under its roof.  The element of intent also came under that roof, but the element of intent did not play a primary role except in the negative, that is, when the circumstances showed that a spouse did not intend to join his spouse in his property. In the words of President Shamgar in the Bavli case [18], at p. 252:

The law of Israel, as construed by this court, is that in regard to spouses who live together and maintain a common household, the property accrued in the course of their lives together is their joint property that divides equally between them, even if it is registered only in the name of one of them – as long there is no evidence that they formed some other intent. That is the community property presumption.

Indeed, unlike “real” implied agreements – regarding which we learn about the intention of the parties from the circumstances of each and every matter – in the case of community property, the courts attributed to the spouses the intention to share their property. Needless to say, attributing intention reflects a fiction. Thus, for example, in CA 300/64 M. Berger v. Estate Tax Director [38] – which is one of the early stages of the rule – Justice Berenson stated as follows, at p. 245 (emphases in this quotation and the following quotations are all mine – M.C.):

In the absence of an agreement, or when it is not clear what the intention of the parties was at the time of purchase, the court will impute to them the intention that the property belong to both of them in equal parts…of course, if it is proven that at the time of purchase the intention was that the property belong to one of spouses, or held jointly but not in equal parts, then that intention should be realized. But in the absence of such evidence, it is presumed that when they live together and do not maintain a clear distinction between the property of each of them, their intention was to an equal partnership.

The fiction is clear. In CA 253/65 [25] President Agranat cites Justice Berenson’s statement with approval at p. 598, and adds the following of his own, at p. 597:

Indeed, in most cases – it may be assumed – the properties are purchased without any express agreement between the spouses that addresses the question of their ownership of those properties, and without even giving consideration to the question at the time of purchase. When the facts in such cases point to married life over a significant period, during the course of which the spouses did not distinguish income that each received from different sources but pooled it – if only conceptually – into a single fund from which the monies were drawn to purchase the properties, such that we can say that there was a kind of “aggregation of resources” and an absence of a “clear dividing line between the property of each of them”, then it is proper to impute to them the intention to share in equal parts.

President Agranat adds, at p. 599:

…in the absence of clear proof regarding the parties’ intention on the said question of ownership, and the facts surrounding the marriage are like those described above, it is justified to turn to the principle found in the laws of equity, that is the principle that supports equality.  In other words, the property should be divided equally between the spouses…

And also see CA 135/68 T. Bareli et al. v. Estate Tax Director, Jerusalem [39]. In CA 595/69 [29], the Court reiterates the rule, and Justice Y. Kahan says, at p. 568, that “the law in regard to community property of spouses is, at base, a creation of the decisions of this Court”. In other words: not an implied agreement but rather a creation of the case law.

23.       We intentionally brought early cases in order to show that from the very outset implied contract served only as a cover, a façade and a technique for expressing substantive principles. Those principles were: justice, equity, decency, fairness and equality for the wife. As for the later case law, we will suffice with two quotes from the Bavli case [18]. This, for example, is what Deputy President Barak said, ibid., at p. 229:

The community property rule is a creation of the Court. It is an “outstanding example of judge-made law, delivered on the birthing stool of this Court”… it employs a contractual construction that treats of an (inferred) agreement between the parties, by which they are equal partners in rights…the legal tool is intended to realize a social goal. It is intended to bring about social justice. It is based upon equality between the sexes. It is nourished by the conception that spouses contribute equally to the family’s welfare.

President Shamgar spoke in the same spirit. We saw what he said in paragraph 22 above, and he continued to say, there [18], at p. 254:

The Court fashioned the principles of the community property presumption on the basis of the social and economic reality in which the separate but simultaneous and coordinated endeavour of each of the spouses creates property that should be viewed as common and as dividing between them equally. The partnership is not created in the court but in the day-to-day lives of the spouses, and what is put before the court is in the realm of a result that the law recognizes and to which it grants legal force. Therefore, the court must view the right deriving from the community property presumption accordingly, that is, as a valid, existing right. In other words, the law grants its seal of approval to a relationship grounded in our interpersonal, moral and social conceptions.

We could cite many other examples from the case law, and whoever cares to take the trouble will find plenty of evidence for what we have said.

Professor Ariel Rosen-Zvi – who left us only recently, before his time, and his shoes will be hard to fill – considers the fiction of implied contract in his abovementioned book. He explains in clear, convincing language why and wherefore the phantom “implied contract” lacks the strength to bear the presumption of equality upon its shoulders. See his remarks, supra, at pp. 249-252. Thus, for example, he writes at pp. 250-251:

The arrangement concerning the joint property of spouses is not predetermined; the conditions of the arrangement have not been decided by the parties, nor, for the most part, have they been determined by the Court. The arrangement is so vague and unclear that it is hard to see how one can infer the existence of any implied contract in such a case, and how one can infer a meeting of minds in all that concerns the sharing of property or an obligatory partnership between spouses…

…

It therefore appears to us, from every aspect that we have examined, that the rules and conditions have not been met for the making of an implied contract between the spouses by reason of their conduct in their married life and their shared lifestyle, alone. The intention of the parties, even if it be inferred from conduct, must find expression in a manifest, unequivocal declaration of desire in order for us to infer an implied contract based upon that joint intention that creates the certainty and meeting of minds between the spouses. Thus, although in principle the court is meant to weigh the facts of each case on an individual basis, it does so against a background and in accordance with a test that Justice Berenson created, and in reliance upon an a priori presumption, while deviating from an independent examination of the facts in accordance with contract law.

A word fitly spoken is like apples of gold in a setting of silver! And further see the great dispute among the justices in the Yaacobi and Knobler cases [9].

We thus find that the community property rule between spouses does not actually find support in the law of contracts and agreements. It draws its nourishment from the principles of justice, equality and fairness, while contract law was primarily intended only to serve as a legal framework and form for expressing those principles that create rights.

24.       It would appear that the legislature itself did not manage to escape old idioms and mindsets, and so we find that it too speaks in fictional terms, and unnecessarily so. For example, the Law sets out the necessary conditions for the existence of a “property agreement” in sec. 2, adding in section 3(a):

Application of an arrangement

3(a) Where the spouses have not made a property agreement or where they have made such an agreement, in so far as it does not otherwise provide, they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property agreement conforming to the provisions of section 2 (emphasis mine – M.C.).

To what purpose does the legislature establish that spouses that have not made a property agreement “shall be regarded as having agreed to a resource-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property agreement…” (emphasis mine – M.C.)? What need does the Law have in adopting a fiction by which the spouses shall be deemed as having agreed to a resource balancing arrangement? (“the collocation ‘shall be deemed as…’ is the creation of a fiction”: CA 3095/91 Emmanuel Lidor et al. v. Director for the purpose of the Land Appreciation Tax Law, 5723-1963 [40], at p. 823). And why did the Law not explicitly establish that in the absence of a property agreement the spouses will be subject to the resource balancing arrangement stated in the Law? You may say: the legislature has not yet freed itself of old thought patterns – whereas the courts needed to make recourse to fictions in order to maintain the law – thus resulting in the use of language that was once appropriate but has since become outmoded. And see: Rosen-Zvi, supra, pp. 339-340; G. Tedeschi, On Dispositive Law, 15 Iyyunei Mishpat 5, 6 (1990); E. Zamir, Interpretation and Gap Filling in Contracts, (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1996) 17. In contract law, for example, the legislature freed itself of the mindset of implied contract – a thought pattern that was so characteristic of the development of contract law in English law – in establishing dispositive provisions, that is, provisions that apply to contracts in the absence of an alternative agreed to by the parties. Why should we not follow the same approach here? In CA 3666,4012/90 Zukim Hotel Ltd. v. Netanya Municipality; Netanya Municipality v. Zukim Hotel Ltd. [41] the provision of sec. 9 of the Contracts (General Part) Law [sic][4] is examined. Section 9 treats of restitution after the rescission of a contract, and the question arose as to the legal character of this provision. Some were of the opinion that the provision should be viewed as an “implied condition” between the parties, about which I said as follows, ibid., at p. 68:

The statement that sec. 9 of the law is an “implied condition” between the parties to the contract – as long as not otherwise stated in the contract – is nothing but a fiction. It does not reflect a factual truth. Indeed, parties may think about sec. 9, and ponder what it says, but we all know that, as a rule, the parties to a contract do not consider the provision of sec. 9 as such. Fiction plays a decisive role in the development of the law, but why should we make use of a fiction when there is no real need? Indeed, the concept of “implied condition” – like the concept of “implied contract” – has caused us no insignificant suffering in the development of the law of unjust enrichment (and more precisely: in the development of the rules of quasi-contracts), and after having banished it from our presence in shame, shall we conjure it up it from the dead to learn the law from its ghost?

And form there to here.

25.       It is, therefore, our opinion that the community property rule between spouses does not – in truth – rest upon an implied agreement between the spouses. That implied agreement of which the case law speaks is but the cover, the formal legal façade intended to hold social content. The core of the social content is the desire to treat the wife with equality, justice and fairness.

            All of this regards the community property presumption, a presumption that was created and existed prior to the Law, and even after it. As for the “agreement” in sec. 15 of the Law, in our opinion the legislature is addressing a real agreement – even if an implied agreement – and not a fictitious agreement like that which served in the creation of the community property presumption. Indeed, the very fact that the legislature expressly speaks of a fiction-agreement in sec. 3 shows us that the agreement in sec. 15 is a real agreement, an agreement that is “palpable”.

26.       What we have said in regard to the community property rule in general, applies to the Nafisis, and even a fortiori. The basic assumption is that, prior to immigrating to Israel, part of the property belonged exclusively to the husband, and the question that arises is: After their immigration – or pending their immigration – did the spouses agree, if only impliedly, upon co-ownership of that property, half and half. I perused the material and did not find the slightest evidence of such an agreement, or of the husband’s (unilateral) consent to grant his wife co-ownership of the property that was registered exclusively in his name. Indeed, I am of the opinion that no agreement was made between the spouses in accordance with the provisions and meaning of the law of contracts and agreements. I will permit myself to add that even in the opinion of my colleagues, no real implied agreement was made by the spouses for the co-ownership of all their property. Indeed, the terms my colleagues use when speaking unguardedly speak for themselves. They speak of fictions. Thus, in construing sec. 15 of the Law, and in applying the said “agreement” to the Nafisis, my colleague President Barak says the following (in sec. 6 of his opinion):

…upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel (emphasis added – M.C.).

What is meant by “are deemed as agreeing”?  Rather say: the spouses did not agree in the simple, true sense of agreement; we hereby “impose” an agreement upon them, by means of a fiction. And thus said my colleague Justice Strasberg-Cohen:

… in the circumstances of the present case, the spouses should be deemed as agreeing to maintaining, in Israel, a community property relationship (emphasis added – M.C.).

And so even my colleague Justice Dorner, who speaks of an “agreement” in accordance with sec. 15 of the Law, about which she says (in para. 1 of her opinion):

…the existence of which is inferred on the basis of the community property presumption in regard to the couple’s assets (emphasis addes – M.C.).

Further on in her opinion, my colleague states (in para. 3 of her opinion) that an “agreement” under sec. 15 includes even an implied agreement, “…and it can be proven with the aid of the community property presumption”.

            Our colleague Justice Goldberg was the first among us to speak of the existence of an implied contract, so to speak, between the spouses as a fiction. And so, for example, he says (in para. 28 of his opinion):

Having found, on the basis of the spouses’ clear, serious intention to immigrate to Israel, that they should already be conceptually viewed as Israeli domiciles, the presumption follows that having formed that intention, they agreed to adopt the property regime prevailing in Israel in regard to assets acquired thereafter from joint effort – both those that “immigrated” to Israel with them, and those acquired in Israel in anticipation of their immigration (emphasis added – M.C.).

The element of fiction in the so-called “agreement” of the parties is clear to all. Did the spouses truly and honestly agree “to adopt the property regime prevailing in Israel”? What evidence was brought for this? Had the spouses been asked what their intention was – or what they had agreed to upon immigrating to Israel – I have no doubt that the husband, at the very least, would have replied that all that was is what will be. It is also possible that the wife would have said the same. Indeed, the spouses did not make any agreement between themselves in regard to the subject of property. It is, therefore, no wonder that my colleague does not speak about a real agreement between the spouses, but rather about “the presumption that…they agreed to adopt the property regime prevailing in Israel” (emphasis mine – M.C.). Had an agreement been proven, my colleague would not have made recourse to the presumption, and recourse to the presumption is a sign that no agreement was proven. The truth is, of course, that we are subjecting the spouses to a property relations arrangement that we deem to be appropriate. And if that is what we are doing – the good and proper – let us not attribute our acts to some “agreement” between the spouses, since we all know that they did not agree to what we are attributing to them. Indeed, my colleague is well aware that we are simply concerned with a rule that serves to “reflect a society’s conceptions of distributive justice and cultural conceptions regarding equality between the sexes…” (section 8 of his opinion). And further see what my colleague writes in sections 14, 16 and 17 of his opinion.

            Here is the fiction. And who is he, and where is he, who would presume to say that it is not a fiction? And so, as we follow the path of justice, and meet the worn out fiction standing in the way, we should follow the advice of Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. (1941) [47] at 29:

These fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared should not in these days be allowed to affect actual rights. When these ghosts of the past stand in the path of justice clanking their mediæval chains the proper course for the judge is to pass through them undeterred.

27.       We thus find as follows: No express agreement for co-ownership of property was made between the Nafisis. Nor was any implied agreement – in its real contractual sense – made between the spouses. Knowing that the provision of the concluding clause of sec. 15 treats of a “real” agreement, whether an express agreement or an implied agreement – a real agreement as opposed to an agreement born of a fiction – we can conclude that the provision of the concluding clause of sec. 15 does not apply in the case before us.

28.       To summarize thus far, certain property was registered in the husband’s name alone, and the wife did not succeed in proving that she has a right to co-ownership. In order to prove a claim of community property, she had to pass through the portal of sec, 15 of the Law, and having found that she does not posses the appropriate keys – neither for unlocking the opening clause of sec. 15, nor for unlocking its concluding clause – the unavoidable conclusion is that matters remain as they were, and the wife is not entitled to take part of the property registered in her husband’s name alone.

 

On equality and community property: foundational principle and public policy

29.       Mrs. Nafisi claims a right to property that her husband purchased and registered in his name, and we have concluded, thus far, that she has not succeeded in grounding her claim of right in any legal source. The couple were married in Iran, and thus the relationship is governed, first and foremost, by the provisions of sec. 15 of the Law. We examined and determined that the wife cannot pass through either of the portals established in the walls of sec. 15: neither through the portal of the opening clause – inasmuch as it was not proved that Iranian law grants her the right that she claims, nor through the portal of the concluding clause – inasmuch as the existence of a real agreement between the spouses – an express agreement or an implied agreement – for co-ownership was not proved. The required conclusion is, therefore, that the wife’s claim should be denied. This was, in fact, the conclusion reached by our colleague Justice Mazza, with whom our colleagues Justices D. Levin and Tal concurred.

30.       This conclusion that Mrs. Nafisi will be left bereft of properties acquired by her husband – while she saw to their common household and raised their five children over the course of 40 years of their marriage, troubled all of my colleagues, and it troubles me very much, as well. This difficult result was also clear to the Court in the Azugi case [1]. All of my colleagues gave expression to this grave difficulty, each in his own way and style: Justices Elon, Barak and Y. Kahan – each of them – in the Azugi case [1]; our colleagues Justices Mazza, in his opinion that is the subject of the Further Hearing, and my colleagues on the present bench, Justices Goldberg, President Barak, and Justices Strasberg-Cohen and Dorner. Section 15 of the Law stands at the centre of the ring, and we are all circling it and criticizing it. So we the judges, and so jurists in their publications. See, e.g., Shava, Property Relations, at pp. 268-288; Shava. Personal Status, at pp. 385-405.

            It is not common that a provision of a particular law garners so much criticism from all who cross its path, without exception. The question that must be asked is – why? Moreover, in the Azugi case [1] the judges took different paths – Justice Elon followed his path, and Justices Barak and Y. Kahan followed theirs – and it seems to me that there was not a single legal question upon which the judges did not disagree. Yet amazingly, at the end of the day, all the judges were united and rendered their decision unanimously in favour of the community property presumption and in favour of the wife. All three – each one of them – expressed open and concealed criticism of the provisions of sec. 15 of the Law, and did their utmost to find ways around it. We would add that this tendency in regard to sec. 15 can also be seen in the following cases: CA 291/85 [17]; the Shaman case [10]; CA 370/87 [16], each in its own way and style. The drama repeats itself yet again in the present case: we are divided in our opinions, but we are all critical of sec. 15 of the Law.

31.       And so I ask: what has caused my colleagues to go out of their way, each one of them, in order to express severe criticism of this legislative provision in sec. 15 of the Law? Why are the learned uncomfortable with an order, so to speak, given us by the legislature, directing us to the law of the domicile of spouses at the time of their marriage? I do not think that we need look very far, as the answer is laid out at our doorstep. The criticism is directed in all its fury at the message conveyed – or that may be conveyed – by sec. 15 of the Law, according to which it is possible that the husband will prevail, and the wife will be deprived inappropriately. This possible gain and loss – at the expense of one another – bare a sensitive nerve and wound our sense of justice. In legal parlance, we would say that sec. 15 of the Law may infringe an accepted basic principle of Israeli law, the principle of equality between male and female, between man and woman, between spouses. It may infringe – and indeed it does infringe. Note: we are not concerned merely with some law that may, in the opinion of the Court, cause injustice in certain circumstances. We are speaking of a law that undermines a central pillar of the Israeli legal system. Only thus can we understand and explain the great distress that weighs so heavily upon us all, and our outcry against the provisions of sec. 15 of the Law.

32.       Having arrived at this point, we can correctly understand the attempts of the judges – each in his own way – to expand the scope of the concluding clause of sec. 15 of the Law, while at the same time adapting the scope of the opening clause of sec. 15 of the law to our accepted basic principles. That is what my colleagues are doing. Thus my colleagues Justice Goldberg and President Barak hold that the Nafisis should be deemed as if they made an agreement for the co- ownership of all their property, even though we all know that the Nafisis never made such an agreement between them at all – in the real sense of the concept of agreement – not expressly and not impliedly. In this regard, my colleague president Barak states (in para. 4 of his opinion):

Indeed, if the contractual construct can deliver the community property rule across the raging sea of the provisions of the Land Law in particular, and civil codification in general, I see no reason why the it would lack the power to deliver the community property rule across the raging river of conflict law. We can revisit this matter in the future, and consider whether we might base the community property rule upon the general power of an Israeli judge to develop the law in conjunction with the statutory law, without need for the contract construct … That is judicial power that draws upon our legal tradition. By that means, it is possible – should it be found appropriate – to grant a more comprehensive character to the community property rule, in addition to its contractual character. That would be the mature fruit of “judge-made law, delivered on the birthing stool of this Court” (CA 630/79 Z.B.Liberman v. A. (Mendel David) Liberman [35], per Elon, J., at p. 368).

So indeed. My colleague the President admits, in fact, that we have created a fiction of an agreement, and by the bridge of this fiction he seeks to cross the Sambation.[5] For my part, I do not wish to walk on the bridge of fiction. I take a different path.

33.       The point of departure of my journey is to be found in the principle of women’s equality, a principle that has been accepted and taken root in Israeli law – in statute and in case law. We shall not expand upon this principle, so as not to appear to be carrying coal to Newcastle.  Indeed, the declaration of the founding of the state proclaimed what it proclaimed; the Women’s Equal Rights Law, 5711-1951, stated what it stated, and we will put primary emphasis upon the decisive contribution of the case law in grounding, deepening and bolstering the principle. Any attempt to challenge this principle of women’s equality would be the equivalent of heresy in our society. The community property presumption between spouses – a presumption created by the courts – is like a branch that sprouted from the tree of equality, and it is from equality that it draws its strength. This is also true of the provisions of the Law and its resource balancing agreement, which were also derived from the principle of equality. In the Bavli case [18] - as we are all aware – the Court gave strong support to the community property rule between spouses as an outgrowth of the principle of equality, whether as a derivation of the Women’s Equal Rights Law, or whether as an independent rule in its own right. And see, e.g., Y. Mendelson, Property Rights between Spouses, in F. Raday, C. Shalev & M. Liban-Kooby, eds., Women’s Status in Law and Society in Israel (Schocken, 1995) 437.

            Moreover, the principle of equality between men and women and between spouses has assumed the status of overarching principle in Israeli law – or, if you prefer, a fundamental principle – and within its prescribed boundaries all other normal provisions and rules will kneel and bow. That same overarching principle gave birth – truth be told – to the implied contract that is not an implied contract at all. It breathed life into the dry bones of the implied contract formula; it raised the bridge fiction; and those of my colleagues who make recourse to the implied contract construction are speaking of the same overarching principle even if they do not say so. The implied-contract mask is the thinnest of all, and now we shall remove it. And when we remove the mask, our eyes will see the overarching principle of equality in all its grandeur.

34.       The community property presumption in property relations between spouses derives from the same overarching principle of equality between spouses, and it had two spiritual fathers: one, Israeli society’s views on the appropriate norms that should – and do – apply to property relations between spouses, and the other, the courts, as those meant to express society’s views. These two created the community property presumption, and the give and take between the law and reality continues to this very day.

35.       What is the scope of incidence of the principle of equality in property relations between spouses? The answer is almost self-evident. Inasmuch as the principle is Israeli – it is a principle that arose from the reality of Israeli society – it is straightforwardly clear that, in principle, it was intended to apply only to those who are domiciles of Israel. Of course, we are all aware that the principle of the equality between spouses is not exclusively ours and we did not create it. However, once the principle was naturalized in our country, it became ours: we are dealing with one of our own and we apply it to our own.

36.       How strong is the community property presumption between spouses, and where is it located in the Israeli normative hierarchy? In the Azugi case [1], at p. 9, Justice Elon placed the community property rule between spouses in the realm of public policy in Israel. Justice Barak disagreed with that view, being of the opinion that it would be incorrect to categorize the community property rule as one of public policy. In his own words, at p. 28:

In my opinion, the rules of community property developed by this court should not be viewed as part of Israeli public policy. If that were our approach, then we would not recognize an agreement between spouses that rejected co-ownership. It seems to me that my distinguished colleague (Justice Elon – M.C.) extends the concept of “public policy” beyond its natural borders. I agree that the provision of secs. 1 and 2 of the Women’s Equal Rights Law, 5711-1951, reflects Israeli public policy, and therefore we would not give effect to a foreign law that contradicts those rules. However, this does not mean that the community property rules developed by this court are themselves part of Israeli public policy.

In the decision that is the subject of this appeal, our colleague Justice Mazza agrees with Justice Barak’s statement.[6] 

Initially, I was of the opinion that the community property presumption was located in public policy, but I then changed my view for two reasons. First, we are speaking of external public policy (ordre public externe), and the nature of such public policy is that it can mercilessly crush any inconsistent norms. See, e.g., A. Levontin, Choice of Law – Draft Bill with Brief Explanatory Notes (Ministry of Justice, 1987) (hereinafter – Levontin, Choice of Law), sec. 67 at p. 118 and sec. 4 at pp. 33-34; Dicey and Morris, supra, at p. 88ff; Levontin, Conflict of Laws, at pp. 122-124. As for the presumption of equality in property relations between spouses, it is not to be located in this framework. Indeed, by its nature, this presumption is unlike those grand principles that are part of public policy: first, being merely a presumption, it can be rebutted. Thus, for example, a basic assumption in this regard is that spouses can contract out of the community property presumption. We would have to agree that it is difficult to categorize such a dispositive provision as being one of public policy. Second, the community property presumption limits itself, from the outset, exclusively to Israeli domiciles. It does not presume to apply to foreign residents, even if they litigate before an Israeli court. In so limiting itself, it removes itself from the realm of (external) public policy, inasmuch as external public policy obliterates any norm that stands in its way.

            Therefore, in my opinion, while the community property presumption between spouses is an overarching principle in our law in its application to Israeli domiciles, it does not reach the level of (external) public policy. This overarching principle is a sort of internal public policy (ordre public interne) according to the classification of the great jurist Friedrich Carl von Savigny, as opposed to external public policy. See, for example, HCJ 143/62 Funk-Schlesinger v. Minister of the Interior [42], at p. 256.

            We are dealing with a quasi-internal public policy, inasmuch as the overarching principle applies only to Israeli domiciles, but that overarching principle holds Israeli domiciles in its grasp with full force and will not relent.

Having reached that conclusion, we can proceed on our course.

37.       The community property rule between spouses applies, so it would seem, to all spouses domiciled in Israel. That will be the basic assumption in every case treating of property relations between spouses. Whoever seeks to deviate from that rule – a rule that derives from an overarching principle of the Israeli legal system – will bear the heavy burden of explaining and persuading that his case should be treated differently. This would be the case, for example, if a different agreement is made by the spouses – a real agreement – as stated in sec. 15 of the Law. And such would be the case if a husband were to prove that according to a foreign law that applies in accordance with the opening clause of sec. 15 of the Law, a different arrangement is to apply – one that is not a community property arrangement as we expect, but is nevertheless an arrangement that is based upon the principle of equality as accepted in our legal system. However, if the court finds that the foreign law that is applicable under the provision of the opening clause of sec. 15 of the Law does not recognize the principle of equality from the outset, that law will be rejected as repugnant to an overarching principle of the Israeli legal system, an overarching principle that applies to all Israeli domiciles. In such a case, the community property rule will stand, and the case will be decided accordingly.

            The conclusion in the matter before us is obvious. The community property presumption applies to the Nafisis. From the moment that they immigrated to Israel, they became ours and one of us. If Mr. Nafisi wishes to be an exception, he bears the burden of proving why he is to be exempted from the presumption. Mr. Nafisi did not succeed in removing himself from the ambit of the overarching principle. Therefore, the parties remain at the end as they were in the beginning. The community property presumption continues to apply as it did from the outset. Mrs. Nafisi is entitled to share the properties that her spouse acquired in the course of the marriage, half and half.

38.       With great caution I will add – as the matter requires further consideration – that it may be possible to achieve the same conclusion by recourse to the famous distinction made by our teacher Professor Avigdor Levontin between “vested” rights and “floating” rights. See A.V. Levontin, Conflict of Laws with reference to Transnational Contracts, Israel Academy of Sciences and Humanities Proceedings, vol. 3, no. 2 (Jerusalem, 1968) (hereinafter – Levontin, Contracts); and see M. Shava, The Presumption of the Identity of Foreign Law, 4 Iyyunei Mishpat (1975-76) 583, at p. 587 ff (Hebrew); M. Shava, Personal Status, at p. 456, 460ff.

            We will briefly explain: Property relations between spouses can be classified with the family of “floating” rights. They are rights that are created between the spouses themselves (inter partes), and do not derive from the status of marriage per se. See, e.g., the Bavli case [18], at pp. 233-234 per Barak, D.P.). Being what they are, at the first stage we will apply – as to other “floating” rights – the lex fori, that is, Israeli law and the principle of community property of spouses, which represents the accepted Israeli idea of justice. If one of the spouses claims that the principle of community property does not apply to him by reason of the law of domicile at the time of the solemnization of the marriage, he will have to bear the burden of proving that law. If we find that that law does not recognize the principle of community property – unfairly discriminating against women – we will reject it as repugnant to an overarching principle that applies in Israel to Israeli domiciles. By this approach, too, we find that the community property principle will apply to spouses whose domicile was not Israel at the time of the solemnization of their marriage, but who became Israeli domiciles. It may also be possible to present that same result in terms of the application of the presumption of the identity of foreign law (see Shava, ibid.).

39.       My colleague Justice Mazza says (in the appeal that is the subject of this Further Hearing) that the doctrine of “floating” rights – which leads to the application of domestic law – cannot apply to our case. Why?

… inasmuch as sec. 15, itself (as part of the domestic law), directs us to the foreign law. In so doing, the legislature expressed its view that sharing (or non-sharing) of spousal property does not create (according to the well-known distinction of Prof. Levontin) “floating” rights … but rather rights that by their very definition are anchored in the particular law in which they were created … Under these circumstances, recourse cannot be made to the provisions of domestic law, inasmuch as such recourse to its provisions would be contrary to the express provisions of sec. 15.

I find it difficult to agree with this. In my opinion, by their very nature, property rights between spouses give rise to “floating” rights, and that is the initial assumption in construing sec. 15 of the Law. Therefore, the referral to the law of the spouses’ domicile at the time of their marriage is – from the outset – a referral that is required due to the nature of the rights as “floating” rights (as opposed to “anchored” rights). In other words, in doing what we are doing, we are not rebelling against the legislature. As we know, even in regard to contracts, for example, private international law refers us to a particular legal system. Should we therefore conclude that contractual rights are not “floating” rights? If we were to say that, then it is like saying that the distinction between “floating” rights and “anchored” rights is no distinction at all (one may legitimately reject this distinction, of course, but our assumption here is that we agree with the distinction).

40.       What we have said about “floating” rights, we say with extreme caution. The water is deep, and we should beware. Thus, for example, if we were to classify the right to community property as a “floating” right, then there would be nothing to prevent us from construing the provision of the opening clause of sec. 15 of the Law as referring to the domestic law of the couple’s domicile at the time of the solemnization of their marriage, while relinquishing renvoi. See and compare Levontin, Contracts, p. 85ff. (67ff.). And see Levontin, Choice of Law,  p. 59ff. We shall leave all this for the future.

41.       It may seem that what we have said conflicts with the doctrine of vested rights that Justices Elon and Barak speak of at length - and apply – in the Azugi case [1]. In fact, had the spouses litigated their claims in Iran, then the husband would have succeeded in keeping the properties registered in his name, since Iranian law does not recognize, ex hypothesi, the community property of spouses. And now, having immigrated to Israel, we recognize – as if by deus ex machina – community property. Doesn’t the path we are following infringe the doctrine of vested rights (a doctrine expressed in sec. 22 of the Interpretation Law, 5741-1981, and prior to that, in sec. 14 of the Interpretation Ordinance [New Version])? This argument will not succeed, in our opinion, for several reasons. First, inasmuch as in our case it contravenes an overarching principle of the Israeli legal system, which applies to all Israeli residents. At the end of the day, we must bear in mind that we are concerned with Israeli society – with the fabric and quality of life in Israel as expressed in the property relations between spouses. We are concerned with a “local” rule, a rule that arose from within Israeli society – with the active help of the courts – and created an overarching principle. Against this background, a claim of “vested rights” can only be spoken in a whisper. Indeed, whoever comes to rest in the shade of Israeli law should know that he must accept it as a package deal, and the package may contain some norms that he will not like. “Domicile” is a status or quasi-status. It is a status or quasi-status desired due to the nature and character of Israeli society, and a person who wishes to settle in Israel places himself under the burden of that status or quasi-status of domicile.

            Secondly, a claim of “vested rights” is not germane from the outset, inasmuch as we have not rejected any right that was acquired. All that we have done is to shift the burden of proof and place it upon the spouse who claims that the arrangements under a foreign legal system differ from the community property presumption accepted in Israeli law. And where those arrangements deny the rights of women to equality, we will not grant them recognition because they are repugnant to an overarching principle of Israeli law.

            Third, a claim of “vested rights” is liable to spin us around in a kind of vicious circle whose beginning is its end and whose end is its beginning. The claim that by following our approach we deny “vested rights” – that we deny rights or detract from rights – assumes that a person “acquired rights”, and that all that remains for us to do is to “recognize” those rights. But presenting the matter in this way creates a distorted view, if only because we are assuming what we seek to prove. Indeed, the question is whether or not the husband acquired “vested rights”, or more precisely:  should we recognize the “vested rights” that the party claims. This question is given to our decision, and our decision will be made in accordance with the values that we adopt. The spouses are residents of Israel, and where recognition of “vested rights” will infringe an overarching principle that applies to Israeli residents, it should be clear that we will not recognize their existence and will not adopt them into our system. We have discussed this elsewhere, see CrimA.5513, 5434, 4912/91 Talmi et al. v. State of Israel [43] p. 158ff; A. Levontin, Choice of Law in Torts: Labyrinth and Exit, in A. Barak & E. Mazuz, eds., Sefer Landau, vol. 3 (Boursi, 1995) 1349ff. (Hebrew).

            We will further ask: Doesn’t that fictional “implied agreement” attributed to the Nafisis infringe “vested rights”? Moreover, was not the construction of the fiction of “implied agreement” intended from the outset to infringe “vested rights”? Indeed, in that “implied agreement” approach, and in our approach, as well, we all intend to infringe “vested rights”. The difference between the two approaches is only this: The implied agreement approach is nothing but a technique for (indirectly) recognizing an overarching principle of the Israeli legal system, whereas our approach directly recognizes the substantive element that takes us to our objective.

            Fourth, it can be argued (and I will not express my opinion on this) that a claim of “vested rights” was never intended to apply between spouses themselves. It is a valid claim between strangers – in sales, leasing, commercial transactions – but in the ongoing relationship between spouses – and in marriage – it is possible that it should not be recognized, and surely not with the same force with which it may be made between strangers. As we see, where couples can move from country to country, the “marriage climate” changes as if by itself, and it would be strange if we were to bind them to the property relations of the country that they left, as if they were adnei hasadeh[7] of that land. After all, the two left the land that was their domicile (at the time of the solemnization of their marriage) because they no longer wished to be tied to it. And see and compare: Dicey and Morris, in their aforementioned book. In order to clarify and alleviate doubt we will add that we are speaking, of course, of a situation in which the husband claims “vested rights” by law (e.g., that in accordance with some legal system “all that a woman acquires is acquired by her husband”). We are not speaking of “vested rights” by virtue of an agreement made by the spouses, by which they decided, of their own free will, to arrange their property relations in a particular way.

 

Conclusion

42.       Our journey is at an end. We now know that the wall of sec. 15 stands at the crossroad, and Mrs. Nafisi cannot pass through, not through the portal of the opening clause, and not through the portal of the concluding clause. However, while that is the case in regard to sec. 15, relief and deliverance will rise for Mrs. Nafisi from another quarter, from an overarching principle of Israeli law. The overarching principle instructs us that the principle of equality is of primary importance. And the principle of equality – which gave birth to the community property presumption in regard to property relations between spouses – will come to the wife’s aid and tip the balance in her favour.

43.       The question nevertheless arises: will the couple be subject to the community property rule that held sway prior to the Law, or will they be subject to the resource balancing arrangement established by the Law? Neither the parties not the Court addressed this question in depth, but the long shadow of the decision in the Yaacoby and Knobler cases [9] covers us.

            My colleagues have concluded that the community property rule – and not the resource balancing arrangement of the Law – governs the matter of the spouses. How so? My colleagues (Justice Goldberg, President Barak and Justice Strasberg-Cohen) say, whether expressly or implicitly, that the resource balancing arrangement commenced – according to sec. 14 of the Law – on Jan. 1, 1974. The Nafisis married before that date (when the community property rule was in effect), and so they fall within the scope of the community property rule and not the resource balancing arrangement. I disagree with that line of reasoning. The Nafisis’ domicile at the time they were wed was not in Israel, and therefore Israeli law did not touch them, and they did not touch Israeli law (q.v. Tobago, Island of). It is of no legal significance that the couple married before the commencement of the Law. The only relevant date is the date of their immigration to Israel, which was in 1983, after the Law came into force. I addressed this at length in my opinion above (see paras. 4 through 7), and I will not add to it.

            Moreover, I do not wish at this time, at the end of a wearying journey, to take up the yoke of this difficult issue that has not been argued before us. I join in the opinion of my colleagues that Mrs. Nafisi is entitled, as a matter of principle, to share in the property of her spouse. I view the issue of whether the community property rule or the resource balancing arrangement applies as a secondary question. And inasmuch as my colleagues have concluded what they have concluded, I will not dissent.

 

Deputy President S. Levin:

I concur with the opinion of the President.

 

Justice T. Orr:

I agree with the result according to which the petition is to be granted, and I concur with the opinion of the President.

 

Justice E. Mazza:

I expressed my position as to the law applicable to the property relations of the litigating couple and explained it at length in my decision in the appeal. Examination of the reasoning of my esteemed colleagues, who are of the opinion that the petition should be granted, has not persuaded me to retract from what I wrote there. Then as now, I am of the opinion that in the absence of a claim – and all the more so, evidence – of an agreement between the parties determining or varying the property relations between them, they are bound by “the law of their domicile at the time of the solemnisation of their marriage”, as prescribed by the opening clause of sec. 15 of the Law. In fact, the Petitioner before us, who based her claim in the District Court solely upon the community property rule, did not assert and did not prove that any agreement was made between her and her husband (the Respondent). This is so not only in regard to a property agreement in particular (according to its meaning in the Law), but to any other express or even “implied” agreement.

            I am not dismayed by the result arrived at by my colleagues. In my decision I stated that the result that I had reached was not desirable. I therefore again reminded the legislature of the need to amend the arrangement in sec. 15, which this Court already criticized in the Azugi case [1]. But I am dismayed by the manner by which my colleagues arrived at their decision. Indeed, my colleagues arrived at their mutual decision by three distinct approaches, utterly different one from another. To my mind, not one of those approaches is consistent with the clear provision of sec. 15, and each of them, in its own way, effectively devoids the provision of sec. 15 of any real content. For my part, I am also not sure that, by their decision, my colleagues have not indirectly and impliedly modified the rule recently set down in the Yaacobi and Knobler cases [9], in which it was held (by the majority) that the community property rule does not apply to spouses whose property relations are decided by the Law. Justice Dorner (who was in the minority in the Yaacobi and Knobler cases [9]) appears correctly to question the basis for the decision in this Further Hearing: “…if the Law annulled the community property presumption in regard to spouses to which the Law applies, how can spouses who immigrated to Israel after the Law came into force continue to acquire rights on the basis of the presumption?”

In the decision in the appeal, it was emphasized that “the result that I have reached is required by the law”.[8] That remains my opinion. Indeed, the existing law is not the desirable law. In my decision in the appeal I pointed out that “a rigid choice of laws, like that established by the provision of sec. 15 of the Law, is inappropriate to the conditions of a state that absorbs immigration, like Israel, inasmuch as it subjects the property relations of spouses who married abroad (unless they managed to arrive at an agreement between them) to the laws of the state from which they have severed relations”.[9] But since the provision regarding choice of law is established by statute, and as long as the legislature does not act to amend it, I do not consider myself at liberty to ignore its existence and decide the rights of the litigants in accordance with a law that differs from that dictated by the choice of law. It might be noted in this regard that the call to amend sec. 15, which was included in the decision in the appeal, did not go unheeded. In fact, about a year after the decision was handed down, the memorandum for the Spouses (Property Relations) (Choice of Law) (Amendment) Law, 5755-1995, was published. The memorandum included a recommendation for replacing sec. 15 with a provision that establishes a new arrangement for the subject of choice of law. The text of the recommended law is based upon the choice-of-law rules established in the Hague Convention of 1978, the principles of which were decided at an international conference (in 1976) in which Israel participated. Examination of the recommended law satisfies me that it appears to correct the distortions that plague the existing legal arrangement. At least under these circumstances – so I naively thought – it would be appropriate that the Court refrain from making a decision that appears to disregard the existence of an express statutory provision, and leave it to the legislature to carry out its task. I hope that the decision in this Further Hearing will not delay the legislative process, as the need to amend the Law remains unchanged.

In my opinion, the petition should be denied.

 

Justice Z.E. Tal:

While I follow the path and principles set out in President Barak’s opinion, I refrain from his conclusion.

            I begin with the assumption, required by the majority opinion in the Azugi case [1], that sec. 15 of the Law applies to couples married before the commencement of the Law. I agree that, according to the concluding clause of the said sec. 15, the spouses can jointly agree upon a property arrangement, whether by choosing a legal system or by establishing a property regime between themselves. I agree that such an agreement can also be made impliedly.

            But I refrain from making the final, great leap: the finding that every couple that immigrates to Israel with a history that is appropriate to the community property presumption is deemed to have impliedly agreed to a community property regime. As President Barak states in para. 6:

In conclusion, upon arrival in Israel, spouses married abroad prior to the entry into force of the Property Relations Law who, when in Israel, satisfy the conditions for community property, are deemed as agreeing to maintain a community property regime in Israel.

This is a far-reaching conclusion that effectively confers a “status” upon the spouses on the basis of their very immigration to Israel. However, the community property presumption no longer requires the support of “conjectured” intent and “attributed” intent that supported and maintained it when the rule was not yet secure. The community property presumption now stands in its own right on the strength of justice and equality between spouses. Nevertheless, the community property presumption is not a conclusive presumption. The creation of the circumstances for its application must be proven, and it can be rebutted (although this is becoming more difficult with the development of the case law).

            An implied agreement is created by conduct, that is, by actions. Is a couple’s very immigration to Israel sufficient to be deemed an implied agreement?! I do not think so. The conduct from which we infer legal conclusions must be claimed and proven. In this case, as Justice Mazza points out, an implied agreement was neither claimed nor proved.

            Like my colleague Justice Mazza, I too am not dismayed by the result reached by the majority. But “hard cases make bad law”. The hard case before us and the desire to grant justice and equality to the Petitioner lead to the generalization of the community property rule and its application in the absence of sufficient grounds.

            Therefore, even if I agree with President Barak in regard to the principles, I do not think that a basis has been laid for their application in the instant case.

            I therefore concur with the opinion of Justice Mazza that the petition should be denied.

 

Decided, by majority, as stated in the decision of Justice Goldberg.

Delivered this day, 10^th of Elul 5756 (Aug. 25, 1996).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HCJ 143/62

 

           

 

The Petitioner:            Henriette Anna Katerina Funk Schlesinger

 

                                    v.

 

The Respondent:         Minister of Interior              

 

Attorney for the Petitioner - Y. Ben Menashe

Attorneys for the Respondent – State Attorney Z. Bar Niv, Deputy State Attorneys Z. Terlo and Dr. M. Cheshin

 

 

Abstract

 

The Petitioner, a Christian woman and Belgian national, married Mr. Israel Schlesinger, a Jewish citizen of Israel, in Nicosia, Cyprus, in a civil ceremony in December 1961, as shown by a copy of the marriage register, confirmed by the Cyprus Minister of Interior. The Belgian Consul General in Limassol entered the Petitioner’s marriage in her Belgian passport. The registration in the personal status register of the Belgian Embassy testifies to her marriage in Nicosia in reliance upon the marriage certificate issued to her by the district officer there and on the said entry in her passport. Several days after the said marriage ceremony, the Petitioner arrived in Israel as a tourist. Her request to be granted a visa for permanent residency was denied. After submitting a request to the Inhabitants Registry for a certificate of identity, she was told she could not be granted a certificate of identity showing her as married, an accordingly, the name “Schlesinger” would not appear. An order nisi was issued against the Minister of Interior. In his response, the Respondent granted the Petitioner’s request for permanent residency, but maintained his refusal to register her as married, arguing that the Petitioner and Mr. Schlesinger are not a married couple in accordance with the applicable personal status laws.

 

The Supreme Court, by a majority, made the order nisi absolute, holding:

 

1. The complex issue of the validity of the Petitioner’s marriage under the applicable law should not have been raised in the context of her registration in the Inhabitants Registry.

 

2. (1)        The role of the registration officer under the Registration of Inhabitants Ordinance, 5709-1949,[1] is merely that of a collector of statistics for the purposes of administering the Register of Inhabitants, and he holds no judicial authority.

 

(2)        The above officer’s considerations are strictly administrative and he is not charged with implementing religious instructions.

 

c.         (1)        According to the instructions given to registration officer by the Minister of Interior, a citizen who appears before an administrative authority is presumed to be speaking the truth.

 

(2) Having been presented with prima facie evidence, the officer must suffice with this evidence, because – being an administrative authority – he must not intrude into an area that is not his own in order to determine a legal dispute. Should he not wish to become the arbiter, he must register the details as presented by the requesting party, even if it is not convinced of their correctness.

 

4. The above Ordinance does not confer upon registration in the Register of Inhabitants the force of evidence or proof of anything. The information in it may or may not be true, and no one vouches for its correctness.

 

5. For the purposes of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony is conclusive, and prima facie evidence is sufficient to prove it. Examination of the marriage’s validity is not a matter for the registration officer. It is presumed that the Legislature did not task a public agency with a duty it is unable to fulfill.

 

f.          (1)        The instructions that order the registration officer to pass on a matter of interfaith marriage to the “determination of the department” are unfounded as there is nothing for the department to determine.

 

(2).       The validity or invalidity of an interfaith marriage is an extremely weighty matter, and when a couple askes to register under the above Ordinance, it cannot be said how the issue may ultimately be determined. The registration officer cannot speculate as to which court may address the matter, how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council 1922, and cannot predict whether the validity of the marriage will be recognized.

 

(3)       As long as the Petitioner’s marriage has not been invalidated in a judicial proceeding, she is deemed a married woman for the purposes of the Inhabitants Registry.

 

Israeli cases cited:

[1]        MApp 39/57 S. v. S, IsrSC 11, 921, 922 (1957)

[2]        CA 26/51 Shimon Kotik v. Tzila (Tzipa) Wolfson, IsrSC  5, 1341 (1951)

[3]        CA 191/51 Leib Skornik v. Miriam Skornik, IsrSC 8, 141 (1954)

[4]        HCJ 237/61 Peer Hadar Co. Ltd. v. Head of the Land Registration and Arrangement Dept. et al., IsrSC 16, 1422 (1962)

[5]        CA 85/62 Calling-Up Officer under the Defence Service Law v. Avraham Nahari, IsrSC 16, 2813 (1962)

[6]        HCJ 145/51 Sabri Hassan Abu-Ras et al. v. Military Governor of the Galilee et al., IsrSC 5, 1476 (1951)

[7]        HCJ 155/53 Salem Ahmad Kiwan v. Minister of Defence et al., IsrSC 8, 301 (1954)

[8]        CA 238/53 Aharon Cohen and Bella Buslik v. AG, IsrSC 8, 4, 36 (1954)

 

 

Palestinian cases cited:

[9]        C.A. 186/37 Rivka Cashman v. Lindsay Gordon Cashman,  P.L.R. 4, 304 (1937) S.C.J. 2, 422; (1937)  Ct.L.R. 2, 132

[10]     C.A. 119/39 Pessia Nuchim Leibovna Shwalboim v. Hirsch Zvi Shwalboim, (1940)  P.L.R. 7, 20; (1940) S.C.J. 1, 38; (1940) Ct. L.R. 7, 55

[11]      C.A. 9/40 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1940), P.L.R. 7, 228; (1940) S.C.J. 1, 184; (1940) Ct. L.R. 7, 173

[12]      C.A. 11/41 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1941) P.L.R. 8, 241; (1941 S.C.J. 1, 230; (1941) Ct. L.R. 11, 238

[13]      C.A. 158/37 Leib Neussihin and ors. v. Miriam Neissihin, (1937) P.L.R. 7, 373; (1937) S.C.J. 1, 391; (1937) Ct. L.R. 2, 210

[14]      Misc. App. 20/43 Dr. Asher Apte v. Jehudit Gross (Apte) and an., (1943) P.L.R. 10, 124; (1943) A.L.R. 1, 12

 

English cases cited:

[15]      Mette v. Mette, [1859] 164 E.R. 792; 1 Sw. & Tr. 416; 28 L.J.P.&M. 117; 33 L.T.O.S. 139 sub nom. In the Goods of Mette; 7 W.R. 543

[16]      Brook v. Brook, (1861) 1 1 E.R . 703, 704, 711; ( 1861 )  9 H.L . Cos. 193; 4 L.T. 93, 99, 101 , 98 ; 25 J.P. 259; 7 Jur. N.S. 422; 9 W.R. 461, H.L.

[17]      Ogden v. Ogden (otherwise Philip), (1908) P. 46, 52, 61, 66, 67, 75; 77 L.J.P. 34; 97 L.T. 827; 24 L.T.R. 94, C.A.

[18]      In re Paine, (1940) Ch. 46, 49, 50; 108 L.J. Ch. 427; 161 L.T. 266; 55 T.L.R. 1043; 83 Sol. Jo. 701

[19]      Pugh v. Pugh, (1951) P. 482, 494; (1951) 2 L.T.R. 806; 95 Sol. Jo. 468; (1941) All E.R. 680

[20]      Sottomayer v. De Barros, (1879) 5 P.D. 94; 49 L.J.P. 1; 41 L.T. 281, 282; 27 W.R. 917

[21]      Lepre v. Lepre, (1962), see: The Law Times, vol. 233, December 6, 1962

[22]      Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419, 423; (1962) 3 W.L.R. 1246

[23]      Spivak v. Spivak, (1930) 142 L.T. 492; (1930) L.J.P. 52; 94 J.P. 91; 46 T.L.R. 243; 74 Sol. Jo. 155; 28 L.G.R. 188; 29 Cox, C.C. 91

[24]      Dalrymple v. Dalrymple, (1811) 161 E.R. 665, 669; 2 Hag. Con. 54

[25]      In re Peete, Peete v. Crompton, (1952) 2 All E.R. 599; (1952) 2 T.L.R. 383; 96 Sol. Jo. 561

[26]      Middleton v. Janverin, (1806) 161 E.R. 797; 2 Hag. Con. 437

[27]      Simonin v. Mallac, (1860) 2 L.T. 327, 330; (1860) 2 Sw. & Tr. 67; 29 L.J.P.M. & A. 97; 6 Jur. N.S. 561; 164 E.R. 917

[28]      Hay v. Northcote, (1900) 82 L.T. 656; (1900) 2 Ch. 262; 69 L.J. Ch. 586; 48 W.R. 615; 16 T.L.R. 418

[29]      Baindail (otherwise Lawson) v. Baindail, (1946) 174 L.T. 320; (1946) P. 122; (1946) 1 All E.R. 342; 115 L.J.P. 65; 62 T.L.R. 263; 90 Sol. Jo. 151, C.A.

[30]      Chetti v. Chetti, (1909) P. 67; sub nom. Venugopal Chetti v. Venugopal Chetti, 78 L.J.P. 23; 99 L.T. 885; 25 T.L.R. 146; 53 Sol. Jo. 163

[31]      Brook v. Brook, (1858) 65 E.R. 747

[32]      Cheni (otherwise Rodriguez) v. Cheni, (1962) 3 All E.R. 873; (1962) 12 C.L. 112

 

American cases cited:

[33]      Ruth Loughran v. John Loughran, (1934) 78 L. Ed. 1219

[34]      Hastings et al. v. Douglas, (1918) F. 378

[35]      Alecia McDonald v. James McDonald, (1936) 58 P. (2d) 163; 104 A.L.R. 1290

 

English Statutes cited:

Age of Marriage Act, 1929 (9 & 20) Geo. 5, c. 36)

Matrimonial Causes Act, 1857 (20 & 21 Vict. C. 85) s. 22

Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 32

Marriage Act, 1949 (12 & 13 Geo. 6, c. 76)

 

Jewish Law sources cited:

Kiddushin 15b; 68b

Rashi, Kiddusin  68b, s.v. “Lo”

Leviticus 18

 

Catholic Canon Law cited:

Codex Juris Canonici, 1917, ss. 1014, 1070(2), 1070, 1071, 1133-1141, 87, 1099(2)

 

 

 

 

 

The Supreme Court sitting as a High Court of Justice

 

Before: Justices Silberg, Sussman, Berenson, Witkon and Manny

 

 

An objection to an order nisi dated 24 Iyar 5722 (May 28, 1962) ordering the Respondent to show cause why he continues to refuse to recognize the Petitioner as a married woman, whose name is Schlesinger, and register her accordingly in the Register of Inhabitants, and why he continues to refuse to issue a certificate of identity in accordance with the requested registration, as well as a permit for permanent residency. The order nisi was made absolute by a majority opinion, against the dissenting opinion of Justice Silberg.

 

 

Order

 

Justice Silberg:

1.         This is an objection to an order nisi granted by this Court, which concerns recognizing the Petitioner as a married woman, whose surname is Schlesinger, and so registering her in the Register of Inhabitants on the basis of a civil marriage between her and Mr. Israel Schlesinger in Cyprus, on December 21, 1961. The Petitioner is a Christian woman of Belgian nationality, and Mr. Israel Schlesinger is an Israeli Jew, and a permanent resident of the State of Israel. The Respondent’s refusal stems from the fact that he does not recognize the validity of the above marriage.

 

2.         Two questions stand before us in this matter. The Petitioner’s attorney attempted to intertwine them, “joined together” in his hands [Ezekiel 37:17]. We shall not follow his lead, but rather separate them and discuss them individually. Were we not to do so, we would lose our conceptual train of thought in the zigzag, and find ourselves unable to resolve the problem or problems.

 

The questions before us are:

1. Whether a marriage performed between a Jewish man and non-Jewish woman is valid according to the laws of the state?
2. If we find that it is not legally valid – can the registration officer , indeed must the officer, register the Petitioner as married based on the civil marriage ceremony performed between the couple in Cyprus.

 

I emphasized above, according to the laws of the state, because according to Jewish law, there is no doubt whatsoever that such a marriage is not legally valid.

 

And any woman who cannot contract kiddushin with that particular person or with others, the issue follows her status. This is the case with the issue of a bondmaid or a gentile woman” (TB Kiddushin 66b).

…. How do we know it in regard to a gentile woman? Scripture says, “You shall not intermarry with them” (TB Kiddushin 68b).

You shall not intermarry with them: The law of marriage will not apply to them” (Rashi, Kiddushin, ad loc., s.v. lo).

 

“The law of marriage will not apply to them” – no marital relationship can exist between a Jewish man and a gentile woman. Therefore – it is indisputable, except by the Petitioner’s attorney in one of his arguments – the marriage of a Jewish man and a non-Jewish woman is invalid under Jewish law, whether it was conducted in a Jewish marriage ceremony or in a civil ceremony.

 

3.         The question is, therefore, whether such a marriage is valid under the laws of the state. It is interesting and quite curious that no Israeli tribunal can dissolve this marriage. The rabbinical court cannot, because it has no jurisdiction over a marriage in which one spouse is not Jewish, MApp 39/57, IsrSC 11, 921, 922 [1]. The District Court also cannot, because the woman is a foreign national, and under art. 64 of the Palestine Order-in-Council, the District Court is not authorized to issue a decision dissolving the marriage of a foreign national (see and note: art. 2(f) of the Palestine Order-in-Council (Amendment) 1935, together with CA 186/37 [9]). And I think it greatly doubtful that – for reasons that need not be elaborated here – the Respondent can make recourse to art. 55.

 

But the fact that no tribunal has jurisdiction to dissolve the marriage does not mean that the marriage stands. The law precedes the judge, and it has its own reality. But the fact is that we are not concerned here with dissolution or validation of a marriage – as we lack jurisdiction for either – but with an incidental decision on its invalidity or validity for the purpose of deciding upon the mandamus petition before us. We, like any court, are competent to make incidental decisions under the provisions of sec. 35 of the Courts Law, 5717-1957.

 

4.         And so we return to the question at the beginning of the previous section: Is the marriage entered into by the Petitioner and Mr. Schlesinger in Cyprus valid under the laws of the State of Israel?

 

The primary argument of the Petitioner’s attorney is that whatever the validity of this marriage may be in regard to the man, Mr. Schlesinger, from the perspective of the woman – the Petitioner before us – and for the woman, it is nevertheless valid. This is because under art. 64(ii) of the Palestine Order-in-Council, the validity of a marriage of a foreign national is determined in accordance with the national law that applies to her, and under Belgian law there is no flaw or defect in the marriage of a Christian woman and a Jewish man. In other words, Mr. Schlesinger is not married to the Petitioner, and he is a bachelor, whereas the Petitioner is a married woman, who is married to Mr. Schlesinger.

 

This is a serious argument, but it would seem that it must ultimately be rejected. I am not at all overwhelmed by the absurdity of this idea – a married woman who is married to a bachelor! – because in the vast, factious field of private international law that is so full of contradictions and inconsistencies, such wonders do exist. Consider, for example, a country that permits its citizen to marry a woman who is not eligible for marriage under her national law, and it (the state) also maintains the married woman in her pre-marriage citizenship. When that couple arrives in Israel, they may find themselves in such a paradoxical situation. This is not because Israeli law looks favorably upon such a half-married and half-single couple – indeed, as we shall see below, Israeli law objects to such divisions – but because the explicit provision of art. 64 of the Palestine Order-in-Council requires that the court view the spouses through different prisms: the husband (in the example above)  is viewed through the prism of his national law, which deems them both married, while the woman is viewed through the prism of her national law, which deems them both single.

 

5.         My response to that argument will be presented in the next two sections. First, I will examine the relevant legal situation in English Common Law, which is imported into our law through art. 46. I will then examine the view of Belgian law, which may lead us to art. 64.

 

6.         As for the Common Law: an important rule of British private international law jurisprudence states that a marriage has no legal effect unless it is valid under the personal law of each of the spouses. This is termed the “cumulative system,” as opposed to the “distributive system” that addresses such an issue by “allocation”, that is, it determines the validity of the marriage of each spouse separately, in accordance with the law of his domicile alone.

 

The cumulative system, according to which the invalidity of the marriage in regard to one spouse renders the marriage invalid for the other spouse as well, has been the common thread in English case law for a hundred years or more – some of which expresses it explicitly, while in some it becomes absolutely clear through careful analysis. Below are the prominent cases that addressed this issue directly or indirectly. I shall present them in chronological order:

 

(a) Mette v. Mette, (1859) 164 E.R. 792 [15]:

In this earliest case, a marriage was invalidated for both parties because of the lack of capacity of one spouse, the husband, under the law of his domicile. The husband, a resident of England, married his sister-in-law (the sister of his late wife), who was a resident of Germany prior to the marriage, in Frankfurt. Under English law at the time, the marriage of a brother-and-law and sister-in-law was void, while under German law it was valid. The Court voided the marriage, stating:

 

There could be no valid contract unless each was competent to contract with the other ([15] at 795-96).

 

(b) Brook v. Brook, (1861) 11 E.R. 703 [16]:

This case, decided two years later, also concerned the marriage of a brother-in-law and sister-in-law solemnized in a foreign country that permitted such marriage (Denmark). The House of Lords voided the marriage for violating English law. Halsbury (Simonds) vol. 7, p. 91, comment (r), presents this decision as evidence of the rule that a marriage is void unless it is valid under the antenuptial domicile law of both spouses. But that is mistaken, inasmuch as an examination of the Brook case shows (at p. 704, in the middle of the page), that the antenuptial domicile of both the husband and the wife was England, and in any event this does not show that the marriage would have been voided under the cumulative system, even if – as in the Mette case – only the domicile law of one party would have voided the marriage. But this decision indeed provides additional proof that in the matters of capacity to marry, English law follows the domicile and not the place of solemnization, and it (the above decision) of course does not contradict the said cumulative system.

 

As a living illustration of a modern Gretna Green in nearby Cyprus, it is apt and interesting to take note of a quote from the Brook case, in which Lord Campbell states:

 

It is quite obvious that no civilised state can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country to enter into a contract, to be performed in the place of domicile, if the contract is forbidden by the law of the place of domicile as contrary to religion, or morality, or to any of its fundamental institutions (p. 711).

 

(c) Odgen v. Ogden (otherwise Philip), (1908) [17], p. 46:

A 19-year-old French domicile named Philip married an English domiciled woman. Under French law at the time, a man under the age of 25 could not lawfully marry without parental consent – which Mr. Philip did not have. Under the laws of England, a 19-year-old does not require parental consent. When the English woman heard that her husband, who had left her, had been granted an annulment in France, she went ahead and married her second husband, in England, whose name was Ogden. After a while, conflicts arose between the lady and her second husband, and Mr. Ogden filed suit against his wife for a decree of nullity of marriage, on the grounds of bigamy, because – despite the French decision – his wife was still married to the above Mr. Philip. The question was whether the first marriage of Mrs. Philip-Ogden was valid or void, and the issue was which law should be applied to the first marriage – the English law of the wife, which deemed the marriage valid, or the French law of the husband, which deemed the marriage void, and which actually annulled it by judicial order due to the absence of parental consent.

 

The English court, applying the laws of England to the first marriage, deemed it valid, and therefore annulled the second marriage as bigamous.

 

This decision seemingly contradicts the cumulative system as, in validating the first marriage, it sufficed with its validity under the wife’s law of domicile. But when we reviewed this precedent in depth, read the pleadings by the attorneys, the comments of judges, the text of the decision and the views of English legal scholars on the matter (see: Ogden, [17] pp. 52, 61, 66, 67, 75; Wolff, Private International Law, 2^nd ed., pp. 328-29; Cheshire, Private International Law, 3^rd ed., p. 288; Dicey’s Conflict of Laws, 7^th ed., p. 235) we learned that the ratio decidendi of the Ogden decision was that parental consent for their son’s marriage was a requirement of “form” rather than of “substance” – inasmuch as the two young spouses are not ineligible to be married to one another – and as we know, any matter of form is decided under the law of the place where the marriage was solemnized (les loci celebrationis), which was in the Ogden case – coincidentally – also the law of the wife’s domicile. In effect, the only value of the Ogden decision is in the fact that the classification or distinction between the terms “form” and “substance” was made according to the lex fori, the law of the location of the court, and under  English law, parental consent is a matter of form, as the “Gretna Green” cases confirm! “Gretna Green” marriages have been performed for centuries. Very young English couples who required the consent of their parents to marry would cross the border to a nearby Scottish village, stay there for several hours, and marry there before the blacksmith and his assistant at the customs office. And why were these youthful elopements useful? Because Scotland did not require parental consent, and thus the marriage was valid under the law where the marriage was solemnized, and thus also valid upon return to England.

 

As we can see, the reasoning in Ogden is not only consistent with the cumulative system, it even supports it. This is because were the marriage of Mrs. Ogden to her first husband invalid under his law of domicile – not for a flaw of form but for a flaw of substance – the English court would have found it void for the other partner, that is the English wife, as well. In the case before us, it is unnecessary to elaborate on this, because the flaw in the marriage of a Jewish man and a non-Jewish woman – were Jewish law to apply, which we will discuss below – is a flaw of substance, of actual competence, because there can never be a lawful marriage between a Jewish man and a non-Jewish woman under Jewish law, as we have seen above.

 

(d) In re Paine ; (1940), Ch. 46 [18], provides clear, explicit authority for the above cumulative perspective. The discussion there concerned the provisions of a particular will. Incidentally, a question arose as to whether the parents of the children mentioned in the will were legally married. The marriage was solemnized in Germany. The wife was the husband’s sister-in-law (the sister of his late wife.) His domicile was in Germany, her domicile was in England, and the court held that the marriage was void due to a flaw under the wife’s law of domicile, because – said the judge – “the marriage must be a good and legal marriage according to the law of the domicil of both contracting parties at the time of the marriage” (pp. 49-50).

 

(e) Pugh v. Pugh, (1951),  P. 482 [19]:

A resident of England married a Hungarian-born 15-year-old girl in Austria – which was permitted under the laws of Austria and Hungary, but prohibited and void under the English Age of Marriage Act, 1929. The court voided the marriage, stating:

 

In view of those authorities it is clear that the marriage under consideration here was not valid, since, by the law of the husband’s (emphasis added) domicil it was a marriage into which he could not lawfully enter (p. 494).

 

The court did not bother to enquire into the question of the wife’s domicile because – so it would appear – it deemed it irrelevant, since even a flaw regarding one of the parties voids the marriage entirely under the above cumulative system.

 

(f) Sottomayor v. De Barros, (1879) 5 P.D. 94:

This case is, as far as I am aware, the only exception to the cumulative system. However, it, too, would be of no importance but for the special coincidence with the case before us. A Portuguese man, resident in England, and a woman who was a Portuguese national and resident, married in England. The two were first cousins, and under the laws of Portugal, such relatives cannot marry without a dispensation from the Pope. The English court declared the marriage valid, despite the substantive flaw under the wife’s law of domicile. This decision is surely inconsistent with the cumulative system. However:

 

(a).       It is insignificant in view of the many decisions handed down in the past hundred years in favor of the cumulative system, and it should be deemed overturned by the later decisions in Ogden, Paine, and Pugh as mentioned above.

 

(b).       In Sottomayer, the validating law was the lex fori, the law of the state where the presiding court convened, and the invalidating law was the foreign law, and the court rejected the foreign law in favor of the local law. The case before us is the reverse: the local law, which is identical to the common law, invalidates the marriage at hand – were we to apply Jewish law – whereas the law that validates it is the foreign (Belgian) law. There is no precedent for validating such a case, even in the above Sottomayer case.

 

7.         Here, one might argue: You have applied the Anglo-Israeli Common Law – but not the Belgian law! Were it to become clear that Belgian law actually follows the distributive system, we would be compelled – in terms of the wife – to reject art. 46 in favor of art. 64, and to validate the marriage in her regard.

 

My response is as follows: Based on Arminjon (Precis de Droit International Prive, pp. 45-46), which was cited before us by the Respondents’ attorney, it seems that Belgian law, too, follows the cumulative rather than the distributive system. But even were we not consider the words of this author as clear evidence of the Belgian law, we would arrive at the very same outcome. This is because when a party argues for the application of a foreign law but does not prove it, the “doctrine of processual presumption” immediately applies and the court assumes that the foreign law is identical to the law of the forum. Or – as the most recent editors of Dicey state – the court in this instance simply applies the law of the forum (Dicey’s Conflict of Laws, 7^th ed., p. 1116).

 

And since the law of the forum in this case is, under art. 46,  English Common Law, we again return to the cumulative system, which requires marriage eligibility under the personal law of both spouses.

 

As a result – assuming that Jewish law is the personal law of Mr. Schlesinger – his marriage to the Petitioner lacks legal validity both for the husband and for the wife, because one of the spouses, the husband, lacked the capacity to marry the Petitioner.

 

8.         We thus reach the additional question: Is Jewish law indeed the “personal law” under which the civil court must adjudicate the matter of Mr. Schlesinger’s personal status, in accordance with the aforementioned provision at the end of art. 47 of the Palestine Order-in-Council?

 

The answer to this is yes, certainly, and without a shadow of  doubt. The Mandatory Supreme Court so ruled in CA 119/39 [10], and in CA 11/41 Bichovsky v. Lambi-Bichovsky, (1941) P.L.R. 8, 241 [12], and the Israeli Supreme Court so ruled in CA 26/51 Kotik v. Wolfson, IsrSC  5, 1341 [2], and CA 191/51 Skornik v. Skornik, IsrSC 8, 141 [3], and so rule the Israeli courts each and every day without any misgivings, in hundreds and thousands of judicial decisions.

 

9.         The Petitioner’s attorney made a last-minute argument on this point immediately after we informed him of an English decision handed down several weeks ago in Lepre v. Lepre, (1962) [21], which was reported in The Law Times on December 6, 1962. This decision essentially relies upon an earlier decision handed down by the English Court of Appeal in the matter of Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419 [22]. In summary, both decisions hold that English courts will not recognize a foreign court’s annulment of a marriage due to the different faiths of the husband and wife, because such nullification is inconsistent with English principles of natural justice. The Petitioner’s attorney argues that we, too – as a civil, secular court – must ignore Jewish law to the extent that it prohibits the marriage of Jewish man and a non-Jewish woman, because that flaw offends the sense of natural justice of Israeli public, as well.

 

This claim is incorrect. A court in state A can say that the laws of state B infringe its sense of justice, and completely ignore them. But a judge presiding in state B itself cannot say that the laws of the state infringe his sense of justice and that he is, therefore, unwilling to uphold them. The laws of every state, and all the more so a democratic state with a parliamentary legislature, befit – or is deemed to befit – the accepted principles of natural justice of that state, otherwise the laws would not have been enacted, and if enacted – would have been repealed under public pressure. Lord Denning could say in the Formosa case ([22] p. 423) that were a person off the street in England asked whether a marriage between a Catholic man and an Anglican woman was valid or not, that person would have answered: Valid! But it certainly cannot be said that any person in Israel, off the street or from the garret, would have responded in the affirmative to the question whether the marriage of a Jewish man and a non-Jewish woman should be recognized as valid. I believe that the vast majority of our public would answer in the negative. That is, not only are we, the presiding judges, not permitted to ignore existing laws so long as they are in force, but in reality, and in truth, our religious personal laws do not contradict the view of the Israeli general public.

 

10.       My conclusion is, therefore, that the marriage of the Petitioner to Mr. Schlesinger is null and void for both spouses, because the personal law of Mr. Schlesinger is Jewish law, which binds this Court under art. 47 of the Palestine Order-in-Council, as aforesaid.

 

11.       This brings us to the second question of whether, despite the marriage’s invalidity, the registration officer was required to register the Petitioner as married. The Petitioner’s attorney argued that the registration officer only records what the registering party reports, and must not further enquire into the citizen’s legal personal status.

 

I am willing to agree that if, for example, the registration officer believes that the citizen applying to him is married, he may register the citizen as such, and is not required to seek expert advice in order to root out any doubt he may have about the matter. But when he is convinced that the person is not married, he may not register anything that he believes to be a complete lie. Since the registration questionnaire inquires as to the legal family statues of the registering person, rather than the bare fact of whether that person had a marriage ceremony or not – as argued before us by the Petitioner’s attorney – I wonder whether I can order the Respondents to register the Petitioner as married, after I have stated my opinion, in this very decision, that she is not married.

 

I therefore reject the second argument, as well, and recommend that we rescind the order nisi and deny the Petition.

 

12.       This concludes my opinion, but I wish to direct a few words to the legislature, and draw its attention to the fact that the case before us is but a sad part of a much broader problem, which urgently requires a clear statutory arrangement. I testify before heaven and earth that I was but a hair’s breadth from a converse ruling. For were only one detail of the many details in the present case different, I would have been obligated, as a judge of a civil court, to find in favor of the validity of this marriage.

 

I shall clarify. In the present case – which we shall call hereinafter the Schlesinger case – no evidence was presented as to the whether Belgian law adopts the cumulative or distributive approach to the spouses’ personal law. We imputed the cumulative system to Belgian law on the basis of the “presumption of identity”, after showing the position on this matter of the Common Law, and of Israeli law pursuant thereto. But there are various legal scholars who argue in favor of the distributive system. The opponents of the cumulative system point to its absurd outcome that the marriage is sometimes voided because of the wife’s pre-marital domicile, whereas were the marriage not compromised,  the saw would exalt itself against him who saws with it [Isaiah 10:15], and the marriage itself would void the domicile that voids it. This is because, as we know, the domicile of the married woman follows the domicile of the husband. However, if clear, explicit evidence demonstrated in the Schlesinger case that the Belgian legislature follows the distributive approach, then we would have been required to recognize the validity of the marriage in regard to the Belgian subject,  and to order the Respondents to register her as married.

 

Or change a different detail, which also would have reversed the result of the judgment. English judges are divided on the question of what is this “law of domicile” that determines the validity of the marriage? Is it the law of the antenuptial domicile of each of the spouses, or is it the law of the domicile of both spouses following the marriage that prevails, or – in other words, and perhaps by a different intention – “the intended matrimonial domicile”. This question should not be determined as a matter of course, as there are arguments and authority for both alternatives, although most of the case law seemingly tends toward the former.

 

In the Schlesinger case, we did not address this question at all, as it was not material. The State of Israel was both the antenuptial domicile of the husband, as well as the intended matrimonial domicile, as appears from the all the circumstances, and thus the marriage is in any case invalid.

 

But let us imagine a different “Schlesinger case”, which is slightly different in terms of this detail. The man, a Jewish resident of Israel, travels to Cyprus for a short period of time, where he marries a non-Jewish woman in a civil ceremony, and returns with her to Israel in order to prepare papers and documents for the purpose of immigrating to England – a country that, as we have seen under the Lepre matter [21], does not prohibit marriage because of differences in the partners’ faith, regardless of the position of the laws of state of domicile on the matter. Were this the case, we would have been required to first get into the thick of the aforementioned dispute in the case law. Then, were we to determine in favor of the intended matrimonial domicile – we would have to find that the marriage was valid under our civil law, both for the non-Jewish wife and for the Jewish husband.

 

Moreover, in our country, as we know, there is no general territorial law on matters of personal status (aside for some morsels such as the distribution of an estate and guardianship of children under the Woman’s Equal Rights Law, 1951) and at times – as I have written elsewhere – the law is a “function” of the adjudicator.

 

For example: a Jewish man, resident of the United States, enters a civil marriage there with a divorced Jewish woman who married her previous husband in a Jewish ceremony and divorced him by a civil divorce. The spouses immigrate to Israel and enquire as to their personal status and whether they are married or single. Were the issue brought directly before the Rabbinical Court under sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, the decision of the court would be that they are not married, as according to Jewish law, she would still be married to her previous husband, and a marriage to a married woman is invalid. On the other hand, should the woman apply to the District Court prior to the Rabbinical Court’s decision, in a suit for maintenance from the man under sec. 4 of the above statue, the court would incidentally find (under sec. 35 of the Courts Law, 1957), that the plaintiff is lawfully married to her husband by virtue of the Common Law rules that establish the validity of the marriage under the law of the couple’s domicile at the time of the solemnization of the marriage, and would order the defendant to pay maintenance. The question then arises: what should the registration officer properly do when asked to register the above couple’s personal status?

 

Another example: Jewish spouses, who reside permanently in France, marry there in a Jewish ceremony in accordance with Jewish religious law and then move to Israel. The Rabbinical Court would recognize the validity of the marriage retroactively from the day of its performance, as it is valid under the Jewish law (compare CA 158/37 Nosse Chen v. Nosse Chen) [13]. The civil court – were it not to accept the dissenting opinion of my honorable colleague Justice Agranat in the Skornik appeal, CA 191/51, IsrSC  8, 141 [3], 175-78 – would void that marriage (while considering it incidentally), relying on another ruled of English private international law which states that the form of the ceremony is considered, for better or for worse, according to the location where it is celebrated, and the laws of France – if my memory serves me right – do not recognize the validity of a religious marriage ceremony. This case is the inverse of the previous case: there the marriage is invalid in the eyes of the religious court and valid in the eyes of the civil court; here it is valid in the eyes of the religious court and invalid in the eyes of the civil court. Is this not a case of the law becoming a “function” of the judge?! And again the question arises, how must the registration officer proceed in registering the personal status of the above couple?

 

I, therefore, offer the following simple suggestion that would effectively remove the painful sting form the vast majority of difficult cases. When the marriage was solemnized abroad, the registration officer should be permitted and even obligated to add the words “in a civil ceremony” or “in a religious ceremony” after the word “married”, as the case may be. This innovation requires an explicit statutory provision, because as the law presently stands, the registration officer must register the legal family status of the person registering, which presents him with a complex web of legal questions from which he may not always be able to extricate himself. Clearly, what is recorded in the certificate of identity will not obligate or bind the religious or the civil court if they later adjudicate – directly or incidentally – the issue of the marriage’s validity. But it shall provide some small but important satisfaction to spouses whose marital status is in doubt, and would spare them shame and considerable discomfort whenever they must present their certificate of identity. Let us not further strain the already tense relations between the religious and the “free” sectors of the population, nor pour oil on the fire that might erupt around this issue in Israeli society.

 

Therefore, I found it necessary to make the above comments, in hope that the Israeli legislature consider them when it addresses this painful question.

 

My opinion, as presented at the end of the previous paragraph, is that the order nisi should be rescinded and the petition denied.

 

Justice Sussman:

 

The Petitioner, a Christian subject of Belgium, married Mr. Israeli Schlesinger, a Jewish citizen of Israel, on December 21, 1961. The marriage was solemnized in a civil ceremony in Nicosia, Cyprus, and was evidenced by a copy of the marriage register confirmed by the Cypriot Minister of Interior. After marrying Mr. Schlesinger, the Petitioner went to the Belgian Consul General in Limassol, who registered her marriage in her Belgian passport. He further registered that due to her above marriage, her name was changed to Schlesinger, her husband’s name. The Petitioner did not suffice with this registration. On July 26, 1962, she presented herself at the Belgian embassy and made a declaration that was registered in the Embassy’s personal status register (Registre matricule). The registration details the Petitioner’s personal details and attests to her marriage in Nicosia, in reliance on the marriage certificate issued to her by the district officer in Nicosia, and in reliance on the registration in her passport by the Belgian Consul, as noted.

 

2.         On December 12, 1961, the Petitioner arrived in Israel as a tourist. She initially sought a permit for permanent residency, however her request was denied, and she was permitted to remain in Israel only until March 17, 1962. Two days after that, on March 19, 1962, she applied to the Tel Aviv registration office for a certificate of identity. To this end, she submitted all the information required under the Registration of Inhabitants Ordinance, 1949. The outcome of the application was that the Petitioner was summoned to the said office for “clarification”. The purpose of the “clarification” was to inform the Petitioner that she could not be issued a certificate of identity that would state that she was married, and accordingly, the name “Schlesinger” could not be entered. This notice was given to the Petitioner orally, and her request that she be given written notification went unanswered. An additional request for a certificate of identity, submitted by the Petitioner’s attorney to the Ministry of Interior in Jerusalem on April 30, 1962, received no response. The Petitioner therefore brought her matter before this Court, which granted an order nisi instructing the Respondent – the Minister of Interior – to show cause why he maintains his refusal to recognize the Petitioner as a married woman whose name is Schlesinger, and why he maintains his refusal to issue her a certificate of identity as requested, as well as a permit for permanent residency.

 

Only in its response to the order nisi did the Respondent grant the Petitioner’s request for a permanent residency permit, so that one issue has now become moot. Still, the Respondent maintains his refusal to register the Petitioner as a married woman, arguing that according to the laws of personal status that apply to the Petitioner and her husband, they are not a married couple. In this context, it should be noted that the Petitioner’s husband was registered in the Register of Inhabitants as married, on the basis of that same marriage ceremony celebrated between him and her in Cyprus, but the Respondent’s investigation into the Tel Aviv registration office revealed that this registration was made in error, and that the officer who registered the husband’s marriage was not familiar with the web of contradictory instructions given over the years by his superiors.

 

3.         It would not be superfluous to emphasize already at this stage – at the outset of our remarks – that we are not concerned here with the validity or voidance of the marriage. The issue before us is the question that arises from the what was stated in the order nisi, that is: whether there is justification for the refusal of the registration officer to register the Petitioner as a married woman who, as a result of her marriage, bears the name of her husband.

 

4.         In order to respond to the above question, we shall turn to the Registration of Inhabitants Ordinance, 1949. According to sec. 2 of the above Ordinance, a Register of Inhabitants was established in the territory of the state, and the roles of the registration offices are defined in sec. 3 of the Ordinance. These duties are:

1. To keep a Register of Inhabitants containing the particulars of registration enumerated in section 4;
2. To issue, renew and enter changes in certificates of identity;

…

 

As an “inhabitant”, according to its meaning in sec. 1 of the above Ordinance, the Petitioner must, under sec. 5(a), provide the registration office with the details listed in sec. 4 of the Ordinance. These details include, inter alia, her name (sec. 4(a)), and her family status (sec. 4(d)), and there is no doubt that she is required to provide correct details, as providing incorrect details is punishable under sec. 12(a)(2) of the Ordinance. These are the details which the registration officer must register, and issue the inhabitant a certificate of  identity according to them, as stated in sec. 7 of the Ordinance.

 

5.         In the course of the hearing, my honorable colleague Justice Berenson raised the question: what is the registration officer to do when a person comes before him and provides, for the purpose of registration, details that are not acceptable to the registration officer, such as when a person wishes to register his son as five years old, and the registration officer sees the boy and believes that he may be twenty years old?

 

Section 6 of the Ordinance speaks of the “procedure of notification”, and instructs that anyone providing details of registration must, at the request of the registration officer, “produce any relevant document” as well as “affirm, either orally or in writing, the correctness of the particulars furnished or produced by him”.

 

The learned State Attorney, who argued on behalf of the Respondent, did not touch on this question, except for a single incidental comment. He said that a public officer is not under a duty to enter incorrect information in a register that he maintains, and in any event, this Court will not order him to do so, as we held in HCJ 237/61 [4]. I accept this argument, but it concerns an incorrect registration that is manifest and not subject to reasonable doubt. I do not question that a public officer must not exercise his authority in order to be a party to an act of deception. When a person who is undoubtedly an adult presents himself and wishes to register as a five year old child, what doubt is there here that the registration is false and this person’s act is fraudulent? In such a case, the registration officer is correct to refuse to register the details, and this Court certainly will not exercise its power, under sec. 7 of the Courts Law, 5717-1957, to require the registration officer to “falsify” the Register of Inhabitants.

 

But consider a different case, in which the officer indeed has suspicions as to the age of a person, but the matter is uncertain. Recently,  a matter came before this Court concerning a person of Yemenite origin who, according to his certificate of identity, was already 18 years old, and thus, in accordance with his registered age, he was subject to military conscription. He reported for a medical examination in accordance with the Defence Service Law, 5719-1959, and the medical committee that examined him found that he was only 14 or 15 years old. The boy’s father, too, supported the finding of the medical committee, but nevertheless did not object to his son be conscripted immediately, apparently in the belief that it would be best that when the son is 18, he would already be exempt from the obligation for regular service and could assist him in his work or business. In light of the finding of the medical committee, the calling-up officer petitioned the District Court, in accordance with sec. 4 in the Appendix to the said law, for a declaration as to the age of the person reporting for military service. The District Court collected testimony and declared the registration in the certificate of identity was correct and the boy was 18 years old. The  calling-up officer appealed to this Court, and we held that the registration was incorrect and that the boy was still 14 years old (CA 85/62 [5]).

 

6.         The same question that worried the calling-up officer may arise before the registration officer when registering a resident under the above Ordinance. When that same person I discussed in sec.. 5 above presents himself and asks to register his son as 15, and the officer believes, according to what he sees, that the boy is already 17 years old, what is he to do? Needless to say, such cases are possible, whether because of a false registration was made in order to allow a person to avoid military service, or for any other purpose. When the registration officer wishes to determine the age of a person when the issue may cut both ways, the question arises: who authorized you? The matter in dispute may be difficult and complex, as the difference of opinions between the two courts in the above matter demonstrates. Have registration officers been granted judicial authorities? Has the Ordinance authorized them to decide upon matters of registration? It is clear beyond doubt that the task of the registration officer, under the above Ordinance, is but that of a collector of statistical information for the purposes of keeping the Register of Inhabitants, and he holds no judicial authority. What, then, is a registration officer to do in such a case? Should the registration officer register despite doubts as to the correctness of the registration – whether in terms of age or in terms of a different matter, such as one’s family status – or should he refrain?

 

It would appear that the registration officer was given “instructions” in this regard by the Ministry of Interior, but those instructions were changed from time to time. The instructions that were in effect until March 1958, were replaced at that time by other instructions given by the Deputy Director General for Immigration and Population in the Ministry of Interior, with the approval of the Minister of Interior (exhibit M2). These instructions also include provisions in regard to the registration of family status. On January 1, 1960, things changed again, and the Minister of Interior personally ordered the cancellation of previous instructions for registering mixed marriages. On May 2, 1962, the above Deputy Director General in the Ministry of Interior ordered, pursuant to this order of the Minister of Interior to the district commissioners, that “since the registration of mixed marriages…requires examination on a case by case basis”, registration officers must accept the notifications of requesting parties, but they must refrain from registering this in their certificate of identity and personal documentation and “transfer the personal file of the couple to the department for determination.”

 

7.         The determination of the department in regard to the Petitioner’s marriage was made on March 15, 1962, and it was passed on to the Immigration and Inhabitants Registration Office in Tel Aviv, as follows:

 

(2)… It should be clear that the civil marriage performed between him and Miss Funk is not valid for him. The personal law that applies to him is the Rabbinical Courts Jurisdiction Law, and this statute does not permit mixed marriages.

 

(3) Since the marriage is not valid, Miss Funk must not be considered his wife and she must not be registered as married. The parties – should they wish to do so – may apply to the District Court for a determination on the matter by way of a motion for granting an order. The background for the decision should be explained to Dr. Schlesinger.

 

This determination of the Registration of Inhabitants Department in the Ministry of Interior is flawed in at least two ways. First, I wonder what source the Respondent or his subordinates found specifically in the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law,  5713-1953,[2] – it and none other – that “does not permit mixed marriages.” Section 2 of the above Law states:

 

Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law.

 

The law addresses the marriage of Jews, and only a marriage conducted in Israel. The Petitioner is not Jewish, and her marriage was conducted outside of Israel. Second, if a judicial decision is required, why should the Petitioner specifically turn to the District Court? Could she not submit the matter for decision by a competent religious court?

 

I think it appropriate to note, at this point, that the authority of the Minister of Interior to instruct the registration officers as to when to perform a registration and when not to was not disputed before us. There is no mention of such authority in the above Ordinance itself, and the Respondent did not argue that he relied upon regulations he made by virtue of sec. 10 of the Ordinance. However, in light of the position taken by the Petitioner’s attorney, I will assume that the Respondent was empowered to issue such “instructions”.

 

What was said in the instructions?

 

Exhibit M2 – that is, the instructions given by the Respondent on March 10, 1958, in accordance with the opinion of the Attorney General – states, inter alia, as follows:

 

            1. Defining the Role of the Registration Officer:

The registration officer is solely an administrative authority and he must, therefore, register the personal details of a person required to provide them for registration according to the above statutes, both for himself and for his minor children.

The registration officer is not the judicial authority that determines the personal status of the person, and it is not for him to determine legal or religious questions.

If every determination of a legal question is beyond the scope of the role and competence of the authority tasked with implementing the laws – then that is certainly so for a determination of a religious nature. Whether one converted according to Jewish law, or married a wife according to Jewish law, or whether one was divorced by her husband according to Jewish law, or whether one may be considered Jewish under Jewish law – these are all religious questions, and their determination is within the purview of the religious authorities.

 

The considerations of the registration officer are solely administrative, and he is not charged with the implementation of religious law.

 

                        The civil administrative authorities are not ordered, are not able, and thus are not even permitted to carry out religious law or determine what is permitted or forbidden under religious law.

 

2.         What is the Registration Officer to Register?

The registration officer only registers what the citizen who is required to register tells him to register.

 

3.         The Duty of Investigation and Examination of the Registration Officer

The registration officer must not be charged with a duty to investigate and inquire that he cannot and should not meet before registering the details provided to him by the resident who must register.

It is true that the registration officer must exercise caution in fulfilling his duties. But “it (that is, this caution) is not but that same caution required of any public servant when fulfilling his administrative role.

 

4.         The Duty of Warning by the Registration Officer

The Registration officer shall warn the person required to register that he registers only what he is told, and that the registration does not serve as legal evidence of the truthfulness of the registered details, but only evidence of meeting the obligation to register. It must be explained to the declaring person that any court or tribunal, and even any administrative authority, may reject the details as a finding, and even disregard them.

In particular, he must be warned that, according to the standing rules of the Chief Rabbinate and the Ministry of Religion of 1950, rabbis who serve as registrars of marriages are obligated not to rely only on the information registered in the certificate of identity, but to investigate themselves those who come before them to marry, or to demand that they submit a certificate that they are unmarried from an authorized rabbi or religious court. In practice, rabbis follow these instructions all the time.

 

5.         The Registration Officer’s Duty to Register the Details

After the registration officer has given the above warning, he must register the details provided to him:

1. If he sees no prima facie reason to doubt the details provided to him.
2. If, after any doubt arose as to a particular detail, he requested evidence and the details were prima facie proven to him.

 

                                          The registration officer must always bear in mind that he is not a judge and that he is not an arbiter, but that he is solely a registration officer, and he registers only what the citizen required to register tells him to register. The law authorizes the registration officer to refuse to register what seems to him as false or misleading. For this purpose, he is granted the authority to demand from the person required to register documents and other evidence to prove what he claims ought to be registered. But when the registration officer sees no prima facie reason to doubt the details provided to him by the person required to register, or – after such doubt has arisen and he has demanded such evidence – should he be satisfied that these details were prima facie proven to him, then the registration officer must register them. The fact that the certificate he issues as to the registration will be deemed valid, and that it may serve to prove its content, is of no consequence to him at all.

 

6.         The Citizen’s Declaration – Presumption of Truth

The registration officer must presume the citizen’s declaration to be true, and particularly if he has warned the citizen. The registration officer may not raise unsubstantiated suspicions. Doubt must be based on a reasonable foundation.

 

This is a rule: the registration officer is required to respect the citizen, but he is not required to suspect him.

 

7.         What is a Reasonable Foundation for Suspicion?

A reasonable foundation may be based upon the conduct of the declaring citizen, inconsistencies in his declarations, apparent flaws in his documents, knowledge the officer has in regard to the citizen or the documents – and so forth.

 

8.         Anyone Seeking Amendment bears the Burden of Proof

When a person seeks to amend the registration – he must prove that there is indeed a mistake that requires correction and should be corrected. Here, the registration officer is not generally permitted to forego the evidence.

 

9.         An Official Document Presumed to be Valid

In the absence of special reasons (see below) to rebut the presumption of validity, the registration officer must not second guess an official document, but must act to register in accordance with it.

What constitutes an official document –

Any document created by a public servant (government, legal or administrative, civil or religious, in Israel or abroad) in the course of his duties, and in this regard, anything recorded in the  Register of Inhabitants and the certificate of identity itself, is presumed true.

                        Therefore, the authorities competent to execute the laws may and must presume the validity of any official document, whether from Israel or from abroad, that is presented to them as proof of a certain fact, and it is immaterial whether the document is a birth certificate or a passport or a marriage certificate or a divorce decree or a death certificate or probate order. Such documents prove prima facie not only the underlying fact for which they were issued (such as a marriage certificate or a divorce decree), but also all the other details written in them. The agency issuing the document is presumed not to have issued a document in which it recorded something that is incorrect.

 

10.       Rebutting the above Presumption

However, this presumption is rebuttable. It is only prima facie evidence. For example, should the registration officer sense a forgery of a document (uncertified additions or amendments or redactions), the officer may demand additional evidence.

 

11.       The Value of Decisions by the Registration Officer

The decisions of the registration officer are valid and binding only for the purpose of implementing the Registration of Inhabitants Ordinance (or one of the other above statutes). They have no binding legal force for the implementation of other statutes.

Even in those cases where the registration officer demanded evidence to prove a certain detail, the satisfaction of the registration officer does not bar a court or any other administrative authority from rejecting that very same evidence and to not be persuaded thereby.

 

……

 

16.       The Marriage of Spouses, One of whom is not Jewish, before a Consul

A consul has no authority to perform a civil marriage ceremony for a couple where both partners are Jewish, but the said consul retains authority to perform a civil marriage ceremony for a couple when one partner is not Jewish, provided that the consul is so authorized by the laws of his state to perform the marriage ceremony.

Any certificate issued by a foreign consul in Israel in regard to any person who is a citizen of the country that the consul represents, and which concerns the personal status of that person (such as marriage, birth and so forth, but not divorce), must be accepted as a basis for registering that detail that the certificate addresses.

 

9.         I agree with what is been presented above from exhibit M2, which also includes

the answer to the question how the registration officer is to proceed when he harbors doubt as to the accuracy of the details that the declaring citizen provided to him. Section 3 of the above regulations aptly states that the registration officer must act with caution, and I have already called attention to sec. 6 of the Ordinance, which establishes that he may investigate and inquire. But once the officer is presented with prima facie evidence, he must suffice with it, because being an administrative authority, he would exceed his authority should he seek to determine a legal dispute. And should he not seek to be an arbiter, then he must register the details as presented by the requesting citizen, even if he is not persuaded of their accuracy. Should a citizen seeking registration, as in the example in sec. 6 above, insist that his son is 15 years old, the registration officer shall register him as declared by the requesting citizen.

 

As said in the instructions above, a citizen coming before an administrative authority is presumed to speak the truth, and the registration officer must not forget that should he seek to exercise judicial authority and make a determination in a matter that he believes requires determination, he has not been granted the tools to do so. And since the above Ordinance requires the citizen to submit details for registration, and requires that the officer register them and issue a certificate of identity, the matter cannot end in a draw. There is no choice but to say that the registration officer must register what the citizen tells him.

 

The above Ordinance did not attribute to the registration in the Register of Inhabitants the force of evidence or proof of anything. The purpose of the Ordinance is, as was said in HCJ 145/51 [6], to collect statistical information. This material may be correct or incorrect, and no one guarantees its accuracy. In order to establish one’s age for the purposes of conscription into the military, the registration in the Register of Inhabitants serves as prima facie evidence, not by force of the above Ordinance, but by force of the Appendix to the Defence Service Law, 5719-1959. A certificate of identity is issued to a resident, according to sec. 7 of the Ordinance, as a “means of identifying.” But no one is obligated to act according to it, and no one is obligated to identify the holder of a certificate of identity by means of that document. Holding a certificate of identity grants its holder no right whatsoever (HCJ 155/53 [7]).

 

Just as registering an age in the certificate of identity does not serve as proof of age except to the extent established by a statute, the same holds true for the registration of family status, inasmuch as which law – like the Defence Service Law, 5719-1959, for the purposes of proving an age – permits a person to use his certificate of identity to prove whether or not he is married? Section 4 of the M2 directives says that according to the standing rules of the Chief Rabbinate and the Ministry of Religion, a marriage registrar does not rely on the registration for purposes of fulfilling his duties, and may act accordingly. Who, then, must rely on the registration?

 

10.       Consider the case of some Jewish man who married some Catholic woman in a civil service in some country, and who presents a marriage certificate to the registration officer. A civil court would establish the sufficiency of the ceremony under the law of the country of solemnization. However, that would not be the case in a religious court, which would not recognize a civil ceremony. How must the registration officer form his opinion, according to the district court or according to the religious court? I dare say that for the purposes of the validity of such a mixed marriage, no one in Israel can predict in advance whether or not it is valid.

 

Let us even assume that the man is an Israeli citizen, and the woman (like the Petitioner) is not. The District Court is not authorized to invalidate this marriage, in light of the restriction in art. 64 of the Palestine Order-in-Council, while MApp20/43 [14] held that this restriction denies the court the authority to declare this marriage void ab initio by reason of the spouses being ineligible to marry each other. But not only can the matter come before the District Court in a different action that would require it to rule on the question of the marriage’s validity, but there are two religious courts in the country that, while not competent to invalidate the marriage, can declare its existence and validity. Their authority would be contingent upon the consent of the parties to be judged by a religious court, and the President of the Supreme Court would then exercise his authority under art. 55 of the Palestine Order-in-Council to determine which court would be authorized to hear the matter. In light of art. 65 of the Palestine Order-in-Council, there is no bar to a foreign citizen consenting to the jurisdiction of a religious court (MApp 39/57 [1]. In this case, the validity of the marriage will depend upon how the President of the Supreme Court exercises his discretion, because once the authority of the religious court has been established, so has the substantive law that applies to the matter, as the law follows the judge (CA 238/53 IsrSC 8, 4, 36 [8]).  Were the President of the Supreme Court to authorize the Rabbinical Court to rule on the matter, it would invalidate the marriage, since Jewish religious law does not recognize civil marriage, and certainly not a mixed marriage between a Jewish man and a Christian woman. But the President of the Supreme Court might authorize the Catholic Court to adjudicate the matter, and were he to do so, the validity of the marriage would be determined according to the Catholic religious law. And what would the Catholic Court rule? The law of the Catholic Church is established by the Codex Juris Canonici of 1917. According to sec. 1014 and sec. 1070(2) of the above Codex, the Catholic Church, like a civil court, also follows the rule of semper praesumitur pro matrimonio (see Spivack v. Spivack (1930), 142 L.T. 492 [23]; and CA 191/51, IsrSC 8, 141, 149 [3]), and presumes every marriage to be valid as long and the opposite has been demonstrated. It is true that the law of the Catholic Church also requires, though not with the same severity of Jewish law, solemnizing a marriage in a religious ceremony. Additionally, according to sec. 1070 of the above Codex, the Church bars a mixed marriage between Catholic and Jewish partners, by reason of disparitas cultus, but this is not an absolute prohibition. According to sec. 1070 of the above Codex, it is possible to secure a dispensation from the prohibition on mixed marriages, and the questions and answers collected in the Canon Law Digest, vol. 3, p. 420ff. reveal that such dispensation is not such a rare occurrence. Moreover, even were the mixed marriage solemnized without obtaining a dispensation, the marriage would not inherently be void, but only flawed for violating the prohibition of disparatis cutus, and the priest is authorized to cure the flaw and “heal it in the root” (sanatio in radice) by retrospectively forgiving the sinner, according to secs 1138 to 1141 of the above Codex. And once he has done so, the marriage is given validity in retrospect, see Eichmann-Morsdorff, Lehrbuch des Kirchenrects, 5th ed., sec. 161 (2) (b) at p. 286. And as for form, even the duty to hold a religious ceremony does not originate from the scriptures, but is “rabbinic”,[3] because before the decrees of the Council of Trent in the 16^th century, the Catholic Church, too, recognized not only the validity of a marriage ceremony be expressing consent to marry per verba de praesenti without religious format, but also the sanctity of a marriage conducted in this manner (sacramentum), see Dalrymple v Dalrymple (1811), 161 E.R. 665, 669 [24].

 

But even now, although the Church establishes the principle of a religious ceremony for solemnizing a marriage, it does not completely rule out a marriage for not meeting the religious requirements. Once the flaw is made known to a religious authority, it has the primary responsibility not to bring about the invalidation of the marriage, but rather, to the extent possible, to seek its validation, see Eichmann-Morsdorff, ibid., sec. 159, at p. 281. And even this flaw may be corrected in retrospect by means of “healing in the root”, ibid., sec. 161, p. 287.

 

11.       Let us now slightly change the facts of the above example, and assume that the woman was a Protestant at the time that she married the man, but that she converted after her marriage and joined the Catholic Church. We can disregard the provision of sec. 4(2) of the Religious Community (Conversion) Ordinance, whether by assuming that the woman converted prior to arriving in Israel, or whether due to the fact that the Protestant church does not seek its own jurisdiction, but leaves jurisdiction to the state and has not established its own courts. For the purpose of jurisdiction, the situation at the time of initiating the action is determinative, and thus the President of the Supreme Court may authorize the Catholic Court to adjudicate the matter of this couple as well. Because of its “catholicism”, that is, its universality, the Catholic Church accepts into its fold anyone baptized into Christianity (sec. 87 of the Codex), but it is lenient with a Christian who is not a Catholic, and exempts him, under sec. 1099(2) of the Codex, from the obligation to solemnize a marriage ceremony in accordance with its law, and suffices with the civil ceremony that was held, see Eichmann-Morsdorff, ibid.,, sec. 132, p. 146. But not only is the religious form not required, but such a mixed marriage is not at all flawed, and there is no need for forgiveness or sanation by way of “healing in the root”. Preventing the marriage, for reasons of disparitas cultus, according to sec. 1070 above, was established only for a case where one of the spouses was a Catholic. If he was not, but was a Christian of another faith and married a Jew, the marriage would be completely valid, ibid., sec. 141, at p. 186.

 

12.       I have expanded on the different possibilities for addressing mixed marriages as valid or invalid in order to show that the question of their validity or their invalidity is extremely weighty, and once a couple approaches the registration officer in order to be registered according to the Registration of Inhabitants Ordinance, 5709-1949, it is impossible to know how the matter would be decided. The registration officer cannot anticipate which court would decide the matter, or how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council, and he cannot predict whether the marriage’s validity would be recognized or not.

 

Furthermore, my honorable colleague Justice Silberg conducted in-depth research into the validity of the marriage, and reached the conclusion that it is invalid. However, in sec. 12 of his opinion, he testifies before heaven and earth that only a but a hair’s breadth stood between him and a converse ruling. When this is the declaration of a Supreme Court justice, is it conceivable that an administrative clerk, such as the registration officer, would even consider such a problem? Were you to say yes, then the conclusion must be that only one who is an expert in the rules of conflicts of law – which are among the most complex of jurisprudence – may be appointed as a registration officer under the above Ordinance. Had the legislature intended this, I wonder why it honored the holder of such duties merely with the modest title of “registration officer”.[4]

 

I tend to the opinion that when registering the family status of a resident, it is not the duty of the registration officer to consider the validity of the marriage. The legislature is presumed not to have charged a public agency with a duty it is not capable of fulfilling. It suffices that, for the purposes of fulfilling his duties and registering the family status,  the registration officer was presented with evidence that the citizen held a marriage ceremony. The question of the validity of that ceremony may, at times, cut both ways, and determining its validity exceeds the scope of the Inhabitants Registry.

 

We should explain that the marriage register maintained by the Rabbinate only testifies that a Jewish marriage ceremony was held between a man and a woman. The document testifies to the conducting of the ceremony (compare In re Peete (1952) [25]).  It is possible that a properly performed ceremony was void ab initio, and possible that it was valid. The registration demonstrates neither one nor the other. The presumption of the legitimacy of the marriage, which I discussed in a different context, that is, the presumption of the validity of the marriage, results from the conducting of the ceremony rather than from the registration that the ceremony was conducted, or from a document attesting that fact, and it is rebuttable. If this is the case for the marriage register maintained by the Rabbinate, it is all the more so the case for the Register of Inhabitants of the Inhabitants Registry. And there is no need to say that if the duty of the registration officer for purposes of registering the family status is limited to checking whether a marriage ceremony was held, there should be no concern whatsoever that the Register of Inhabitants may comprise inaccurate information and attest to a valid marriage where it was void ab initio due to a substantive defect or flaw. As we see, the definition of the purpose of the Register of Inhabitants, and preserving the boundaries of the role of the registration officer are sufficient to prevent mishaps. The result is that under no circumstances must the requesting resident supply the registration officer with more than prima facie evidence. The Petitioner presented the registration office with the marriage certificate. She secured the confirmation of the Belgian Embassy, which registered her marriage in the embassy’s personal status record, as well as in her passport. What more could she have done in order to satisfy the burden of proof? As long as the marriage has not been found void in a judicial process, the Petitioner must be considered a married woman for the purpose of the Register of Inhabitants.

 

I shall here allow myself the liberty to say that not only is there no statutory source for investigating and inquiring to uncover a flaw in the marriage, but it is also improper form an administrative perspective that a citizen coming to provide details for statistical purposes, and whose only sin is that his marriage is invalid, must stand before a suspicious officer who will delve into the depths of his past. There are marriages that are voidable and yet the spouses live together in peace until the end of their days. What interest does the administration have in raising problems as to its validity? Needless to say, the instructions from May 2, 1962, which instruct the registration officer to pass the matter of mixed marriages on to the “determination of the department”, are unfounded inasmuch as the department has nothing to determine.

 

13.       The conclusion I have reached absolves me from the need to address the question whether the marriage was indeed invalid on the grounds of the spouses’ ineligibility to marry one another, and I will only make as few comments on this issue:

 

(a)        The State Attorney did not argue before us that the marriage was invalid because it was performed in a civil ceremony. There was no place for this argument since this Court has already ruled that we follow the law of the place of the ceremony in regard to the form of the marriage (CA 191/51[3]), and in the absence of evidence to the contrary, a ceremony conducted in a foreign country is presumed to have been conducted lawfully.

 

(b)        Were the question of the marriage’s validity to be raised because of questions as to incapacity to marry, it would first be necessary to decide upon the proper law in the matter. For such purposes we cannot make recourse to the provision of art. 64(ii) of the Palestine Order-in-Council, which refers us to the “the law of the nationality of the foreigner concerned”, because the parties have no single national law. The law that would apply in such a case would be determined by the rules of conflicts of laws.

 

(c)        The State Attorney argued for the English rule that follows the parties’ domicile for purposes of their capacity to marry, but honestly noted that American law establishes one law for the form and the substantive validity of the act, and the law of the location where the marriage was solemnized applies for both of them, see Restatement, Conflict of Laws, sec. 121; Loughran v. Loughran (1934) [33[; Hastings v. Douglas [34].

 

(d)       Not only is the American rule easier to apply and more practical, because it prevents the need to split the discussion when the spouses did not have a single domicile (a split that might lead us to the strange outcome, as my honorable colleague Justice Silberg noted, where the husband would be married to his wife, whereas she would not married be to him), but the American rule is actually the English Common Law rule, which remained in its original form in the United States, whereas it transformed in England itself. Indeed, it is the rule that was followed by the Ecclesiastical Courts that held jurisdiction over matters of marriage until the enactment of the Matrimonial Causes Act, 1857. In England itself, different rules applied as to the form and in regard the capacity of the parties, see: Dalrymple v. Dalrymple (1811), 161 E.R. 665 [24]; Middleton v. Janverin (1802) [26]; Simonin v. Mallac (1860) [27].

 

(e)        The change in the English rule can already be discerned, in effect, in the decision of the Court of Appeal on the matter of Sottomayer v. De Barros (1879) 41 L.T. 281, 282 [20], where Justice Cotton said as follows:

                        The law of a country where a marriage was solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted, but as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil.

 

(f)        This rule was, as Professor Beale put it in his article The Law of Capacity in International Marriages, 15 H.L.R. 382, 286 – “an ignorant error.”

 

I have cited these words in the name of their author, but in defense of Justice Cotton, it can be said that hints in support of his view are found in the opinions of Lord Campbell and Lord Cranworth in the matter of Brook v. Brook (1981) 4 L.T. 93 [16]. However, the remaining justices in the matter of Brook joined the conclusion of their colleagues for other reasons (see p. 99, 101, [16] ibid.). For more on the Sottomayer rule, see Sottomayer v. De Barros (No. 2.) 1879, 41 L.T. 283, 285 [20]; Ogden v. Ogden (1907) [17]; Hay v. Northcote (1900) [28]. In all three, the courts refrained from ruling according to Justice Cotton, though they employed more temperate language than Professor Beale.

 

(g)        The said change in the rule is inconsistent with the provision of sec. 22 of the Matrimonial Causes Act, 1857, which has since been replaced by sec. 32 of the Supreme Court of Judicature Act, 1925, because according to it, the court was required to continue to decide upon matters of marriage as the Ecclesiastical Courts would have ruled when they still held jurisdiction. And as was already made clear, the Ecclesiastical Courts decided marriages under one law for the form and for the capacity of the parties.

 

(h)        When the Israeli Court sets out to determine the Israeli rule, we are not required to adopt the English rule specifically. And for my part, I do not see myself as obligated to correct the English rule which – even if the result of a mistake – is now accepted in England, though it has yet to be tested in the House of Lords. If the English rule suits our needs, we can accept it as the rule in Israel. However, it is possible that the American rule is more suitable. The English judges who considered the issue relevant to our matter cited the words of American commentators and judges at length, see Brook v. Brook (1861) [16], and Ogden v. Ogden (1907) [17], and many others as well. If English courts do so, why would we not do the same, and draw inspiration also from common law sources outside of England?

 

(i)         It would not be superfluous to note that the incapacity of a Jewish man to marry a Christian woman, even if it is a lack of capacity, is not an actual “status”. Schlesinger’s status is that of an adult man, and he is competent for any legal act, including marriage. Only the religious law that applies to him invalidates his action if he marries a Christian woman, and such marriage would be a nullity. In this regard, Professor Martin Wolff states in his book  Private International Law, 2nd ed., sec. 259, at p. 278:

To be married is a status; to be married to Mr. X is not.

 

He terms such inability to marry a particular woman  “relative incapacity”. In the meantime, the idea of the uniformity of one’s status for all purposes has been done away with in England. It was already decided in the matter of Baindail v. Baindail (1946) [29] that a person may be married for the purposes of barring a second marriage, and at the same time may not be married for the purposes of granting a divorce decree. Such relative incapacity was addressed by the court in the matter of Chetti v. Chetti (1909) [30], from which it arises that there are times when the law does not consider it. Should  the Petitioner, for example, seek maintenance from her husband in the District Court, I am not at all certain that such relative incapacity would lead the court to absolve the husband from the obligation to support his wife.

 

(j)         When a man lacks legal capacity in his domicile, he will also be barred from performing any legal act in any other location, according to the statement of Justice Cotton in Sottomayer, which is not limited to capacity for marriage. As a result, if a 23 year-old person, who has yet to reach the age of majority in his domicile, were to arrive in Israel and make some transaction, the transaction would be invalid. However, in that regard, sec. 77 of the Capacity and Guardianship Law, 5722-1962, provides that while the validity of such a transaction would indeed be subject to the law of the minor’s domicile, a person in Israel who was unaware of the minor’s incapacity may be entitled to the defense under sec. 77(1), and the transaction may remain in effect despite the person’s minority.

 

From the above law’s provision we learn that the Israeli legislature intends to follow the law of the domicile, but subject to exceptions, rather than in every case.

 

14.       In the matter of Brook v. Brook (1861) [16], and in the matter of Mette v. Mette (1859) [15], the marriage of a widower who married the sister of his late wife abroad was ruled invalid. Such a marriage was then prohibited in England under an explicit statute that purported to reflect Divine law, deeming the marriage as incestuous in violation of Leviticus 18 (as was mistakenly interpreted by way of expansion in the Christian tradition).

 

There was no general incapacity to marry here, as was already clarified in sec. 13(h) above, but in light of the English statute, the marriage was in violation of English moral sensibility, and recognizing it was in violation of public order. The fact that in the matter of Brook, the court relied upon the opinion of Judge Creswell in that same matter in the trial court proves this (Brook v. Brook  (1858) 65 E.R. 747 [31]). In addressing the question of the capacity to marry, the same judge said in the matter of Simonin v. Mallac, (1860) 2 L.T. 327, 330 [27] as follows:

           It is very remarkable that neither in the writings of jurists nor in the arguments of counsel, nor in the judgments delivered in the courts of justice, is any case quoted or suggestions offered to establish the proposition that the tribunals of the country where a marriage has been solemnized in conformity with the laws of that country should hold it void because the parties to the contract were the domiciled subjects of another country where such a marriage would not be allowed.

 

Every legal system refuses to recognize the validity of a legal act if it may harm the public order in that country, and even the United States, despite its liberal attitude to the validity of a marriage, is no exception to this rule. In sec. 132(b), the Restatement denies the validity of a marriage that was valid in the location where the marriage was solemnized, in this case:

 

… incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil.

 

This is none other than the English rule that derives from the judgments in Brook [16], Mette [15], and others.

 

15.       Does Israeli public order demand the denial of the validity of mixed marriages? This is a question that the courts may be be required to consider when the time comes, but I would argue that we not jump to a hasty conclusion as a result of the English Brook [16] precedent. There are several rationales for this.

 

Any country that wishes to live among the family of nations must, to that end, forgo the implementation of some of its legal rules when a foreign element arises and intervenes in a legal act. For example, we do not believe that a surety must be found invalid because it was given orally, and the prevailing law regarding Jews in Israel does not require the determination of a court in order to dissolve a marriage, but rather the granting of a get [a Jewish bill of divorce – ed.] and its acceptance suffice. In other countries the law is different, but this difference does not infringe public order in Israel, and just as we ask other nations to recognize Israeli law, we do not invalidate a transaction that is subject to foreign law that is different from our law. When the rules of conflict of laws refer us to foreign law, Israeli law yields. But there are cases – exceptional cases – where giving effect to a foreign law and to its outcome would significantly infringe the public order by which we live, and only when a foreign law stands in contrast to the sensibilities of justice and morality of the Israeli public would we be required to invalidate it. This is the well-known distinction of the learned Savigny in System des Roemischen Rechts, vol. 8, p. 35, that led to the distinction between ordre public interne that yields before the rules of conflict of laws, and ordre public externe (international,) which yields to nothing.

 

The fact that Jewish religious Jewish invalidates mixed marriage does not necessarily compel the conclusion that when we come to consider a person’s matter according to foreign law, we will invalidate the marriage because it is a mixed marriage. The marriage would be found invalid if its invalidation is required for reasons of external (international) public order, as we explained above, that is, when an Israeli judge, giving expression to the sentiments of the Israeli public, would be compelled to say that the validity of such a marriage does not comport with our way of life, wherever the ceremony was solemnized. When in doubt – the validity of the act must benefit from such doubt.

 

The invalidity of the marriage according to religious law would be a very weighty consideration, but it must not be the sole consideration. The Israeli public is currently divided into two camps. One camp, which observes the religious precepts – or most of them – stands opposed to a different camp which stresses the difference between a state under the rule of law and a state under Jewish religious law. The views of the two camps are in direct opposition to one another. Public order in Israel does not mean that the judge would compel the view of one camp upon the other. Life requires an attitude of tolerance for the other, and consideration for his different views, and thus the judge must be guided by balancing all of society’s prevailing views.

 

In the matter of Brook [16], the court emphasized (ibid., p. 98) that the unlawfulness of an incestuous marriage does not stem from God’s law but from what Parliament has explicitly pronounced, mistakenly or not, as God’s law. A similar question recently stood before the English court. Another man, a Jew, married his brother’s daughter. Such a marriage is still prohibited in England, on the grounds of consanguinity, according to the Marriage Act, 1949. And it was proven to the court that this is not the Christian approach alone, but that a similar approach has been adopted by Islam and in India. But the marriage was lawful in Egypt, where the spouses were married, and the prohibition against such marriage within England – so held the court – does not necessarily establish the demands of public order for purposes of addressing a ceremony conducted outside of it (Cheni v. Cheni (1963) [32]).

 

16.       Section 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, is the law of the land, but it only provides for the marriage of Jews in Israel. This is the internal public order, that is the public order that prevails within the country. But what is the public order when the marriage was not solemnized in the country?

 

Since this Court held, in CA 191/51 [3], in regard to the form of the ceremony, that the law of the location where the ceremony was performed is determinative, there are hundreds – perhaps thousands – of couples in Israel who did not enter into a Jewish marriage but rather married in a civil ceremony. The state recognizes this, but the religion does not. I fear that from the perspective of an observant Jew, this is an offense that is no less serious than that of a mixed marriage. Recognizing the validity of such a marriage is inconsistent with his world view and is an egregious offense to his sensibilities. But this is a compromise required from such a Jew in exchange for the compromise required from the other camp for the sake of a common life as one nation. The stream of immigration continues to bring to Israel couples from all the countries of the world, among them some who did not marry in accordance with Jewish law in their countries of origin. Should the public order of such a country of immigrants interfere with the welfare of such families and declare all of these cases as simply concubinage? This is a weighty question that requires consideration, but the answer is not required for the matter before us.

 

I will only say this: neither English law nor American law invalidates a marriage on the grounds that the couple went abroad to solemnize a marriage that they could not celebrate in their own country. See Simonin v. Mallac (1860) ibid., [27], McDonald v. McDonald (1936) [35].

 

In the present case, it is clear that the Petitioner’s husband traveled to Cyprus and married her there because he could not marry her here, but we do not invalidate a marriage for that reason alone.

 

In conclusion:

1. For the purpose of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony that was performed is determinative, and investigation into the validity of the marriage is not the concern of the registration officer.
2. Prima facie evidence of the ceremony is sufficient in order to require the registration officer to register a marriage ceremony that was performed.
3. In addition, it cannot be determined with certainty that when the question of the validity of the marriage comes before a civil or a religious court – a mixed marriage would be found to be invalid.

 

I would, therefore, make the order nisi absolute.

 

Justice Berenson:

I agree that the order nisi must be made absolute for the reasons given by my honorable colleague Justice Sussman in the first part of his opinion, addressing the question of the status, duties and authorities of the registration officer. I, too, am of the view that the instructions assembled in document M2, presented in their entirety in the opinion of my honorable colleague, provide a correct response to this issue. The registration officers would, therefore, do well to continue to keep these instructions in mind, and follow them, even though they apparently do not yet constitute official directives of the Minister of Interior.

 

Justice Witkon:

I, too, concur in  the opinion of my honorable colleague Justice Sussman that for the purposes of registering the Petitioner in the Register of Inhabitants, there was no reason to raise the complex question as to whether her marriage is valid or invalid in terms of the law to which she is subject. With this, I, like my honorable colleague Justice Berenson, leave the answer to this question for future consideration.

 

Justice Manny:

I concur in the opinion of my honorable colleague Justice Sussman that is neither the function, nor within the capability of the registration officer to decide as to the validity of a marriage proven to be legitimate by prima facie evidence presented to him by the party seeking its registration. For this reason, I, too, am of the view that the order nisi should be made absolute.

 

Decided by a majority to make the order nisi absolute.

 

The Respondent will pay the Petitioner a sum of IL 250 as costs for the petition and attorney’s fees (in total).

 

Given this day, 28 Shevat 5723 (February 22, 1963).

 

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

1. Tel-Aviv-Jaffa Rabbinical Court
2. Supreme Rabbinical Court of Appeals
3. Ran Lev

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

Before Deputy President A. Barak and Justices S. Levin and D. Levin

 

 

 

 

[1]   CA 26/51 Kotik v. Wolfson, IsrSC 8, 1341

[2]   CA 99/63 Peleg et al. v. Attorney General, IsrSC 17, 1122

[3]   HCJ 136/54 Pollack v. Herzog et al., IsrSC 9, 155

[4]  HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court  et al., IsrSC 15, 106

[5]   HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals et al., IsrSC 40(3) 699

[6]   HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court et al., IsrSC 48(3) 203

[7]   ST 1/60 Winter v. Beeri, IsrSC 15, 1457

[8]   CrimA 230/56, 4/57 Shorer v. Attorney General, IsrSC 11, 750

[9]   FH 22/73 Ben Shahar v. Mahlev, IsrSC 28(2) 89

[10] HCJ 547/84 Of Ha’emek, Registered Agricultural Cooperative Association v. Ramat Yishai Local Council et al., IsrSC 40(1) 113

[11] MApp 613/82 State of Israel v. Awad, IsrSC 36(3) 612

[12] HCJ 991/91 David Pasternak Ltd. et al. v. Minister of Construction and Housing et al., IsrSC 48(5) 50

[13] HCJ 355, 370, 373, 391/79 Katalan et al. v. Prisons Service et al. IsrSC 34(3) 294 [http://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[14] HCJ 14/51 Attorney General v. Editor of “Davar” et al., IsrSC 8, 1017

[15] BAA 663, 691, 5145/90 A. v. Israel Bar Association District Committee of Tel Aviv – Jaffa, IsrSC 47(3) 397

[16] MApp 678/82 Tayar v. State of Israel, IsrSC 36(3) 386

[17] CA 703/70 Somech v. Ozer et al., IsrSC 24(2) 799

[18] CA 230/69 Kaneti v. United Shvili Film et al., IsrSC 23(1) 505

[19] LA 451/85 Adin Marketing Company Ltd. v. Flatto Sharon, IsrSC 39(3) 303

[20] CA 548/78 A. et al. v. B., IsrSC 38(1) 736

[21] LCA 26/89 Mashraki et al. v. "Rotem" Insurance Company Ltd., IsrSC 42(4) 348

[22] LCA 18/89 Pichman v. Bank Leumi Leyisrael Ltd., IsrSC 42(4) 513

[23] HCJ 243/62 Israel Film Studios Ltd. v. Levi Geri et al., IsrSC 16, 2407; IsrSJ 4, 208 [English]

[24] CrimApp 6654/93 Binkin v. State of Israel, IsrSC 48(1) 290

[25] HCJ 323/81 (Mot 533/81) Vilozny v. Supreme Rabbinical Court in Jerusalem, IsrSC 36(2) 733

[26] HCJ 158, 2130/66 Segev et al. v. Rabbinical Court et al., IsrSC 21(2) 505

[27] HCJ 10/59 Levi v. Tel Aviv Rabbinical Court et al., IsrSC 13 1182

[28] HCJ 155/65 Gurovitz v. Tel Aviv Rabbinical Court et al., IsrSC 19(4) 16

[29] HCJ 95/63 A. v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 17, 2222

[30] HCJ 161/64 Mussman v. Haifa Rabbinical Court et al., IsrSC 18(3) 502

[31] HCJ 816/80 Gotthelf v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 38(3) 561

[32] HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court, IsrSC 9, 1193

[33] HCJ 7/83 Biaris v. Haifa Rabbinical Court et al., IsrSC 38(1) 673

[34] HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court, IsrSC 20(2) 342

[35] HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court, IsrSC 46(2) 1

[36] HCJ 1689/90 Aasi v. Central District Sharia Court, IsrSC 48(5) 148)

[37] HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221

[38] HCJ 80/93 Gurfinkel v. Minister of the Interior, IsrSC 17, 2048

[39] CA 303/57 Reich v. Hammer,  IsrSC 11, 1362

[40] HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7, 534

[41] HCJ 190/57 Assaig v. Minister of Defence, IsrSC 12(1) 52

[42] HCJ 505, 496, 488/83 Baransi v. Director of the Visa and Nationality Dept; Dasuki v. Minister of the Interior et al., IsrSC 37(3) 722

[43] HCJ 448/85, HCJApp 32, 5/86 320, 284/85 Dahar et al. v. Minister of the Interior,  IsrSC 40(2) 701

[44] MApp 1064/86 Archbishop Ajamian v. State of Israel, IsrSC 41(1) 83

[45] FH 9/77 Israel Electric Corporation. v. “Ha’aretz” Newspaper Ltd., IsrSC 32(3) 33; IsrSJ 9, 295

[46] LA 558/85 Ilin et al. v. Rotenburg et al., IsrSC 40(1) 553

[47] HCJ 869, 852/86 Aloni et al. v. Minister of Justice et al., HJCApp 521, 523, 543, 518, 515-512, 507, 502, 487, 486, 483/86 IsrSC 41(2) 1

[48] HCJ 578/82  Naim v. Jerusalem District Rabbinical Court et al., IsrSC 37(2) 701

[49] HCJ 403/71 Alkourdi v. National Labor Court et al., IsrSC 26(2) 66

[50] ST 1/50 Sidis v. Chief Execution Officer, Jerusalem et al., IsrSC 8, 1020

[51] CA 174/83 N. Soher v. P. Soher, IsrSC 38(2) 77

[52] HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court et al., IsrSC 26(2) 765

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

[54] ] LC 52/8-4; 7-41 unreported

 

United States cases cited:

 

[55] Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

[56] Matter of Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2^nd 125 (1991)

 

 

 

 

Petition for an order nisi. The case was heard as if an order nisi were grated. The petition was granted, and the order nisi was made absolute.

 

M. Bar Shilton, Y. Bar Shilton – on behalf of the Petitioners

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

Deputy President A. Barak: The question before the Court in this petition is: What considerations may a Rabbinical Court take into account when considering whether or not to grant a writ ne exeat republica?

 

The Facts

 

1. Petitioner 1 (hereinafter: the Petitioner) and Respondent 3 (hereinafter: the Respondent) are married. They have three minor children (Petitioners 2, 3 and 4). Disputes arose between the Petitioner and the Respondent. The Petitioner filed a claim for child support and custody in the District Court (on May 10, 1992). She also sued for divorce in the Rabbinical Court. In response, the Respondent filed suit for marital reconciliation with the Rabbinical Court (Respondent 2). In the framework of the suit for marital reconciliation, the Respondent requested that the Tel Aviv-Jaffa Rabbinical Court issue a writ ne exeat republica to prevent the Petitioner from leaving Israel. The request stated that "for some time, the wife has been having an affair with a foreign man who is a resident of the United States, and it is her present intention to leave Israel, to move to the United States with the children, and  to live there with this man". The Rabbinical Court, in the presence of the Respondent alone, issued an order barring the Petitioner and her children from leaving the country. The Petitioner requested that the Rabbinical Court rescind the order. The request noted that the Petitioner and her eldest daughter (Petitioner 2) wished to go abroad for two weeks. The vacation was planned long in advance and was "meant as a bat-mitzvah gift for the daughter". The two sons (Petitioners 3 and 4) would remain in Israel. The Petitioner has an active business in Israel, and there is no concern that she might not return to Israel. The Respondent objected to this request. In the meantime, the original date for the Petitioner's departure from Israel passed. She amended her request to a new date (August 14, 1992), adding that she was also combining a business trip in her trip and that preventing her from leaving would inflict severe monetary damage.

 

The Proceeding before the Rabbinical Court

 

2. The Tel Aviv-Jaffa Rabbinical Court held a hearing in the presence of the parties (on August 2, 1992). The relationship between the parties was described in the course of the hearing. The Respondent stated that a foreign man disrupted the couple's marriage. According to the Respondent, the purpose of the Petitioner's travel abroad was to meet with the foreign man and to have intimate relations with him. The Petitioner emphasized the rift in their personal relationship. She stated that the purpose of the trip was an excursion (as a gift to the daughter) and business enquiries. At the end of the hearing (on July 30, 1992), the Rabbinical Court reached the following decision:

 

Having heard the arguments and responses of the parties and their attorneys, in light of the material presented to us, and in view of the claims of the husband who claims and who fears that the wife's travel abroad at this stage would cause a final and irreparable rift between them, this court decides – at this stage – not to grant the wife's request to rescind the writ ne exeat republica against her. The court will hold an additional hearing on the matter of the wife's request on the 24^th of Elul, 5752 (September 22, 1992) at 9:00 a.m. The parties are required to negotiate an appropriate solution which will enable them to travel abroad together, or will enable the wife to travel separately under such terms as will abate the husband's concerns.

 

An application for leave to appeal this decision was filed with the Supreme Rabbinical Court. The court was asked to schedule an urgent date for a hearing in order to allow the Petitioner to leave Israel on the date she requested, so that she and her daughter would be able to return to Israel in time for the beginning of the school year. The Supreme Rabbinical Court denied the application for leave to appeal (on August 6, 1992), ruling:

 

Inasmuch as the Regional Court decided to schedule an additional session to continue the hearing, it is inappropriate to hear the appeal at this stage .

 

The petition before us was filed against these Rabbinical Court decisions.

 

 

The Parties' Arguments

 

3. The Petitioners claim that the reason that was given by the Regional Rabbinical Court to bar their exit from the country – how the departure would affect the couple's relationship – is invalid. This reason is contrary to the Rabbinical Court's own approach and to the case law of the civil courts. It is repugnant to the provisions of Basic Law: Human Dignity and Liberty. This Basic Law establishes the right of every person to leave Israel. Against this background, granting a writ ne exeat republica must be limited to securing a party's appearance in court and guaranteeing the monetary rights of the other party. It was further argued that the Rabbinical Court lacked authority to prevent the daughter from leaving the country.

 

4. In his response, the Respondent argues that he seeks to achieve marital reconciliation. The court acted within this framework and did not act ultra vires. There is a concern that the Petitioner may not return to Israel for the Rabbinical Court's hearings and will thereby frustrate the claim for marital reconciliation. The Petitioner must wait until the hearing in the Regional Rabbinical Court is exhausted.

 

5. Upon the commencement of the hearing (on August 13, 1992), (at the consent of the parties) we treated the hearing as though an order nisi had been granted. After hearing the parties' arguments, we made the order absolute and cancelled the writ ne exeat republica against the Petitioners. We instructed that the cancellation of the order be conditioned upon the Petitioners' furnishing a personal bond securing their return by September 15, 1992, and a third-party guarantee in the amount of NIS 100,000.

 

We ruled that the Respondent will bear the Petitioners' costs in the amount of NIS 10,000. We instructed that our reasons will be given separately. These are our reasons.

 

The Normative Framework

 

6. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: the Rabbinical Courts Jurisdiction Law) sets forth the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law. The Rabbinical Courts also rule in accordance with the general substantive (statutory and case-law) law that applies to matters under their jurisdiction. The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. In the past, certain provisions in this regard were established in the Jewish Community Regulations.[1] These regulations are no longer valid, and for this reason alone they cannot serve as a source of the authority to promulgate procedural rules. What, then, is the procedural regime that applies in the rabbinical courts?

 

7. One might argue that the authority to prescribe procedural rules derives from the substantive law. Since the substantive law followed by the rabbinical courts is primarily Jewish law, therefore Jewish law should also be the source of the rabbinical courts authority to establish rules of procedure (see: E. Shochetman, Procedures (Sifriyat Hamishpat Ha’ivri, 5748) 12 (Hebrew)). This argument  cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules. Thus, for example, the civil court rules in accordance with Jewish law in many matters of personal status, however it does not apply the procedural (and evidentiary) rules of Jewish law when ruling on such matters (see, CA 26/51 Kotik v. Wolfson [1] at p. 1344; CA 99/63 Peleg. v. Attorney General [2] at p. 1128). Indeed, to paraphrase Justice Silberg’s statement that "the law here is, so to speak, a 'function' of the judge" (see: M. Silberg, Personal Status in Israel (Mif'al Hashichpul, 5718) 6 (Hebrew)), we might say in this case that the procedure is a “function” of the judge and not of the (substantive) law by which the judge rules. Therefore, the power of a rabbinical court judge to establish the court’s rules of procedure does not derive from the substantive law by which he rules. How, then, are the rabbinical courts’ rules of procedure established?

 

8. In my opinion, in the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures (see HCJ 136/54 Pollack v. Herzog  [3] at p. 165; also see P. Goldstein, The “Inherent Jurisdiction” of the Court, 10 Iyunei Mishpat 37, 49 (5744-45) (Hebrew); I. H. Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems 32 [1970]). Justice Berenson elaborated on this in reference to the rabbinical courts, stating:

 

A court for which the State did not prescribe procedures and did not delineate the manner by which they shall be established is authorized, by virtue of its inherent jurisdiction, to establish its own procedures that it will follow… When there is a hierarchic system of tribunals for which the legislature has not provided procedures, the question of who will decide them and how is generally an internal manner  (HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court [4] at p. 114).

 

Similarly, my colleague Justice D. Levin stated:

The Druze courts, which were duly established and have been conducting their hearings for years, do not operate in a vacuum. Since no procedural regulations were promulgated by the authorized minister, the judges of the Druze courts were permitted to establish their own procedures that they followed by virtue of their inherent jurisdiction (HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals [5] at p. 704).

 

Thus, the rabbinical courts have inherent jurisdiction to prescribe the procedures that they will follow. In exercising that jurisdiction, the Israeli Rabbinical Courts Procedure Regulations, 5753 (Y.P. 5753 2298) were promulgated. A review of these regulations reveals that their content reflects Jewish law (see Shochetman, ibid., at p. 11). However, in terms of the power to promulgate them, they in fact realize the rabbinical courts' inherent jurisdiction to prescribe their own procedures. Indeed, alongside the procedures that were promulgated in the past by virtue of the rabbinical courts' inherent jurisdiction, the courts continue to enjoy inherent power to regulate those procedural matters which have not been addressed in regulations (compare: HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court [6] at p. 214). This inherent jurisdiction derives from the rabbinical court (like any other judicial instance) being a judicial institution established by law, which is intended to rule upon disputes, and which is granted power that is inherent to the very performance of the duty and the need to conduct judicial proceedings.

 

Inherent Jurisdiction and its Limits

 

9. A judicial instance's inherent power to prescribe procedures is of signal importance. "Without it proper judicial activity would be impossible" (Justice H. Cohn in ST 1/60 Winter v. Beeri [7] at p. 1474). The inherent powers "are vital in order to allow the court to perform its duties properly…" (Justice Landau in CrimA 230/56 Shorer v. Attorney General [8] at p. 753). They underlie "that minimal authority in matters of procedures, trial efficiency and justice that the court needs in order to perform its purpose: administering justice. This power is the external reflection of the internal sense of justice with which the judge is endowed and that he expresses in his daily actions" (Justice Berenson in FH 22/73 Ben Shachar v. Machlev [9] at p. 96).

 

This power is broad. It "encompasses any matter that occurs in or out of the courtroom that is related to the trial" (HCJ 305/89 [6] at p. 214). Indeed, due to the broad scope of this power, it has long been accepted that it should be exercised with great caution (see: Roadway Express v. Piper (1980) [55] at p. 763). This ancillary power is not unlimited. It is not broader than the express authority to prescribe procedures. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control. Moreover: inherent jurisdiction (as well as express jurisdiction in procedural matters) is, in essence, "governmental authority". Therefore, it must be exercised reasonably. Indeed, the judge, like any person exercising governmental authority, must act reasonably. I addressed this elsewhere, stating:

 

A judge may not toss a coin. He may not consider any factor that he chooses. He must consider reasonably. We have here, as in administrative law, a margin of judicial reasonableness. There are a number of options within the margin among which a reasonable judge may choose. Two reasonable judges may reach different results (HCJ 547/84 Of Haemek v. Ramat Yishai  [10] at p. 141).

 

This duty to act reasonably also applies when a judge exercises his inherent jurisdiction (MApp 613/82 State of Israel v. Awad [11] at p. 616).

 

10. What constitutes reasonable exercise of judicial authority? The answer is that reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. I addressed this elsewhere, stating:

 

Judicial discretion, like any governmental discretion, must be exercised in the framework of the law. A judge must not be arbitrary or discriminatory. He must consider his discretion reasonably… This requirement means, inter alia, that the judge must weigh all of the relevant considerations, juxtapose them, and strike a balance among them where there is friction. The nature of the relevant considerations changes from case to case… what characterizes them all  is that they present considerations of judicial and judiciary efficiency along with considerations of justice, morality, human rights and the court's standing in modern Israeli society… (HCJ 991/91 David Pasternak Ltd. v. Minister of Construction and Housing  [12] at p.  60).

 

Thus, proper exercise of "inherent" judicial authority – like the exercise of explicit statutory procedural authority – means exercising the inherent authority in a manner that strikes a proper balance among the values, principles and interests that must be considered when exercising inherent authority.

 

11. What are the values, principles and interests that must be considered when exercising inherent jurisdiction? It would appear that these values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction. Naturally, these values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular. Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open  and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included in the framework of these typical considerations.

 

12. A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty (see: HCJ 355/79 Katalan v. Prisons Service [13]; HCJ 14/51 Attorney General v. Davar [14]). A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property (see BAA 663/91 A. v. Israel Bar Association [15]). It must consider the right to strike and lockout (see: MApp 678/82 Tayar v. State of Israel [16]; MApp 613/82 State of Israel v. Awad [11]; LC 52/8-4 7-41 [54]). It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country (see: CA 703/70 Somech v. Ozer [17]; CA 230/69 Kaneti v. United Shvili Film [18]; LA 451/85 Adin Marketing v. Flatto Sharon [19]). Indeed, constitutional human rights are part of constitutional law and are directed first and foremost towards the governmental authorities. However, they project (directly and indirectly) onto all the branches of law and thus create a constitutionalization of the law. Procedural law is not immune to human rights. On the contrary: procedural law must recognize them and give them expression. Indeed, in a long line of judgments, this Court has recognized procedural law's subordination to accepted human rights. Justice Elon addressed this in stating:

 

…In the absence of express law, the court does not have the power to order blood tests, even if it would not involve coercion. Indeed, the court has ancillary inherent jurisdiction to issue various decisions and orders in order to effect a just and efficient examination, however orders that by their very nature comprise an infringement of a person's basic right, even if the infringement will not be coercive, cannot not be included in this ancillary power (CA 548/78 A.. v. B. [20], at p. 756).

 

Similarly, the Supreme Court of the State of New York [sic][2] ruled, in reference to the court's inherent power, that: "Even in the name of its inherent power, the judiciary may not... violate the constitutional rights of persons brought before its tribunals" (Matter of Alamance County Ct. Facilities [56] at  p. 132). Similarly, my colleague Justice S. Levin emphasized the need to consider a person's constitutional right to leave Israel in the context of proceedings concerning the issuing of a writ ne exeat republica (see LCA 26/89 Mashraki. v. "Rotem" Insurance  [21] at p. 552).

 

My colleague, Justice S. Levin, wrote:

 

…In light of the severe restriction of the freedom of movement inherent to the use of this regulation (Regulation 376 – A.B), a freedom which is a constitutional right of the highest order, the regulation should not be employed unless all of its elements have been strictly proven…. (LCA 18/89 Pichman v. Bank Leumi [22] at p. 517).

 

13. I have addressed the corpus of general considerations that govern the exercise of (statutory or inherent) procedural power. Sometimes these considerations all lead in one direction and sometimes they conflict internally with one another: procedural justice leads in one direction while procedural efficiency leads in another. And both of these could lead in a direction that differs from the direction of human rights. In such a state of affairs, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights. This is particularly evident now, with the enactment of the Basic Law: Human Dignity and Liberty. This Basic Law has elevated human rights – the majority of which were based on case law ("'Unwritten' Basic Rights": HCJ 243/62 Israel Film Studios. v. Levi Geri [23]) to a supra-statutory constitutional level. Although the validity of the previous law – with its procedural rules – was preserved (sec. 10 of Basic Law: Human Dignity and Liberty), its interpretation, internal balances and application must be influenced by the constitutional status of human rights (see: CrimApp 6654/93 Binkin v. State of Israel [24]).

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

14. Does this general approach regarding the scope of inherent jurisdiction – both in terms of its breadth and in terms of its limitations – also apply to the inherent power of the rabbinical courts to prescribe their own procedures? The answer is affirmative. A rabbinical court is a judicial instance established by statute. "The rabbinical courts draw their judicial authority from the state's legal system that granted them that authority” (Justice Elon in HCJ 323/81 Vilozny v. Supreme Rabbinical Court [25] at p. 738). Like any judicial instance, it is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers. This approach was clearly expressed in a long list of judgments that held that the rabbinical courts' procedures must respect "basic principles of fairness" (HCJ 158/66 Segev v. Rabbinical Court [26] at p. 521, per President Agranat). These are the rules of natural justice that obligate any court system, including the rabbinical courts (see: HCJ 10/59 Levy v. Tel Aviv-Jaffa Rabbinical Court [27]; HCJ 155/65 Gurovitz v. Tel-Aviv Rabbinical Court [28] at p. 19; HCJ 95/63 A. v. Tel Aviv-Jaffa Rabbinical Court [29] at p. 2221; HCJ 161/64 Mussman v. Haifa Rabbinical Court [30]; HCJ 816/80 Gotthelf v. Tel Aviv-Jaffa Rabbinical Court [31]). Justice Berenson addressed this matter – in the context of the Rabbinical Court's inherent power – stating:

 

A court for which state law did not establish procedures nor delineate the manner for their establishment, is authorized, by virtue of its inherent jurisdiction, to decide for itself the procedures that it will apply. In this regard – to the extent that the state law does not limit the court – it is its own master. However, the arrangements it prescribes must not comprise anything repugnant to the relevant general laws of the State … and must realize the principles of natural justice, since they must be properly observed by every body that decides legal or quasi-legal matters … (HCJ 150/9 [4] at p. 114).

 

Observing the rules of natural justice is but one of the limitations upon inherent jurisdiction. It is not the only limitation. Justice Goitein addressed this in stating:

 

It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not intervene with judgments of the religious courts unless they have acted without jurisdiction, or in exceptional cases which call for our intervention for the administration of justice (HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court,  [32] at p. 1198; [IsrSJ 2, 429 at 436]).

 

Justice Bejski stated in a similar spirit:

 

That which has been stated until now justifies the intervention of this Court, despite its reticence to do so on the merits except in cases of ultra vires, of infringement of the principles of natural justice, or for the sake of tikkun olam [“repairing the world” – ed.] (HCJ 7/83 Biaris v. Haifa Rabbinical Court [33] at p. 687).

 

Thus, the "administration of justice" and the "repairing of the world" are additional limitations – beyond the limitation associated with the rules of natural justice – that apply to the exercise of (statutory or inherent) procedural authority. These also include, inter alia, the limitations deriving from the fundamental principles concerning recusal and judicial integrity, and open and accessible courts (and compare: HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court [35]; HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court [35] IsrSC 46(2) at p. 21; HCJ 1689/90 Aasi v. Central District Sharia Court [36]). Similarly, any recourse by the rabbinical court to its inherent authority must be consistent with the protection of human rights. Indeed, every litigant in the rabbinical courts appears before those courts bearing all the human rights enjoyed by every person in Israel. The Israeli legal regime guarantees human rights to every person, and every person enjoys these rights in every judicial forum. The move from a “civil” judicial forum to a “religious” one does not lead to a loss or denial of basic human rights. “It would be inconsistent with these fundamental rights that the move from a civil court to a religious court would lead to a loss or infringement of these basic rights. No ‘confiscation’ of these civil rights can be permitted in the absence of an express statutory provision consistent with the requirements established under our constitutional system” (HCJ 1000/92 Bavli v. Great Rabbinical Court [37] at p. 248). Indeed, the promise of human rights is general and applies to all relationships and before all the courts. A religious court does not operate in a vacuum. It operates within the general framework of the Israeli legal system. Professor Rosen-Zvi rightly observed:

 

The religious court indeed holds jurisdiction – sometimes exclusive – to address a certain area of Israeli law. But the court remains an Israeli judicial forum within the general framework of Israeli law. The court operates within the framework of Israeli law and the general legislative framework, and it is not exempt from the commandments of the provisions of Israeli law (A. Rosen-Zvi, Israeli Family Law: The Sacred and the Secular   (Papyrus, 1990) 86 [Hebrew]).

 

The Israeli legal system is not a confederation of separate systems. The Israeli legal system is a unity that recognizes the uniqueness of its various parts. Therefore, substantive matters of personal status are subject to Jewish law, which at times may take precedence over some arrangement of the general law. However, such precedence is limited exclusively to matters of personal status, “no more and no less” (per Landau J. in HCJ 80/63 Gurfinkel v. Minister of the Interior [38] at p. 2068). It does not apply to what does not fall within the scope of personal status (see: Rosen-Zvi, ibid., p. 76). Thus, for example, it does not apply to the civil “mass” (and the various property rights it encompasses) with which every person comes before the Rabbinical Court (see: HCJ 1000/92 [37]). It also does not apply to the exercise of the rabbinical court’s inherent authority to address the proceedings before it. In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue. This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.  What is that proper balance when the rabbinical court is requested to issue a writ ne exeat republica against one of the litigants?

 

 

Ne Exeat Republica

 

15.       A stay of exit, whether as temporary or interlocutory procedural relief, can only be issued as a procedural means intended to assist a party “in realizing the relief that the substantive law grants to the party” (per Landau J. in CA 303/57 Reich v. Hammer [39] at p. 1363). The inherent authority of a judicial instance to establish procedure in regard to the granting of this procedural relief must therefore properly balance the values, interests and principles vying for dominance in the framework of procedural law.  A person’s constitutional right to leave Israel must be placed on one side of the scales. This right has been recognized as a basic right of a person in Israel. “A citizen’s freedom of movement to leave Israel is a natural right that is recognized as self-evident in every country with a  democratic regime, of which our country is one …” (per Silberg J. in HCJ 111/53 Kaufman v. Minister of the Interior [40] at p. 536; and see: HCJ 190/57 Assaig v. Minister of Defence [41] at p. 55; HCJ 488/83 Baransi v. Director of the Visa and Nationality Dept. [42]; HCJ 448/85 Dahar v. Minister of the Interior [43]; MApp 1064/86 Archbishop Ajamian v. State of Israel [44]). It derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right. Basic Law: Human Dignity and Liberty adopted this approach (sec. 6(a)) and granted the right to leave Israel (“All persons are free to leave Israel”) supra-legal status (see: CrimApp 6654/93 [24]). “All governmental authorities” – including all judicial forums (as they, too, are governmental authorities) “are bound to respect” this right (sec. 11 of Basic Law: Human Dignity and Liberty).

 

16.       As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. A litigant’s leaving the country may influence the legal proceedings and the possibility of executing the judgment. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed. Leading a litigant to an “empty well” because the other side has left the country infringes both the personal interest of the victim and the public interest in maintaining proper legal proceedings. However, the plaintiff’s interest that  deserves protection is not the pressuring of the defendant to concede the suit in order to liberate himself from the restriction imposed by a stay of exit. The state is not a prison, and agreeing to a suit should not be a key for release from captivity. “… staying the defendant is not meant to serve as a means for pressuring him to ransom himself from captivity” Y. Sussman, Civil Procedure, S. Levin, ed., (6^th ed., 1990) 571 (Hebrew)).

 

17.       We have addressed the values, principle and interests that must be considered in regard to granting relief in the form of a stay upon exiting the country. On one hand stands the basic value of freedom of movement, while the litigant’s interest in ensuring his substantive rights by means of a legal process stands on the other. The two values stand in opposition. Balancing the conflicting values is therefore required.  My colleague Justice S. Levin addressed the need for striking this balance in the area of procedural law, noting:

 

The fundamental question that must be addressed in interpreting the said regulation is where is the balance point between the principle that the defendant’s right to freedom of movement not be restricted unnecessarily, and the need to prevent the defendant from fleeing abroad and thus frustrating the suit filed against him (LCA 26/89 [22] at p. 552).

 

Professor S. Goldstein similarly observed:

                       

…granting any type of preliminary relief involves a delicate balance of the plaintiff’s interests in preventing the defendant from frustrating the litigation, and that of the defendant in not having his liberty or property restrained prior to the definitive adjudication of his liability (Stephen Goldstein, Preventing a Civil Defendant from Leaving the Country as a form of Preliminary Relief, 20 Is.L.R. 18, 24 (1985)).

 

                       

Indeed, the balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a “decisional framework which contains a guideline of value…” (per Shamgar J. in FH 9/77 Israel Electric Corporation. v. “Ha’aretz” [45] at p. 361 [IsrSJ 9, 295]; and see: HCJ 991/91 [12] at p. 60).  This balance serves a dual purpose: first is serves as a standard for interpretation by which a procedural rule is given meaning; second, it establishes the boundaries of the (statutory or inherent) authority of the procedural rules themselves. Procedural rules whose interpretation leads to the possibility of preventing leaving the country to an extent that exceeds the standards established by the principled balance exceed the (statutory or inherent) power of the promulgator of the rules.

 

18.       It would appear to me that the proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment. My colleague Justice S. Levin gave expression to this standard in noting:

 

…when there is real, direct or circumstantial evidence from which one may infer a danger that the proceedings may be thwarted by the defendant’s travel abroad, the first principle (the defendant’s freedom of movement – A.B.) will retreat before the need to prevent the complainant from facing an empty well when judgment is rendered against the defendant, inasmuch as the rule is not intended to shield the defendant from his creditors and thwart them (LCA 26/89 [22] at p. 553).

 

I would like to make a few comments in regard to this standard. First, this standard is of a constitutional character. By establishing a causal connection between preventing leaving the country (as a constitutional right) and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system. Professor Goldstein addressed this in his abovementioned article in noting (at p. 26):

 

…the requirement of a causal connection is not merely a result of the interpretation of a specific rule of civil procedure, but rather the demand of a more fundamental principle of Israeli jurisprudence. It represents the application of a constitutional norm regarding the freedom of movement in general, and the right of a person to leave the country in particular.

 

Second, the causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. This standard was adopted in the Dahar case [43] in regard to striking the balance between the right to leave the country and the public interest in state security. In my opinion, this standard is also appropriate for striking the required balance in the matter before us. Dr. Yaffa Zilbershats addressed this in noting:

 

In our opinion, the “sincere and well-founded suspicion” test is better suited to balancing the interests in this case in which we deprive a person of his basic right to leave the country in order to protect the interest of the plaintiff that the legal proceedings or the execution of a judgment not be frustrated (Y. Zilbershats, The Right to Leave a Country (Ph.D. Diss., Bar Ilan, 1991) 203).

 

 

Third, not any possible harm, whether severe or insignificant,  can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., “frustrating the lawsuit in advance through the debtor’s fleeing abroad…” (LCA 26/89 [21] at p. 552, following LA 558/85 Ilin v. Rotenburg [46] at p. 556). In addressing the nature of the permissible infringement of a person’s right to leave Israel, Dr. Zilbershats writes (ibid., p. 180):

 

In our opinion, because the right to leave the country is a basic human right of great importance, it should only be possible to restrict it if it has the potential to frustrate a judicial proceeding or prevent the execution of a judgment against the person seeking to leave the country.

 

Fourth, meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country. It is not a sufficient condition. Thus, for example, procedural rules may impose additional demands, for example, that a condition for granting a writ ne exeat republica is that: “The defendant is about to leave the country permanently or for an extended period” (rule 376(a) of the Civil Procedure Rules, 5744-1984). Fifth, before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement. Thus, for example, providing an appropriate bond may often meet this requirement. Sixth, the court should exercise this procedural authority with great care. “Unquestionably, preventing a person from leaving the country infringes an individual’s liberty, and therefore requires careful consideration…” (per Ben-Porat, D.P. in LA 451/85 [19] at p.305). The court must therefore meticulously examine whether the required standard is met, and only “if all the elements have been strictly proven” can the requested order be granted (per S. Levin, J. in LCA 18/89 [22] at p. 517). Granting the order must not be routine, and it should properly be granted only when justified by the circumstances.

 

Seventh, naturally, the application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize. Proceedings for the return of a loan are not the same as divorce proceedings. In the former, the legitimate interests of the creditor can usually be ensured by an adequate bond. In the latter, at times (although not always) the sincere and well-founded suspicion that the woman may be rendered an agunah [a “chained woman” – ed.] may require granting a writ ne exeat republica. Moreover, proceedings that can lawfully be conducted without the personal presence of the parties are unlike proceedings that can only be lawfully conducted if the parties are actually present. In the former case, a party’s leaving the country will not frustrate the proceedings, while in the latter it will frustrate the very possibility of conducting proceedings.  Nevertheless, even here a less drastic means should always be preferred. Eighth, this standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. We must bear in mind that the claim has not yet been proved, and a judgment has not yet been rendered. The certain infringement of one party’s freedom of movement stands against the mere claim of the other party who argues that his substantive right has been infringed, but whose claim has not yet been accepted and no judgment has recognized it. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the person who will suffer the certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

 

Ne Exeat Republica in the Rabbinical Court

 

19.       As we have seen, the Rabbinical Court has the inherent power to establish rules of procedure. Procedures for preventing a litigant from leaving the country were established within that framework. Such procedures are established under rule 106 of the Rabbinical Courts Rules of Procedure, 5753 (see: HCJ 852/86 Aloni v. Minister of Justice [47] at p. 61). In the framework of its inherent power, the Rabbinical Court can, indeed, establish procedural rules in general, and procedural rules in regard to preventing a person from leaving the country in particular, in accordance with its procedural conceptions, which may differ from the procedural conceptions of the “civil” courts or of other religious courts (see: Shochetman, On Orders of Ne Exeat Regno against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts, 14 Mishpatim 83 (1984)). However, the Rabbinical Courts inherent power to establish procedural rules in general, and procedural rules in regard to preventing leaving the country in particular is limited by the proper balance of the values, interests and principles that characterize Israeli law. Therefore, the Rabbinical Court’s authority to order that a litigant may not leave the country is limited by the appropriate standard for balancing the conflicting values, interests and principles in this context. In accordance with them, judicial authority to bar a litigant from leaving the country may be exercised only when there is a sincere, well-founded suspicion that his leaving the country will frustrate or thwart the legal proceedings or prevent the execution of the judgment. It is against this background that one must understand this Court’s  statement that “the purpose of the restriction imposed upon a person, which prevents his leaving Israel, is identical for a [civil] court or a rabbinical court” (HCJ 578/82 Naim v. Jerusalem District Rabbinical Court [48] at p. 711), and that “the areas of the authority of the various judicial forums – civil and religious – in regard to preventing leaving the country…must be similarly construed” (per Shamgar P. in HCJ 852/68 [47] at p. 61). Adopting this standard will achieve the normative harmony and legal unity to which every legal system aspires. This will ensure that the fundamental values and principles grounding our legal system will be protected and uniformly realized in the procedural rules of all Israeli judicial forums. In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. “Their procedural rules are their own business” (per Berinson J. in HCJ 403/71 Alkourdi v. National Labor Court [49] at p. 70). However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the State of Israel.

 

From the General to the Particular

 

20.       The District Rabbinical Court’s decision to prevent the Petitioner from leaving the country must be examined against the background of this normative structure. The Petitioner’s suit for divorce from the Respondent was pending before the Rabbinical Court. The Respondent’s suit for marital reconciliation was also pending. The court was requested to issue a writ ne exeat republica against the Petitioner and the children in the framework of the reconciliation suit. The Rabbinical Court granted the request on the basis of the Respondent’s claim that he “fears that the woman’s leaving the country at this stage would result in a final, irreparable rupture between them”.  The Rabbinical Court ordered a further hearing in two months, and requested that the parties negotiate “to achieve a suitable solution that would allow their joint travel abroad, or allow the wife to leave subject to conditions that would allay the husband’s fears”. The Great Rabbinical Court denied the wife’s appeal, holding that there were no grounds for hearing the appeal “inasmuch as the District Rabbinical Court had set a date for a further hearing of the matter”.

 

21.       Does the District Rabbinical Court’s decision maintain the proper balance between the freedom of movement (of the Petitioner) and ensuring the realization of the substantive rights (of the Respondent) by means of the judicial process? In my opinion, it does not, for two reasons. First, the evidentiary groundwork presented to the Rabbinical Court did not substantiate a “sincere and well-founded suspicion”. All that was before the court was the husband’s claim (unsupported by any additional evidentiary foundation) and the wife’s denial. That is insufficient to ground a sincere, well-founded suspicion. Second – and of primary importance in this context – the condition that the Petitioner’s absence from the country might frustrate or thwart the judicial proceeding in regard to reconciliation was not met. The judicial proceeding in the matter of reconciliation would not be frustrated at all by the Petitioner leaving the country. It is clear from the circumstances that the Petitioner will be travelling abroad for only a brief period. This brief absence from Israel cannot potentially influence the proceedings. In any case, the matter can be adequately addressed by requiring an appropriate guarantee. Postponing the hearing on revoking the writ ne exeat republica for two months is inconsistent with the status of the freedom to leave the country as a basic human right. Note that I am willing to assume – without deciding the matter – that the Petitioner’s leaving the country might negatively influence the couple’s relationship, and might even – as the husband argues – result in a final rupture of the relationship. It is also possible – although here, too, I cannot make a finding – that preventing the women’s leaving might serve to advance a reconciliation between her and the Respondent. But even if that were the case, the Rabbinical Court’s inherent power to establish procedures does authorize it to prevent a litigant from leaving the country when the standard that properly balances the relevant values, interests and principles is not met. Indeed, the suit for marital reconciliation (which is a matter of personal-status law, see: ST 1/50 Sidis v. Chief Execution Officer, Jerusalem [50] at p. 1031; CA 174/83 N. Soher v. P. Soher [51] at p. 82) raises serious problems, particularly in the area of interlocutory relief. Interlocutory orders that infringe basic human rights like the right to property (in regard to vacating a residence), freedom of movement (in prohibiting leaving the country, see: HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court [52] at p. 770) and the autonomy of personal will (by preventing meeting another person) may be granted out of a desire to realize the substantive law (see in this regard: S. Dichovski, The Authority of the Rabbinical Courts as reflected in their Judgments, 10-11 Dinei Israel 9, 15ff. (5741-43) (Hebrew)). In this case, we are witnesses to an example of the fundamental problem deriving from the first attempt “of its kind in Jewish history to apply religious law and impose religious jurisdiction in a society in which the majority of its members define themselves as secular” (P. Maoz, The Rabbinate and the Religious Courts: Between the Hammer of the Law and the Anvil of Halakha, 16-17 Annual of the Institute for Research in Jewish Law 289, 394 (1991) (Hebrew)). In the matter at hand, this special attempt leads to a gap between the basic conceptions underlying marital reconciliation in religious law and the worldview of a largely secular society. As judges, we take the law as a given and do not  question it. However, to the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the Rabbinical Court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation (as opposed to interfering with the judicial proceedings in regard to reconciliation), inasmuch as its procedural power to grant such orders is subject to the limitations required by the proper balance that we discussed. In his aforementioned book,  Prof. Rosen-Zvi correctly pointed out (pp. 117, 119):

 

The Rabbinical Court issues [orders – A.B.] comprising remedies attendant to marital reconciliation that infringe the spouse’s liberty. Some of these orders also concern prohibitions that directly affect third parties. For example, an order forbidding a spouse to meet with a particular person whose name appears in the body of the order. Such an order seriously infringes an individual’s right and is inconsistent with the fundamental values of Israeli society…

 

…Israeli law does not grant the Rabbinical Court a free hand even if it is required by the worldview of religious law and the original content of the marital reconciliation cause of action. The Rabbinical Court operates within the framework of boundaries set by Israeli law. These exigencies obligate it, and it may not deviate from or exceed their borders.

 

Indeed, to the extent that such interlocutory orders do not conform to the delicate balance of the values, principles and interests that must be considered – primary among them the human rights of the parties to the proceedings and of third parties – they deviate from the inherent authority (as currently expressed in the Rules of Procedure of the Israeli Rabbinical Courts, 5753) of the Rabbinical Court to grant interlocutory relief. It may be superfluous to note that, nevertheless, the Rabbinical Court is authorized to take the conduct of the parties into account among its considerations in accordance with Jewish law, and give it the duly required weight under the substantive law. In this regard, it is apt to recall the words of Deputy President Y. Kahan, who held:

 

Clearly, the Rabbinical Court may draw all the conclusions that derive under [Jewish – ed.] law from the fact that the Petitioner, who is married, is conducting intimate relations with another man.

 

However, we have not found any legal basis upon which to ground a restraining order as issued in this case (HCJ 428/81 [53]).

 

That is also so in the matter before us. The Rabbinical Court is not authorized to issue a temporary order prohibiting the Petitioner from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that the Petitioner left the country, and from her conduct in the country and abroad. For these reasons, we have made the order absolute (as stated in para. 5 of our opinion).

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

Given this 29^th day of Shevat 5754 (Feb. 10, 1994).

 

 

 

 

 

In the Supreme Court

                                                                          

LFA 741/11

 

 

Before:                                    The Honorable Justice E. Arbel

                                    The Honorable Justice H. Melzer

The Honorable Justice U. Vogelman

 

The Applicant:            Jane Doe

 

 

vs.

The Respondent:         John Doe

Adv. T. Itkin

                                    On behalf of the Applicant

 

                                    Adv. G. Turs

                                    On behalf of the Respondent

 

 

 

 

Hearing of application for leave to appeal on decision of the District Court in Nazareth, on 20 January 2011, in FA 044293-12-10 handed down by Hon. Judges A. Abraham, Y. Abraham, and D. Tzarfati.

 

Date of hearing:        1 Adar B 5771; March 7, 2011

Israeli Legislation Cited

Hague Convention (Return of Abducted Children) Law, 5751-1991

 

Israeli Supreme Court cases cited:

[1]        CA 4391/96 Pol Ro v. Daphna Ro, IsrSC 50(5) 338 (1997).

 

[2]        LFA 1855/08 Jane Doe v. John Doe (not reported, 8.4.08).

 

[3]        CA 7206/93 Gabbai v. Gabbai IsrSC 51 (2) 241 (1997).

 

[4]        LFA 9802/09 Jane Doe v. John Doe (not reported, 17.12.09).

 

[5]        LCA 7994/98 Dagan v. Dagan IsrSC 53(3) 254 (1999).

 

[6]        CFH 10136/09 Jane Doe v. John Doe (not reported, 21.12.09)

 

[7]        LFA 672/06 Abu Arar v. Regozzo (not reported, 15.10.06).

 

[8]        CA 473/93 Leibovitz v. Leibovitz IsrSC 47 (3) 63 (1993).

 

[9]        CApp 1648/92 Torne v. Meshulam IsrSC 46(3) 38 (1992).

 

[10]      CA 5532/93 Gonzburg v. Greenwald IsrSC 49(3) 282 (1995).

.

[11]      LFA 911/07 Jane Doe v. John Doe (not reported, 30.10.07).

 

[12]      FH 40/80 Koenig v. Cohen IsrSC 36 (3) 701 (1982).

 

[13]      CA 692/86 Botkovsky v. Gat IsrSC 44(1) 57 (1989).

 

[14]      CA 1569/93 Maya v. Panfird IsrSC 48(5) 705 (1994).

 

[15]      CA 1912/93 Shaham v. Mones IsrSC 52(1) 119 (1998).

 

[16]      LCA 4575/00 Jane Doe v. John Doe IsrSC 55 (2) 321 (2001).

 

[17]      LCA 8791/00 Shalem v. Twenko (not reported, 13.12.06).

 

[18]      CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd. IsrSC 47 (1) 311 (1993).

 

English Judgments Cited

 

[19]    In re H and Others (Minors) [1997] UKHL 12.

 

[20]     In re AZ (Minor) [1993] 1 FLR 682.

 

 

 

 

JUDGMENT

 

Justice E. Arbel

This is an application for leave to appeal the decision of the District Court of Nazareth (Hon. Judges A. Abraham, Y. Yonatan, D. Tzarfati) that partially accepted the applicant's appeal against the decision of the Nazareth Family Court (Hon. Judge S.  Giosi) and ordered that the common daughter of the applicant and the Respondent be returned to New Jersey, United States, pursuant to the Hague Convention (Return of Abducted Children) Law, 5751-1991 (hereinafter: The Convention Law).

Factual Background

1. The applicant and the respondent, both of them natives of this country, grew up and met each other in their residential town in Israel. As of 2006 the two lived as a couple in the state of New Jersey in the United States, where they were staying based on a tourist visa. In 2007, the applicant began studying while the respondent continued to work various jobs. By virtue of the applicant’s studies, they both received a student visa. In 2008 the applicant and the respondent were married in Israel, in accordance with the Law of Moses and Israel, and immediately following the celebrations they returned to the United States. In September 2009, their daughter was born in the United States (hereinafter: the daughter). About two months after that, the applicant came to Israel for a visit together with her baby daughter, and later on the respondent joined them. During their visit in Israel, which lasted for about two months, the couple opened a children's clothing store in their native town. Upon completion of the arrangements for the opening of the shop, the three returned to the United States. In March 2010 they came to Israel again for the Passover holiday (hereinafter: the last visit), and the respondent returned to the United States on April 19, 2010; the applicant and their daughter were supposed to have joined him on June 20, 2010, however, the applicant and their daughter remained in Israel, where they have stayed until now.

2.  To complete the picture, as indicated by the decision of the Magistrates Court, at a certain stage of their relationship the respondent began to observe a religious life style, whereas the applicant did not alter her lifestyle.  This triggered disputes between the spouses, and in the course of the applicant's pregnancy, the respondent even considered divorcing her. In their last visit to Israel, the dispute between the couple peaked, with each of them staying in separate residences in their respective family homes.  On April 7, 2010, when the two were in Israel, the applicant filed for divorce in the Rabbinical Court, attaching thereto the subject of their common daughter’s custody. On April 11, 2010, the applicant and respondent met, and, with the help of an accountant who mediated between them, reached an agreement concerning the termination of their relations, titled "Property Agreement" (hereinafter: "the agreement", or "the property agreement"). The agreement established sections intended to regulate the division of property between the couple, as well as sections that regulated the matter of custody of their common daughter, child support, and visitation arrangements.  Ultimately however, the agreement was not signed, in the light of the applicant's refusal to sign it, following the respondent's rejection of one of her demands regarding the property rights of the two. The respondent returned to the United States as planned, after the applicant agreed to remove the stay of exit order that was issued against him at her request. At about the time of the date scheduled for the return of the applicant and their daughter to the United States, the respondent sent out a warning to the applicant, via his attorney, stating that he was expecting their return as planned.  In July 2010, when the applicant and the daughter did not return to the United States, the respondent filed a claim for the return of the daughter in a New Jersey Court. He subsequently filed a similar claim in the Family Court in Nazareth in which he requested an order for the daughter to be returned to the United States in accordance with the Supplement of the Convention Law (namely the Convention on the Civil Aspects of International Child Abduction, 21. 31, 43 (opened for signing in 1980); hereinafter: the Convention).

The Decision of the Family Court

3.    The Nazareth Family Court ruled that failure to return the daughter to the United States constituted an act of abduction as defined in the Convention, and given the non-application of the exceptions thereunder, the daughter must be returned to the United States. The initial determination was that an event of abduction, within the meaning of section 3 of the Convention had occured, while most of the discussion  had focused on the question of whether, at the time of the abduction, the daughter was "habitually resident" in the United States. The Court examined the subject from the perspective of two schools of thought, namely the "factual approach" and the "intention-based approach". The Court's ruling relied primarily on the "factual approach", in accordance with which it ruled that the geographical-physical place of residence of the daughter immediately prior to the act of abduction was in the United States. The Court also discussed the "intention-based approach" in its examination of the parties' intentions with respect to the current and future place of residence. It was held that the renting of an apartment in the United States and hosting of acquaintances in it, as well as the establishment of a business company in the United States attest to the intention of settling in that country. On the other hand, it ruled that the applicant's unilateral decision to discontinue her studies in the United States, the opening of a shop in Israel, the retention of social security rights, real estate and bank accounts in Israel do not attest to an immediate intention to return to Israel, but at the most to an intention to do so in the future.   

After determining that an abduction, within the meaning of section 3 of the Convention, had occurred, the Court discussed the applicant's defence claims. It determined that the exception pertaining to the "abductee" parent's consent to the abduction, prescribed in section 13 (a) of the Convention (hereinafter – "the exception of consent") is not applicable to the case at hand. First, it found that the applicant's fear, as expressed in her application to the Rabbinical Court, that the respondent would abduct the daughter, attests to his refusal to remain in Israel. Second, it ruled that the agreement that crystallized does not attest to consent because it did not become a binding contract, and because the agreement was concluded at a time when the respondent was under tremendous pressure due to stay of exit order that was issued against him. It likewise rejected the claim of applicability of the exception of subsequent acquiescence to the act of abduction, within the meaning of section 13 (a) of the Convention (hereinafter – the "exception of subsequent acquiescence"), given that the respondent sent a warning to the applicant near the time of the scheduled return to the effect that he was awaiting the return of the two to the United States, and also because he actually applied to the state authorities in the United States concerning the abduction of the daughter, about one month after the applicant and the daughter were supposed to have returned to the United States. Finally, it was determined that even the exception regarding a grave concern for harm to the minor, under section 13 (b) of the Convention (hereinafter:  the exception of grave concern for harm) has no application in this case. The court rejected the applicant's claim that illegally staying in the United States on the parents' part was liable to harm the daughter. It clarified that the legal status of the parties was not directly connected to the application of this exception, because it sufficed that the daughter's entry into the United States was possible, given that she was an American citizen.  Accordingly, the court ordered that the daughter be returned to the United States, subject to a deposit for the sum of $6000 to guarantee the child support for the daughter, and subject to the  assurance of living arrangements for the two in the apartment in which they had lived in the United States, or an alternative apartment for a period of 6 months.

The Decision of the District Court

4.    In a majority decision the Nazareth District Court dismissed the applicant's appeal, subject to changes that it introduced into the conditions for the return of the daughter. The majority (Hon. Judges Y. Avraham, and Z. Tzarfati) ruled that there were no grounds for interfering with the factual holdings of the Family Court, both regarding the act of abduction and regarding the non-application of the exceptions to the obligation to return. It stated that the Convention’s purpose of preventing the abducting parent from taking the law into their own hands mandated the presentation of concrete evidence of the applicability of the exceptions by the party claiming their applicability. The applicant failed to discharge that burden, it was therefore determined that the daughter should be returned to the United States, subject to the deposit of $10,000 by the respondent to assure the child support of the daughter and subject to the respondent’s submitting of a confirmation of the filing of a custody suit in the New Jersey court.  The minority view (Dep. President A. Abraham) was that the appeal should be accepted given the applicability of the exception of subsequent acquiescence.  According to this position, the starting point for the discussion was that the daughter was habitually resident in New Jersey and the applicant’s act could therefore be referred to as a “wrongful retention”. However, under the circumstances, the evidence indicates that the exception of subsequent acquiescence is applicable. First, where the agreement did not crystallize into a binding contract, evidentiary weight was ascribed to the proof of the respondent's agreement to the act of retention. Second, the cancellation of the stay of exit order, with the applicant’s consent, immediately after the drafting of the agreement, was interpreted as giving expression to the understandings reached in the agreement and as an attempt to comply with one of its sections. Third, the respondent’s return to the United States was presented as demonstrating the respondent’s waiver of the immediate realization of his right of custody, as well the immediate return of the daughter to the United States.

The permission to appeal this decision is now being requested.

The Applicant’s Claims

5.  In her application to appeal the applicant claims that under the circumstances of the case the conditions prescribed in section 3 of the Convention aren't fulfilled and hence it cannot be held that the failure to return the daughter to the United States was unlawful. The claim was that the parties' stay in the United States was temporary and hence the trial court erred in holding that the habitual residence of the daughter was in the United States. It was further claimed that the respondent had not proved that his custody rights were breached, and that during proceedings in the trial court, no legal proceeding was pending in the competent forum in the United States concerning custody.

Alternatively, the applicant claims that the exceptions to the obligation to return rule are applicable. First, it is claimed that the exceptions of consent and subsequent acquiescence under section 13 (a) are applicable. The claim is that the respondent filed this suit after having accepted the exclusive jurisdiction of the Rabbinical Court over the matter of divorce and the attached matters. In light of his consent, the stay of exit order issued against him was cancelled, and he returned alone to the United States. In addition, in the agreement the respondent consented to his daughter remaining in Israel and to the payments of child support in Shekels and to the consensual visitation arrangements during his visits to Israel. According to the applicant, the respondent was prepared to accept the agreement as it was, while she was the one who refused to sign it, due to a financial dispute between the parties. Second, it was claimed that the exception of grave concern for harm under section 13 (b) was applicable and that the minor’s best interests dictated that she remain in Israel. The argument was that in circumstances where there is no medical insurance for the daughter in the United States and in which her parents have no legal visitors' permit there, the return of the minor to the United States would expose her to real harm. Therefore, the applicant seeks to infer that even assuming the act of a wrongful retention, under the circumstances no order should be given to immediately return the daughter to the United States. In view of all of the above reasons, the applicant has petitioned for leave to appeal the decision of the lower court and to set aside its decision that ordered the return of the daughter to the United States.

The Respondent’s Claims

6.    The respondent, on the other hand, claims that the application for leave to appeal should be dismissed, because the case is not one that raises any principled legal question beyond the particular concern of the parties. On the merits of the matter he claims that the conditions set forth in section 3 of the Convention were fulfilled. The claim is that the respondent’s custody rights were exercised pursuant to the laws of the state of New Jersey, under which both parents have joint custody over the daughter, and that according to the decision of the lower court a custody suit had been filed in the court in New Jersey, meaning that the respondent was already exercising his custody rights, as required by the Convention. The respondent further maintains that there is no justification for interference with the factual holding of the Family Court that the habitual residence of the daughter is in the United States. The respondent attached various items of evidence to his response, which were discussed in the trial court, and which he claims show that his claim that the parties' stay in the United States was neither temporary nor limited to the duration of the applicant’s studies. The evidence presented included, amongst others, the confirmation of the conduct of bank accounts and a document attesting to the extension of a rental contract for the spouses’ residential apartment in the United States.

The respondent further opines that the exceptions to the obligation to return, as argued for by the applicant – have no application in the current case. The claim was that the agreement drafted attests neither to consent nor to acquiescence, both because it was not signed, and because it was the applicant who hand wrote in the attached draft to the agreement, “returning to Israel”. In his view this note proves the absence of a final decision concerning the place of residence. The respondent added that the exception concerning harm is similarly inapplicable to the particular circumstances. He claims that there is no fear of the parties being expelled upon their return to the U.S., given that he had received a worker’s visa in a required profession for a period of two years while the applicant had a visitor's permit for a similar period. He stressed that he had complied with the conditions set by the trial court to assure the safety of the daughter upon her return to the United States. The rent contract had been accordingly extended and the sum required to assure the payment of child support was deposited. He therefore claimed that the application for leave to appeal ought to be rejected and he requested an order for the immediate return of the daughter to the United States.

7.  After our examination of the parties' pleadings and having conducted an oral hearing, we have decided to grant leave to appeal and to hear the application as though it were an appeal in accordance with the permission granted. 

Deliberation and Ruling

8.    The case before us presents two central questions. The first is whether the applicant committed an act of wrongful retention as defined in section 3 of the Convention by not returning the daughter to the United States on the scheduled date. Should the answer be affirmative, the second question arises – whether the circumstances of the case give rise to the conclusion that one of the exceptions to the Convention's obligation of immediate return is applicable, so that no such order for the prompt return of the daughter to the United States, as the treaty dictates, should be given. I will discuss these questions by order.

The Normative Framework

 9.   Over the past few decades, as the world turned into a global village in which transition between countries is easy, and people frequently move between countries, a real need has risen for international cooperation in dealing the phenomena of abduction of children by one of the parents, in violation of the other parent's custodial rights. In most of the cases falling within the scope of the Convention our concern is with parents from different countries of origin, whose separation triggers a dispute concerning the place of residence, with each parent seeking to raise the joint child in that parent's country of birth. Occasionally, one of the parents decides to take the unilateral step of removing the child to another state, without the other parent's consent, and in violation of his custody rights. This kind of act of self-help demands a swift and efficient remedy that can only be given by way of cooperation between the states of the world. This was the background for the signing of the convention. Justice M. Cheshin dwelt on this point, writing:

 

The Hague Convention and the Convention Law were intended to establish an inter-state arrangement for a phenomenon that though observed in the past, has in our time become increasingly frequent. The world we live in today differs from that of yesterday… visits of persons native to one country in other countries have become particularly frequent, and these visits give rise to meetings between young men and women. The meetings often spark love between him and her… the couple, living together and in love, must decide between them: Where will they live – in his or her country?  A decision is made and one spouse follows the other. Time passes, and the spouses discover that they are unable to live together. The spouse who went into exile from his country naturally seeks to return to the country where he was born and raised, and seeks – also naturally – not to be separated from his child. The absent of agreement and understanding between the couple the results with abduction. However, the other spouse, is also unwilling to give up his child, and the issue thus comes before the court. The question is: In whose custody will the child be in, and in which state will he live. Naturally, the Hague Convention was not intended to apply exclusively to cases of this kind, but as we know, cases of this kind are particularly common (CA 4391/96 Pol Ro v Daphna Ro [1] p. 343 (hereinafter:  "the Ro case").

 

The Convention is based on a number of related goals. First – achieving cooperation between states in dealing with child abduction in breach of the custody rights determined in the state of origin. Second, respect for the rule of law not only within the state, but also in the relations between the states of the world. Third, the deterrence against self-help on the part of one of the parents, and finally, preventing harm to the welfare of the minor who was uprooted from his natural environment by the act of abduction (see LFA 1855/08 Jane Doe v. John Doe [2]; (hereinafter: Jane Doe case). To realize these goals the Convention established a remedy defined as “first aid” for the act of abduction, which requires signatory states to order the return of the child to the state from which he was abducted urgently and with all possible speed (see CA 7206/93 Gabbai v. Gabbai [3] (hereinafter: Gabbai case), while leaving a limited margin of discretion for the court hearing the application for return.

The Preliminary Conditions for the Application of the Convention

10.  An instruction for the return of the child to the state from which he was removed, or to which he was not returned can only be given when the preliminary conditions for the application of the Convention are satisfied, as prescribed in section 3 thereof, and which constitute an act of “abduction”. A distinction must be made between two categories of cases dealt with by this section. The first is an act of “active abduction” namely – removal from the habitual residence of the minor, to a contracting state. The second case is that of “abduction by omission”, namely the failure to return a minor from a contracting state to the state in which the minor was habitually resident (see LFA 9802/09 Jane Doe v. John Doe [4] (hereinafter: Jane Doe (1) case.))

11. Section 4 of the Convention establishes the age threshold for the minor in respect of whom there is a request to apply the Convention, setting it as 16. Section 3 of the Convention establishes three preliminary conditions for a removal or retention of a minor to be considered as “wrongful”, enabling the application of the Convention: There is a requirement that the act violated the custody rights of the “abductee” parent; that these rights were actually exercised; and that the state from which the minor was removed, or to which he was not returned was the habitual residence of the minor. The term “habitual residence” is not defined in the Convention, apparently due the aim of its drafters to enable flexibility and the ability to conduct each case according to its circumstances, having consideration for the variety of possible situations. The interpretative tendency is to  give the term “habitual residence” a strict and narrow construction since overly broad interpretation is liable to undermine the realization of the Convention’s objectives, and even to devoid it of all meaning (see ibid., at para, 9 ; Gabbai case[3] pp. 254-255.)

12.  Regarding the question of what constitutes the “habitual residence” of the minor, two schools of thought have developed in the case law, referred to respectively as the “factual approach” and the “intention based approach”. The factual approach is based on an examination of the minor’s geographical-physical place of residence immediately prior to the minor’s removal. This is a factual examination and not a legal one. This is an approach that focuses on the past. In this framework there is no place for examining the parent’s future intentions or plans, whether jointly or individually regarding the place of residence.  The only question to be asked is where did the child reside on a permanent basis just before the act of removal, from his own perspective, or from his parents' perspective if he is not at an age of sufficient maturity to testify regarding his place of residence:

The place of residence is not a technical expression...it expresses an ongoing life reality. It reflects the place in which the child was habitually resident before the abduction. The point of view is that of the child and the place in which he resided. The examination centers on past daily life and not on future plans. When parents are living together, the habitual residence of the minor is generally the place of his parents’ residence (President (Ret.) A. Barak, ibid, [3], p. 254.)

  Alongside the factual approach another approach also developed, known as the intention-based approach. This approach does not limit itself to an examination of the minor’s physical place of residence before his abduction, but also considers the parents’ intention regarding the duration and circumstances of his stay in the state. According to this approach, for example, the fact of parents having immigrated to a particular state on a permanent basis or perhaps only for a limited period would have different significance in the determination of the “habitual residence”. The parental intention is inferred from the  circumstances of the case and the interpretation given to the facts pertaining to their stay in the state (see Jane Doe (1)[4], and references cited).

13.  From the aforementioned it emerges that the intention-based approach focuses on "matters in the heart" and circumstances of debatable interpretation. The factual approach on the other hand, offers a simple and essentially objective approach, which occasionally precludes having consideration for a more complex reality. The question of the relationship between the two approaches and the weight to be ascribed to each has been left for further consideration (see CA 7994/98 Dagan v. Dagan [5] (hereinafter: Dagan case); CFH 10136/09 Jane Doe v. John Doe) [6], although it is generally accepted that the examination should be principally in accordance with the factual approach, for fear that an examination of the parents' intention will undermine the goals of the Convention. In my view, the two approaches should be combined so that the primary focus remain on the factual question of the physical place of residence, but certain weight also be ascribed to the intentions of the parties and their life circumstances. Either way, we are not required to decide this issue in the case before us.  Indeed, both of the approaches were examined by the previous instances in their consideration of the question of the daughter's “habitual place of residence”. The conclusion they reached was that the daughter's “habitual place of residence” prior to the failure to return her was the United States.

Exceptions to the Obligation to Return Rule

14.  The underlying conception of the Convention is that the abduction act harms the child and his welfare, by reason of his being uprooted from his natural environment and from his custodian parent and being brought to a foreign environment, which was forced upon him by the other parent.  While the term "child's best interest" is not mentioned in the Convention, it constitutes its basic principle, for matters concerning children cannot be dealt with without taking their best interest into account (see Gabbai [3]  p. 251; for a discussion of the connection between the Convention and children's rights, see:  Rona Shus "The Rights of Abducted Children: Is the Hague Convention (Return of Abducted Children) Law 5751-1991 Consistent with the Doctrine of Children's Rights" Mechkarei Mishpat 20 (2004) 421).  The question of the child's best interest will determine the decision on the substantive question of child custody. The discussion in proceedings under the Convention Law concerns the forum that should consider this question. Having consideration for the goals of the Convention, and primarily the goal of stressing the importance of upholding the rule of law on the international level, the default rule is that the child's best interest will be adjudicated in the child's habitual residence and not in the state to which he was abducted.

15.  That said, the child's return to his habitual residence is occasionally liable to harm him, making it inimical to his best interest. The exceptions to the obligation of return as anchored in sections 12, 13 and 20 of the convention are intended for cases such as these. According to section 12 of the Convention, the obligation of returning will not apply where the child stayed in the state to which he was abducted for a period exceeding one year, and where it was proven that child has become settled in his new environment. Section 13 establishes 3 exceptions to the obligation of return: the exception of consent and subsequent acquiescence, the exception of grave concern regarding harm, and the exception relating to consideration for the wishes of the minor, when he has reached an appropriate age and level of maturity. Section 20 establishes an additional exception, whereby the return of the child may be refused if it would be inconsistent with the fundamental principles of the state hearing the application, relating to the protection of human rights and fundamental freedoms. The exceptions to the obligation of immediate return are based on the duty of protecting the child's best interest and the need to prevent grave damages that may be caused as a result of his return.

These exceptions to a large degree contravene the other basic goals of the Convention, namely the goals of preventing the abducting parent from taking the law into his own hands, and respect for the rule of law in accordance with universal standards. In striking a balance between these two goals it was held that applying exceptions to the obligation of return must be done with careful and cautious consideration, to prevent the exception from becoming the rule in a manner that undermines the goals of the Convention and empties the undertakings of the contracting states of any content.  It follows therefore that the onus of proving the existence of exceptions is a heavy burden, not easily discharged (see LFA 672/06 Abu Arar v. Regozzo [7] ; Elisa Perez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session 426, 460 (1980) 3; hereinafter: Perez-Vera report). More precisely, discharging the burden of proof does not absolutely prevent any possibility of the minor being returned to the state from which he was removed, or to which he was not returned. Proving the existence of the exceptions only confers the court discretion regarding whether under the circumstances it would be appropriate to leave the minor in the country to which he was abducted or to return him to his residential state, having regard for the provisions of the Convention. Needless to say, in cases such as these the court’s primary concern is the best interest of the minor child, located betwixt his two parents.

16.  The exceptions to be examined for our purposes are set forth in section 13, which reads as follows:

 

Notwithstanding what mentioned in the preceding section, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

  a)  the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

 b) there is a grave concern that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained  the degree of maturity at which it is appropriate to take his views into consideration."

I will discuss the meaning and extent of the relevant exceptions by order.

The Consent and Acquiescence Exceptions

17.  As mentioned, section 13(a) of the Convention establishes two exceptions to the obligation of immediate return: the exception of consent and the exception of subsequent acquiescence. The two exceptions serve two central goals. The first goal is providing an appropriate solution to a situation in which the "abductee" parent actually agreed to or thereafter acquiesced in the act of abduction, in a matter that obviates the need to immediately restore the original situation (see CA 473/93 Leibovitz v. Leibovitz [8] (hereinafter Leibovitz). The second goal is to prevent the cynical abuse of the remedy of immediate return granted in the framework of the Convention, in a manner that would transform the Convention into a bargaining chip in the hands of the abductee parent:         

On the other hand, the guardian's conduct can also alter the characterization of the abductor's action, in cases where he has agreed to, or thereafter acquiesced in, the removal which he now seeks to challenge. This fact allowed the deletion of any reference to the exercise of custody rights 'in good faith', and at the same time prevented the Convention from being used as a vehicle for possible 'bargaining' between the parties" (Perez-Vera report, p. 461)

  18.  The subject of consent or acquiescence is the custody rights. That is to say - the consent or acquiescence of the parent to a factual situation that has emerged concerning the issue of custody rights relating to the minor (see Gabbai [3], at p.257). Unlike the determination of the habitual residence as regards section 3 of the Convention, regarding which it is customary to attribute only minimal significance to the parents' intentions and future plans, in the context of these exceptions consideration should be given to the parents' intentions relating to the minor's place of residence, their expectations and plans for the future (see: Shmuel Moran, Alon Amiran, and Hadara Bar, Immigration and Child Abduction, Legal and Psychological Aspects 88-89 (2003)). If these attest to a consent or acquiescence to the act of removal or retention, then the order to the immediate return of the minor to the habitual residence must not be given. The obligation of immediate return is no longer in the category of a duty and is given to the discretion of the court hearing the case.

19.  The exception of consent or acquiescence are similar in terms of their essence and characteristics, even though case law primarily addresses the exception of acquiescence (see e.g. in Dagan [5]; Leibovitz [8]).  The central difference between the two exceptions is centered in the time dimension – whereas consent is given prior to the act of removal or retention, subsequent acquiescence materializes after the aforementioned act (Gabbai [3], p;. 257; Leibovitz [8], p. 72). Therefore, when deciding which of the two exceptions has application in the case before us, the first thing to consider is whether the case concerns consent given before the act of abduction, or acquiescence, that materialized after the act of abduction. The second stage involves the examination of the central question regarding the application of these exceptions, namely whether the parent whose rights were breached acted as a parent whose goal was the immediate restoration of the original situation would act, or perhaps he acted in a manner that attests to his actual consent or reconciliation with it:

The existence of acquiescence is examined in light of the question: whether the conduct of the "abductee" parent is consistent with his intention to insist on his rights regarding the restoration of the status quo, namely the immediate return of the child to his habitual residence from which he was removed, or perhaps the circumstances and his conduct indicate his reconciliation to the change in the status quo, with the transfer of the child to a new location?" (Deputy President (former title) Justice Elon (ibid. [8] p. 72)

20.  Logic dictates that cases posing questions concerning the applicability of the exceptions should be heard on their merits, each case in accordance with its circumstances. Therefore, strict standards for examining the issue of consent or acquiescence must not be set. However, it is appropriate to demarcate the borders of these exceptions, for as stated, the goals of the Convention compel giving them a narrow interpretation and that they be exercised with caution and restraint. Three central features assist us in determining the applicability of exceptions and in understanding their scope: the nature and essence of the consent or acquiescence; the applicability of contract law; and the weight to be ascribed to the reason for the consent or the acquiescence and the elapsed time (Gabbai [3], pp. 255-259; Leibovitz [8], pp. 71-75).  All of these will assist us in answering the question of whether the applicant parent has waived the remedy of the immediate return of the minor, insofar as he agreed to the act beforehand or reconciled himself to it after the fact, all as explained forthwith.

21.  First, the nature and essence of the consent or acquiescence must be delineated. It was held that there is no need for these to be explicit or to be done by an active act.  Consent to an act of abduction or reconciliation thereto may be inferred from behavior in the form of omission or from implied conduct.  That said, the consent or waiver cannot be inferred from any individual acts of any one of the parties; the examination is a substantive one of the conduct of the abductee parent in the broad sense. Based on a broad perspective of the circumstances in their entirety and the overall picture we should infer that the parent waived the urgent realization of the custody or visitation rights conferred to him by authority of the domestic law of the place of the habitual residence before the act of removal or retention (see Dagan [5] p. 273). This examination is essentially objective. The abductee parent's subjective state of mind will only be considered to the extent that it received expression in his objective, external conduct (Leibovitz p. 74). The existence of consent or acquiescence, may even be inferred from the abductee parent's awareness of the breach of his rights, among other things. The awareness need not be specifically of the rights conferred to the parent by force of the Convention. To infer the existence of awareness it suffices that there is a general awareness that the parent's rights were breached or will be breached as a result of the action of the second parent. So, for example, if the parent knows that a wrongful act was committed, and he failed to receive legal advice regarding the matter, it may attest to his reconciliation with the act of abduction (see Dagan [5], p. 274)

22.  Consent or acquiescence, are contractual, in essence, given that it is a unilateral act by one of the parents, which finds its completion with the other parent,  creating a reliance interest on his part with respect to the change in the status quo. Accordingly, it was ruled that the exceptions of consent or acquiescence are governed by the laws of contracts with all that is implied thereby (see Leibovitz [8], p.73 and references cited; Gabai [3], p. 258). As such, for example, the law applying to consent or acquiescence that originated in a mistake, misleading, coercion or extortion is the same law that would apply to a contract concluded under similar circumstances and would admit of rescission. Similarly, if the abducting parent was aware that the abductee parent had not waived the change in the status quo then a claim presented by him to the effect of the applicability of the exceptions would contravene the principle of good faith. In addition, consideration should be given to the element of reliance on the part of the parent who committed the abduction. If he took measures that led to a change in his position as a result of the consent or acquiescence of the other parent, this should be taken into account as part of the entirety of considerations to be considered as part of the exception, though such consideration for the reliance interest should be exercised carefully, for fear of the abducting parent reaping the fruits of the wrong that he committed (Leibovitz [8] p. 71)

23.  In addition, consideration must be had for the weight to be accorded to the various circumstances in which the consent or the acquiescence was awarded and especially for the weight to be accorded to the time period that has elapsed from the act of removal and until the filing of the claim under the Convention. As such, it was held that reasons leading to the parent’s consent or acquiescence to the act of abduction will not be taken into account when considering the nature of the consent or acquiescence because conceivably he may not have been interested in moving the minor from one state to another or was interested in the custody issue being adjudicated in the state to which he was abducted, which was the parents’ native state. Irrespective of his reasons, if the parent’s conduct attests to consent or acquiescence to the act of abduction, it will be inferred that he has waived the rapid and immediate relief granted under the Convention, and is willing to resolve the conflict in alternative ways (Leibovitz [8], p. 70)

The time factor too is a factor when examining whether a parent’s conduct during the elapsing period is consistent with his later demand to return the minor. Regarding the exception of acquiescence, it has been ruled that consideration must be had for the time period passed from the abduction date and until the filing of the claim under the Convention, and whether it supports the inference, along with additional circumstances, of the parent acquiesced to the situation that transpired. In this context it was held that there is no defined period for crystallization of acquiescence, and that it must be determined on a case by case basis, according to the circumstances (ibid [8], pp. 72-74). In examining the exception of consent, the time element is less significant, and either a long or brief period may elapse from the time of the abduction and until the day of filing the claim, but in most cases it will have no significance, because consent by nature is given in advance, prior to the act of abduction. As such, regarding the consent exception the central question will be one of weight, namely, what were the circumstances that indicates consent and to what extent do they unequivocally attest to the “abductee” parent’s consent to waive the “first aid” provided under the Convention, all this subject to the scope of the exceptions outlined above.

24.  In some cases, perhaps the parent who consented or acquiesced to the act of abduction will ask to retract his consent. The rule is that it is not possible to retract the consent or acquiescence, and to rescind it retroactively. Once the consent or acquiescence have crystallized the parent whose custody rights were violated is deemed to have waived the immediate relief provided in the framework of the convention (ibid [8], p. 73; Dagan [5], p. 275). A change in circumstances does not justify the retraction from advance consent or subsequent acquiescence either.  As noted, the central question that the court should consider is whether the parent’s conduct clearly indicates that the parent waived the remedy of “first aid”. If the answer is in the affirmative, then the minor’s return to the state of habitual residence is not defined as an immediate obligation imposed on the court to order the minor’s return to habitual residence. The time for the immediate remedy has passed and done and the court that heard the matter has discretion to order that the matter be heard in the state of request, or in the state of habitual residence, its guiding consideration being the best interest of the child concerned.

The Grave Concern of Harm Exception

25.  Section 13(b) of the Convention provides that where there is a grave concern that the return of the minor will cause him physical or psychological harm or otherwise place the child in an intolerable situation, the court is not bound to order the return of the child.  The rule is that the child's interest when considered as part of this exception is narrower than when considered in the framework of regular custody proceedings, due to the concern that overly broadening of the exception will undermine the objectives of the Convention (see Jane Doe [2] at paras. 29 – 33). For this reason, the court utilized two tools designed to narrow the application of the exception.  First, it was ruled that the party claiming the applicability of the harm exception bears the onus of proving it beyond any reasonable doubt, which is a particularly heavy burden of proof. Secondly, the application of the exception was significantly narrowed, on an interpretative level, as it was ruled that the controlling principle governing the exception would be as prescribed in the closing section of section 13(b) whereby the child wouldn’t be returned only where there is a grave risk that the return  would place him in an intolerable situation:

The principle governing the provision of section 13(b) of the Convention is the one determined in its conclusion, and which is concerned with placing the child in an intolerable position were he to be returned to his habitual residence . . .  The controlling wording is concerned with the child being placed in an intolerable situation . . . which is to say: that is permitted to refrain from ordering the return of the child if his return would place him in “an intolerable situation”: whether that intolerable situation arises due to the grave concern that the return will expose the child to physical or psychological harm and whether his return will place him in an intolerable position “in any other way” (Ro  [1] p. 347)

In addition, it was held that this exception relates to the damage that will be caused to the minor as a result of his return to the state from which he was removed, and not as a result of his return to the parent from whom he was abducted or his severance from the abducting parent (see Capp 1648/92 Torne v. Meshulam [9]). Accordingly there were many cases which rejected the claim concerning the lack of parental ability of the parent requesting the remedy by force of the Convention, as well as the claim that the abducting parent is liable to be expelled, or to dire economic difficulties as a result of returning with the child to the state he left (see for example: CA 5532/93 Gonzburg v. Greenwald [10]). In this context the court relied solely on the determinations of experts, from whom it emerged clearly that the concern of physical or psychological damage was particularly tangible. As indicated, the exception relating to harm is particularly narrow, being limited to cases in which the return would place the child in an intolerable situation due to his exposure to the exceedingly grave physical or psychological damage, or due to his exposure to an intolerable situation for some other reason.

From the General to the Particular

26.  In the case before me both the applicant and the respondent are natives of this country who went trying their luck in the United States, where they had lived since the beginning of their relationship as a couple. The applicant began her studies, while the respondent was occupied in a variety of jobs, and at a certain stage established a business company in partnership with the applicant. Their first born daughter was born in the United States. For the duration of this period they maintained their connection with Israel, in visiting Israel frequently, retained their social security rights and even opened a store in their native city. By agreement, the applicant and the respondent with their mutual daughter came to Israel for the Pessah vacation. During that vacation they decided to separate. The respondent returned to the United States, as planned, whereas the applicant did not, having decided to stay with the daughter in Israel.  In the wake of the non-return of the daughter to the United States at the scheduled time, the respondent filed a suit for her return under the Hague Convention. 

27.  This is therefore a case of retention and the question that arises is whether it meets the conditions for the application of the Convention. The minor whose return is requested by the respondent is tender in years. On the dates that she was supposedly meant to be returned to the United States she was only nine months old, hence her age satisfies the age threshold prescribed in section 4 of the Convention, which establishes an age threshold of 16 years for a suit for the return of a minor under the Convention. In addition, it was proven in the trial court that the law of the state of New Jersey, where the applicant and respondent lived, is that the custody rights over children are joint rights. Therefore, the first condition prescribed in section 3 of the Convention is satisfied, because the retention was in breach of the respondent's custody rights over his daughter. The trial court subsequently ordered the filing of a proceeding to determine the custody in New Jersey, prior to the child being returned to the United States, and the respondent submitted documentation to his response, attesting to the fact that such a proceeding had indeed been filed. In so doing the respondent actually exercised his custodial rights, thus meeting the second condition of section 3 of the Convention, in which the parent suing for the return of the child under the Convention is obligated to exercise the custody rights that are vested in him. Finally, the Family Court held that the habitual residence of the daughter was in the United States, thus satisfying the third condition of section 3 of the Convention pertaining to proof of the act of abduction. In examination of the subject of the habitual residence from the perspectives of the factual approach and the intention based approach, the Family Court reached at an identical conclusion regarding the habitual residence prior to the act of retention.  The judges of the District Court too adopted this factual determination; I see no reason to intervene in this factual determination of the trial forum. The settled rule is that the appellant forum will not as a rule intervene in the findings of the trial forum (see LFA 911/07 Jane Doe v. John Doe [11].) after two forums have examined the circumstances of the case, reaching identical conclusions, and having examined the parties' pleadings, I see no justification for an additional factual examination of the condition concerning the habitual residence and for deviation from the rule of non-intervention in this context.

Summing up this point – in terms of the preliminary conditions for the application of the Convention, as determined by the District Court, the applicant committed an act of wrongful retention. At this stage it is incumbent upon us to examine whether any of the exceptions to the duty of immediate return are applicable.

28.  In order to determine whether under the circumstances, the exception of consent or of subsequent acquiescence are applicable, we must first examine the time dimension, which is to say: Do the circumstances indicate that the respondent consented in advance to the retention or acquiesced to it after the fact. The point of departure for the Family Court, that was also adopted by the trial court, was that the date of retention of the daughter was on 20 June, 2010, which was the date on which the applicant and the daughter were supposed to have returned to the United State in accordance with the flight tickets that were purchased prior to the parties' arrival in Israel (hereinafter: the "retention date"). The respondent filed the claim under the Hague Convention for the daughter's return to the United States immediately after the retention date. Regarding this point I should clarify that I am aware that the minority opinion in the trial court focused on the application of the acquiescence exception. However, in view of the distinction I elaborated on between the two exceptions it seems that under the circumstances, the immediate action taken by the respondent precludes the possibility of viewing his conduct as amounting to acquiescence to the retention of the daughter. Accordingly, the exception appropriate for our purposes is the exception of consent, which requires us to examine whether having regard for the entirety of circumstances we may infer that the respondent agreed to the act of retention and to the change in the status quo, and in doing so effectively waived the "first aid" remedy conferred in the framework of the Convention.  As I will presently explain, I believe this question must be answered in the affirmative, because the circumstances indicate that prior to the act of retention of the daughter, the respondent agreed that the applicant would have custody over her.

29.  The trial court held that the applicant and the respondent came to Israel by mutual agreement for the Passover vacation. During this vacation, when each of them was staying in their family's home, they agreed to separate from each other. The applicant applied to the Rabbinical Court, and commenced a divorce proceeding, to which she attached the matter of the custody of the daughter. At her request, the Rabbinical Court issued a stay of exit order against the respondent and against the daughter. The respondent applied to the Rabbinical Court with an urgent application to cancel the order. In his application he presented the entire unfolding of events between the spouses, and even declared that he was prepared to divorce the applicant immediately and to conclude a child support agreement with her as required. It should be stressed that this does not suffice to infer his consent to the applicant having the custody of the daughter. 

Subsequently, the parties decided to negotiate and to reach a separation agreement, acceptable to both of them. With the mediation of an accountant who was a mutual friend, an agreement was drafted, titled "Property Agreement". From the sections of the agreement it can be inferred that the parties agreed that the applicant and the daughter would remain living in Israel, whereas the respondent would return to the United States and to his business affairs. In section 1 of the agreement it was likewise determined that the applicant would remove the stay of exit order which was valid against the respondent, at her request.  Section 2 provided that the sum of the monthly child support for the daughter would be paid in shekels; in section 3 the respondent undertook to transfer various contracts into his name, upon which the applicant had previously been signed, in the framework of her partnership in the company in the United States. In section 4 the respondent agreed to convey all of the equipment of the applicant and the daughter to Israel, and in section 7 the parties determined consensual visitation arrangements in the event of the respondent returning to live in Israel. The entirety of the agreements in this agreement clearly evidences the parties' agreement that each of the spouses would go his/her own way – the respondent would return to the United States and the applicant and the daughter would remain in Israel.

At the end of the day however, due to an economic dispute that arose, apparently due to the applicant, the property agreement was not signed. Even so, the applicant adopted measures, which indicate that she had begun to comply with her undertakings under the agreement. This can be learnt from her consent to the removal of the stay of exit order, imposed on the respondent at her request, a consent followed by the respondent did returning to the United States alone.

30.  In other contexts it has been held that "there is no sanctity in a signature" (FH 40/80 Koenig v. Cohen [12] p.724), so that if the agreement fulfills the requirements of resolve and specificity, it will be valid even in the absence of the parties' signatures (see e.g. CA 692/86 Botkovsky v. Gat [13] p.57). Obviously, this rule is not applicable to the case before us, because the parties do not dispute that the property agreement did not become a binding contract. However, in my view the minority judge in the trial court was correct in ruling that this agreement has "quasi evidential" standing in terms of the respondent's consent for applicant to retain custody of the daughter. In the final analysis the agreement was not signed due the applicant's refusal to sign on it whereas the respondent was prepared to accept it as it was, including the sections that attest to his consent for the daughter to stay in Israel, in the applicant's custody. These being the circumstances, I think that the agreement should be considered as principal evidence, which assists in completing the overall picture, from which it may be inferred that the respondent waived the urgent realization of the custody rights that were conferred to him under the law of New Jersey.

It has not escaped me that in his statement of response the respondent attached an additional agreement draft, claiming that it was in the applicant's handwriting, and on which it was written, "returning to Israel" (hereinafter: "the draft"). His claim was that this proves that there was no agreement between the parties concerning the daughter's place of residence, and that accordingly, there was no advance agreement on the matter of the custody. The family court that adjudicated the matter of the draft viewed it as a property agreement draft, whereas the district court did not discuss its significance. From an examination of the draft it is apparent that its contents in no way conformed to the contents of the property agreement, because it dealt with a situation of reconciliation between the parties and not a situation of separation and divorce. There was no clarification – and anyway no proof – regarding when and by whom this draft was written. In the absence of these details, the aforementioned draft cannot teach us that which the respondent seeks to infer and it anyway seems that it is undisputed that the final draft of the property agreement was the one drawn up by the accountant, and that refers to a situation of separation and of the continued staying in Israel of the applicant and her daughter.

31.  Summing up this point, the agreement can be inferred from the entirety of the circumstances and need not be explicit. Indeed, in the case before me the respondent's conduct indicates his agreement that the applicant and their common daughter would not be returning to the United States. He was partner to the drafting of the property agreement in which he agreed inter alia to the matter of custody and the visitation arrangements. Later on he even took the active step of applying to the Rabbinical Court together with the applicant, requesting the removal of the stay of exit order, after which he returned to his business in the United States, as the applicant and the daughter remained in Israel. To be clear, it is quite possible that the respondent hoped that the applicant and the daughter would return to the United States at the time of their non-return, and may even have thought that this is what they would do, especially in view of the fact that the marital connection had not been finally terminated. Nonetheless, the respondent's objective conduct attests to his agreement that the daughter would remain with the applicant, and that the two of them would continue to live in Israel. The  respondent's subjective state of mind, his feelings and expectations do not suffice to enable the conclusion that he had not given his consent to the applicant and the daughter remaining in Israel, when compared with his explicit and overt conduct.   

32.  As mentioned, the act of agreement is essentially a contractual act. After the parties had discussed the subject of custody, and after the applicant agreed to the removal of the stay of exit from order that was in place against the respondent, he left the country and returned to his business in the United States. It is definitely reasonable to assume that the unfolding of events, and particularly his departure from the country with the applicant's consent, after the property agreement had been written and even fulfilled in part, engendered the applicant's reliance on a change in the status quo, the thrust of which its main part was the separation between the spouses and her remaining with the daughter in Israel. When discussing the relevance of the agreement drafted between the parties, the Family Court held that:

“The plaintiff was under pressure with a stay of exit order issued against him, that disrupted his plans which were based on his imminent return to the United States… reading the draft it is hard to escape the impression that it was drawn up under the palling shadow of the stay of exit order and even the plaintiff's consent to the contents of the draft are accepted,  it was given and obtained by reason of the pressure exercised on him in the form of the stay of exit order” (judgment of the Family Court, para. 28, p.14; emphasis mine, E.A)

I am unable to accept the conjecture that the respondent's agreement that the daughter would stay in Israel was exclusively the result of pressure due to the stay of exit order stood against him. In conducting negotiations for concluding a contract, each party is doubtless subject to and influenced by various pressures and influenced by various considerations, and calculates his steps accordingly. It has been ruled that freedom of will is constructed in a broad sense and various kinds of pressure, such as economic, social or political will not impair contractual freedom, provided that the pressures are not heavy to the degree of impairing his minimal free will (see and compare: CA 1569/93 Maya v. Panfird [14] p.705; CA 1912/93 Shaham v. Mones [15] p. 119)). In view of this, I do not accept the holding that the respondent was under tremendous pressure by reason of the stay of exit order, and that his consent was given in the wake of that pressure, without him having had the opportunity of exercising discretion. We must not forget that the pressure on the respondent by reason of his plans was counterbalanced by the matter of the custody of his daughter, which in and of itself is a matter of supreme importance.

33.  Possibly, the later measures taken by the respondent, at around the time of the retention, indicate that he changed his mind regarding the daughter remaining in Israel, or that he was still hoping for a reconciliation with the applicant. The respondent sent a warning letter to the applicant by way of his attorney, at about the time of the retention. He also filed a claim under the Convention, two months later for the return of the daughter to the United States, in the competent forum in Israel; and took steps toward acquiring a United States visitor's visa for himself. He presented documents attesting to the extension of the rental contract and the payment of the daughter’s health insurance in the United States. Later on, he complied with the preliminary conditions for the return of the daughter, as determined by the lower court. These steps attest to his desire for the daughter to return to the United States and for the question of her custody to be decided in his state of residence. However, these later steps cannot negate the consent that the respondent had previously given for the daughter to stay in Israel, prior to the act of retention. As stated, the rule is that one cannot renege on a consent that was given because the respondent’s consent to the non-return of the applicant and the daughter to the United States, indicates his waiver of the immediate remedy provided under the Convention. This being the case, in view of the overall picture emerging from the facts described, the exception of consent applies in this case. As such the question of the daughter’s return to the United States is at the discretion of the court, and the court has no immediate obligation to return the daughter pursuant to the provisions of the Convention.

34.  In light of our holding that the exception of consent is applicable, there's no need to delve into the applicant's claim concerning the application of the exception of the grave concern  for harm, since it is suffice to prove one of the exceptions in order to confer the court discretion whether to order the return of daughter or not. Briefly, I will point out that the burden of proof carried by the party making the claim is particularly heavy and its interpretation has been particularly limited. It would seem that in the absence of an expert opinion on this matter, and in the absence of any extreme circumstances, that attest to the grave concern for harm it cannot be determined that this exception has application in the case before us.

35.  Summing up, the Convention is applicable to the case before us, inasmuch as the preliminary conditions for its application are satisfied, and the applicant committed an act of unlawfully not returning the daughter to the United States. However, in the case before us, the exception of consent applies, because based on the entirety of the circumstances, first and foremost, the separation agreement and the parties' conduct after the writing of the agreement, it may be concluded that the respondent agreed to the mother and the daughter remaining in Israel. Accordingly, there is no obligation for the immediate return under the Convention, and the matter is given to the discretion of the court. I will now address the considerations relevant for this decision.

36.  After giving consideration to the entire complex of circumstances, my view is that no order should be given for the return of the daughter to the United States, and that it would be appropriate for the question of custody to be clarified in the competent forum in Israel.  The applicant and the respondent lived in the United States for four years, from the beginning of their relationship. They are not American citizens; the respondent has a temporary work permit for two years only, and the applicant has a visitors permit in the category of a tourist, which does not enable her to work for a living. The extended family of both parties lives in Israel and they have no permanent home in the United States. While they were living in the United States, they established a business in Israel and continued to conduct bank accounts and maintain their social security rights in Israel. Their entire stay in the United States, even if it lasted a few years, bore the character of a temporary stay. When they decided to separate from each other the respondent wanted to return to his business in the United States, whereas the applicant wanted to remain in Israel, in a supportive family framework, with the common daughter standing between them, a child tender in years, both of whose parents surely seek her best interest. In my view, the minor's best interest demands that the custody proceeding in her matter be conducted here in Israel and not in the United States. The daughter, who is not yet two years old has lived for most of her life with the applicant, who is the dominant parental figure in her life, especially having consideration for the respondent's long stay in the United States, which continues even now, severed from his daughter. In the circumstances of the separation between the spouses, the return of the applicant and the daughter to the United States in order to settle the custody matter may place the applicant in an intolerable situation which will ultimately work against the minor's best interest. First, it cannot be expected that after their separation the spouses will continue to live in the residential home in which they lived as a couple, the rental of which was extended in compliance with the decision of the trial court in order to ensure a residence for the minor. More precisely, given the circumstances in which the applicant only has a tourist permit, and is not permitted to work for a living in the United States, she will not be able to earn a living and support herself and her daughter apart from the respondent and should she do so, she will face the danger of expulsion from the United States. Even if the concern of such an event is not great, I do not think that one can run the risk of the applicant being separated from her baby daughter, in a manner that would contravene the best interest of the daughter at such a tender age (see LCA 4575/00 Jane Doe v. John Doe [16] at p. 331). Alternatively, the applicant might be compelled to return to living with the respondent under the same roof, but having consideration for the continued separation and the alienation that the parties displayed throughout the legal proceedings, it may reasonably be presumed that the joint residence of parents living in a state of disharmony would be detrimental to the minor's best interest. Accordingly, I believe that the considerations I enumerated above, and above all the fact of the daughter still being particularly young, and the applicant's legal position in the United States, indicate that the best interest of the minor requires that the custody matter be resolved in Israel and that therefore there should be no order for her return to the United States for the purpose of resolving this issue.

37. As an aside I have two comments to make regarding the unfolding of the proceedings before me. First, the respondent filed an application to present us with the exhibits file that was before the trial court, and the applicant replied that she would leave the matter for the court's discretion.  I examined the file as requested (by way of “Net Ha-Mishpat” system), but I found nothing there that sheds more light on the matters discussed in this decision. The matters presented there are certainly in the background of my decision, but they do not persuade me to accept the respondent's position.

Another comment pertains to the notification given to the Court by the respondent, informing us that he had been forced to leave Israel and to return to his business in the U.S.A., even before the termination of the legal proceedings before us. The applicant submitted her response to the notification, claiming that the respondent had returned to the U.S.A. in violation of the stay of exit order that was pending against him. In his reply, the respondent rejected this claim. Without addressing the claim on its merits, given that it is unnecessary and given that we do not have sufficient details for making any determination in respect thereof, it is apparent that the divorce dispute has brought the parties into a bitter and acrimonious battle. I fervently hope that with the termination of the current proceeding, the applicant and the respondent sensibly reach an agreement and will solve the disputes between them, with their primary concern being the best interest of their common daughter, who is entitled to the presence of both of her parents in her life.

Therefore, I propose to my colleagues to accept the appeal, and to determine that the decision of the District Court concerning the return of the daughter in accordance with the Convention is hereby overturned. In addition, I would suggest to my colleagues to cancel the applicant's obligation for court expenses, as stipulated by the Family Court. Under the circumstances I do not think it would be appropriate to obligate the respondent to pay the costs of this hearing,

At a later stage I read the opinion of my colleague, Justice Fogelman, and I would like to make two comments. First, I think that there will be cases in which the overlap between the civil law of contracts and the law of contracts in the family framework will not be complete (see for example LCA 8791/00 Shalem v. Twenko [17], para. 7); Shachar Lifshitz "Regulation of the Spousal Contact in Israeli Law – Preliminary Outline" Kiryat ha-Mishpat 4, 271 (5764)). Second, regarding my colleague's concern of the negative implications, in terms of the parties' willingness to conduct substantive negotiations, I think this concern is insignificant, since this case is unique in its circumstances. In this case there was a complete agreement which was not signed in the end only because of the applicant's refusal, whereas the respondent was prepared to realize it. Beyond that, as I stressed, the spouses had begun to act in accordance with the agreement when they consensually cancelled the stay of exit order that was issued against the respondent, and the respondent even left Israel and returned to the United States, while the daughter and the applicant were left in Israel. In my view, these unique circumstances justify viewing the respondent's agreements in the framework of the negotiations between the parties, as being indicative of the application of the exception of consent.

 

                                                                                                                   Justice

 

Justice H. Melzer

1.    I concur with the result reached by my colleague Justice E. Arbel in her opinion and with the main elements of her reasoning. That said, in my view, the justification for the result that she reached in her judgment, should be based more on the "exception of subsequent acquiescence" prescribed in section 13(a) of the Convention, as per its definition in the Hague Convention (Return of Abducted Children) Law, 5751-1991 than on the "exception of consent" included in the same section. My reasons for this position will be presented forthwith.

2.    Based on the circumstances described in my colleague's opinion, as well as in minority opinion, of the Deputy President, Judge A. Abraham of the Nazareth District Court, it seems to me that the respondent, with his final departure to the United States had in fact "acquiesced" at least at that time, to the non-return of the child to the United States and to her remaining together with her mother in Israel at this stage. This can be inferred from the application filed with the Rabbinical Court to cancel the stay of exit order that was issued at the applicant's initiative – a proceeding in which its completion the order was ultimately cancelled by agreement. In this context it should be remembered that the Rabbinical Court has exclusive jurisdiction in a suit for divorce between the parties where they are Israeli citizens who were married in Israel in accordance with the law of the Torah. Furthermore, in the framework of the "property agreement" that was under discussion between the parties (and which finally was not signed specifically by reason of the applicant's reservations), the respondent was prepared to undertake to transfer all of the minor's personal belongings to Israel and to pay for her monthly child support in Shekels. Parallel to this he also wanted to ensure his visiting arrangements with the daughter, whenever he came to Israel.

These data which can be learnt from the evidence in the file, suffice for purposes of being viewed, in the special circumstances of this case before us as a quasi - “acquiescence” and a waiver of the "first aid" remedies by force of the Convention. See CA 7206/93 Gabbai v. Gabbai [3] pp. 256-259; LCA 7994/98 Dagan v. Dagan [5], pp. 273-276.   I make these comments without expressing a view regarding the continuation of the proceedings between the parties.

Furthermore, even were it to be argued that the respondent did not explicitly express his "acquiescence" to the non-return of the girl to the United States at this stage, the applicant could have inferred from the consents obtained in the course of the negotiations with the respondent leading to the signing of the said "property agreement" that he had actually reconciled himself, at this time, to the daughter's transition to Israel, or that he had consented to it. Accordingly, by force of the laws of estoppel the respondent is not entitled to the temporary remedy that he requested. Expression of a similar approach can be found in the reasoning (albeit not in the result) mentioned in the decision of the House of Lords in England in In re H and Others (Minors) [19] 12 (which likewise concerned an Israeli couple) per Lord Browne – Wilkinson, where he stressed that this was the exception to the rule. See also in 1 FLR 682 In re AZ (Minor) [1993] [20].

In France too, case-law recognized this type of exception, which lead to a similar result as the result we delineated in this case. See in the decision in Aubrey v. Aubrey as cited in the book Beaumont & McEleavy The Hague Convention on International Child Abduction (1999), at p. 122) it bears mention that the aforementioned book critiques that decision, and also cites opposing French decisions - Horlander c Horlander. Cass. 1^re civ., 1992 Bull. Civ. L. No 91-18177; D.S 1993, 570)

3.  In view of all the above, the appeal should be accepted, as proposed by my colleague, Justice E. Arbel.

                                                                                                       Justice

Justice U. Vogelman

 

1.    I concur with the majority of the determinations set forth in the opinion of my colleague Justice Arbel, and with their accompanying reasons. I also agree with her determination that our case does not enable application of the "exception of acquiescence" in section 13 (a) of the Convention, within the meaning of the Hague Convention Law (Return of Abducted Children) 5751-1991. All the same, unfortunately, I cannot concur with her determination that in the case at hand there is application of the exception of consent prescribed in the same section, which would enable the non-return of the common daughter to the U.S.A, in view of the respondent's consent to the same in the framework of the preliminary draft agreement that was prepared in the course of negotiating the “property agreement”, and which did not finally materialize.

2.    As my colleague notes, the exception of consent is governed by the law of contracts, with all of the conditions implicit therein.  A fundamental principle of contracts law, which also has relevance to our case, is the principle of reciprocity. According to this principle, the advantage of the contract – i.e. the benefit received from the second party, and the disadvantage, i.e. that which must be given to the second party, must be reciprocal (see Daniel Friedman, and Nili Cohen, Contracts 149 (Vol. 1, 1991) (hereinafter: Friedman and Cohen). A situation in which there is a bifurcation in the legal status of the two contracting parties, in which one of them is held by his word and his waiver in the negotiation, and the other party is exempt and free from his consents - places the contracting parties on an unequal footing, and is not consistent with the aforementioned principle.

3.   The draft agreement in our case is the result of negotiations between the parties, in which neither of the parties realized all of their wishes. Analysis of the various components of the contract indicates that each party waived and compromised until finally a draft agreement was reached, in which the various obligations are dependent upon each other, The assumption that the respondent's consent that the applicant and the daughter would remain in Israel was a unilateral and unconditional, in my view, is not consistent with the factual infrastructure that has been presented to us, including the various components of the contract, nor with its purpose, which was to resolve the entirety of subjects that were in dispute in a manner that would enable the termination of the marriage between the parties. In this situation, where at the end of the day no agreement was reached, and the draft did not become a binding agreement, the undertakings included therein did not take effect, their execution being dependent upon reciprocal execution by each one of the parties.

4. Concededly, as noted by my colleague "there is no sanctity in the act of signing" and if the agreement embodies the foundations of resolve and specificity, it will be binding even in the absence of a signature. However, as she herself mentions, these foundations, and primarily the foundation of resolve did not exist in our case, and hence the contract did not materialize. In this situation I do not think that it is possible to severe the respondent's consent which related to one of the components of the draft agreement, from the overall agreement structure, and left alone notwithstanding that the framework of which it was supposed to be a part did not materialize. I will further add that these comments do not preclude the possibility of a legally binding undertaking being created, even if essentially unilateral, even in the framework of a negotiations towards a contract that did not ultimately result in an agreement. This would be the case in situations where there was reasonable reliance of one party to the contract in the wake of undertakings given, or presentations made by his friend in the course of negotiations (Friedman and Cohen, p. 519-648)).  However, in the case before us I do not think that the factual infrastructure that was presented to the trial forum indicates that the respondent made a statement or a presentation that was liable to lead to the applicant to reasonable reliance that would justify the protection of the law.

5.    Apart from all the above, the use of agreements in the framework of negotiations draft towards an agreement, which ultimately did not reach fruition, carries negative consequences in terms of the readiness of the parties to conduct practical negotiations towards an agreement.   More precisely, the parties are liable to avoid making representations, declarations or offers which involve a waiver to the second party, in their fear that such a waiver will serve as evidence to their detriment in a future proceeding that might take place between the parties (see CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd.  [18] 333.  This could create difficulties in reaching agreements, frustrate settlements, and needlessly lengthen adjudication.

Since the exception of consent has no applicability, there is no escaping, in my view, from the dismissal of the appeal.

 

                                                                                                                   Justice

 

It was decided by a majority of opinions in accordance with the decision of Justice E. Arbel.

 

Handed down today, 13 Iyar 5771 (17.5.11)

 

  JUSTICE                          JUSTICE                     JUSTICE

 

HCJ 3648/97

HCJ 8016/96

HCJ   343/97 

HCJ   604/97

HCJ   924/97

HCJ 2124/97

HCJ 2180/97

HCJ 3533/97

HCJ 4514/97

HCJ 4696/97

HCJ 7187/97

HCJ 7218/97

HCJ 7346/97

HCJ 7353/97

HCJ 7604/97

HCJ    18//98

HCJ   151/98

HCJ   468/98

HCJ   588/98

HCJ 2125/98

HCJ 2355/98

HCJ 2567/98

HCJ 3533/98

HCJ 4019/98

HCJ 4110/98

HCJ 4623/98

HCJ 5188/98

 

 

 

Petitioners in HCJ 3648/97                 1.  Yisrael Stamka

                                                            2.  Bijelbahan Fatel

                                                            3.  Miriam Gorodetsky

                                                            4.  Peter Pobi

                                                            5.  Zohar Yifat

                                                            6.  Steven Wally Adeniji

 

Petitioner in HCJ 8016/96                       Jorge Arnulf

 

Petitioner in HCJ 343/97                         Anita Rantzer

 

Petitioners in HCJ 604/97                   1.  Ido Idan

                                                            2.  Tatiana Wodenski

 

Petitioner in HCJ 924/97                    1.  Yitzhak Friedman

                                                            2.   Davina Dragomir

 

Petitioners in HCJ 2147/97                 1.  Baruch Semo

                                                            2.  Zion Azav Tespazag

 

 

Petitioners in HCJ 2180/97                 1.  Abdullah Yildiz

                                                            2.  Natalia Kadoshvitz

 

Petitioners in HCJ 3533/97                 1.  Tatiana Ivanovna Valchok

                                                            2.  Boris Sapozhnikov

 

Petitioners in HCJ 4514/97                 1.  Webeto Warko Imer

                                                            2.  Semelvit Vladias

 

Petitioners in HCJ 4696/97                 1.  Alexander Diachenko

                                                            2.  Alexandra Gorlov

 

Petitioners in HCJ 7187/97                 1.  Boris Srebrenic

                                                            2.  Alicia Vasiliadi

                                                            3.  Yuri Vasiliadi

 

Petitioners in HCJ 7218/97                 1.  Skub Renata

                                                            2.  Agponikov Igor

 

Petitioners in HCJ 7346/97                 1.  Simona Wilf

                                                            2.  Jugen Hosano

                                                            3.  Einat Primo

                                                            4.  Prince Hays Amlalo

 

Petitioners in HCJ 7353/97                 1.  Yevgeny Stramovsky

                                                            2.  Larissa Shevetz

 

Petitioners in HCJ 7604/97                 1.  Hannah Yisraeli

                                                            2.  Frederick Kuamina Wilson

 

Petitioners in HCJ 19/98                     1.  Ashmei Ichelhum Tespai

                                                            2.  Abeba Pishah

 

Petitioner in HCJ 92/98                           Mesfin Matheus Bakela

 

Petitioner in HCJ 151/98                         Mazalach Peretz

 

Petitioners in HCJ 468/98                   1.  Garda Gamaliel

                                                            2.  Godwin Iheanacho Ugwu

 

Petitioners in HCJ 588/98                   1.  Moshevitz Igor

                                                            2.  Kozayev Oksana

 

Petitioners in HCJ 2125/98                 1.  Kuznezov Maxim

                                                            2.  Vasiliev Irina

 

Petitioners in HCJ 2355/98                 1.  Miriam Yanai

                                                            2.  Joseph Uchenna Dike

 

Petitioners in HCJ 2567/98                 1.  Yagudaev Inesa

                                                            2.  Bobriniov Vaceslav

 

Petitioners in HCJ 3533/98                 1.  Dimitri Sendekov

                                                            2.  Nina Lookout

 

Petitioners in HCJ 4019/98                 1.  Dov Holzberg

                                                            2.  Rosalia Chipai

 

Petitioners in HCJ 4110/98                 1.  Genadi Lifschitz

                                                            2.  Valentina Ovchinkova

                                                            3.  Leah Hazzan

 

Petitioners in HCJ 4623/98                 1.  Ella Elizabeth Shunia

                                                            2.  Ade Juwon Ajifolawe Ojomo

 

Petitioners in HCJ 5188/98                 1.  Semion Rabinikov

                                                            2.  Irina Rabinikov (Rastborchev)

 

 

                                                                                    v.

 

 

Respondents:                                      1. Minister of the Interior

2. Head of the Visas and Aliens Department in the  Ministry of the Interior

                                                            3. Head of the Population Authority

 

Respondent in HCJ 604/97                 4. Head of the Consular Section – Ministry of Foreign Affairs

 

 

Attorneys for the Petitioners in HCJ 3648/97: Anat Scolnicov, Adv.; Anat Ben-Dor, Adv.; Nicole Maor, Adv. (Center)

 

Attorney for the Petitioner in HCJ 8016/97:  Rami Amir, Adv.; Nir Amoday, Adv.; Eyal Akunis, Adv.

 

Attorney for the Petitioners in HCJ 343/97 and HCJ 604/97: Shmuel Mintzer, Adv.

 

Attorney for the Petitioners in HCJ 924/97, HCJ 2124/97, HCJ 2180/97, HCJ 4514/97, HCJ 19/98, HCJ 3533/98, HCJ 4019/98: Yosef Ben-Menashe, Adv.

 

Attorney for the Petitioners in HCJ 3522/97: Arnon Shotland, Adv.

 

Attorney for the Petitioners in HCJ 4696/97: Grigori Geiman, Adv.

 

Attorney for the Petitioners in HCJ 7187/97: Ilya Waisberg, Adv.

 

Attorney for the Petitioners in HCJ 7218/97: Rami Mashinsky, Adv.

 

Attorney for the Petitioners in HCJ 7346/97, HCJ 7604/97, HCJ 468/98, HCJ 2355/98, HCJ 4110/98, HCJ 4623/98:  Theodor Schvarcberg, Adv.

 

Attorney for the Petitioner in HCJ 92/98: Avinoam Ashkenazi, Adv.

 

Attorney for the Petitioners in HCJ 2125/98: Vadim Strovichovsky, Adv.

 

Attorney for the Petitioners in HCJ 2567/98: Lora Maxic, Adv.

 

Attorney for the Petitioners in HCJ 5188/98: Dayana Har-Even, Adv.

 

Attorney for the Respondents: Yochi Gnessin, Adv. (Director of the High Court of Justice Affairs in the State Attorney’s Office); Dana Briskman, Adv.; Aner Helman, Adv.; Udit Corinaldi-Sirkis, Adv.; Orit Koren, Adv.

 

Abstract:

For many years, the Ministry of the Interior interpreted the Law of Return, 5710-1950, such that a non-Jew who married a Jewish Israeli citizen was entitled – upon marriage – to the status of a Jew under the Law of Return, and to the status of an oleh [Jewish immigrant] under the Nationality Law, 5712-1952. In 1995, the Ministry of the Interior changed its view. According to the new interpretation, that non-Jewish partner would not fall within the scope of the Law of Return, and consequently, would not be entitled to the rights granted a Jew, including the right to automatic Israeli citizenship upon request.

In their petitions, the Petitioners – who are “intermarried”, such that one of the partners is Jewish and the other is not – challenged the Ministry of the Interior’s new interpretation. They also challenged the Ministry of the Interior’s policy requiring the non-Jewish spouse to leave the country until the Ministry of the Interior had completed its examination of whether the marriage was bona fide or fictitious.

The Supreme Court held:

1. (1)        An agency that understood its authority in one way – even over a long period of time – and eventually reached the conclusion that it had erred in its interpretation, and that its authority differed from what it previously thought, is not only permitted to change its erroneous conduct, but is required to do so. Therefore, there are no grounds for a claim that the authority is estopped from retracting its mistaken interpretation.

(2)        Past acts and decisions made in light of the incorrect interpretation will stand, if only because individuals acquired interests and rights, and it would be improper to change their situation for the worse.

B. (1)         In accordance with the principle of the separation of powers, the authority and responsibility for interpreting the law are granted to the judiciary. Therefore, the Court will grant only very limited weight to the interpretation of the administrative authority acting thereunder. Moreover, it is the Court that is the expert in the matter of interpreting laws.

     (2)         In this regard, a distinction should be drawn between laws intended to establish behavioral norms and laws of a purely professional or technical nature. In the case of the latter, the Court should properly be aided by the interpretation of the administrative agency possessing the technical knowledge and expertise in the concrete matter.

     (3)         In the instant case, the Law of Return is a normative law that constitutes one of the foundational laws of the State. Therefore, the interpretation given to the law by the Ministry of the Interior has minimal, if any, influence on the Court in the interpretation of this law.

C. (1)         The primary characteristic of the right of return is that is almost an absolute right. Every Jew, wherever he may be, can and is entitled – at his volition alone – to realize the right of return, except in those limited, exceptional cases listed in sec. 2(b) of the Law of Return. In light of sec. 2(a) of the Nationality Law, a Jew who falls within the purview of the Law of Return becomes a citizen of the State upon arriving in Israel, without any waiting period.

     (2)         As opposed to this, the entry of a non-Jew to the State of Israel, and his presence in the country, are subject to the Entry into Israel Law, 5712-1952, which establishes a regime of permits, and grants the Minister of the Interior and his appointees broad discretion as to whether or not to grant a permit to enter and stay in Israel.

D. (1)         The provisions of sec. 4A of the Law of Return – which grant the rights of return to the non-Jewish family members of Jews – was intended for intermarried families in the Jewish Diaspora, in order to preserve family unity and encourage their immigration to Israel. The legislature sought to realize this purpose by granting the rights of return to a family member of a Jew, even without recognizing that person as a Jew.

     (2)         Therefore, although by its language, sec. 4A would appear to apply to the non-Jewish spouse of a Jewish Israeli citizen who wishes to benefit from the Law of Return and the Nationality Law, the main purpose of the law was not intended for such cases.

     (3)         The necessary conclusion is that the right of return is granted exclusively to the family members of Jews prior to their immigration to Israel. The right is not afforded to the Petitioners, inasmuch as their spouses are Jewish Israeli citizens – whether by birth or by realizing their right of return prior to their marriage – and they do not enjoy the power to grant the right of return to their spouses.

E.               An alien who marries an Israeli citizen does not acquire a right to naturalization by the very fact of the marriage, and the Minister of the Interior holds the authority to grant or deny an application for naturalization submitted by that alien spouse. Therefore, by virtue of sec. 13 of the Naturalization Law, the Minister of the Interior holds the authority to issue a deportation order to such a spouse who is neither an Israeli citizen nor an oleh under the Law of Return if he is in Israel without a residence permit.

F. (1)         An administrative agency that establishes internal directives that affect individual rights has a duty to bring those directives to the knowledge of the concerned parties by means of publication to the general public or by some other means. This duty is a precondition to the establishing and implementation of the directives.

     (2)         The Ministry of the Interior’s policy requiring a non-Jewish spouse who married an Israeli to leave the country until the completion of an examination of the legitimacy of the marriage was not published in an orderly manner by the Ministry of the Interior, except for a one-time, general notice in the daily newspapers. Such a situation borders upon illegality.

     (3)         The fact that some of those affected by the lack of publication of the policy reside in Israel unlawfully would not appear to prevent raising the argument that the administrative agency failed to fulfill its duty to publish under the legality principle.

G.               The Minister of Justice’s authority to deport an alien under the Entry into Israel Law is very broad, but it is not absolute. The exemption from stating reasons – granted to the Minister by virtue of sec. 9(b) of the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958 – denies the possibility of effective judicial review of the deportation authority.

H. (1)         The proportionality requirement – which applies to the exercise of discretion of every authority – requires that there be a rational connection between the means chosen by the authority and the objective it seeks to achieve, and that the harm that the administrative policy causes to the individual not be inordinately greater than the benefit of the policy.

     (2)         The Ministry of the Interior’s desire to combat the phenomenon of “fictitious marriages” is a “proper purpose”, however, the question is whether the means that it chose – requiring that the non-Jewish spouse of an Israeli citizen leave the country until the end of the examination of the legitimacy of the marriage – exceeds its contribution to advancing its objective.

     (3)         First and foremost, real doubts arise in regard to the existence of a rational connection between the said policy and promoting the objective of reducing the number of fictitious marriages, for a number of reasons. First, it would appear, on its face, that the demand that the non-Jewish spouse leave the country until the conclusion of the examination may, on the one hand, not deter a person who has decided to acquire Israeli citizenship by means of a fictitious marriage, while on the other hand, it may severely harm legitimate marriage relationships as a result of the separation imposed by the policy.

     (4)         Second, although the Ministry of the Interior has followed this policy for a number of years, it did not show that it actually contributes to a reduction in the number of fictitious marriages. The Ministry of the Interior did not present any relevant data as to the effect of the policy upon fictitious marriages.

     (5)         Third, it would appear that removing one spouse (or both together) from the country until the conclusion of the examination may actually make it more difficult to conduct some of the examinations required in assessing the legitimacy of a couple’s relationship, and primarily, to enquire into whether the couple live together and maintain a common household.

     (6)         The further requirement of proportionality – that there be a proper relationship between the public benefit achieved by the policy and the harm inflicted thereby upon the individual – is not met in the instant case. The policy adopted by the Ministry of the Interior severely and painfully harms many couples by ripping them from one another for a period of months, in addition to the economic and other burdens it imposes upon the couple, in order to achieve what would appear to be a purely speculative, unproven objective.

     (7)         Therefore, the necessary conclusion is that the Ministry of the Interior’s policy in regard to aliens married to Israelis while residing in Israel without a permit does not meet the proportionality test and is unlawful and void. The policy is also inconsistent with fundamental principles of a democratic regime that is concerned for civil rights.

     (8)         This does not mean that there are no possible cases in which the Ministry of the Interior is authorized to demand that a non-Jewish spouse leave the country until the conclusion of the examination of the legitimacy of the marriage. This would be the case where the fictitious nature of the marriage is facially obvious on the basis of clear evidence obtained in the course of the preliminary examination, or where the marriage certificate is a manifest forgery. In such cases, the said means may be employed after granting the couple an opportunity for a hearing of their arguments.

     (9)         However, in the usual case, the very fact that the non-Jewish spouse resided in Israel unlawfully at the time of the celebration of the marriage does not permit the Ministry of the Interior to condition addressing an application for naturalization upon the spouse’s leaving the country. The proper solution in such situations would appear to be that the unlawful residence at the time of the marriage would place a heavier-than-normal evidentiary burden upon the couple for proving the legitimacy of the marriage.

9.  (1)         There are no grounds for intervening in the Ministry of the Interior’s policy to apply the same arrangement for granting permanent residency to the spouses of Israeli citizens that it applies to the spouses of Israeli residents in regard to the waiting period required of the alien spouse prior to receiving permanent residency.

     (2)         It would be proper that the waiting-period requirement for an alien spouse be established in regulations, or at least in internal administrative directives published to the public at large.

10. (1)        Section 7 of the Nationality Law authorizes the Minister of the Interior to grant citizenship to the spouse of an Israeli citizen even if that spouse does not meet the general criteria for citizenship detailed in sec. 5(a) of that law. However, the Minister holds broad discretion in this regard. Just as the Minister can waive the criteria set forth in sec. 5(a), he may decide not to waive them, and insist that some of them they be met. However, in the framework of his discretion, the Minister cannot ignore the provision of sec. 7 permitting leniency for the spouses of Israeli citizens requesting Israeli citizenship.

     (2)         In this regard, the burden is upon the Minister to explain why he does not exempt such a spouse from the criteria under sec. 5(a) in whole or in part. Only in very exceptional cases would it possible to accept the Minister’s decision to require a spouse to meet all the criteria under sec. 5(a).

     (3)         In practice, the Minister of the Interior’s policy, as presented to the Court, shows that there are not real differences between the naturalization requirements for spouses of citizens and persons seeking naturalization who are not spouses of Israeli citizens. This is particularly true in regard to the lengthy waiting period of nearly six years before the Minister is willing to begin to process an application for the naturalization of a spouse of an Israeli citizen. In this regard, the Minister’s policy is not consistent with the legislature’s directive under sec. 7 of the Nationality Law to show leniency to spouses of citizens in the naturalization process. The requirement also does not meet the reasonableness and proportionality tests.

     (4)         Therefore, the Minister must establish and publish a policy by which the spouse of a citizen will be granted citizenship at the conclusion of a reasonable period of time, as shall be established, and upon meeting the prerequisite criteria. This policy must also relate to exceptional cases. Refraining from addressing all naturalization applications on their merits is prohibited.

 

                       

 

 

The Supreme Court sitting as High Court of Justice

 

 

Before:  Justice M. Cheshin, Justice D. Dorner, Justice D. Beinisch.

 

 

Judgment

 

 

Justice M. Cheshin:

 

1.         Twenty-eight petitions stand before the Court, in the matter of thirty-one married couples. Just as no two people are entirely alike, so the matter of each of those thirty-one couples is not identical to that of any of the others. However, each in its own way, all of the petitions (except one) raise the same legal questions that require resolution. That being the case, we decided to address all of the cases together, and we shall hand down one decision in them all. What follows is that one decision.

2.         “A’, a Jewish man and an Israeli citizen, marries “B” abroad – whether by a proxy “Paraguay marriage”, or by a marriage in which both are present in a foreign state – and “B” is non-Jewish woman who is not an Israeli citizen. Similarly, “C”, a Jewish woman and an Israeli citizen, marries “D”, who is not Jewish and not an Israeli citizen, in a foreign marriage. Both are “mixed marriages”. Thirty-one couples are petitioning us, and all but one (HCJ 604/97 Ido Idan v. Minister of the Interior) are mixed couples according the model we described – a couple in which the man is a Jewish, Israeli citizen and the woman is a foreign non-Jew, or a couple in which the woman is a Jewish, Israeli citizen and the man is a foreign non-Jew. In the Ido Idan case (HCJ 604/97), both partners are not Jewish – the man is an Israeli citizen, and the woman is a citizen of Uzbekistan – and so the petition raises only some of the questions that we will address. For the sake of simplicity, we will address below the model of a couple in which the man is a Jewish Israeli citizen and the woman is a foreign non-Jew. Needless to say, the solutions that we will propose will also apply to couples in which the woman is a Jewish Israeli citizen and the man is a non-Jewish foreigner. As for couples in which one partner is Israeli (non-Jewish) and the other partner is not Israeli (and non-Jewish), the same rule will apply, except in regard to the Law of Return, which applies only to Jews and their non-Jewish family members (as we shall further explain below).

3.         We are presented with four primary questions, as follows:

            (1)        Is the non-Jewish partner entitled to the rights granted by the Law of Return, 5710-1950, and the Nationality Law, 5712-1952, to a Jew who immigrates to Israel? Is that partner entitled to Israeli citizenship as if she were a Jew who immigrated to Israel?

            (2)        In most of the petitions, the non-Jewish, foreign partner has been asked to leave the country for a period of months until the Ministry of the Interior can investigate the marriage, primarily to ascertain whether it is bona fide or fictitious. Is that policy justified, and should the Ministry of the Interior be permitted to continue to act in accordance with that policy, as it has until now?

            (3)        On the assumption that the answer to the first question is negative – in other words, that the non-Jew is not entitled to the rights granted a Jew under the Law of Return, 5710-1950 – what is her status under the Nationality Law, 5712-1952? Does she enjoy preferred rights under this law, or is she the same as any immigrant?

            (4)        Most of the Petitioners further request that their marital status be registered in the Population Registry, and the question is whether the Ministry of the Interior is justified in refusing that request?

            We will address each of these questions in order.

 

The Right of a Non-Jewish Spouse to Return

The Administration’s longstanding Interpretation of the Law

4.         As we stated at the outset, this is the model upon which we will base our opinion: A Jewish, Israeli citizen marries a woman – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. Most of the couples before us were married by means of “Paraguay marriages”, which are performed by correspondence with the competent authorities in Paraguay. Each of the partners appoints a proxy in Paraguay, and those proxies celebrate the marriage on behalf of the partners without the partners leaving the borders of the State. Some of the couples married in a foreign state in a regular marriage ceremony.

5.         For many years, and until just recently, the Ministry of the Interior interpreted the Law of Return such that the non-Jewish partner of a Jew who was an Israeli citizen at the time of the marriage was entitled – upon marriage – to the status of a Jew under the Law of Return, and to the status of an oleh [Jewish immigrant] under the Nationality Law, as if he were a Jew. In other words, the non-Jewish partner was entitled to “return” like any Jew. (See and compare, for example: HCJ 1850/93 Chima Eduares Oniolo v. Ministry of the Interior (unpublished); HCJ 3680/95 David Teveria v. Ministry of the Interior (unpublished)). In 1995, the Ministry of the Interior changed its view, and began to interpret the law differently. According to the new interpretation, the non-Jewish partner would not fall within the scope of the Law of Return, and consequently, would not be entitled to the rights granted a Jew, including the right to be granted automatic Israeli citizenship upon request. The latter interpretation is the one that the Respondents are advancing before us.

            Against the background of this alternative reading, the Petitioners argue that – after a generation of acting otherwise – the authorities of the Ministry of the Interior are estopped from reconsidering and reinterpreting the law in a different manner than they have over the years. In other words: Once the Ministry of the Interior stated its position in the past, it should not be permitted to recant and state otherwise. The interpretation given in the past has rooted itself, as it were, in the law itself: the interpretation “shall become one” [Ezekiel 37:17], and none shall separate “between the joints” [I Kings 22:34]. That being the case, the Petitioners further argue that they are, in consequence, entitled – by the original interpretation – to what is theirs, and to be granted Israeli citizenship on the basis of their request, alone. This argument raises a serious question in regard to the rules interpretation in all its force, and it is this: when a law is brought before the Court for interpretation and for establishing its scope, can the Court take into consideration – as a valid factor – the interpretation that the administrative agency employed, sometimes over the course of many years? The competent agency has conducted itself in some way or another in interpreting the law. In coming to interpret that very same law and its scope, would it be proper for the agency’s interpretation, in and of itself, to influence the Court’s discretion to any extent? This is not a new question, and we will say a few things about it.

6.         On the claim of estoppel – raised gently and half-heartedly – we will comment only briefly. An agency that understood its authority in one way – even over a long period of time – and eventually reached the conclusion that it had erred in its interpretation, and that its authority differs from what it previously thought, is not only permitted to change its erroneous conduct, but is required to do so. The legislature’s word is law, and the law stands unchanged, unless the agency misunderstood it. Needless to say, we are speaking of the agency’s prospective acts and decisions. As for past acts and decisions – acts and decisions made when the law was incorrectly interpreted – the rule may, at times, be different, if only because individuals acquired interests and rights, and it would be improper and incorrect to change their situation for the worse.

7.         The question of the weight that should be attributed to the agency’s conduct when the Court addresses the interpretation of the law is separate and distinct from the question of estoppel. What weight should be given to the specific conduct of the authority competent to interpret it when the Court addresses the interpretation of the law? Put differently: when the Court finds that its interpretation of the law is different from the practice of the agency authorized to interpret the law – a practice that it adopted for many years – should the Court grant weight to the agency’s interpretation simply because that is how it interpreted the law for a long time? Needless to say, this question will arise when a law has two – or more – possible interpretation, which is not commonly the case. The author Aharon Barak addresses this in his book Interpretation in Law, vol. II (1994) 791ff. (Hebrew) in which he describes three schools of interpretation: “the ignoring approach”, “the zone of legality approach”, and “the judicial discretion approach”, and we will not reiterate was has already been written there.

8.         To my own way of thinking, I believe that the recognized weight of an agency’s interpretation  -- whatever it may be – is a light as  feather: as light as a feather, and at the same time, as heavy as a feather. First and foremost, we would say that we cannot ignore the recognized psychological influence of an agency’s interpretation. Until the question was brought before the Court, the interpretation of the competent authority was the interpretation that was firmly rooted in reality, and the Court cannot ignore – even if only subconsciously – the interpretation that held sway for many years. Therefore, whatever the rhetoric may be, it would seem to me that as hard as it may try to free itself of the agency’s interpretation, at the very least, the Court will be influenced by that interpretation that has infiltrated its consciousness. However, and bearing that in mind, I am of the opinion that the agency’s interpretation of a law – as such – should be afforded minimal weight. In any case, we can distinguish among different types of laws, and that minimal weight may differ from law to law. We will now begin with the first things first.

            The first principle – first and foremost – is that the authority to interpret laws is given to the Court. That authority brings with it the responsibility to interpret the law. Here, then, is the principle of the separation of powers – or perhaps: the principle of the distribution of powers among the authorities – and the division of work among them: the Legislature legislates, the Executive executes, and the Judiciary judges – it interprets and establishes the scope of the law’s application. Thus, once the legislature has enacted a law, the authority to interpret it falls to the Court, and to it alone. In LCrimA 1127/93 State of Israel v. Yossi Klein, IsrSC 48 (3) 485, 500-501, we wrote:

The authority to enact laws is given to the legislative branch – to it and it alone. Or as Justice Silberg so poetically expressed it in CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [IsrSC 8 785] at p. 819:  “There is no legislature but the Legislature, and by it laws are measured”.[1] However, once the child has come into the world, its cord severed from its mother, the legislature has completed its task (for that time) – like a functus officio – and from then it is the authority of the court to interpret the law, decide its force, the scope of its incidence, and its content. That is the law of the separation of powers between the Legislature and the Judiciary on one foot, the rest is commentary, go and learn …

Once the legislative act is completed, the law leaves the legislature’s court. It lives as if on its own, and its interpretation – in the broad sense of the term – is, at the end of the process, given to the courts, and to them alone.

                        And see: HCJ 4031/94 Betzedek et al. v. Prime Minister, IsrSC 48 (5) 1.

            So it is in regard to the interpretation of subsidiary legislation and normative administrative acts, as well. In one case, a minister established criteria for subsidies for public institutions, and the Court was called upon to interpret those criteria. We said in that regard that the interpretation of the criteria is for the Court, and not the minister who established them, stating:

The Minister was required to establish criteria … nothing will be done except in accordance with the criteria. They establish rights, and they withdraw rights. The Minister’s intent is meant to be expressed in the published criteria, and the published criteria are the Minister’s intent. Once they have been published, and until they are rescinded or changed, the Minister no longer exercises control over the criteria. They live on their own, and are no longer dependent upon the Minister. While the Minister fathered them, from the moment of their birth – the moment of their publication – the umbilical cord was cut, and they are meant to live their own lives and speak for themselves. The baker cannot testify as to [the quality of] his dough, and like him, the legislature cannot interpret laws (except by the manner that it enacts those laws). That is the rule of law, that is the separation of powers, that is the democratic process (HCJ 5290/97 Ezra et al. v. Minister of Religious Affairs et al., IsrSC 51 (5) 410).

            The law is asked of the court, and the court may not excuse itself from its duty – and authority – to interpret the law by making recourse to experts or to the interpretation of the competent agency. The court is the “expert” in interpreting the law – for that it was prepared, and that is its mission – and it may not turn to any but itself. That is what I thought in the past, and that is what I think even now in regard to our intervention in the decisions of the Labor Court, particularly in regard to the comprehensive thesis that the labor Court’s “expertise” may serve as a bar to our intervention in its decisions. Thus, in HCJ 1520/91 Wilensky v. National Labour Court, IsrSC 46(5) 502, 519, I wrote:

This consideration of “expertise” and of “specialization” as a reason for the non-intervention of the High Court of Justice in the decisions of the Labor Court is beyond me. Thus, for example, the Civil Service (Pensions) Law treats of labor law, but I do not know or understand why the Labor Court is more “expert” than the High Court of Justice in interpreting and deciding its intended legislative purpose in any particular case. So it is in regard to that law, and all of labor law, as we are concerned with a corpus of norms that is part of the national law like any other legal area. The “expertise” and “proficiency” of a traffic court judge, for example, in traffic law is greater than the “expertise” of most of the justices of this Court, but it is unthinkable to say that that “expertise”, in and of itself, carries weight in interpreting a statute that is a member of the traffic law family.

            And I added in this regard in HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court, IsrSC 49 (1) 573, 592:

We thus find that in addressing a particular matter, the Court considers the interpretation of some law, and concludes that the relevant, material considerations pulling to each side lead to a certain interpretation of the law. The Court then, so to speak, places all the interpretations that present themselves on the scales in a “correct interpretation competition”, and at the end of the process it concludes that a particular interpretation is decisive. Now, having arrived at the “right interpretation”, would it change its mind simply because the Labor Court – as an “expert” who “specializes” in labor law—thinks otherwise? The answer, in my opinion, is no.

And further on (ibid., p 593):

…the decision of the Labor Court, as such – as distinct from its reasoning – cannot serve as a consideration, in and of itself, in the interpretation of a law. Our relationship to the law is direct, and our conversation with it is unmediated.  A judge, each judge, is a lone knight in the fields of the law and justice. Indeed, the judge’s heart will ever be open to the opinions of others, to hear voices from near and afar, but the fact that some person holds a particular opinion, as such, must never influence his discretion, be that person be as exalted and venerated as he may be (all subject to the express provisions of law like the provisions of binding precedent). The responsibility for the interpretation of law and precedent couches at our door, and we cannot shirk it off.

            If that was said in regard to the Labor Court – presided over by judges like myself and my colleagues – would the same not hold true for the interpretation of an administrative agency, and even a fortiori? The question provides its own answer.

9.         Thus far, the grounding principle: The Court’s exclusive authority to interpret laws is its authority and its attendant duty to interpret the law. We would also note this: all laws are not the same. For example, when a law concerns a professional or technical subject, the practice of the competent agency – an agency that has professional or technical knowledge, or that is aided by advisors with the professional or technical knowledge – should be attributed weight when the Court addresses the interpretation of the law. The matter is different in regard to a normative subject, that is: a subject regarding which the legislature intends to establish behavioral norms, in order to direct the conduct of the general public and of individuals. The “expert” on the normative subject is the Court alone, and it is the Court that will establish the law and its scope. Moreover, as we climb higher up the normative pyramid, the responsibility of the Court for interpreting the law will increase, while the weight that will be given to the interpretation of the competent agency will approach zero.

            As for the matter before us, we will state emphatically: we are concerned with the interpretation of a provision of the Law of Return – the question of the incidence of one of the State’s foundational laws. Not only does its interpretation not require “expertise”, but given the law’s exalted place on the Israeli normative scale, I do not have the slightest doubt that the governmental agency’s interpretation of the law – even if over a period of many years – is of no importance whatsoever. If that is the general rule, it is all the more so the case when the agency has changed its approach, and has suggested an interpretation of the law that the Court considers correct.

10.       We would conclude in adding in this regard that all that we have said – concerning an interpretation by the Court that quashes the interpretation of an administrative agency – as good and correct as it may be, is solely prospective, and the petitions that require our decision concern the future. Indeed, we cannot turn a blind eye to the consequences of a longstanding practice, and it would not be proper to harm – even indirectly – rights that were acquired by individuals on the basis of the agency’s prior interpretation of the Law of Return. Our interpretation of the Law is not retrospective, and we will not stir up the past, “for once an error has entered, it remains” [TB Pesachim 112a]. (And further see and compare: the Klein case, ibid., p. 504 and the references there; Aharon Barak, Interpretation in Law, vol. 3, p. 740 (Nevo, 1994)).

11.       Now that we have found that the Ministry of the Interior’s interpretation of the Law of Return is of no consequence – or in the view of some, only of minimal consequence – we will turn to the Court’s interpretation of the Law. The model, as we recall, is of a man who is a Jewish Israeli citizen married a foreign woman who is not Jewish. And the question is: does the Law of Return grant the non-Jewish partner the same rights that it bestows upon a Jew?

 

The Right of Return of a Non-Jewish Partner

12.       We are all acquainted with the Law of Return and its amendments, but it would not be superfluous to remind ourselves of its language. The fundamental provision calls out to us from its first section, which states:

                        Every Jew has the right to come to this country as an oleh.[2]

            A Jew becomes an “oleh” by virtue of an “oleh’s visa” or an “oleh’s certificate” (sec. 2(a) and 3(a) of the Law, respectively), and the right of aliyah can be denied only for the special reasons set out in sec. 2(b) of the Law (the oleh is engaged in an activity directed against the Jewish people; the oleh is likely to endanger public health or the security of the State; the oleh is a person with a criminal past, likely to endanger public welfare).

            In 1970, the Law of Return was placed upon the operating table, and the Knesset changed the genetic code that directs its implementation. We are speaking of the Law of Return (Amendment no. 2), 5730-1970, which added secs. 4A and 4B to the Law. Those sections state as follows:

Rights of members of family

4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.

(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

(c) The restrictions and conditions prescribed in respect of a Jew or an oleh by or under this Law or by the enactments referred to in subsection (a) shall also apply to a person who claims a right under subsection (a).

Definition

4B. For the purposes of this Law, "Jew" means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.

            To these provisions we would add sec. 2(a) of the Nationality Law, which states as follows:

                        Nationality by Return

2. (a) Every oleh under the Law of Return, 5710-1950, shall become an Israel national by return …

(Section 2 of the Nationality Law goes on to set out details, restrictions and expansions, but for our purposes, we are primarily concerned with the above). For our purposes, we are primarily concerned with the provisions of sections 4A and 4B of the Law of Return, and sec. 2(a) of the Nationality Law as a derivative therefrom.

13.       By its language, sec. 4A of the Law of Return is intended to broaden the scope of those entitled to benefit under the Law of Return. Since the adoption of sec. 4A, the Law of Return does not apply exclusively to Jews. Its incidence expands to include family members of a Jew who is entitled to immigrate to Israel as an oleh. Those family members – even if they are not Jewish – are entitled to the right of a Jewish oleh by virtue of the Law of Return. (Also see and compare: Haim Cohn, The Law, pp. 497-498 (Jerusalem: Mossad Bialik, 1991) (Hebrew); Dr. Asher Maoz, Who is a Relative in the Law of Return? 38 Hapraklit 637, 641-642 (Hebrew)).

            Thus, the Petitioners argue that sec. 4A(a) of the Law of Return informs us that the rights of a Jew under that Law (and the rights of an oleh under the Nationality Law) “are also vested in … the spouse of a Jew”, and the necessary conclusion is almost self-evident: A Jew is entitled to immigrate to Israel and become an Israeli citizen, the spouse of a Jew is vested with the same rights of a Jew, therefore: the spouse of a Jew is entitled to immigrate to Israel as an oleh, and become an Israeli citizen. Moreover, the Law itself does not distinguish between Jews – whether a Jew who has not yet immigrated to Israel and is not an Israeli citizen, or a Jew who is an Israeli citizen. All Jews are treated alike. And just as all Jews are treated alike, such should be the rule in regard to the (non-Jewish) spouses of Jewish Israeli citizens. It should be of no consequence that the (non-Jewish) partner became a spouse prior the Jew’s immigration to Israel – in which case it is undisputed that he would be entitled to return – or whether the partner became the spouse of someone who was already a Jewish Israeli citizen. The Petitioners further argue that this conclusion is reinforced by sec. 4 of the Law, which equates the status of a Jew who immigrated to Israel after the enactment of the Law of Return and a Jew who was born in Israel or immigrated to Israel prior to its adoption, as the section states:

                        Residents and persons born in this country

4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law.

            Thus: every Jew is a Jew, and every spouse of a Jew – as the spouse of a Jew – is entitled, by virtue of section 4A, to the rights of a Jew, even if the Jew is an Israeli citizen at the time of the marriage.

            The Respondents reply: Not so. “Spouse”, as this term is used in section 4A of the Law of Return, refers only to a person who became the spouse of a Jew when that Jew was not (or was not yet) an Israeli citizen. Whereas if the Jew is an Israeli citizen, section 4A does not apply to him at all, and his spouse will not be entitled to the rights of a Jew under the Law of Return, nor to citizenship by virtue of return (as provided by the Nationality Law).

            This raises the question: In regard to that “spouse of a Jew” referred to in section 4A(a) of the Law of Return – is every spouse of a Jew entitled to return and citizenship (as the Petitioners argue), or should we say that the text speaks exclusively of the spouse of a Jew prior to his becoming an Israeli citizen, as the Respondents contend?  That is the issue that we will now address.

Linguistic Examination

14.       As is our custom, as is the custom of a court, we will begin with a linguistic examination of sec. 4A of the Law of Return. A close reading of sec. 4A reveals that even a linguistic examination is not of one cloth. It would appear that, form a linguistic perspective, we find at least two interpretive levels, and even they do not coexist in harmony.

            Reading sec. 4A in accordance with its plain meaning – and at face value – would seem to support the view of the Petitioners. As we see, the legislature instructs us that the rights of a Jew and an oleh are granted to the non-Jewish spouse of a Jew, and the Law does not express any limitation or restriction of any kind in regard to his status at the time of his marriage in regard to being, or not being, a citizen of the state. It would, therefore, appear that even if a Jewish Israeli citizen marries a non-Jewish woman – whether in Israel or abroad – and that woman request to enjoy the benefits of the Law of Return and the Nationality Law, both of those laws extend their embrace and grant her their rights. That is the interpretation of the Law in accordance with its plain meaning. We will refer to this interpretation as the “static linguistic construction”.

            Alongside the static linguistic construction we find the “dynamic linguistic construction”, which is an interpretation that does not read the provisions of sec. 4A in isolation, as does the static linguistic construction. The dynamic linguistic construction tells us not to take sec. 4A out of its context – in this case, in the correct sense of taking something out of context – but to read it in the context of all the provisions of the Law of Return, and that we read the Law of Return – along with sec. 4A – as a single, flowing unit; as a single idea that divided itself into sections and subsections simply due to our limitations, because of the paucity of our communication, because we are unable to express a complex idea other than be dividing it into words, phrases, sentences and paragraphs. Thus, if we read sec. 4A as it flows within the Law of Return, we can say that the underlying provision of the Law of Return is to be found in sec. 1, according to which a Jew is entitled to immigrate to Israel. Section 4A is nothing but a continuation of sec. 1. Section 1 flows into sec. 4A, and sec. 4A converges with the flow of sec. 1, and is to be understood as saying just this: that the right granted to a Jew to immigrate to Israel, is also granted to the members of that Jew’s family when he immigrates. Indeed, the phrase “when the Jew immigrates to Israel” is not to be found expressly in sec. 4A. But although it is not expressly stated in the Law, it is subsumed in the text. Section 4A is a quasi-continuation of sec. 1, and the said family members in sec. 4A are the family members of that oleh referred to in sec. 1. That the spouse referred to in sec. 4A refers to a (non-Jewish) spouse at the time of the immigration of a (Jewish) spouse is a necessary conclusion. Of course, this interpretation removes a non-Jew who became the spouse of a Jew who is an Israeli citizen at the time of marriage, as the State argues. That Jew is not an oleh, and therefore, the non-Jewish spouse has no one upon whom the right can be grounded.

            The decisive question in each and every case is whether or not the spouses were spouses before their immigration to Israel. If they were, then the non-Jewish spouse is vested with rights under the Law of Return and the Nationality Law, and if not, then not. We would further add that under the provisions of sec. 4A(b) of the Law of Return, the right of the non-Jewish spouse under sec. 4A  – once having vested – remains whether or not the Jewish spouse is alive, and whether or not he immigrated to Israel.

15.       To my mind, the dynamic linguistic construction is more persuasive than the static linguistic construction. It would be neither correct nor proper that we say that sec. 4A is a provision that dwells apart, not reckoned among other legal provisions. We have not found an ancient shard in an archeological dig upon which sec. 4A is engraved – a shard in isolation, without origin or destiny, unrelated to anything that came before it or that will come after it – a self-contained entity that we may understand thus, or perhaps otherwise. That is not the case. Section 4A is planted in the body of the Law of Return with the intention that it be a living part thereof. The Law of Return flows within it, and it flows within the Law of Return. Against this background, it would be neither right nor proper that we uproot it from its place, grasp it between our fingers, and hold it up to the light to examine it in isolation. If we seek the truth, we must examine it in situ, in the context of the Law of Return, and we will find ourselves led inevitably to the spouses – one Jewish and one not Jewish – who became a couple before they came to Israel.

16.       Of course, we will not suffice with interpreting the Law from within. We will continue our interpretive journey beyond the Law, to discover whence it came, how it came into being, and who conceived it and gave it life. We will learn wisdom and become enlightened, and then we will return to the Law and interpret it to the best of our ability.

About the Law of Return

17.       There are few laws around the world like the Law of Return, and it is the justification – albeit not the only justification – for the existence of the Jewish State. “Every Jew has the right to come to this country as an oleh by return…”, declares sec. 1 of the Law, and it language is like that of an anthem: a Jew – the soul of a Jew still yearns;[3] “as an oleh”, because one ascends[4] to the Land of Israel, and those who leave permanently are “descenders” [yordim]; to “this country” – the name of the country is “Israel”, but one does not ascend to Israel, one ascends to “the country”. These are not the words of an ordinary law. They are the words of poetry. And let us recall the exalted, stirring words of Prime Minister David Ben-Gurion at the beginning of the debate on the Law of Return (6 Divrei HaKnesset 2035, 2036-3037):

The Law of Return is one of the foundational laws of the State of Israel. It comprises a central purpose of our state, the purpose of ingathering the exiles. This law establishes that it is not the state that grants a Jew from abroad the right to settle in the state, but rather it is his inherent right as a Jew, if he desires to join in settling the land … The Law of Return has nothing in common with immigration laws. It is the law of the persistent history of the history of Israel. This law establishes the sovereign principle upon which the State of Israel was established. It is the historic right of every Jew, as such, to return and settle in Israel…

            Some have argued that the right of return is absolute, and suffers no restrictions. Ultimately, the proposal that was accepted comprised two exceptions to this exalted right, albeit exceptions of limited scope, as set out in sec 2(b) of the Law (the Minister of the Interior can refuse an oleh visa to a Jew who is engaged in an activity directed against the Jewish people, and to a Jew who is likely to endanger public health or the security of the State).

            The right of return is granted to every Jew – as such – and the primary characteristic of the right is its decisiveness – it is a right that is almost absolute. Every Jew, whomever, can and is entitled to – at his volition alone – realize the right to return, the right that “your children shall return to their country” [Jeremiah 31:17]. Other than those limited exceptions, the right is not contingent, and the authorities have no discretion as to whether the right of return will or will not be granted to a Jew who wishes to immigrate to Israel. The decisiveness of the Law derives from its uniqueness – from its being a concrete expression of the relationship between every Jew and the Land of Israel. A Jew from the “Diaspora” who wishes to settle in Israel is not an immigrant, he is an “oleh” to the land, he “returns” to the land, in the sense of “your children shall return to their country” [Jeremiah 31:16]. Indeed, the Law of Return is the direct continuation of the Declaration of the Establishment of the State of Israel and its declaration that “the Jewish State … will open the gates of the homeland wide to every Jew”, and “The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles”. It is, therefore, no wonder that the Law of Return was described as “one of the foundational laws of the State of Israel. It comprises a central purpose of our state, the purpose of ingathering the exiles” (Prime Minister David Ben-Gurion, 6 Divrei HaKnesset (1950) 2037). And as the Court stated: “It should not be forgotten that the Law of Return is one of the State’s most fundamental laws. If you like, it is its first Basic Law” (HCJ 265/87 Gary Lee Beresford v. Minister of the Interior, IsrSC 43 (4) 793, 845 per Barak J.).

18.       A derivative of the right of every Jew to immigrate to Israel is his immediate, undisputed right to become a citizen of the State. As stated in sec. 2(a) of the Nationality Law: “Every oleh under the Law of Return, 5710-1950, shall become an Israel national”. Prior to the enactment of the Nationality Law in 1952, we did not know whether an oleh by virtue of return acquired citizenship “from the moment his foot tread upon the ground of the homeland” (HCJ 26/51 Salem Menashe v. Chairman and Members of the Rabbinical Court in Jerusalem et al., IsrSC 5 (2) 714, 721). However, since the enactment of the Nationality Law, we know that there is no statutory waiting period: when a Jew who is subject to the Law of Return immigrates to Israel, he immediately becomes a citizen for all intents and purposes (and see: Rubinstein & Medina, The Constitutional Law of the State of Israel, 5th ed., vol. 2 (1996) 881) (Hebrew)). The Minister of the Interior does, indeed, have the authority to delay the granting of a oleh certificate for the purpose of examining the necessary facts (see, e.g., HCJ 125/80 Engel v. Minister of the Interior, IsrSC 34 (4) 329), or to suspend his decision in regard to an oleh who refuses to undergo medical examinations (these are the examinations listed in reg. 6 of the Return Regulations, 5716-1956). However, once the examinations have been completed and the oleh is not found to fall within the scope of any of the exceptions enumerated in sec. 2(b) of the Law, he is entitled to an oleh certificate, to citizenship, and to all attendant rights.

            Incidentally – although not incidental from the perspective of the olim – we would note that olim are entitled to material benefits, both by law and by virtue of subsidiary legislation and the directives of various governmental agencies (see, e.g., reg. 2 of the Arrangements in the State Economy (Discounts in Property Taxes) Regulations, 5753-1993; sec. 8 of the National Insurance Law, 5754-1994; sec. 351(k)(2) of the National Insurance [Consolidated Version] Law, 5755-1995; sec. 12 of the Development Towns and Areas Law, 5748-1988; and other exemptions, and customs and tax benefits). The Court stated in this regard:

The State of Israel welcomes every Jew who wishes to immigrate to Israel and settle in it with generously open arms. The blessing that greets every oleh is not mere lip service, but involves and is accompanied by real benefits that are granted to the oleh upon his immigration to Israel… (HCJ 825/89 Leon Kelef v. State of Israel, IsrSC 44 (4) 772, 775).

19.       A person who arrives in Israel but who does not fall within the scope of the Law of Return is unlike an oleh. His entry into the country, and his residence in it are subject to the Entry into Israel Law, 5710-1952, and the regulations thereto. Both his entry and residence are in accordance with visas, and the Minister of the Interior and his representatives enjoy broad discretion as to whether to grant or deny a person an entry or residence visa. A decision to deny the request is exempt from explanation under the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958. While the exemption from explanation does not, itself, affect the Minister’s obligation to exercise discretion (HCJ 758/88 Kendel v. Minister of the Interior IsrSC 46 (4) 505, 525-526), needless to say that in the absence of a statement of reasons, the ability of the Court to review the decision is impaired (HCJ 482/71 Clark v. Minister of the Interior IsrSC 27 (1) 113, 116-117). If that is the case in regard to entry to Israel and residence, clearly an alien whose residence in Israel is not in accordance with the Entry Law has no right to Israeli citizenship. The same is true in regard to benefits granted to olim that are not granted to non-olim.

            We have addressed the rights of an oleh at length not only in order to explain and interpret the superior status of an oleh under Israeli law, but also – and primarily – to present the difference between the rights of an oleh and those of a non-oleh who arrives in Israel. We will reserve our discussion of this profound, fundamental difference for further consideration below.

 

The Provisions of Section 4A of the Law of Return – Where do they originate and what do they address?

20.       The provisions of sec. 4A and 4B originated in 1970, in Amendment No. 2 to the Law of Return. Section 4B defines who is a Jew for the purpose of the Law of Return, while sec. 4A establishes the right of return – or if one prefers: the quasi-return rights of the family members of a Jew. The issue that concerns us began with the Shalit case (HCJ 58/68 Shalit v. Minister of the Interior, IsrSC 23 (2) 477). That case involved a Jewish man and a non-Jewish woman, or more precisely, their children, who were not deemed Jewish under the criteria of Jewish religious law. Shalit and his children asked that the children be registered as “Jewish” in the Population Registry, and the Registrar refused the request. The Shalit family’s petition was granted, and the Supreme Court – by a five-to-four majority – ordered the Population Registry to register the children in accordance with their request, even though they were not “Jewish” in accordance with Jewish religious law. The majority’s opinion was premised upon the nature of registration under the Population Registry Law, and upon the scope and limits of the authority of the Registrar to deny the registration of data when he lacked reasonable grounds to doubt their veracity. That affair did not decide the question of “who is a Jew”, but rather the scope of the Registrar’s duty to enter registration data presented in good faith, among them, data as to ethnicity.

            In fear that the Law of Return might be implemented in accordance with the Population Registry Law, such that the term “Jewish” in the Law of Return would be interpreted in accordance with the Shalit rule – bearing in mind that there were several dicta in the majority opinion that the Law of Return should be interpreted in the same manner as the Population Registry Law – the legislature enacted Amendment No. 2 to the Law of Return, comprising secs. 4A and 4B (the Population Registry Law was also amended by the addition of sec. 3A thereto). Section 1 of the Law of Return states that “Every Jew has the right to come to this country as an oleh”, and sec. 4B was added, stating that for purposes of the Law of Return, a Jew is “a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion”. At the same time as the addition of sec. 4B, sec. 4A was enacted with the purpose of granting the rights of an oleh to the close family members of a Jew, as stated there. As stated in the Law:

 

Rights of members of family

4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.

(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

(c) The restrictions and conditions prescribed in respect of a Jew or an oleh by or under this Law or by the enactments referred to in subsection (a) shall also apply to a person who claims a right under subsection (a).

21.       One cannot avoid being aware of the two contrary tendencies of this amendment to the Law of Return. On one hand, there is a clear desire to provide an objective definition of “Jewish” – while eliminating the subjective element – while on the other hand, granting the right of Jews to people who are obviously not Jewish. Both for purposes of the Law of Return and the Population Registry Law, a “Jew” is – consistent with halakha – only a person born to a Jewish mother or who converted and does not profess another religion. Simultaneously, and seemingly  contradictorily, for the purpose of return, the close family members of a Jew acquire the rights of “Jews”, even though they are not Jewish (and see the words of Knesset Member Moshe Sneh in the Knesset debate, 57 (5730) Divrei HaKnesset 1133-1134).

            These two, apparently – and perhaps only apparently – contradictory tendencies, each intended for its own purpose, were ultimately meant to complement one another. The definition of a “Jew” was intended to preserve the unity of the Jewish people in accordance with accepted tradition, while expanding the right of return to family members was intended to preserve family unity where one family member was Jewish. Intermarriage is a common phenomenon among Diaspora Jews, and the fear was that denying rights to a non-Jewish family member might dissuade Jews from immigrating to Israel, as Jews would not be willing to immigrate to Israel without their families. Indeed, sec. 4A was manifestly intended for intermarried families, with a view to prevent their division, and with a purpose of encouraging their immigration. The legislature sought to achieve this latter purpose by granting rights of return to the non-Jewish family member of a Jew, without recognizing that person as being Jewish. Knesset Member Haim Zadok addressed this in the course of the Knesset debate, stating (56 (5730) Divrei HaKnesset 766):

When the husband was Jewish, he immigrated under the Law of Return, while his wife and children, in accordance with the Entry into Israel Law. He was granted citizenship automatically, while his wife and children had to wait some period until their naturalization. This could not but be interpreted by people, to the East and to the West, as meaning that such families were not wanted in Israel. This created a serious problem for potential olim from the West, and it may create a serious problem for the large-scale immigration that we expect from the Soviet Union.

The important change that is now established is that, from now on, when one of the two heads of the household is Jewish, both heads of household, and their children and grandchildren, whether they immigrate together or separately, are entitled to come to Israel by virtue of the Law of Return, and obtain automatic citizenship. This is of primary importance for us as a land of immigrants.

            As Deputy President Elon stated in the Beresford case (ibid., 834):

The entire purpose of enacting sec. 4A of the Law of Return … is to resolve the problem of the immigration of families in which Jews and non-Jews are intermarried, in regard to the spouses and children who do not meet the definition of a Jew in the Law of Return. Granting the right under sec. 4A is intended to facilitate the immigration of such mixed families in their entirety, in the hope that all the members of the family will join the Jewish People.

            And further see CA 3157, 3339, 3363, 4066/98 Kniazhinski et al. v. State of Israel (not yet published; particularly sec. 2 and 3 of the opinion of Justice Beinisch). And see the words of Prime Minister Golda Meir in 56 (5730) Divrei HaKnesset 773. It is like the act of Ruth the Moabite, who lovingly clung to her mother-in-law Naomi:

But Ruth replied: “Do not urge me to leave you, to turn back and not follow you. For wherever you go, I will go; wherever you lodge, I will lodge; your people shall be my people, and your God my God” (Ruth 1:16).

            So it was then, and so it is now, except that the non-Jewish relatives of the Jew – unlike Ruth the Moabite – will be granted the right of return even without converting.

            In regard to the granting Jewish rights to non-Jews, we should address sec. 4A(b) of the Law of Return, stating:

                        Rights of members of family

                        4A.      (a) …

 (b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

            The non-Jewish family members of a Jew are, in some ways, seen as having attached themselves to the Jewish people, and thus the law grants them independent rights of their own – they are entitled to the rights of an oleh even if they immigrate on their own, without the Jew (the source of the rights), and whether or not that Jew has immigrated, even after that Jew is no longer living.

22.       Against this background, we can now return to the problem that concerns us, which is the matter of a Jewish Israeli citizen who married a woman who is neither Jewish nor an Israeli citizen. Will the Law of Return avail such non-Jews and grant them the rights of an oleh under the Law of Return? Will sec. 4A of the Law of Return spread its wings over that woman and grant her those benefits reserved for new olim? Will that woman – solely by her own volition – be granted Israeli citizenship and the other benefits that the Law of Return and the laws of the State grant to new olim?

            A synoptic view of the subject will provide an unequivocally negative response. The reason is that such an interpretation of the Law will not lead us to the purpose arising from the Law of Return – neither its primary purpose, nor those secondary purposes attendant to it.

23.       As regards the primary purpose of the Law of Return, we addressed the uniqueness of the Law of Return, and saw that at its core stands the desire of “your children shall return to their country”. “Go from your country and your kindred and your father’s house to the land that I will show you” (Genesis 12:1). So the Lord commanded Abram, and since then, the homeland of the Hebrew – the Jew – is the Land of Israel. The historical homeland of a Jew, every Jew wherever he may be, is the Land of Israel. And if he wishes to observe God’s command to Abram, we will accept him with an open heart, as we accept a lost son. All this – in whole and in part – does not apply to that non-Jewish spouse. Indeed, we will respect the foreigner among us, but we will never say that he has returned to the land of his forefathers, and that the Law of Return thus applies to him automatically.

            As for the amendment of the Law of Return, that Amendment introducing secs. 4A and 4B of the Law, we have addressed it’s the historical event that led up to it, and its twofold purpose that restricts and limits while expanding and extending. The main purpose of the expansion was to encourage the immigration of spouses in a mixed marriage, together with their close family members, while preventing the division of families and a distinction in the status of family members seeking to immigrate to Israel. All of these exalted objectives have nothing in common with granting the right of return to a non-Jew merely by reason of marriage to a Jewish citizen of Israel. The interpretation advanced by the Petitioners does not in any way serve the purpose of the Law of Return or of the Amendment to the Law of Return, and we would automatically reject it as inadmissible. Indeed, in the case of people who were family before their immigration to Israel, not only will we not divide them but we will encourage them to immigrate as one. That is the purpose of sec. 4A of the Law, which we will fully realize. That is not the case in situations of the type before us, in which an Israeli Jew marries a person who is neither Jewish nor Israeli. That Jew – whether he was born in Israel or whether he immigrated to Israel at some time in the past – has exhausted his right to return, and thus no non-Jew can sign on to that extinguished right.

24.       Moreover, it would not be proper to interpret secs. 4A and 4B of the Law of Return detached from the original Law of Return. The original provisions of the Law of Return, and secs. 4A and 4B, cannot be interpreted and understood in isolation. They are complementary and become one: one body whose organs are in harmony with one another. In amending the Law of Return, the legislature was like one who plants additional flowers and fruit trees in a long-existing garden that already thrives and bears fruit. The provisions of sec. 4A of the Law of Return became an inseparable part of the “greater purpose” of the Law of Return: gathering in the exiles of the Jewish People to the Jewish State – returning the children to their home. The Law of Return, as its name says, is directed at Jews wherever they may be. It invites Jews to return home – to return to the Land of Israel. Every Jew, as such, always has a sort of “stock option” that can be redeemed at will. “The Law of Return establishes a principle that all of the People of Israel, throughout the entire world, have a part and place in Israel, and that when a person of Israel wishes to return to his homeland – to Israel – it is not as an immigrant, but as one who returns to his homeland” (Knesset Member Zerach Warhaftig in the Knesset session of Feb. 2, 1954, 15 Divrei HaKnesset 823). And even if here and there we may find some subsidiary purpose or other, this is the primary matter, and the provisions of sec. 4A will be interpreted in accordance with that primary purpose (and see the Beresford case, ibid., 844).

            I will not deny that we may face “hard” cases. What, for example, is to be done in the case of a man and woman – he Jewish, and she not – who were about to be married in in their place of residence, and then immigrate to Israel? Had they married where they resided, then the non-Jewish spouse would enjoy the right of return, and everything would be fine. But for whatever reason, the two did not marry in their place of residence, but rather did so (in a foreign marriage, of course) after immigrating to Israel. That is an example, and there will be others like it. We will contend with such cases when the time comes. We will contend and succeed.

25.       A final word. As we have seen, the Law of Return is a special, unique law that is primarily intended for Jews. Its roots are longer than long, and are woven into the natural right of every Jew to immigrate to Israel and join his people in his land. Thus far, we are all in agreement, and we will not expand upon the bitter debates as to the justifications that might be raised for its very existence (see, e.g., Haim H. Cohn, The Law, ibid., 486ff; Asa Kasher, Justice and Affirmative Action: Naturalization and the Law of Return, 15 Israel Yearbook on Human Rights 101 (1985); Chaim Gans, The Law of Return and Affirmative Action, 19 Iyunei Mishpat  683-697 (1995) (Hebrew); Chaim Gans, Nationalism and Immigration,  M. Mautner, A. Sagi and R. Shamir (eds.), Multiculturalism in a Democratic and Jewish State, (Tel Aviv, Ramot Press, 1998), 341- 360 (Hebrew) [also published in English: Chaim Gans, Nationalism and Immigration, 1 Ethical Theory and Moral Practice (1998), 159-180]). All this applies to a Jew who returns to his land – him and his family – but there can be no justification for preferential treatment of a Jew residing securely in his land as opposed to a non-Jew, such that the former would be entitled to acquire the right of return for his non-Jewish spouse while the latter would not. While we fully agree with the entitlement granted every Jew, whomever he may be, to immigrate to Israel together with his family, we would be hard-pressed to agree to showing preference to a Jew who is an Israeli citizen by granting a right of return to a non-Jew who has become his spouse, while not granting the same right to a non-Jewish citizen of the State. Were we to recognize the right of a Jewish Israeli citizen to bestow the right of return upon his non-Jewish spouse, while denying that same right to a non-Jewish Israeli citizen, we would be committing a serious act of discrimination, with no conceivably proper purpose. In this regard, Minister of the Interior Haim Shapira stated in the Knesset debate on the Nationality Law (6 Divrei HaKnesset 2039 (5710)):

The Law of Return defines the right of Jews to immigrate to Israel, and the Nationality Law defines their right to become Israeli citizens. But acquiring citizenship does not grant preferential rights or higher status to Jews. There will be no difference whatsoever, and no discrimination whatsoever, between those who acquired citizenship as olim and those who acquired it under one of the other provisions of the Nationality Law. One law shall apply to all citizens, without distinction of origin…

This will be the composition of the citizens of the State of Israel. The large majority of citizens will be member of the Jewish nation, but also those prior residents who joined the new State at its outset, and all those who will join it in the future, will be citizens with equal rights and obligations.

            Neither a Jew who immigrates to Israel – once having immigrated – nor a Jew born in Israel is entitled to a right of return that they can pass on to non-Jews who are not entitled to it. In regard to the right of return, sec. 4A of the Law of Return is exhausted within the confines of the family that immigrates, and not beyond.

26.       But the Petitioners do not desist. As a last resort, they make recourse to sec. 4 of the Law of Return, and seek to pin their rights upon it. Section 4 states:

                        Residents and persons born in this country

4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law.

            The Petitioners argue as follows: This provision teaches us that all Jews in Israel are like “new olim”, and we thus learn that there should be no distinction between those entitled to immigrate who have not realized their right, and people entitled to immigrate who have realized their right or who were born in Israel. The conclusion, therefore, is that the right of a Jewish citizen of Israel – whether he acquired citizenship at birth or acquired citizenship by immigration – is identical to the right of a Jew living abroad, the former and the latter are all entitled to grant a right of return to their spouses.

            We are unable to accept that argument, and for the very reasons that we addressed at length, above. Section 4 of the Law of Return seeks to make the law equal for all Jews as Jews, and sees all Jews as having realized their natural right to return to the Land of Israel. See: Amnon Rubinstein, Israel Nationality, 2 Tel Aviv University Law Review 159, 161 (1976); and see Haim Cohn, Selected Writings, Aharon Barak and Ruth Gavison eds. (1991) 331-332 (Hebrew). However, after a person has immigrated and acquired citizenship, or has been born and acquired citizenship, their rights are the same as the rights of every citizen, and they have no excess rights (we would note, obiter dictum, that the legislature was mistaken in its language. No Jew immigrates to Israel “under this law”. Jews did not immigrate, and do not immigrate to Israel “under this law” or any other law. Jews immigrated and immigrate to Israel of their souls’ desire to immigrate, of their yearning to immigrate, of their deep longing to immigrate, or because they fled their haters. The Law of Return appended a legal right to immigration to Israel, a right that is attendant to the natural, historical right of every Jew).

27.       In conclusion, the right of return is granted only to the family members of Jews prior to their immigration to Israel. Each of the Jewish spouses before us is an Israeli citizen – whether by birth or by realizing the right of return – and thus do not have the power to grant a right of return to their partners.

The policy in regard to the request of the alien spouse for permanent residency and citizenship

28.       First, let us recall the typical case that we are addressing: “A”, an Israeli citizen marries a woman – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. Similarly, “B”, an Israeli citizen marries a man – who is not Jewish and not an Israeli citizen – in a foreign marriage ceremony. From here on, for simplicity’s sake, we will speak only in terms of the first example, but needless to say, the law is the same in regard to the second. We would further add that in addressing the Law of Return, we spoke of a couple in which one of the partners was a Jewish Israeli citizen, whereas now we will speak in terms of a couple in which one of the partners is an Israeli citizen, regardless of whether or not he is Jewish.

            When the Ministry of the Interior is informed that a couple married in accordance with the model we presented above, and the non-Jewish partner requests permanent residence in Israel and Israeli citizenship, the question presented is this: How should the Ministry of the Interior treat such requests, and what criteria should govern its policy?

            We are informed that the Ministry of the Interior’s policy distinguishes two types of a cases, and in each it acts differently. One type of case concerns marriages celebrated when the foreign, non-Jewish partner was lawfully in Israel, whereas the other type concerns cases where the marriage was celebrated when the non-Jewish partner was not in Israel lawfully. This type of case also comprises a subcategory that we will address in para. 29, below. We will address each of the two types of cases, beginning with the second.

 

At the time of the marriage, the non-Jewish partner was in Israel unlawfully

29.       There was a change in the Ministry of the Interior’s policy in regard to this issue. In the past, when the couple presented a marriage certificate to the Ministry of the Interior clerk, and the alien non-Jewish partner requested permanent residence in Israel and to acquire citizenship, that partner was required to pay a fine for the period of unlawful residence in Israel, and once the fine was paid, he would be granted a tourist visa and work permit (a B/1 visa, as defined in reg. 5(a) of the Entry into Israel Regulations, 5734-1974). This visa was granted for a period of six months, during which time the Ministry would examine the veracity of the marriage.

            The Ministry of the Interior changed its policy in September 1996. From then on, the non-Jewish alien partner – who had resided in Israeli unlawfully at the time of the marriage – was required to leave Israel immediately for a period of two months, and his request for permanent residence and citizenship was made conditional upon his leaving the State. During those months, in accordance with the new policy, the Ministry of the Interior was meant to examine the veracity of the marriage, and if it was persuaded of that the marriage was legitimate, the alien non-Jewish partner was permitted to return to Israel, and the pursuant consideration was the same as that for the marriage of an Israeli citizen who had married a person who was not Jewish and not an Israeli citizen, but who lawfully resided in Israel. We will further address such cases below.

            The main points of this policy were published in a notice by the spokesperson of the Ministry of the Interior on Sept. 25, 1996, as follows:

Aliens unlawfully residing in Israel and who are married to Israelis will be required to leave Israel, and will be permitted to enter Israel only after obtaining a decision in regard to their status from the Ministry of the Interior.

To date, the Ministry of the Interior permitted the residence in Israel of those who had married Israeli citizens, and did not require that they depart.

Recently, after a significant increase in the number of persons married in Paraguay marriages (marriages conducted by mail) pursuant to the Ministry of the Interior’s efforts to deport unlawful foreign residents, the Ministry decided not to further permit the exploitation of this method of arranging the status of unlawful residents for preventing their deportation.

Once persuaded as to the legitimacy of the relationship between the partners, the Ministry of the Interior will permit the reentry of the alien to Israel (emphasis original – M.C.).

            The Ministry of the Interior employs a similar procedure in regard to a request by a non-Jewish alien who enters Israel on a tourist visa, which is granted for a very short period, and during those few days – and while lawfully in Israel – marries an Israeli citizen. This non-Jewish alien is also required to leave the country before his request will be addressed on its merits, and leaving the country is a precondition for considering the request.

            Needless to say – as is self-evident – as far as the Ministry of the Interior is concerned, the couple’s marriage certificate is of no significance or value. The policy presupposes that the couple have a marriage certificate that testifies to some marriage ceremony. Moreover, the Ministry of the Interior does not deny that that ceremony may have succeeded in marrying the couple, and that the couple are married to each other in every way in terms of substantive law. The Ministry’s policy simply ignores all of that. It does not consider the marriage ceremony or the possible legal significance that may derive therefrom. For the purpose of the policy, it is sufficient that the non-Jewish partner was residing in Israel without a permit at the time of the wedding, and this factor – as such – sets off the policy, and the non-Jewish alien partner is required to leave the country for a number of months, until the legitimacy of the marriage ceremony and the status of the partners as truly married are examined.

30.       The Petitioners, needless to say, are bursting with arguments against the policy of the Ministry of the Interior, and they present their arguments in painful detail. Of course, the arguments are repeated by the Petitioners’ attorneys – each in his own style, loudly or in anguished whisper, in arguments that waft fundamental rights or in standard arguments regarding interpretation. However, before we consider those arguments on the merits of the policy, we must first address several arguments presented on threshold and quasi-threshold issues. Once we have finished considering those arguments, we will proceed to address the policy on the merits.

 

Did the Minister of the Interior possess authority to deport the non-Jewish alien married to an Israeli citizen?

31.       Advocate Dr. Schvarcberg – representing some of the Petitioners before us – argued that the Minister of the Interior entirely lacked authority ab initio to deport the alien non-Jewish spouse married to an Israeli citizen. From the moment of marriage, he argues, and as long as nothing changed in the couple’s status, no Israeli law permits the deportation of the alien partner from Israel. If we accept this argument, we can, of course, conclude this part of our opinion and move on to other issues that require decision.

            This is how the argument proceeds, step by step. The Minister of the Interior’s authority to deport a person from Israel resides in sec. 13 of the Entry into Israel Law, 5710-1952, according to which the Minister it authorized to issue a deportation order in regard to “a person other than an Israel national or an oleh under the Law of the Return, 5710-1950 … if such person is in Israel without a permit of residence”. Advocate Schvarcberg argues that the Minister’s authority to deport the non-Jewish partner from Israel is subject to two conditions, and one of them is that the partner “is not an Israeli citizen”. I argue – as he further states – that the non-Jewish partner is an Israeli citizen, in practice – even though he is not a regular citizen in all the jots and tittles of the term “citizen” – and in any case, he is very nigh a citizen, and having acquired that status of almost-a-citizen, the Minister lacks authority to deport him from Israel.

            In what way is an alien spouse a citizen or almost-citizen? Section 1 of the Nationality Law lists the various ways for acquiring Israeli citizenship one after the other, as though assembled for inspection, and marrying an Israeli does not muster. Indeed, sec. 5 of the Nationality Law Bill, 5710-1950 (Bills 190) was meant to grant citizenship by marriage to an Israeli (and see: the Explanatory Notes to the Bill, ibid., 198; and the statement of then Minister of the Interior Haim Moshe Shapira in presenting the Bill to the Knesset: 6 Divrei HaKnesset 2039 (5710)). However, that proposal was rejected, and the under the Nationality Law, marriage to an Israeli citizen does not, itself, grant citizenship to a spouse who is not an Israeli citizen. Dr. Schvarcberg does not deny that, but he argues that the alien spouse acquires a right to obtain citizenship by naturalization, and that right that is vested in him makes him an almost-citizen whom the Minister of the Interior is barred from deporting. How can this be?

            Section 5 of the Nationality Law treats of citizenship. Subsection (a) thereof lists six conditions that, if met by some adult who is not an Israeli citizen, authorize the Minister of the Interior to grant citizenship. As sec. 5(b) states:

                       

                        5. (a) …

                            …

    (b)  Where a person has applied for naturalisation, and he meets the requirements of subsection (a), the Minister of the Interior, if he thinks fit to do so, shall grant him Israel nationality by the issue of a certificate of naturalisation.

Section 7 of the Nationality Law adds as follows:

                        Naturalisation of husband and wife

7. The spouse of a person who is an Israel national or has applied for Israel nationality and meets or is exempt from the requirements of section 5 (a) may obtain Israeli nationality by naturalisation even if she or he is a minor or does not meet the requirements of section 5 (a).

            On the basis of all this, Dr. Schvarcberg argues that the right of the alien spouse to Israeli citizenship is acquired and crystalizes upon marriage, and that the authority of the Minister of the Interior – the authority under sec. 7 of the Nationality Law – is merely of a declaratory nature, viz: it is a declaration as to a right that the alien acquired upon marriage to an Israeli citizen. Therefore, inasmuch as the alien is entitled to Israeli citizenship from the moment of marriage, he cannot be deported on the basis of the authority granted under sec. 13 of the Entry into Israel Law.

32.       This argument is nothing but an argument. First of all, the Entry into Israel Law authorizes the Minister of the Interior to deport anyone who is not an Israeli citizen or an oleh under the Law of Return. That is undeniable. Therefore, the Minister’s authority to deport stands. Section 13 does not recognize a status of “almost-a-citizen”, and “almost-a-citizen” does not, therefore, grant immunity from deportation.

            This status of “almost-a-citizen” is a creation of the argument, but has no basis in the law in regard to the Minister of the Interior’s authority to deport aliens from Israel. Indeed, under the provisions of secs. 5(b) and 7 of the Nationality Law, the Minister of the Interior can – at his discretion – show leniency in regard to the spouse of an Israeli who requests naturalization, and grant him citizenship even if he does not meet all of the conditions required of persons seeking naturalization as set forth in sec. 5(a) of the Nationality Law. However, the Minister of the Interior’s discretion remains, and marriage – in and of itself – is insufficient to waive the need for submitting an application for naturalization, or to deny the very discretion of the Minister of the Interior. Leniency in regard to the conditions for naturalization – yes; denial of the Minster’s discretion whether or not to grant citizenship – absolutely not.

33.       Dr. Schvarcberg further argues that sec. 7 of the Nationality Law limits the Minister of the Interior’s authority to examining the legitimacy of the alien’s marriage to an Israeli citizen, and if he is satisfied that the marriage is bona fide, he must grant Israeli citizenship to the alien. There is nothing to this argument. The Minister of the Interior holds discretionary authority whether or not to grant an application for naturalization – that is his authority as established under sec. 5(b) of the Nationality Law – and that authority also extends to an application submitted by an alien spouse married to an Israeli citizen. Or, as stated by Justice Barak in HCJ 754/83 Rankin v. Minister of the Interior, IsrSC 38 (4) 113, 116:

The power of the provision under sec. 7 of the Nationality Law makes it possible for a spouse to obtain Israeli citizenship by naturalization even if he does not meet all the special criteria established under sec. 5(a) of the Nationality Law. The provision does not have the power to do away with the need for the exercise of discretion by the Minister of the Interior in accordance with sec. 5(b) of the Nationality Law…Thus, a spouse can acquire Israeli citizenship by virtue of naturalization even if he does not meet the special criteria established under sec. 5(a) of the Nationality Law, but he can acquire Israeli citizenship only if he requests it, and if the Minister of the Interior “thinks fit”, as stated in sec. 5(b) of the law …

The Minister of the Interior thus has discretion (“thinks fit to do so”) whether or not to grant Israeli citizenship to the spouse of an Israeli citizen.

            Moreover, sec. 7 of the Nationality Law speaks of leniency in favor of an alien spouse, by which he may be granted citizenship even if he does not meet the criteria of sec. 5(a). The case law has established that it is within the scope of the Minister of the Interior’s discretion to establish a policy under which the right of the alien spouse will be contingent upon fulfilling the conditions of secs. 5(a)(1) and 5(a)(4). In other words, the Minister of the Interior is not required to waive the conditions for presence in Israel and the conditions for residence (or intention to reside) in Israel. (See: HCJ 576/97 Uriel Scharf et al. v. Minister of the Interior (not yet published); and see: the Rankin case, ibid., 116-117; HCJ 328/60 Jamal Najib Mousa v. Minister of the Interior, IsrSC 17 69, 74).

            We therefore reject these arguments by Advocate Schvarcberg. An alien who marries an Israeli citizen does not acquire – by virtue of marriage alone – a right to naturalization, and the Minister of the Interior retains his authority to grant or deny an application for naturalization submitted to him by that alien spouse. It is, of course, another question whether the Minister of the Interior properly exercises his authority when he orders the deportation of the alien spouse, but that question – which is not a question of authority – is a separate one, which we will address further on.

 

Was the deportation policy approved by the High Court of Justice?

34.       Another threshold argument – raised by the State – is that the policy of deporting alien spouses unlawfully living in Israel was approved by the High Court of Justice, and that we should not overturn that established ruling. In this regard, the State relies upon two decisions rendered in HCJ 774/97 Natalia Molodova et al. v. Ministry of the Interior (not yet published), and HCJ 6844/97 Reggie Kedar v. Minister of the Interior (not yet published), claiming that these two judgments have established the policy of the Ministry of the Interior in the case law.

            We do not agree with the State Attorney’s Office.

            As for the Natalia Molodova case, the petitioner in that case entered Israel on a fifteen-day tourist visa, and when – at the conclusion of the period – she was ordered to leave the country, she claimed before the Ministry of the Interior that in the course of the days of her visit, she had married an Israeli citizen in a Paraguay marriage. The Ministry of the Interior demanded that the petitioner leave the country immediately, adding that an examination of the legitimacy of the marriage would be undertaken while she was abroad. In making that decision, the Ministry of the Interior relied upon its policy by which a person who received a short-term tourist visa would be required to leave the country at the end of the visit granted in the visa, and his application in regard to his status would be addressed while he was abroad. The petitioner asked that her visa be extended until her status was set in order, but the Court approved the decision of the Ministry of the Interior. The Court found that the petitioner’s intention – from the outset, upon arriving in Israel – was to marry and remain in Israel, and that she had not revealed that intention to the Ministry of the Interior, and that for that reason, refusing her request was justified. In the words of the Court: “If the petitioner sought to come to Israel in order to marry and reside, it was her duty to inform the appropriate authority in the Ministry of the Interior of that intention”. Having failed to do so, the position of the Ministry of the Interior could not be found “unreasonable in the extreme”.

            That case, therefore, concerned a tourist who misled the authorities of the Ministry of the Interior, and the Court adopted the well-known, accepted rule that the Court will do its best to ensure that a wrongdoer not benefit by his misdeed. (And see and compare: HCJ 164/97 Conterm v. Ministry of Finance, para. 33ff. of my opinion [http://versa.cardozo.yu.edu/opinions/conterm-ltd-v-finance-ministry]). The Court expressed no opinion, one way or the other, as to the Ministry of the Interior’s deportation policy.

            The second case that the State seeks to rely upon – that of HCJ 6844/97 Reggie Kedar v. Minister of the Interior – cannot serve to support its argument. In that case, a deportation order was issued against the petitioner, a non-Jewish alien who was living in Israel unlawfully, and his request was that the deportation order be rescinded simply because he wished to marry an Israeli woman (of Philippine birth, who had married a man outside of Israel and had acquired Israeli citizenship) after she divorced her husband. The Court dismissed the petition, and refused the petitioner’s request that his application be reviewed and his status arranged before he departed the country. Needless to say, that case is not at all like the one before us, if only because the petitioner was not married to an Israeli citizen. The policy in regard to married couples did not, therefore, arise for examination on the merits. Moreover, reading the judgment reveals that the claim regarding a pending marriage appeared suspicious to the Ministry of Interior on its face. All would agree – including the Petitioners – that the Ministry of the Interior is justified in its policy not to allow fictitious marriages – which create fictitious spouses – to create a real right to permanent residence in Israel and to citizenship when, of course, the authority has sufficient administrative evidence showing that the marriage is a fiction. (And see and compare: HCJ 2394/95 Svetlana Motzenchik v. Ministry of the Interior, IsrSC 49 (3) 274, 278-280; HCJ 559/92 Bernardo Daniel Mendel at al. v. Ministry of the Interior – Population Administration (unpublished); the Rankin case, ibid., 117; and further see: the Kniazhinski case, ibid.).

 

The deportation policy – Publication

35.       The Petitioners raise an argument that has the character of a quasi-threshold argument, which is that the deportation policy was never properly published to the public at large as required. And that is indeed so. We noted above the publication of a notice regarding the policy in the newspaper (see para. 29), but needless to say, a one-time publication by the spokesperson of the Ministry of the Interior is not sufficient to fulfill the publication requirement. We thus find that an individual facing deportation has no way of knowing his rights or how to plan. He cannot seek the advice of legal counsel, as without published directives, how will that counselor know what to advise? As we will see, there are exceptions to the deportation policy. But how can an individual or his lawyer know about those exceptions and their scope if he doesn’t even know the scope of either the policy itself or its exceptions? In this manner, the exceptions will be nothing but a dead letter, for the only one who can make recourse to them would be some beneficent clerk who might reveal their existence. We thus find that the deportation policy is carried out in the light of day, but its principles and details – including its exceptions – were never reasonably published as appropriate to good governance.

36.       This situation is not only unsatisfactory, it borders on actual illegality. While, indeed, this policy that the Ministry of the Interior established for itself is not – itself – a regulation having legislative effect, which must be published in the Official Gazette under sec. 17 of the Interpretation Ordinance, we have, nevertheless held – time and again – in regard to internal directives that may affect individual rights – like the policy before us – that “a necessary precondition to their establishment and implementation…is bringing them…to the knowledge of those interested, whether by publication to the public or by other means” (HCJ 5537/91 Efrati v. Ostfeld, IsrSC 46 (3) 501, 513; and also see: HCJ 4539/94 Dr. Nabil Naksa v. Dr. Ephraim Sneh, Minister of Health (not yet published, paras. 13ff. of the opinion of Justice Strasberg-Cohen); HCJ 1689/94 Harari v. Minister of the Interior, IsrSC 51 (1) 15). As we have held, this publication requirement “is required by the nature of the material, and as a derivative of the rule-of-law principle” (the Efrati case, ibid., 515). And when we are concerned with so serious a violation of an individual’s right – the right of the spouse of an Israeli to continue to live in the country with the person she has chosen as her partner in marriage – there is no doubt in my mind that the Ministry of the Interior is under an obligation to publish its policy and make it available to any who may wish to read and study it.

37.       We have considered, and are aware that we are speaking of couples in which one member is an Israeli citizen, while the other is a non-Jewish alien residing in Israel unlawfully. They married while the foreigner was living in Israel without a permit, and the alien is being asked to leave the country until the authorities of the Ministry of the Interior examine the sincerity of the marriage. One might argue: What right has the alien to raise an argument against the non-publication of the policy, when the preliminary assumption is that he is living in the country unlawfully? Will we entertain a claim by an unlawful resident that the Ministry of the Interior’s policy was not published to the public at large? For my part, I do not believe that this response to the alien is appropriate or pertinent. We are concerned with the rule of law, and if the case law has established a requirement of publication, the argument as to non-publication will be heard from anyone injured by the policy. But even if we had said otherwise – and we did not – there is the Israeli partner, and his right – that the Ministry of the Interior not deport his spouse – certainly stands, and no one can argue that the claim of non-publication cannot, at the very least, be raised by him.

 

Deportation and a request to leave the country

38.       One of the Respondents’ arguments is that they are not deporting the alien spouse from Israel. All that they are doing is requesting that the alien spouse leave the country before his application for residence and naturalization will be considered on the merits.

            That argument/response is meaningless. Cultured people speak politely, and it is appropriate that we all speak with our friends – and even with those who are not our friends – in polite language. At the same time, we must not use polite language deceptively, and we all know that the silk glove is hiding a fist. When a representative of a governmental agency asks a person residing in the country without a permit “to be so kind” as to leave the country, he is not merely offering that alien good advice. Moreover, every governmental agency has the authority granted to it by the law, and within the scope of that authority, it may act in accordance with its discretion. An agency of the Ministry of the Interior that asks an alien to leave the country is understood to be doing so in accordance with its authority. The question is, therefore, whether or not it is authorized to ask the alien – the spouse of an Israeli – to leave the country. This is the question we are addressing in this opinion, and therefore, the manner of addressing the alien is of no relevance. We have long experience with suggestions that are not suggestions, and we know how to distinguish between a suggestion and a directive, and between advice and an order (see: HCJ 144/50 Dr. Israel Sheib v. Minister of Defence, IsrSC 5 399, IsrSJ 1 1 [http://elyon1.court.gov.il/files_eng/50/440/001/Z01/50001440.z01.pdf]).

39.       Having concluded our examination of the threshold and quasi-threshold arguments of the Petitioners and the Respondents, we will now turn to an examination of the policy on the merits. We will first briefly discuss the Respondents’ authority to deport aliens, and against the background of that authority, we will address the Petitioners’ issues on their merits.

 

On the status of aliens in Israel and the authority to deport them

40.       An Israeli citizen has the right to be in Israel as he wishes, and the State does not have the right to deport him. The citizens of Israel constitute Israel. Is it conceivable that Israel would deport Israel? That is not the case in regard to one who is not an Israeli citizen. A person who is neither an Israeli citizen nor an oleh enters Israel by virtue of an entry permit granted under the Entry into Israel Law, 5712-1952. The Minister of the Interior may grant visas and permits of various sorts, and may extend them from time to time, as stated in the Entry into Israel Law (secs. 2 and 3). Entering and residing in Israel without a permit, and violating the terms of a visa or residence permit, constitute a criminal offense, and the offender is liable to punishment (sec. 12). In addition, and this is the main thing for the matter before us, the Minister of the Interior may issue a deportation order against a person who is not an Israeli national or an oleh under the Law of Return if that person is in Israel without a residence permit (sec. 13(a) of the Entry into Israel Law). The Minister of the Interior is exempt from stating his reasons for issuing a deportation order, in accordance with the express provision of sec. 9(b) of the Administrative Procedure Amendment (Statement of Reasons) Law, 5719-1958.

41.       The case law has established that the Minister of the Interior’s authority to order the deportation of an alien is very broad (HCJ 740/87 Bentley v. Minister of the Interior, IsrSC 42 (1) 443), and some have gone so far as to describe it as “absolute discretion” (the Bentley case, ibid., 444). Nevertheless, the Supreme Court has held that despite its breadth, the authority is not immune to review by the High Court of Justice, and that review covers all the known reasons for review under administrative law. (See: HCJ 282/88 Awad v. Prime Minister and Minister of the Interior, IsrSC 42 (2) 424, 434; HCJ 100, 136, 137/85 Gideon Ben Yisrael et al. v. State of Israel, IsrSC 39 (2) 45, 47). Of course, the exemption from stating reasons – in those cases in which the Minister of the Interior does not state his reasons for a deportation decision – makes review more difficult, but it does not detract from the authority to review or from its scope (the Kendel case, above, 524-528, and see and compare: the Clark case, above, 117). To their credit, the Ministers of the Interior have only rarely made recourse to that privilege of exemption from stating reasons, and I cannot recall a single case over the last few years in which the Minister of the Interior decided to deport a person from the country, and refused to reason his decision.

            At present, no one would describe the Minister of the Interior’s authority to deport aliens from the country as one of “absolute” discretion. However, we would all agree that the Minister’s authority is considerably broad. In other words: the Minister’s discretion whether or not to deport an alien is of considerably wide scope. Against this background, we will now examine the policy for the deportation of non-Jewish aliens married to Israeli citizens.

 

The deportation policy – Reasons and reasonableness

42.       Our preliminary assumption is that when an Israeli citizen marries a non-Jewish person lawfully residing in Israel, but who is not an Israeli citizen, the Ministry of the Interior does not intervene in that alien person’s right of residence. If that alien applies for permanent residence in Israel, as well as for citizenship, the Ministry of the Interior addresses the application in accordance with a particular policy that it has established (and that we will address below). The matter is different if than alien resides in Israel without a permit. An Israeli citizen marries a woman who is not Jewish and not an Israeli citizen, while she is residing in Israel without a permit. If the couple request that that alien be allowed to reside in Israel permanently and acquire citizenship, that woman will be asked to leave the country until such time as the Ministry of the Interior will evaluate the nature of that marriage in order to determine whether it is bona fide of fictitious. The Appellants have cried out against this demand to leave the country for the purpose of the examination, and it is that cry that we will now address.

43.       The question that presents itself is why the Ministry of the Interior decided to change the policy it had maintained for many years (see above, para. 29) and begin to implement the deportation policy that we have just described. It would appear that the Ministry of the Interior decided to change its policy due to a precipitous rise in the number of fictitious marriages among aliens in Israel, and the new policy was originally intended to combat this deplorable practice of fictitious marriages.

            As we are all aware, Israel has become a lodestone for people of various nationalities and countries who come to live and work in Israel. Those aliens who come here see that it is good, and wish to remain as long as possible, and even establish permanent residence. Thus, when their residence permit expires, they stay even without a permit. We are informed that we are concerned with tens of thousands of people. The Ministry of the Interior, having decided to put an end to this improper and undesirable phenomenon, began to check the residence permits of aliens in Israel, and when it found that they were residing in Israel without a valid permit, it sent them back to their countries of origin. The phenomenon of fictitious marriages began as a counter-measure.

            Mr. A or Miss B who found the good land but lacks a residence permit, discovered a way to lengthen their stay by marrying an Israeli citizen in a wedding ceremony that is merely a fiction. The couple have no intention of forming a family unit and living together as a couple. The entire purpose of the purported marriage is to obtain recognized status in Israel for the alien spouse, and thereby prevent deportation. As the Ministry of the Interior’s enforcement policy became more severe, the number of fictitious marriages increased, and the battle waged on. (On the subject of fictitious marriages and the family unit, see the Kniazhinski case, above, particularly the opinion of Justice Beinisch).

            We would add that such fictitious marriages can have various motives, and similarly, various forms of “consideration”. Sometimes, the consideration is simply money, where the Israeli citizen receives payment for his participation in that ugly ceremony of fictitious marriage. Sometimes there is a symbiotic relationship in which both partners gain some consideration. Thus, for example, a foreign worker seeking to ensure his continued stay in Israel marries (so to speak) a young Israeli woman who wishes to evade the burden of military service by means of the fictitious marriage.

44.       The Ministry of the Interior is intent on a fight to the finish against these fictitious marriages, and the method it found appropriate was that of demanding that the alien leave the country while the legitimacy of the marriage was examined. The Ministry believes that this method will reduce the incentive to conduct fictitious marriages, and all – or almost all – will be well. Or, in the words of the Ministry of the Interior, as sated in its affidavit:

The purpose of the said policy is to deprive unlawful residents of an “insurance policy”, while sending a clear message that anyone who seeks to retroactively legitimize his residence in Israel (or obtain some other benefit, such as an exemption from military service) by means of a fictitious marriage, will not easily achieve it. Rather, obtaining any legal status in the State of Israel will subject him, as well as his Israeli spouse, to an examination and waiting period, during which time the Ministry of the Interior will be able to examine all that needs to be examined, in advance and retroactively, by various ways and means.

As stated, the purpose of the said policy is to frustrate, to the extent possible, attempts to unlawfully establish permanent residence in Israel, while granting the Ministry of the Interior the opportunity to form an opinion as to the legitimacy of the marriage before, rather than after, granting legal status in the State of Israel.

The said policy decision by which the application of the couple would be examined while the applicant for “family reunification” is out of the country will not only serve to offset the immediate benefit and significantly frustrate attempts at unlawful residence, but will also allow the Ministry of the Interior to examine the relationship without the outward appearance of “living under one roof in Israel” itself carrying real weight in examining the relationship, and without “the sinner benefitting from his sin”.

            The Ministry further informs us that the new policy has proven itself in the following two ways: first, since adopting the new policy, the number of applications for changing status in Israel by reason of marriage has decreased, and second, there has been an increase in the discovery of fictitious marriages. We would, however, note that these statements by the Ministry of the Interior are not supported by statistical data, and are merely based upon “impressions” and “educated guesses” of those involved in the matter.

45.       The Ministry of the Interior adds that against this gloomy background that was clear to all, the new policy under which the alien is asked to leave the country before and as a precondition to examining his application is sensible and reasonable. The former policy encouraged widespread fraud, and that fraudulent activity was advanced by “marriage contractors” who arranged for Israelis and aliens to meet for the sole purpose of arranging fictitious marriages to mislead the authorities. The Ministry of the Interior further argues:

If we would not have adopted this policy, we would soon find ourselves facing a situation in which all the unlawful aliens in Israel would be married to Israelis, and any possibility of addressing the problem of unlawful residency would be foiled.

            The Ministry of the Interior further argues that the harm inflicted upon the individual is not at all severe. The alien is only asked to leave for a few months, and a brief separation of a few months is only a slight inconvenience to a bona fide couple, as opposed to the great benefit of the new policy in frustrating the fictitious marriages.

46.       In the course of the proceedings before the Court, the Ministry of the Interior further informed us that the Ministry’s policy is not overly strict, and that there are exceptions to the general policy that address the personal circumstances of the couples. Thus, where there is a strong humanitarian concern, it may override the general policy. We were informed of these exceptions in the course of the arguments presented by the Ministry of the Interior’s attorney, but we were not shown any clear, written directive in this regard. However, after the conclusion of the hearings and arguments, the Ministry of the Interior submitted a document entitled “Criteria for granting an Exceptional Exemption from the Demand that an Illegal Alien who married in the course of his Unlawful Residence leave the Country”. The document presented by the Ministry of the Interior states as follows (emphasis original):

Criteria for granting an Exceptional Exemption from the Demand that an Illegal Alien who married in the course of his Unlawful Residence leave the Country

The Rule:

An unlawful resident who marries an Israeli is required to leave Israel before the examination of his application and the application of the Israeli partner for family reunification in Israel in accordance with the law.

 

Exceptions:

The Head of the Population Administration, his deputy, and department heads in the Population Administration are authorized to grant an exemption from the said rule to the alien partner in exceptional cases in such special humanitarian circumstances as the following:

a.         Special health circumstances that require that both partners remain in Israel.

            An appropriate medical opinion must be submitted to that effect.

 

b.         The couple have a joint child, and the couple brought unequivocal evidence that they maintained a common household for a period of 12 months.

 

c.         The alien partner cannot return to his country of nationality due to a danger to his life, and he is unable to leave for a third-party country and remain there until a decision is made.

 

            We would add that we do not know the origin of these criteria, and the Respondents’ attorney made us no wiser. Thus, for example, the document’s heading does not state the date of the issuance of the criteria, and we also do not know who issued them and what there normative value might be.

            Moreover, it seems strange to us that these criteria – which go to the heart of the matter – were not brought to our attention until after the conclusion of the proceedings. And having brought them to our attention, the Respondents did not indicate the date of their issuance or the place of their publication, and did not even claim that the criteria had been published to the public at large. That being the case, of what value are criteria – and let us bear in mind that we are concerned here with exceptions – that the individual does not know exist? Needless to say, criteria that lie in a clerk’s drawer, and never see the light of day, invite arbitrariness and have all the weight of a plucked feather.

47.       In conclusion: An alien residing in Israel without a permit, who has married an Israeli citizen, will be asked to leave the country for a number of months until the authorities have time to investigate whether the marriage is bona fide or fictitious. Only after a few months, and if the Ministry of the Interior official is satisfied that the marriage does not appear to be fictitious, will that alien be permitted to return to the country. Only then will his application for permanent residence or naturalization be considered. In accordance with this policy, a marriage certificate between an Israeli and an alien carries no weight – in and of itself – in the eyes of the Ministry of the Interior. The alien spouse is asked to leave the country notwithstanding the existence of a marriage certificate, and despite there being no factual foundation that the marriage is fictitious. Under the current policy, except for those limited exceptions of which we have recently been informed, the individual matter of the couple presenting itself before the authorities will not be addressed on the merits. The Ministry of the Interior does not conduct any examination whatsoever, and does not hear the arguments of the couple. The alien partner must leave the country, regardless of the nature of the marriage.

48.       The Petitioners clamor with strident arguments challenging the Ministry of the Interior’s new policy. For example, they argue that the new policy is based upon the gut feeling of administrator’s without any statistical data to back it up. Indeed, when the Respondents were asked to present the data upon which they based the policy, they were hard-pressed to collect it. We were only presented with data after examinations and investigations, and even then, the data was partial, and primarily sample data. Thus, we heard that some 2,500 applications are submitted annually by the type of couple with which we are concerned, and 500 of those applications are submitted by couples in which the alien partner resided in Israel without a permit. How many of these were proven to be fictitious marriages? How many of these fell within the scope of the humanitarian exceptions? We were not told. And if we were not told, we do not know.

            In the absence of any real data on the extent of fictitious marriage, the question automatically arises as to the justification for the firm policy currently in place. If, for example, there are only a (relatively) small number of fictitious marriages among all the marriages in this category, is it really justifiable to shake up hundreds of innocent couples due to those few sinners? Is it proper to harm the many for the few? Perhaps the shadows of hills look to the Respondents as men?[5]

            It is established law that before a governmental authority makes a decision that affects individual rights – whether an individual decision or one of general policy – it must collect data on the matter, winnow the grain from the chaff, dissect the data, weigh it, consider the significance of the proposed decision and its expected consequences, and only then act (see:HCJ 297/82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 48-49; HCJ 987/94  Euronet Kavei Zahav (1992) Ltd. v. Minister of Communications, IsrSC 48 (5) 412, 423-426). In establishing their policy – and in the way they established it – the Respondents transgressed this fundamental rule of administrative conduct.

49.       The Petitioners further argue that the Respondents are also violating the fundamental principle requiring that a potentially harmed person be granted a hearing, whereas the Respondents refuse to hear the arguments of a person residing in Israel without a permit, and “ask” that he leave the country prior to addressing his application. To this we would respond that infringing the right to be heard is a severe violation of the rights of the person harmed, and the Respondents are guilty of this, as well. (And see: the Motzenchik case, above, 281; and see and compare: Galvan v. Press, 347 U.S. 522, 530 (1954); Landon v. Plasencia, 459 U.S. 21, 2-33 (1982)).

            We would also recall that we are also concerned with the right of an Israeli individual. His interest in the application would appear to be equal to that of his alien spouse. If the couple is separated, and the alien is sent abroad – or even if the alien’s application for permanent residence will not be addressed until he leaves the country – not only is the interest of the alien harmed, but that of the Israeli citizen, as well. And certainly no argument can be made in favor of violating the right of the Israeli partner to be heard.

 

On reasonableness and proportionality

50.       The attorneys for the parties – the attorneys for the Petitioners on one side, and the attorney for the Respondents on the other – devoted most of their arguments to the subject of the reasonableness of the Ministry of the Interior’s policy, and in particular, the question whether the policy is “proportionate”. Needless to say, the Petitioners argue that the condition that the alien leave the country before the couple’s application for residence and naturalization will be considered on the merits is a “disproportionate” means that must be voided. This argument of disproportionality was accompanied by additional arguments – like those we addressed above – concerning the failure to collect relevant data, failure to hear the spouse, and other such arguments that have bearing upon the inappropriateness of the means to the purpose.

51.       There is no need to elaborate on the proportionality test. As we know, the test comprises three branches: a rational connection between the means and the purpose; the least harmful means; and the benefit-injury test, better known as the proportionality stricto sensu test (see: HCJ 3477/95 Ben-Atiya rt al. v. Minister of Education and Sport, IsrSC 49 (5) 1; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367; CA 6821/93, LCA 3363, 1908/94 United Mizrachi Bank et al. v. Migdal Cooperative Village et al., IsrSC 49 (4) 221, 346-347, 436-437, 470 [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Eli Yishai, Minister of Labor and Social Affairs, IsrSC 52 (2) 433; HCJ 6972, 6971/98 Partitzky v. State of Israel (not yet published) and the references there). The question is whether the policy of the Ministry of the Interior passes this three-part test that every administrative act must meet.

            But before we enter the chamber, let us first take a moment to enjoy the fresh air.

            There is disagreement among the experts as to the status of proportionality, and more specifically, about its origin (see, e.g., the Ben-Atiya case, above, 14-15 per Barak D.P., and the references there). Some are of the opinion that it is a derivative of the reasonableness test, and nothing more than a refinement of that test whose boundaries were not established, and which breaks out in every direction. As opposed to those, there are some who say that the proportionality test stands on its own two feet, and is sustained by a light that emanates from within. I believe that the truth lies somewhere in between those two schools of thought. Historically, the proportionality cause predates that of reasonableness – as that cause is presently recognized – and was born before the reasonableness cause took its first breath (see, e.g., HCJ 14/65 Khouri and Basil v. Minister of the Interior, IsrSC 19 (2) 322, 334; HCJ 115/67 Rosh Haayin Local Council v. Minister of Education and Culture, IsrSC 21 (1) 524, 526). In time, when it appeared as a comprehensive cause of action, reasonableness – like the tort of negligence in its time and place – came to dominate all, and its predecessors fell under its shadow. Like negligence in tort law, reasonableness in administrative law came to be a “framework” cause whose characteristics changed from matter to matter and from time to time, in accordance with the time and the place. In the next stage, the reasonableness cause gave birth to rules, causes and sub-causes of various types, accompanied by new headings that achieved independent status. One of those new category headings was proportionality. And as reasonableness is to legality, so proportionality is to reasonableness. Having liberated itself from its parent, proportionality could develop itself freely and independently, such that we might say: in the beginning (although not at the beginning of all beginnings) proportionality dwelt in the house of reasonableness, but one day it left that house, and through its own efforts, built a house of its own. Thus, proportionality now presents us with a sharper, more decisive means than the general cause of reasonableness. It provides us with a more developed tool for examining the rationality of administrative acts.

            We have stated the above only “to magnify the Law and make it glorious”,[6] inasmuch as we would all agree that it is by means of the proportionality test that we examine the discretion of a duly-authorized governmental agency.

52.       The proportionality test focuses upon the means for achieving an objective. The preliminary assumption is that the objective itself is proper, and the question is simply whether the means chosen for its achievement are proper, as well. We should bear in mind that in implementing the proportionality test, the measure of our strictness with the governmental agency will be commensurate with the importance of the infringed right, or the severity of its infringement.

            In the matter before us, the preliminary assumption is that the fight to the finish that the Ministry of the Interior is waging against fictitious marriages is a “proper purpose”, and that the Ministry’s intention is to eradicate this weed is a proper intention. All agree that the Ministry of the Interior’s intention befits the values of the State of Israel, and that it is intended for a proper purpose. The State of Israel is trying to contend – and may contend – with unlawful immigration across its borders, and it is certainly appropriate to recognize its right to combat people and organizations that exploit the limitations of the enforcement mechanisms in order to reside unlawfully in Israel. The battle against fictitious marriages is, therefore, a proper battle. However, the question that must be asked is whether, notwithstanding all the above, the means adopted by the authorities – i.e., the demand that the alien leave the country until the question of whether the marriage is bona fide or fictitious is examined – is a means “ to an extent no greater than is required”.

53.       In our opinion, the means adopted by the Ministry of the Interior does not stand in a proper ratio to the purpose that the Ministry seeks to achieve – a purpose that is, itself, proper. The means is inappropriately forceful relative to the purpose, and insofar as the benefit-harm ratio, its harm exceeds its benefit.

54.       As for the appropriateness of the means to the purpose, the Ministry of the Interior is of the opinion that a policy requiring the alien spouse to leave the country before the application in regard to his status is reviewed constitutes a disincentive to fictitious marriages, inasmuch as the alien partner will know that (fictitious) marriage will not, itself, guarantee his continued presence in Israel. Is that truly the case?

            Indeed, although the policy has been in place for a number of years, not only has it not adequately been shown to actually bring about a reduction in the number of fictitious marriages, but it can be argued that the rational connection between the means and the objective is not sufficiently strong. An alien who seeks to extend his presence in Israel by means of fictitious marriage will not be deterred by a waiting period of several months abroad. As opposed to this, a couple – both the alien and the Israeli – who have entered into a bona fide marriage will certainly and severely be harmed if they are compelled to separate, or if – out of their love for one another – they are forced to leave the country together for a number of months.

            Moreover, the Ministry of the Interior did not provide us with any relevant statistics either in regard to the number of fictitious marriages or in regard to the ratio between them and the total number of marriages between Israeli citizens and non-Jewish aliens. Let us assume that we are concerned with a one-to-ten ration of fictitious marriages. Would that represent a rational connection between the means and the end? Is there a rational connection when nine suffer on account of one?

55.       And further, according to the Ministry of the Interior, it examines the legitimacy of the marriage while one of the spouses is in the country and the other is abroad, or while both are abroad. To my mind, it would seem that examining the marital relationship while one of the spouses is abroad and the other in Israel is more difficult than examining that relationship when both are in Israel. I will not deny that there are certain advantages to an examination conducted when the couple is separated, but I find it hard not to be under the impression that the possibility for conducting an examination, as well as the dependability of that examination, would be far greater when the two are in the country, rather than under the alternative of one being here and the other abroad, and would certainly be greater than when both are abroad. Indeed, one of the clear indicators of a bona fide marriage – although not the only one – is the maintaining of a common residence and a joint household over time. How can the Ministry of the Interior ascertain that if one of the partners isn’t even in the country? Indeed, one gets the clear impression that the laxity of the Ministry of the Interior’s scrutiny was a – and perhaps the primary – reason for adopting the new policy, and rather than improve the efficiency of its inspections, the Ministry of the Interior chose the easy route of demanding that the alien spouse leave the country.

            That was the case in the matter of Ben-Atiya (above). In that case, we were concerned with a program implemented by the Ministry of Education and Sport under which students were exempted from matriculation examinations in certain fields of study. In place of the exams, the Ministry recognized the grades that the students attained in internal exams administered by their high schools. The question was whether the Ministry could deny certain schools the right to participate in that program solely because large-scale occurrences of copying on matriculation exams had been discovered in those schools in previous years. The Court granted Ben-Atiya’s petition, and Justice Kedmi wrote (ibid., p.8):

The occurrence of a relatively large number of infringements of the honesty of the exams reflects a laxity in supervision, and the manner for contending with that phenomenon is by improving the efficiency of supervision, and by the appropriate punishment of those involved, rather than by harming “the next class” and the educational institution and its faculty.

What the Court stated there in regard to increasing supervision can be said in this case, as well.

56.       The second branch of the proportionality test treats of the question of whether the harm caused to the individual is greater than necessary. There is no doubt in our minds that the Ministry of the Interior’s policy absolutely fails this test. First, we will agree with our colleague Justice Dorner that this second branch of the proportionality test concerns the “margin of proportionality”, or as she stated in the Tenufa Manpower and Maintenance Services case (above):

And it is sufficient that the violation of the right fall within the “margin of proportionality” for the norm to meet the proportionality requirement. This is certainly true in regard to the legislature…and it is even true in regard to norms adopted by the executive branch… the “margin of proportionality” is also decided with consideration for the nature of the violated right or interest, and their relative importance.

The Ministry of the Interior’s policy fails this test, as well.

57.       It does not require great powers of imagination to know and understand the severity of the harm to a legitimately married couple compelled to leave the country or separate for a number of months. The Respondents state in this regard:

On the contrary, if the couple’s relationship is sufficiently strong, then it will not suffer at all from a not particularly long separation, or due to the couple’s travelling to the alien partner’s country of origin, if it is real.

            This response that love will conquer a few months of separation is cynical and inappropriate. Moreover, the violation of their dignity and family unity is not something to make light of. And how will separating lovers make matters easier in this matter. Have we forgotten Desdemona’s pain when the Duke ordered Othello to leave to fight in Cypress (William Shakespeare, Othello)?

                        DESDEMONA:

That I did love the Moor to live with him,

My downright violence and storm of fortunes

May trumpet to the world: my heart's subdued

Even to the very quality of my lord:

I saw Othello's visage in his mind,

And to his honour and his valiant parts

Did I my soul and fortunes consecrate.

So that, dear lords, if I be left behind,

A moth of peace, and he go to the war,

The rites for which I love him are bereft me,

And I a heavy interim shall support

By his dear absence…

            Should our hearts make light of the pain of separation? Justice Elon addressed the pain of separation in CA 488/77 Anonymous and Anonymous v. Attorney General, IsrSC 32 (3) 421, teaching us (p. 432):

The Sages said that it is as difficult to match people together as parting the Red Sea (TB Sotah 2a, and Rashi ad loc.). And if that is true for matching and joining  people, a fortiori, separating and “parting” them from one another is as difficult as parting the Red Sea.

And let us not ignore the financial burden involved in such a compelled separation of a couple.

58.       In their summation briefs, the Petitioners presented us with some of the obstacles confronting a couple when one of them is required to leave the country: the economic problems involved in leaving the country and staying abroad; the limited employment opportunities; and health issues. Indeed, it is hard to avoid the impression that a decree requiring a spouse to leave the country is too heavy to bear. The Respondents did not adequately weigh the right of an individual to marry, and the severe harm to family life attendant to the policy they adopted. In the the Tenufa Manpower and Maintenance Services case (above), our colleague Justice Dorner addressed the issue of violating basic rights:

As for the test regarding the choice of the means that violate the right to the least extent necessary, which, as noted, is not an absolute test, the choice of the means will be influenced by the right violated. When an important, basic right is involved, we must be more strict in choosing means that only minimally violate the right, even if those means are significantly costly.

The matter before, it should be recalled, concerns a basic right of the individual – every individual – to marry and found a family. We should need no reminding that this right is recognized in universally accepted international conventions (see: Art. 16 of the Universal Declaration of Human Rights, 1948; Art. 12 of the European Convention on Human Rights; Art. 23(2) of the International Covenant on Civil and Political Rights, 1966. For more on this right, see: Amnon Rubinstein, The Right to Marry, 3 Iyunei Mishpat 433 (1973) (Hebrew); Irene Fahrenhorst, Family Law as Shaped by Human Rights, 12 Tel Aviv University Studies.in Law 33 (1994)).

            Indeed, the force of the right and its strong emanations require, almost on their own, that the means that the Ministry of the Interior chooses be softer and more moderate than the hard, drastic means that it decided to adopt. It is difficult not to infer that the Respondents entirely ignored – or gave only minimal weight to – these basic rights of the individual to marriage and founding a family. If that is the case in regard to the alien, it is all the more so in regard to the Israeli citizen who is a partner to the marriage.

59.       It would have been appropriate for the Respondents to choose other means for achieving their – itself proper – purpose, which would be less harmful to the individual. Thus, for example, increased monitoring of unlawful residence in the country, greater supervision over the legitimacy of marriages, and so forth. The employment of such means would, we assume, require the expenditure of greater resources, but that alone cannot justify the harsh means that the Ministry of the Interior chose to adopt towards individuals.

60.       The third branch of proportionality addresses the benefit deriving from the policy, as opposed to the harm that it inflicts. In our opinion, the benefit of the policy does not stand in a proper ratio to the harm it causes. The benefit that the policy achieves is, primarily, merely speculative, and we did not receive any of the data we would have expected to see. It is hard to free oneself from the impression that whether the policy will lead to the eradication of fictitious marriages or to harm to bona fide marriages is merely a matter of chance. The harm – harm to bona fide marriages – is real and proven, whereas the benefit – harm to fictitious marriages – is speculative and unproven. Moreover, in the absence of statistics, it is hard to ignore the real possibility that the many – those in bona fide marriages – will suffer for the few – those in fictitious marriages.

            In our opinion, examining the harm and benefit leads to the unequivocal conclusion that the Ministry of the Interior’s policy does not meet the test of a proper, proportionated relationship, as required.

61.       The necessary conclusion from the above is that the Ministry of the Interior’s policy in regard to aliens who married Israelis while they (the aliens) were living in Israel without a permit is a policy that does not meet the proportionality test, and is improper and void. The Ministry of the Interior’s demand – as a fundamental policy – that the alien spouse leave the country for a number of months until the legitimacy of the marriage is reviewed, is a policy that is inconsistent with first principles of a democratic regime that is concerned for civil rights.

62.       Does that mean that the Ministry will be acting unlawfully whenever it demands that an alien living in Israel unlawfully, and married to an Israeli, leave the country immediately until his application is reviewed in depth? In our opinion, the answer is no. It may be assumed that there will be cases in which the fictitious character of the marriage will be apparent to all in all its ugliness, even without any in-depth investigation. That would be so, for example, when it becomes apparent in the course of an interview with the couple that the woman barely knows her spouse, or the opposite, and that, of course, neither of the two is acquainted with their spouse’s family, birthplace, and so forth. That would also be the case where it is manifest that the marriage certificate is a forgery (see, for example, the Motzenchik case, mentioned above in para. 34). In such cases, and after granting the couple an opportunity to be heard, there would appear to be nothing that would prevent asking the alien spouse to depart the country immediately until the completion of a further review of the marriage (if there would be any need for such a review). However, subject to such exceptions, the Ministry of the Interior is prohibited from demanding that the alien leave the country prior to a review of the legitimacy of the marriage. This, of course, is subject to overriding concerns of a criminal record or a danger to public safety. Needless to say that the couple is entitled to present their case to the Ministry of the Interior official, and that no decision shall be made before they are granted a fair opportunity to present their case in full. If, following the examination, the Ministry of the Interior concludes that the couple’s marriage is fictitious, it may then deport the alien from the country, subject to his right to challenge the deportation in court.

63.       Moreover, our preliminary assumption is of a couple presenting itself as married to the Ministry of the Interior. The man (for example) is Israeli, and the woman is an alien. The wedding ceremony took place while the alien woman was living in Israel without a permit, and the two now request that the woman be granted permanent residency and citizenship. We have not agreed to the establishing of a precondition requiring the woman to leave the country before her application will be addressed. At the same time, we cannot ignore the fact that the woman took the law into her own hands, continued to remain in the country contrary to law and order, and that she now seeks to legitimize her continued stay in reliance upon the marriage. We can also not ignore the fictitious marriage phenomenon that the Ministry of the Interior confronts when that woman (in this example) and her spouse seek to fraudulently extend the woman’s stay in the country. In considering all the above, and having rejected deportation, it would appear to us that in such cases, the couple should be subject to a heavier-than-normal burden to prove the legitimacy of the marriage. Indeed, the nature and severity of the matter should influence the burden of proof, as in other matters of law, and require a higher level of proof of the couple than is usual. If that is the general rule, it is all the more so the case when the marriage was celebrated after deportation proceedings against the alien spouse commenced.

            An analogy – although not a perfect one – can be brought from the rule requiring that a complainant in a tort suit who claims a larger loss of income than his reported tax income must bring “persuasive evidence” as to the truth of his claim (see, e.g., CA 8639/96 Aryeh Insurance Company Ltd. v. Kardonis (not yet published; para. 5 of the opinion of Justice Orr; and see: CA 5794/94 Ararat v. Ben Shevach (unpublished) in which Justice Orr held that we must be “strict” with such a complainant).

            The law is similar in the United States in cases comparable (although not identical) to our own, where the law speaks of the non-deportation of an alien where the alien proves:

[B]y clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given... (8 U.S.C. § 1255(e)(3)) (emphasis added).

            Thus we find that in order to prevent deportation, the alien will be required to meet a higher standard of proof in order to convince the authorities of the legitimacy of the marriage.

 

Proceedings for granting the right of permanent residence – the “graduated test”; Naturalization of an alien married to an Israeli

64.       As we saw above, the Ministry of the Interior’s policy distinguishes between a marriage between an Israeli and an alien residing in Israel unlawfully, and the marriage of an Israeli to an alien residing in Israel lawfully. Up to now, we have addressed cases in which the alien resides in Israel unlawfully, and we shall now turn to the other type of case, in which the alien resides in the country lawfully. We would preface this by stating that this situation also includes cases in which the residency is unlawful, and it has been determined that the marriage is bona fide.

            We are now concerned with the case of a married couple in which one spouse is Israeli and the other is a non-Jewish alien applying for the right of permanent residency and naturalization. Under the currently accepted procedure, these two requests are handled separately, and we will, therefore, address them separately, respectively.

65.       The Ministry of the Interior’s policy for granting permanent residency to the alien spouse – which has been in place since 1996 – is divided in to three separate stages, and the entire process may take nearly six years to complete. The first stage – an undetermined period, up to six months; a second period of two years; and a three-year third period, totaling some six years.

66.       In the first stage – which extends for an undetermined period of up to six months – the Ministry of the Interior begins to examine whether the marriage was entered into in good faith, and the question of any security or criminal impediment to granting the requested rights. Unlike the situation of an alien who marries an Israeli while residing in Israeli without a permit, the alien residing in Israel with a permit is not requested to leave the country until the completion of the examination. The examination is conducted while both spouses are in the country.

            In conducting its examination on the merits, the Ministry of the Interior assigns little importance to the marriage certificate presented by the couple as proof of their marriage, and needless to say, it does not suffice with that document. The Ministry of the Interior invites the couple for an interview, and conducts further meetings in order to ascertain whether the marriage is bona fide, as well as in regard to the continued marital relationship. Once the Ministry is satisfied that the marriage is bona fide – at least prima facie – and in the absence of any security or criminal impediment to the spouse’s continued presence in the country (these issues were not raised before the Court, and we will not address them), the “graduated test” period begins. The total length of the “graduated test” period is five years and three months, and it begins, as noted, on the day that the Ministry of the Interior is satisfied that the two people who presented themselves as a couple are partners to a bona fide marriage.

67.       In the second stage (the first stage of the graduated test), the alien spouse is granted a visa and a B/1 visitor’s permit (temporary worker) under the provisions of reg. 5(a) of the Entry into Israel Regulations, 5734-1974. The visa and permit are valid for three months (as stated in sec. 2(a)(2) of the Entry into Israel Law, 5712-1952), and can be renewed. After 27 months in this status, we proceed to the third stage (the second stage in the graduated test).

            If the marriage continues as before, and in the absence of any security or criminal impediment, the alien spouse acquires the right to a visa and A/5 temporary residence permit (general temporary resident) under reg. 6(e) of the Entry into Israel Regulations. The alien spouse will remain in this status for a period of three years, until the completion of the aggregate test period of five years and three months. At the end of that period, the Ministry of the Interior examines whether the marriage is still in force. Having so found, and in the absence of any impediment, the alien spouse is granted the status of permanent resident, i.e., a visa and permit for permanent residence under sec. 2(a)(4) of the Entry into Israel Law.

            Thus far, the procedure for granting the right of permanent residency. We will now address the procedures for naturalization.

68.       The alien spouse is entitled to commence naturalization proceedings only upon completing the test period for granting the right to permanent residence. That is the policy and practice of the Ministry of the Interior.

69.       The Petitioners primarily complain of the length of the proceedings for obtaining permanent residence; of the fact that the Ministry subjects them – unjustifiably in their opinion – to the graduated-test period applying to “family reunification” proceedings; of the fact that naturalization proceedings begin only upon the completion of the graduated-test period; and of the fact that the Ministry does not apply a more lenient naturalization policy, as provided under the Nationality Law. We will now address these arguments.

 

Granting the right to permanent residence – prefatory remarks

70.       The attorneys for the parties employed the term “family reunification” in regard to granting rights to alien spouses, but that term is inappropriate, and we should make that clear from the start. A distinction should be drawn between the concept of “family reunification” as it applies to the administered territories – in which regard the use of this concept is correct – and borrowing that concept and applying it to the territory of the State. The substance of the two may appear similar, as in both instances we are concerned with the desire of family members to live together. However, if there is (partial) substantive identity between “family reunification” in the administered territories and “family reunification” in Israel, there is no legal identity. The law is different, the authorized government agency is different, and the nature of the right is different. We do not intend to go into the details of the arrangements for “family reunification” in the administered territories. Our intention is merely to state that no analogy should be drawn to the matter before us, just as no analogy should be drawn between the matter before us and those arrangements. Each arrangement addresses its own issues.

71.       A further comment. The Ministry of the Interior applies the identical “graduated test” to aliens seeking status after marrying Israeli residents, and to aliens who married Israeli citizens. As a matter of law, one could argue that the spouse of a citizen is different from the spouse of a resident, inasmuch as the spouse of a citizen (as we shall see below) falls directly under the purview of the Nationality Law, whereas the matter of a resident is governed by the policy that the Ministry of the Interior chooses to adopt from time to time. However, as noted, the Ministry of the Interior decided to adopt a uniform policy for citizens and residents, and applies the “graduated test” to the spouses of both.

72.       We hall now address the subject of granting the right to permanent residence and the right to citizenship, respectively.

 

The procedure for granting the right of permanent residence to the alien spouse

73.       The State of Israel recognizes a citizen’s right to choose a partner freely, and to establish a family together. Israel is committed to protecting the family unit on the basis of international conventions (see: art. 10 of the International Covenant on Economic, Social and Cultural Rights, 1966, and art. 23.1 of the International Covenant on Civil and Political Rights, 1966). Although those conventions do not dictate any particular policy in regard to family reunification, Israel has recognized – and recognizes – its duty to provide protection for the family unit also by means of granting permits for family reunification. In doing so, Israel joined the most enlightened nations, those recognizing – subject to restrictions regarding state security, and public good and welfare – the right of family members to live together in the territory they may choose. (See and compare:  Ryszard Cholewinski, The Protection of the Right of Economic Migrants to Family Reunion in Europe, 43 Int. & Comp. Law Quarterly 568 (1994); the judgment of the European Court of Human Rights in Berrehab v. The Netherlands (1988) 11 E.H.R.R 322).

74.       The same is true for the matter before us. The Respondents recognize the right of the partners – an Israeli citizen and a non-Israeli citizen – who married in good faith to live together in Israel, and the right of the alien to an arrangement that will ultimately grant him permanent status in the State: permanent residency and citizenship. What, then, gives rise to the complaint? It arises due to the length of time of that “graduated test”, and the rigidity of the arrangement.

75.       When we are concerned with endogamous Jewish marriage, no problem arises inasmuch as every Jew is entitled to return and to citizenship. Our matter concerns non-Jews who marry Israeli citizens. All would agree that the alien partner is not entitled to an immediate right of permanent residency and citizenship, and that such an entitlement would not be proper. As is universally accepted, the State has the right to monitor and supervise the procedures for granting rights to an alien spouse, and the State will naturally adopt a policy of stages. We may also assume that it is generally agreed that proceeding from one stage to another will be contingent upon the continued marital relationship (in the course of each stage, as well) and the absence of any security or criminally related impediment to the continuation of the process. It would have been proper that these arrangements adopted by the State be established by statute, or at least, in regulations, rather than in “internal directives” (and we have not seen even those). We would, nevertheless, recall that those directives were subjected to judicial review (see: HCJ 2950/96 Hana Mousa and 37 others v. Minister of the Interior (not yet published); HCJ 3087/97 Raina Aisha et al. v. Minister of the Interior (not yet published)). The question is simply whether the policy of a test in stages in regard to an alien spouse, as adopted by the Ministry of the Interior, meets the proportionality test and its derivatives.

The reasonableness of the arrangement for granting permanent residency

76.       As noted, the same graduated arrangement that the Ministry of the Interior employs in regard to the spouse of an Israeli resident is also applied to the alien spouse of an Israeli citizen. This is why the alien spouse is subjected to a waiting period of five years and three months prior to the granting of permanent residency. The Petitioners argue that their matter is different, and that there is no justification for applying this years-long test that applies to the spouse of a resident to the spouse of a citizen, as well.  We will state that, as a matter of principle, this argument has been raised in the past, and this Court rejected it. Thus, for example, in HCJ 3497/97 Afaf Said Musa Kamleh v. Minister of the Interior (not yet published), the Court stated:

As far as the procedure and the reason grounding it, there is no room for distinguishing between a resident and a citizen.

As for the period of time required before the spouse of a citizen can obtain permanent residency, the Petitioners argue that the time period does not meet the proportionality test in that it is unjustifiably long. The Respondents reply that they are acting lawfully, with due authority, and reasonably. We would all agree that, to the extent that considerations of national security or public safety are concerned, the Respondents are acting properly and reasonably even if the procedure is significantly long. However, in the absence of such or similar considerations, we unfortunately heard only hesitant, partial arguments as to the time required until the alien spouse can obtain permanent residency. Against this background, it would not be appropriate for the Court to further explore this subject on its own. Moreover, in the main, the subject of permanent residency is subsumed in the alien spouse’s application for naturalization. It would, therefore, be appropriate that we first address the question of citizenship. If that is not enough, we have also discovered that this question in regard to permanent residency is the primary issue in another petition pending before the High Court of Justice (HCJ 338/99 Sabri Issa et al.), and it would be preferable that we leave our decision of this question for that petition.

            Thus far on the issue of permanent residency. We shall now proceed to the subject of naturalization.

 

Naturalization of the alien spouse – lawfulness and reasonableness

77.       The issue of the naturalization of the alien spouse differs from that of permanent residency, if only because here we are not navigating policy and directives, but stand on the terra firma of statute. Elsewhere (see paras. 31-33, above) we briefly addressed the relevant provisions of the Nationality Law, and we shall now expand somewhat.

78.       Nationality is conferred by seven means (sec. 1 of the Nationality Law), and we are concerned with that of naturalization (secs. 5-8 of the Nationality Law). Section 5 of the Nationality Law establishes as follows:

Naturalisation

5(a)      A person of full age, not being an Israel national, may obtain Israel nationality by naturalization if –

1. He is in Israel; and
2. He has been in Israel for three years out of five years preceding the day of submission of his application; and
3. He is entitled to reside in Israel permanently; and
4. He has settled, or intends to settle, in Israel; and
5. He has some knowledge of the Hebrew language; and
6. He has renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national.

(b) …

            That is the general path for naturalization, but not the path in the case of a spouse, whose right to citizenship takes precedence over the right of others. Thus, sec. 7 of the Nationality Law informs us:

                        Naturalisation of husband and wife

7.         The spouse of a person who is an Israel national or has applied for Israel  nationality and meets or is exempt from the requirements of section 5 (a) may obtain Israeli nationality by naturalisation even if she or he is a minor or does not meet the requirements of section 5 (a).

            The spouse of an Israeli citizen – alone – is entitled to this more lenient procedure for naturalization, the reasons for which were addressed by Justice Barak in the Rankin case (above, p. 117):

There is a readiness for significantly greater flexibility in regard to the requirements when the spouse of a citizen requests citizenship. The reason for this is to be found in the desire to preserve the family unit, and the need to prevent a division in the citizenship of its members.

And further see the Kniazhinski case, above.

79.       The spouse of an Israeli citizen may, therefore, be granted some leniency in the naturalization process, but in order to obtain it, he must pass through the corridor of the Minister of the Interior’s (or a person upon whom the Minister of the Interior confers authority) discretion. We have already noted (para. 33, above) that this leniency granted to the spouse of a citizen does not detract from the discretion of the Minister of the Interior, and we are concerned only with the boundaries of that discretion and the criteria that the Minister may employ in exercising it. All would agree, for example, that in the case of an applicant with a criminal record that may place the public at risk, or an applicant who may present a threat to national security, the Minister of the Interior can refuse the application for naturalization. If that is true of return – which allows for the prevention of the immigration of a Jew for these reasons (see sec. 2(b)(2) and (3) of the Law of Return) – should not the same hold for normal naturalization?

            Moreover, it is decided law that the Minister’s discretion in regard to the granting of citizenship is so broad that, despite the provisions of sec. 7 of the Law – authorizing the Minister to waive the conditions established under sec. 5(a) of the Law in addressing the naturalization application of the spouse of an Israeli – he is permitted not to waive the fulfillment of some of those conditions and insist that they be met. Thus, the Minister of the Interior is authorized to waive the conditions established under sec. 5(a)) of the Law, or not to waive them, and insist upon fulfilling some of them (and cf. HCJ 31/53 Nabia Taufiq Badran Mustafa v. General of the Northern Command, IDF et al., IsrSC 7 587, 588). Thus, for example, the Minister of the Interior decided – as a matter of general policy – not to waive the requirements under sec. 5(a)(1) and 5(a)(4) of the Law in regard to the spouse of an Israeli citizen requesting naturalization. In other words, the applicant for naturalization must meet the requirement of presence “in Israel” and the requirement that he “has settled, or intends to settle, in Israel”. When that matter was raised before us, we approved that policy, stating that the Minister of the Interior properly exercised his discretion in seeking to prevent the exploitation of the naturalization process by those who did not intend to use it for the purpose of the family’s residing in Israel. As we stated in the Uriel Scharf case (above):

This policy of the Minister of the Interior is intended to prevent enlarging the circle of Israeli citizens who do not reside in Israel, do not intend to reside in Israel, and do not take any part in the obligations imposed upon its residents.

80.       The scope of the Minister of the Interior’s discretion is derived, inter alia, from the nature of the right to citizenship, and we may state, in general, that the nature of that right is such as to indicate broad discretion. Citizenship is a basic right (HCJ 2757/96 Alroi v. Minister of the Interior, IsrSC 50 (2) 18, 22-23). It is a right that establishes a continuing relationship between the citizen and the state that may grant rights and ground various obligations (see: Rubinstein & Medina, vol. 2, 896-903; M.D. Gouldman, Israel Nationality Law (Hebrew University, 1970) 101-118. And see more recently: CrimA 6182/98 Sheinbein v. Attorney General, IsrSC 53 (1) 624). A citizen carries his citizenship on his back, and it accompanies him wherever he may go. The right is not limited to the country’s borders, but “applies to the territory of the state and beyond” (the Rankin case, 117). From the above we see that, by nature, the granting of citizenship is subject to broad to discretion, and that the Minister has the authority to weigh many different considerations before deciding whether or not to grant an application for naturalization.

            Nevertheless, as with every matter of discretion, boundaries and limits have been imposed upon the Minister of the Interior’s discretion under the Nationality Law. One of those limits is established in sec. 7 of the Nationality Law, in which the legislature expressed its desire that leniency may be shown in regard to the spouses of Israeli citizens who apply for Israeli citizenship. The legislature stated its desire, and the Minister of the Interior cannot ignore the directives of the law.

 

The legislature’s directive regarding leniency in the naturalization of the spouse of an Israeli citizen

81.       Section 7 of the Nationality Law does not deprive the Minister of the Interior of his broad discretion, even when he is considering the naturalization application of the spouse of an Israeli citizen. At the same time, it instructs us that leniency is appropriate in considering such an application. I would not go so far as to say that the “burden of persuasion” rest on the Minister’s shoulders to show why and wherefore he chooses not to exempt the spouse of an Israeli citizen from the provisions of sec. 5(a) of the Nationality Law. However, I would have no difficulty in stating that the Minister is under a burden to explain why he will not grant an exemption from those requirements to the spouse of an Israeli citizen, in part or in full.

            Once again, we are not traversing untrodden ground. Section 7 of the Nationality Law expresses the international obligation that Israel assumed in regard to granting leniency in the naturalization of a married woman, or in the language of art. 3 of the Convention on the Nationality of a Married Woman (8 Kitvei Amana 605):

Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

            The Convention is intended, by its language, to protect the rights of women, but in view of the principle of equality in our legal system, we can say that the right also extends, in principle, to men, as well. The purpose of sec. 7 of the Nationality Law is to protect the rights of the spouse, from which we learn that the Minister of the Interior is required to include this purpose in the policy that he establishes for the implementation of sec. 7. Thus, for example, a rigid policy that would declare that a spouse would not be granted citizenship unless he met all of the conditions established under sec. 5(a) would be hard to accept as being within the Minister’s authority and lawful. Indeed, we might possibly approve such particular discretion only in the most exceptional case, as it severely detracts from the provisions of sec. 7 of the Law.

82.       As for the matter before us, as we saw, the Minister of the Interior is unwilling to consider an application for naturalization before the conclusion of the probationary period for permanent residency, or in terms of months and years: after five years and three months from the submission of the application for permanent residency. Is it proper to impose that condition upon a spouse seeking naturalization?

83.       In sec. 5(a) of the Nationality Law, the legislature established six preconditions – threshold conditions –for the right to naturalization (subject to the Minister of the Interior’s discretion not to grant citizenship even upon meeting those conditions). Two of those conditions – those listed in sec. 5(a)(1) and 5(a)(4) – compose part of the Minister’s permanent policy, i.e., presence in Israel and settling, or intending to settle, in Israel (see para 79, above). Now, in demanding – as a precondition – that the spouse requesting naturalization first obtain permanent residency, the Minister adds a requirement similar to the condition established under sec. 5(a)(3), i.e., that the applicant be “entitled to reside in Israel permanently”. In practice, if not in law, the spouse is required to meet a condition similar to the condition established under sec. 5(a)(2) of the law, under which a precondition for granting citizenship is that the applicant “has been in Israel for three years out of five years preceding the day of submission of his application”.

            Of the six conditions of sec. 5(a), there remain only two from which the spouse is (apparently) exempt: “has some knowledge of the Hebrew language” (sec. 5(a)(5)), and “renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national” (sec. 5(a)(6)). I am of the opinion that in so burdening the spouse, the Minister of the Interior went too far in the scope of his broad discretion. If that is so in general, it is all the more so when that policy was presented to the Court – even then, only orally – without our hearing that it is subject to some or other exceptions.

84.       Thus we find that, in accordance with sec. 7 of the Law, in considering an application for naturalization by a spouse, the Minister is authorized to waive the condition of permanent residence, and for good reason. Acquiring the right to permanent residency generally involves a long waiting period, and one might argue that the Law impliedly asks that we exempt a spouse from a long waiting period prior to naturalization. However, in practice, the policy established by the Minister of the Interior ignores this directive of the legislature by imposing nearly a six-year waiting period upon a spouse before considering his application for naturalization. Even if we were willing to accept this policy in regard to the right to permanent residency, we are hard pressed to distinguish how the Minister intended to be lenient toward a spouse, as the Law directs (in principle). The legislature asked that we not be strict with the spouse of an Israeli citizen, and rather than establishing rigid conditions and fixed time periods – the conditions established under sec. 5(a) of the Law – the Minister of the Interior was asked to weigh a more lenient approach, in accordance with each person’s circumstances and a predetermined policy. Yet the Minister of the Interior hardened his heart against the spouse as if he were a regular applicant for naturalization.

            Moreover, we were not informed of the establishing of any exceptions to the policy, and a policy without exceptions is like bearings without lubricating oil. Just as the latter will not work and will quickly burn out, so it is in regard to the policy as well. Imagine a couple living in Israel for four years, with three children. The husband is a civil servant, and the wife is a senior industrial and management engineer in an industrial factory. Are we seriously going to say that they must wait more than a year before the Minister of the Interior will begin to consider whether to grant this non-Jewish woman citizenship?

            We are not saying – and would not say – that the spouse of an Israeli citizen is entitled to automatic citizenship. By nature, some period of time is required until the authorities decide to grant citizenship to the alien spouse, and even in establishing a policy, the time periods may differ from one matter to another. However, it is hard to accept that the Minister of the Interior has established a rigid requirement of a waiting period of more than five years before he is willing to begin considering an application for naturalization submitted by the non-Jewish spouse of an Israeli citizen. The legislature showed us the way, and we may not stray from it.

85.       In conclusion, it would appear to us that when an alien spouse, married to an Israeli citizen, submits an application for naturalization, the Minister of the Interior may not rigidly condition the examination of that application upon the conclusion of the graduated test and the obtaining of permanent residency as a necessary prerequisite. We should also bear in mind, and not forget, that we are not only concerned with the right of that non-Jewish, alien spouse. We are also concerned with the right of the Israeli spouse, and his desire that his spouse, who lives with him and their children in Israel, enjoy equal rights to those around her. The Minister of the Interior holds discretion as to how and when to decide, but establishing a rigid framework of nearly six years until he is willing to begin examining a foreign spouse’s application for naturalization pushes the Minister of the Interior’s discretion beyond the established boundaries of his authority. Indeed, the Minister of the Interior is authorized to establish a minimum time period (“TIG” in colloquial usage), and it is but natural that the authority will establish internal directives for the average case. But the directives that the Minister established for himself do not meet the tests of reasonableness and proportionality.

Regarding registration of the marriage in the Population Registry

86.       Some of the Petitioners further request that we direct the Minister to register their marriages in the Population Registry. Inasmuch as, in any case, we are going to remand the matter of the Petitioners to the discretion of the Minister of the Interior, a separate discussion of the issue of registration is not appropriate at this time. The Minister will carry out his examination and decide, and the doors of this Court will remain open to anyone who believes that he has been wronged.

Conclusion

87.       At the outset of our journey, we presented four questions that required decision (see para. 3, above). Now, at the end of the voyage, we will present the main points of our conclusions:

            A.        The right of return: We have found that the right of return is granted only to the family members of Jews prior to their immigration to Israel. In other words, Jews who are citizens of Israel – whether by birth, or after realizing their right to return – cannot grant the right of return to their non-Jewish spouses. We should, however, bear in mind that aliya [immigration] to Israel is not necessarily a clear-cut process. In some cases, the process may be prolonged, and there may be instances in which we will have to apply the Law flexibly in regard to couples whose matter is being considered (see the end of para 24, above).

            B.        (1)        The Ministry of the Interior’s policy in regard to aliens who marry Israelis while they (the aliens) reside in Israel without a permit does not meet the proportionality test, and it is therefore unlawful and void. The Ministry of the Interior’s requirement – as a matter of policy – that the alien spouse leave the country for a number of months while the legitimacy of the marriage is investigated is not consistent with the fundamental principles of a democratic regime that is concerned for civil rights.

                        (2)        Nevertheless, in a case in which the alien spouse resided in Israel without a permit, the Ministry of the Interior may be strict with the couple, and demand a higher-than-usual degree of proof of the legitimacy of the marriage. This higher level of proof will apply all the more so in cases in which deportation proceedings have commenced, and the alien spouse seeks to legitimize his stay in Israel on the basis of that marriage.

                        (3)        In those cases in which the fictitious character of the marriage is manifest without need for in-depth examination and investigation, the Ministry of the Interior may demand that the alien spouse leave the country prior to conducting a comprehensive examination of the legitimacy of the marriage.

                        (4)        In any case, the State is under an obligation to hear the spouses and permit them to persuade the authority of the legitimacy of their marriage. No decision as to the legitimacy of the marriage can be made before the couple has been afforded an opportunity to fully present its case.

                        (5)        The above addresses only the legitimacy of the marriage. Needless to say, the Ministry of the Interior is authorized to weigh considerations other than the legitimacy of the marriage, such as considerations concerning a criminal record, danger to public safety, and other such overriding considerations.

                        (6)        If, following a comprehensive examination, the Ministry of the Interior concludes that the marriage was merely a fiction, it may deport the alien from the country, subject to his right to challenge that deportation before a court.

                        (7)        It would be appropriate for the Ministry of the Interior to compose its policy in detailed, written form, and that the internal directives that it establishes be published.

            C.        The arrangements for the alien spouse’s stay in Israel should be set out in regulations, or at the very least, the Ministry of the Interior must establish them as internal directives that will be published to the public at large.

            D.        (1)        Naturalization of the alien spouse: The Minister of the Interior is authorized to establish a policy – which must be published – under which the alien spouse will be granted citizenship at the conclusion of a reasonable period that will be decided, and upon fulfilling the necessary preconditions. Needless to say, the Minister of the Interior must consider each application for naturalization on its merits, in accordance with its special circumstances, and in accordance with the established policy. In the absence of special reasons, the Minister of the Interior may not condition the commencement of the examination of the application for naturalization upon the passage of the time period required for the granting of permanent residency to the alien spouse.

                        (2)        In the framework of his general policy, the Minister of the Interior may establish a minimum time period for responding to the application of the alien spouse for naturalization, and needless to say, that time period must meet the proportionality test.

            E.         We were not required to decide upon the question of the time period required for the granting of permanent residency, nor upon the question of the registration of the marriage.

88.       We have decided the fundamental legal issues without expressing our opinion as to each individual petitioner. We now further order that the matters of the Petitioners before the Court be remanded to the examination and consideration of the duly authorized agency, which shall decide upon the matter of each one of them in accordance with the decisions made in this judgment. Needless to say, the doors of this Court stand wide open – and shall always be so – for any who may be in distress.

89.       The matter of Jorge Arnulf (HCJ 8016/96) raises the particular problem of a non-Jewish alien who married a Jewish Israeli citizen, where the Rabbinical Court has declared that marriage void. This petition raises additional problems that do not arise in the others, and the Ministry of the Interior must, therefore, consider this petitioner’s request in light of all the circumstances of his case in their entirety.

            Here we shall conclude.

90.       We order that the orders nisi be made absolute in all that relates to the policy of the Minister of the Interior’s policy in regard to the treatment of the application of an alien residing in Israel without a permit who married an Israeli, and in all that regards the Minister of the Interior’s policy on the subject of granting citizenship to a non-Jewish alien married to an Israeli – all as explained and detailed in our opinion hereinabove. The Respondents shall pay the legal fees of the Petitioners in each of the petitions in the amount of NIS 10,000.

 

Justice D. Dorner:

            I concur.

 

Justice D. Beinisch:

            I concur.

 

            Decided in accordance with the opinion of Justice M. Cheshin.

 

            This 18^th day of Iyar 5759 (May 4, 1999).

 

 

 

 

 

 

 

 

 

                       

 

 

 

 

 

 

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 1779/99

 

Before:                                    The Honorable Justice D. Dorner

                                    The Honorable Justice D. Beinisch

                                    The Honorable Justice A. R. Zuabi

           

 

The Petitioners:

 

1.Nicole Berner-Kadish

2.Ruti Berner-Kadish

3.Mattan Berner-Kadish

 

                                    versus

 

The Respondent:

 

                                    The Minister of Interior

                                   

                                    A Petition for Order Nisi

 

Date of hearing:          15 Adar A 5760; February 21, 2000

 

Adv. Hadas Tagari

                                    On behalf of the Petitioners

 

                                    Adv. Osnat Mandel

                                    On behalf of the Respondent

 

Abstract

 

The First and Second Petitioners (hereinafter: the Petitioners,) two women who have been life partners for seven years, are Israeli citizens. Their permanent residence is in the State of California, in the United States. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant via sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, according to an adoption decree granted by a California court – where the son was born and where the three Petitioners reside. The adoptive mother was registered as an additional parent in the son’s birth certificate. The Petitioners, who wish to return to Israel and who have been staying in Israel for two years for the purposes of study, notified the registrar of the child’s adoption by the adoptive mother, relying on the birth certificate and the American court decision, and asked that the adoption be registered in the Population Registry. The Registrar refused, giving the reason that, biologically, the existence of two parents of the same sex is impossible, and that it has no duty to make registrations that are incorrect on their face. Hence the Petition.

 

The Supreme Court ruled:

 

A.        1.         The rules of private international law demand, that the personal status of a person be recognized uniformly in all countries. Splitting a status may compromise both the public and the parties’ policy. Only in extraordinary cases, when the foreign status compromises the public policy in the state where the registration is requested, it shall not be recognized.

            2.         The public policy in the country where the registration is requested – which may be compromised should the requested registration be permitted – has been given a limited interpretation.

            3.         Not recognizing a foreign adoption decree releases the adoptive parents from their duties toward the adoptees and thus infringes the rights and interests of the children.

            4.         Therefore, it seems the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial proceeding.

 

B.        1.         According to the case law, the Registrar is not authorized to determine the validity of the registration, but it must register what the citizen instructs it to, unless the “incorrectness of the registration is apparent and unquestionable.”

            2.         The registration in the case at hand does not reflect the biological aspect but the legal aspect. But it is obvious that any adoptee has two mothers – a biological mother and an adoptive mother – and the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents.

            3.         Therefore the Respondent’s claim that it may refuse to register because of an apparent incorrectness of the requested registration has no substance.

 

C. (According to Justice D. Beinisch):

            1.         The answer as to whether the Third Petitioner’s adoption by the First Petitioner would be recognized as valid in our law has yet to be pronounced upon by this Court, and it raises complex issues, including issues of private international law. However, the resolution of these issues is not in the hands of the Registrar.

            2.         The Respondent’s claim in the case at hand that the incorrectness of the requested registration is “apparent” due to the impossibility to recognize two mothers for the same child is but a different framing of the argument that an adoption based on a same-sex relationship between the biological parent and the adoptive parent must not be recognized. This position, which is one possible position on the merits of the issue, may not guide the Registrar when coming to exercise its authorities under the Population Registry Law, 5725-1965.

 

D.        (Minority opinion of Justice A. R. Zuabi):

            1.         Insofar as the registration of parents’ names is concerned, the registration in the Population Registry is prima facie evidence of its correctness, according to section 3 of the Population Registry Law.

            2.         Therefore, protecting the Registry’s reliability requires granting the Registrar the authority to examine in depth the correctness of the facts requiring registration. Therefore, when a reasonable doubt arises as to the correctness of the registration or its validity, the Registrar may refuse to make the registration.

            3.         The meaning of the Registrar’s refusal is not that the Registrar is authorized to or capable of examining the validity of foreign judicial decisions or state certificates, and determine their validity. The registrar can only refer the matter to the appropriate court.

            4.         In the case at hand, a great doubt arises as to the validity of the foreign adoption decree and as to the chances of recognizing it because the Children’s Adoption Law. 5741-1981 seemingly prohibits the adoption of a child by a same-sex couple.

            5.         As apposed to the act of conducting a marriage ceremony, which is essentially a ceremonial act, a foreign court’s declaration of a minor’s adoption is a meaningful act that changes the status of those involved and impacts their fate and their lives. Therefore, a judicial decision granted in a foreign country that establishes the personal status of one as adopted, has no validity in Israel on its own and in order to be valid must be recognized.

            6.         Therefore, the Registrar acted reasonably when it refused to register, based on the foreign adoption decree, the First Petitioner as the Third Petitioner’s mother, and there is no room to intervene in its discretion.

 

Judgment

Justice D. Dorner

1.The First and Second Petitioners (hereinafter: the Petitioners,) have been life partners for seven years. They are Israeli citizens. Their permanent place of residence is in the State of California in the United States of America. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant by a sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, by an adoption decree granted on July 19, 1996 by a court in California – the birth place of the son and the place of residence of all three Petitioners. The adoptive mother was registered as an additional parent in the birth certificate issued for the child.

The Petitioners, who wish to return to Israel and who have been present in Israel for about two years for the purposes of their studies, notified the Registrar of the adoption of the son by the adoptive mother, relying on the birth certificate and the American court decision, and requested that the adoption be registered in the Population Registry. The Registrar refused. It argued that biologically the existence of two parents of the same sex is impossible, and thus the incorrectness of the registration is obvious and apparent. Because the Registrar is not required to make registrations that are incorrect on their face, the Registrar rejected the Petitioners’ request.

The Petition before us challenges this refusal.

The Petitioners requested that the Registrar be compelled to register the child’s adoption by the adoptive mother in the Population Registry. At the Petitioners request, this Court issued an order nisi.

2.The Petitioners argued that the Registrar was not authorized to refuse to register their notice; that it was required to register the adoption based on the documents presented to it; and that its refusal was a result of improper considerations, rooted in moral objection to adoptions in same-sex families.

In its response to the Petition, the Respondent repeated its arguments as to the biological impossibility. It reasoned that at the basis of the refusal there were no considerations of public policy, which it is not authorized to consider, but the apparent and obvious incorrectness of the requested registration. The Respondent additionally claimed that such a registration is impermissible under the Population Registry Regulations, which require the Registrar to register the names of the “father” and the “mother” whereas the adoptive mother was registered in the American birth certificate as a “parent” – an option that does not exist in the Israel Registry.

In my opinion, the Petition must be accepted.

3.The rules of private international law require that one’s personal status be recognized uniformly in all countries. Splitting a status may compromise the public by infringing on the parties’ rights. Only in extraordinary cases, when the foreign status harms the public policy in the country where the registration is sought, it must not be recognized. See Amos Shapira, Comments on the Nature and Purpose of Conflict of Laws in Private International Law, 10 (1984) 275, p. 290-91.

The public policy of the country where the registration is sought, which may be harmed were the requested registration be approved, was given a limited interpretation. As Justice Cardozo explained in a decision by the New York State Appeals Court:

“The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” [Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111, 120 N.E. 198, at 202 (1918)].

For example, in England a marriage performed in Nigeria between an adult and a 13-year-old girl was recognized, even though such marriage is prohibited in England and though the girl’s best interest required, despite the recognition of the marriage, separating her from her husband. See Mohamed v. Knott, [1968] Q.B. 1, at 14. A special status is given to foreign adoption decrees, because of their impact on the best interest of the minors. So, for instance, in a decision by the English Court of Appeals, Lord Dening wrote, that subject to the harm the foreign adoption causes to the public policy “[a validly created foreign adoption] should be universally recognized throughout the civilised worlds” [In re Valentine’s Settlement, [1965] 1 Ch. 831, at 842].

In the United States, too, foreign adoptions were recognized even when according to the specific state’s law such adoptions were impermissible. See for example Delaney v. First Nat’l Bank in Albuquerque, 386 P. 2d 711, at 714 (N.M. 1963). Under the same principle, a court in North Carolina rejected the argument that an adoption in a lesbian family may not be recognized due to its harm to the public policy in that State, which does not recognize same-sex marriage. The decision states as following:

“Enforcing the adoption decree does not require North Carolina to recognize same-sex marriages. Enforcing the decree simply allows the court to determine custody of the child, as between two involved adults, based on the best interests of the child – which is the expressed public policy of the state in resolving custody matters… North Carolina has no public policy denying parental status to an individual based upon that person’s sexual preferences. It cannot be known at this stage how the trial court will resolve the custody dispute. Enforcing the adoption decree only ensures that a best interest hearing will be held which is not a result that offends the good morals, natural justice or interest of North Carolina citizens.” [Aviva S. Starr v. Sheryl R. Erez, No. 97 CVD 624 (D. N.C. Aug. 29, 1997)].

Indeed, non-recognition of a foreign adoption decree releases the adoptive parents from their duties toward the adoptees, and thus compromises the rights and interests of the children, in regards to whom wrote Justice Zilberg that “it is unacceptable to ignore the interests [of the children] under no set of circumstances” (CA 209/54, Steiner v. The Attorney General, IsrSC 9 241, at 251.) See and compare also CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, at 65-66; Pinhas Shiffman, Family Law in Israel (vol. 2, 1989), 252-253.

4.It therefore seems that the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial procedure. However, the question as to the validity of the decree does not require determination in our matter. As Justice Zussman wrote in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: HCJ Funk-Schlesinger):  “We are not here concerned with the validity or voidance of the marriage. The issue before us is… whether it is justified for the Population Registrar to register the applicant as married.”

In that case, which is part of a long and consistent string of case law that started with HCJ Funk-Schlesinger, it was held that the Registrar is not authorized to determine the validity of the registration it is required to make, but that it must register as the citizen instructs it, unless it is a case where the “incorrectness of the registration is apparent and is not in any doubt” (there, at 243.) Justice Zussman explained this as follows:

“In registering a resident’s family status, it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty it is incapable of fulfilling. It is sufficient that the Registrar, in order to perform its duties and register the family status, that it was presented with evidence that the resident had conducted a marriage ceremony. The question of the ceremony’s validity has sometimes various aspects and their exploration is beyond the scope of the Population Registry.” [There, at 252.]

See also the words of Justice Haim Cohen in HCJ 72/62, Rufeisen v. the Minister of Interior, IsrSC 16 2428, at 2444.

Based on that same case law, the Registrar was compelled to register in the Population Registry as married a non-Jewish woman who married a Jewish citizen of Israel in a civil marriage in Cyprus, and the children of a Jewish man and a non-Jewish woman as Jews (HCJ 58/68, Shalit v. The Minister of Interior, IsrSC 23(2) 477); to register people who underwent reform or conservative conversion in recognized communities outside of Israel as Jewish in the religion and nationality markers, while they were citizens and residents of those countries (HCJ 264/87 and Others, Union of Sepharadic Torah Observers – Shas Movement and Others v. the director of the Population Administration and Others, IsrSC 43(2) 723); and to register as Jewish a Jewish male citizen of Israel and a non-Jewish woman who were married in Israel at the consular department of the Brazil embassy (HCJ 2888/92, Goldstein v. the Minister of Interior, IsrSC 50(5) 89.)

5.The Respondent does not dispute the claim that it is not authorized to determine the validity of the foreign adoption. As noted, its claim is that its refusal is based on the apparent incorrectness of the registration it was called upon to register, whereby the child has two mothers, which is impossible biologically.

This claim does not hold water.

The registration before us does not reflect the biological aspect, but the legal aspect. It is plainly clear that any adoptee has two mothers – the biological mother and the adoptive mother – and that the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents. Thus section 16 of the Child Adoption Law, 5741-1981 recognizes an open adoption where the relationship between the adopted children and their biological family is preserved. This relationship finds expression in the Population Registry, and as it was explained to me, both the biological parents and the adoptive parents are registered there.

Beyond the necessary scope, I will add that the Population Registry does not consider a “mother” and “father” distinctly, but as details among the details that must be registered under the “parents’ names” (section 2(a)(2)). Even were the law to address the “mother” and the “father” separately, there would have been no bar to registering the adoptive mother as an additional mother, similarly to the way, as mentioned, decrees as to open adoptions are registered.

Based on the above, I propose to accept the Petition and to make the order nisi absolute.

Additionally, I propose to require the Respondent to pay the Petitioners their costs in the amount of NIS 10,000.

 

                                                                              Justice

 

Justice Beinisch

1.I join my colleague Justice Dorner in my position that the Petition should be accepted, and that the Respondent must register the Petitioners’ details in the Population Registry according to the foreign adoption decree.

In its response to the Petition, the State’s attorney declared that the Respondent’s position is that the Petitioners' matter falls under the rule established by this Court in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 229. Therefore, the Respondent’s position as reflected in the response is that “the Registrar is not authorized to exercise discretion as to the legal validity, which is in doubt, of a valid document that is presented to it… Indeed, it seems that were the reason for refusing to register the Petitioner as she requests is rooted in casting doubt on the validity of the adoption, the Registrar would have exceeded its authority” (section 9-10 of the response.) Further the State’s attorney stated in the response that the Respondent routinely guides its staff to register, as a general rule, out-of-country adoptees and their adoptive parents as children and parents, “without digging into the nature of the adoption and its validity” (section 10 of the response.) Therefore, the response reveals that routinely, and seemingly in the course of implementing the rule established by HCJ 143/62 above, the Respondent tends to be satisfied, for the purpose of registering adoptions, with foreign adoption decrees presented to it, without investigating or examining the substantive validity of the adoption. This policy by the Respondent has apparently been accepted for a significant period of time and it is reasonable on its face.

The State’s argument in the Petition before us is that the requested registration under the ordinary policy as to registering adoptions according to foreign adoption decrees must not be made. This is because the case at hand is not one of doubt as to the legal validity of the foreign adoption decree, but one of “incorrectness of the registration that is apparent and is not in reasonable doubt.” This reason for the Respondent’s refusal to make the requested registration is based on the exception for the registration obligation that HCJ 143/62 above established. I cannot accept this argument. In the case before us, the Respondent cannot point to an obvious and apparent “incorrectness” as mentioned. The requested registration detail is not a biological fact, but a matter that involves a complex legal issue. The answer to the question as to whether the adoption of the Third Petitioner by the First Petitioner might be recognized in our law is not simple. The similar issue of the validity or recognition of a foreign adoption procedure of the type before us, has yet to be considered by this Court, and it raises difficult questions, including those in the area of private international law. Additionally, we must assume that under factual circumstances similar to the case before us, the discussion around the validity of the adoption would focus on the matter of compromising the public policy as an exception to recognizing the adoption. As reflected from my colleague’s opinion, such discussion should consider the distinction between the “internal” Israeli public policy and the “external” public policy (on this point see: P. Shiffman, International Adoption, Israeli Reports to the XIII International Congress of Comparative Law (ed. C. Wasserstein Fassberg, Jerusalem 1990), 42-43; HCJ 143/62, above, at 256; CA 1137/93, Ashkar v. Hames, IsrSC 48(3) 641, 651-52; CFH 1558/94, Naffissi v. Naffissi, IsrSC 50(3) 626, 628.) Whatever the answer to these questions, and we need not determine this for purposes of the discussion before us, resolving them is not in the hands of the Registrar (compare: HCJ 2888/92, Goldstein and Others v. the Minister of Interior and Others, IsrSC 50(5) 89, 94.) The Respondent’s argument in this case, whereby the incorrectness of the requested registration is “apparent” because of the impossibility of recognizing two mothers for the same child, is but a different dress to the argument that an adoption based on the same-sex relationship between the biological parent and the adoptive parent should not be recognized. As said, this position – which is one of the possible positions on the merits of the issue – may not guide the Registrar when it comes to exercise its authorities under the Population Registry Law. In the absence of any claim – which is undisputed – challenging the validity of the foreign adoption decree or the correctness of the requesting parties’ details – and in our case there is no such claim – the Registrar must register the Petitioners’ details based on the adoption decree and consistently with its policy regarding the usual registration of foreign adoption decrees.

For these reasons I join the opinion of my colleague Justice Dorner.

 

                                                                                                Justice

Justice A. R. Zuabi:

                  I read my colleague Justice Dorner’s opinion and my colleague Justice Beinisch’s opinion with interest, and I regret I cannot join my voice with theirs.

                  As detailed in my colleague Justice Dorner’s opinion, this Petition is concerned with the Petitioners’ request that the Population Registrar register the First Petitioner as the mother of the minor – the Third Petitioner – by force of an adoption decree issued in the State of California which granted the Petitioner the status of a parent in terms of her relationship with the minor, a parenthood that exists alongside the biological parenthood of the Second Petitioner.

                  Relying on Justice Zussman’s words in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: the Funk-Schlesinger case) where it was held that “the duty of the Registrar, under the above ordinance is merely the role of collecting statistical material in order to manage the book of residents, and no judicial authority was granted to it” (there, at 244,) my colleague found that the Registrar lacked the authority to examine the validity of the adoption decree granted abroad and that all it must do is register as the citizen instructs it, except for when the incorrectness of the registration is apparent and is under no doubt. In this case my colleague rejected the argument that the incorrectness of the registration is apparent through finding there is no bar to registering the adoptive mother as an additional mother similarly to the way open adoption decrees are registered.

                  With all due respect, I believe that the Funk-Schlesinger case cannot guide the determination in the case pending before us, and in my view this case can be distinguished from the Funk-Schlesinger case, a distinction that must lead to a different conclusion than that which my colleagues reached.

                  The Funk-Schlesinger case involved a Christian woman, a Belgian citizen, who married an Israeli Jewish man in a civil marriage in Cyprus, since the couple could not be married under Jewish law. Following the Cyprus marriage, the woman wished to be register in the Population Registry as married and to change her name to her husband’s name. The Registrar refused these requests since it believed a marriage between an Israeli Jew and a Christian woman to be invalid. It referred the applicant to the District Court in order to be granted declaratory judgment as to the validity of the marriage.

                  The Honorable Justice Zussman, who at the time was joined by the Honorable Justices Berenson, Vitkon and Mani, rejected the Registrar’s position and ordered it to comply with the request. However, in the dissenting opinion Justice Zilberg endorsed the Ministry of Interior’s position.

                  Justice Zussman reached the conclusion he did only after informing as to the technical and statistical purpose of the Population Registry Ordinance, 5719-1949, finding on page 249 of the opinion as following:

“The above Ordinance did not attribute to a registration in the Registry any evidentiary force or made it proof of anything. The purpose of the Ordinance is as noted in HCJ 145/51 (Judgments 11, 29) to gather statistical data, data that may be true and may be untrue, and no one guarantees its correctness. For the purpose of establishing one’s age for conscription the registration in the Book of Residents is used only as prima facie evidence, not under the Ordinance above but under the Annexure to Security Service, 5719-1959. Identification Card is issued to a resident under section 7 of the Ordinance as a method of identification, but no one is obligated to act according to it and no one is obligated to identify the holder of the identification card based on it. Holding an identification card grants its holder no rights: HCJ 155/53 (Judgments 15, 24.)”

                  As a result, Justice Zussman concluded that the registration of family status should not be used to prove the marriage, particularly when the validity of the marriage in such a situation is a highly complex issue which ought to be determined by the rules of conflicts of laws, when the Registrar has no qualification to determine it. Therefore, it is not the Registrar’s position to raise the issue of the marriage’s validity, and it must be satisfied for purposes of registration in the Population Registry with prima facie evidence that a marriage ceremony was held. And in the language of Justice Zussman on page 251 of the opinion:

“… I discussed at length the various possibilities of prohibiting or permitting mixed marriages in order to demonstrate that the issue of their validity or their invalidity is weightiest and when a couple seeks to be registered under the Population Registry Ordinance, 5719-1949 it is impossible to determine how the chips may fall. The Registrar cannot guess which court will hear the matter, how the President of the Supreme Court may use its authority under Article 55 of the King’s Council, and it cannot predict in advance whether the marriage would be recognized as valid or not.”

                  And he summarizes on page 252:

“… My opinion leans toward that when registering the family status of a resident it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty that it cannot fulfill. It is sufficient that the Registrar, for purposes of fulfilling its duties and registering the family status, is presented with evidence that the resident held a marriage ceremony. The question of whether the ceremony that was held is valid has aspects in both directions and examining the validity is beyond the scope of the Population Registry.”

                  The Supreme Court repeatedly affirmed this in applying the Funk-Schlesinger rule to registering religious and national markers in the Registry [see HCJ 58/68 (the Shalit case), HCJ 264/87 (Shas Movement case), HCJ 2888/92 (Goldstein case)], all of which are cited in my colleague Justice Dorner’s opinion.

                  In the Goldstein case similar, though not identical, circumstances to those in the Funk-Schlesinger case arose. There, then Deputy President Barak relied on the opinion of Justice Zussman in Funk-Schlesinger and held in section 8 of the opinion:

“…Therefore, were a non-Jewish woman, a citizen of a certain country, and the Jewish man (also a citizen of that same country) to approach the Registrar and present it with registration certificate regarding their marriage which was made by the consul of that certain country, the Registrar must register the two as married. It is true that there is doubt as to the consul’s power to perform a marriage under such circumstances, but the Registrar is not authorized to determine this doubt… Indeed, as long as such doubt exists, the Registrar must register the couple as married, because the issue as to the validity of such a ceremony has sometimes various aspects and examining its validity is beyond the scope of the Registry’s authorities.”

                  As noted, I believe the Funk-Schlesinger case must be distinguished from the case at hand. As a result, I believe a different conclusion than that reached by my colleague Justice Dorner must be reached – that is, the adoption must not be registered in the Population Registry as reasoned below.

                  First: the Funk-Schlesinger case involved the registration of a marriage, to which, as we know, the Population Registry Ordinance, 5719-1949 (hereinafter: the Registry Ordinance) applied. This Ordinance, as Justice Zussman held as cited above, had no probative value – the Ordinance did not even attribute the Registry the force of prima facie evidence, and its purpose was merely the collection of statistical information. Therefore, Justice Zussman held that the Registrar, which operates under the Ordinance, must comply with a citizen’s request and make registrations per one’s request. However, this is not the case here. The Population Registry Law, 5725-1965, which replaced the Registry Ordinance, attributes reliability and evidentiary weight to the details registered in the Registry. The law explicitly stipulates in section 3:

                  “The registration in the Registry, any copy or summary of it as well as any certificate issued under this law would serve as evidence as to the correctness of the registered details listed in paragraphs (1) to (4) and (9) to (13) of section (2).”

                  This was also established in section 1(c)(4) of the Population Registry Regulations (Registrations in Identification Card), 5750-1990:

                  “Under section 3 of the Population Registry Law, 5725-1965, the registered details in such certificate – aside from the registration for “nationality,” “personal status” and the “name of the partner” – will serve as prima facie evidence of their correctness.”

                  In the Goldstein case, the Court applied the Funk-Schlesinger rule, though the Population Registry Law was in effect, yet that case, too, concerned marriage – a registration detail that the law, similarly to the state of the law in place when the Registry Ordinance was in effect – negates any evidentiary force, and thus there was no need to distinguish the Funk-Schlesinger rule. Still, it is appropriate to reference the words of Professor M. Shawa as to the importance of the Population Registry beyond collecting statistical information, which he wrote in a critical article published following the Goldstein judgment: On The Validity and Registration of Mixed Marriages Performed by a Foreign Consul in Israel, HaPraklit 42, at 188, quoted by Justice Tal, with consent, in HCJ 1031/93, Goldstein and Others v. The Minister of Interior and Others, IsrSC 49(4) 661, at 710:

“The importance of the registration in the Population Registry and the identification card that is issued according to it must not under any circumstances be underestimated… The registration in the Population Registry has great value in different matters, much beyond ‘collecting statistical data.’ It is probably to assume that the petitioner in the Goldstein case would also be considered as an ‘Olah’ (ed. note – Jewish immigrant to Israel) as a result of this registration and will enjoy all those rights enjoyed by Jewish immigrants to Israel. Furthermore, we must assume that in reality the different government agencies and authorities, such as the Ministry of Housing, National Insurance, the IDF, tax authorities and others consider the parties as married – in the absence of any other efficient legal tool – based on the registration in the Population Registry and the identification card. They accordingly grant the rights associated with this personal status as long as a court did not invalidate such marriage…”

                  In our case we are concerned with registering “names of parents.” Registering this detail in the Registry serves, under section 3 of the law, as prima facie evidence of its correctness. In such instance it is difficult to apply the Funk-Schlesinger rule, which at its core is the Registration’s lack of evidentiary value or force. Preserving the correctness of the Registration calls for granting the Registrar with authority to examine in depth the correctness of the facts that warrant registration. Things in this spirit were said in the explanatory notes to the Population Registry Bill, published in Bills 1984, at 266, as follows:

                  “… In light of the instructions as to the authorities of the Registrar it was decided that the registration in the Registry, any copy or summary of it as well as any certificate issued according to this law would serve as prima facie evidence as to the details of the registration, with the exception of the personal status, nationality, religion and partner’s name.”

                  From all of the above it appears that when a reasonable doubt arises as to whether the registration is proper, or as to its correctness or validity, and when registering a detail that serves as prima facie evidence as to its correctness, the Registrar may refuse to make the registration. This is particularly true when there is great doubt as to the validity and prospects of recognizing a foreign adoption decree in our circumstances, as seemingly Israeli law bars any possibility of partners of the same sex to adopt a child (see section 3 of the Children’s Adoption Law which mandates at the top “There shall be no adoption but by a man and his wife together…” and see also on this matter: Ben Dror, Adopting Surrogacy, Cook Publishing 1994, at 223.) It is even possible that this conflicts with the Israeli public policy, which may prevent any option of recognizing the foreign adoption decree (see section 3(3) of Enforcing Foreign Judgments Law, 5718-1958 (Prof. M. Shawa, Personal Status Law in Israel, Expanded 3rd edition (Massada Publishing) 1991, at 470-76.)

                  Indeed, the above does not mean that the Registrar is authorized and/or capable of examining and determining the validity of a foreign court decision or foreign certificate. Its decisions in effect do not determine anything and it merely refers the citizen to the proper judicial authority.

                  On the operation of the Registrar, Dr. Zeev Palk wrote in his article Registering Marriage in the Book of Population, HaPraklit 19, 199, 204:

“In effect Registrars have taken a third tack aside from those described in the opinion (meaning the Funk-Schlesinger case – A. R. Zuabi.) They registered details such as age and family status according to an interested party’s notice and documents. Should there be any doubt in their hearts, both on the factual level and on the legal level, they forwarded the case to the division’s management to consult the legal advisor of the Ministry of Interior. Were the doubt found to be unfounded they would be instructed to register the detail, and where the doubt stood they would be instructed to notify the relevant person that the detail would not be registered until declarative judgment from the competent court may be presented. Though the Registrar is not qualified to reach judicial decisions, it enjoys legal counsel. Additionally – its decisions determine nothing, instead it only refers the citizen to the appropriate court.”

                  In our case, as opposed to the Funk-Schlesinger case, the Registrar need not “guess” which is the competent court to recognize and consider the validity of the foreign adoption decree, as section 3(b) of the Family Courts Law, 5755-1995, authorizes the family court to adjudicate petitions to enforce a foreign court decision in terms of family matters or to recognize it.

                  Second, in addition to the above, it seems there must be a distinction, for purposes of registration in the Population Registry, between registering a marriage performed abroad and an adoption or divorce granted based on a decision of a foreign court. Performing a marriage is a ceremonial act that requires no judicial determination, and thus the Registrar must be satisfied with a marriage certificate, lawfully drafted. An act that concerns the personal status and requires judicial determination is different. The adoption decree granted by a court determines and changes the status of the adoptee and the adopters – the adoptee becomes their child and not the child of her natural parents, and the adopters become her parents. In an adoption proceeding the court has a significant role, it does not fill a purely formal function, but instead fills a function of the most highly important judicial determination because adoption proceedings are of “the laws of life” which alter status and impact the fate and the life of those they concern.

                  A decision granted by a foreign court and establishes one’s personal status as divorced or adopted is not valid in Israel by its own force and it must be recognized in order to have any validity.

                  In the Rosenbaum v. Goli case (CA 423/63, IsrSC 10) this Court considered the purpose and meaning of section 11(b) of the Enforcement of Foreign Judgments Law, 5718-1958, which concerns incidental recognition. Justice Olshan said there as following:

“Were it not for section 11, when considering a suit filed in Israel, with in Israeli court, it would have been impossible to permit a party to submit a foreign decision as evidence and such attempt would have been rejected because as long as the decision is not recognized through declaration as enforceable or by granting a decision based on the foreign decision in a filed suit – the court may not recognize it.”

                  Justice Agranat confirmed this in the Anavi case (CA 472/64, Anavi v. The Attorney General, IsrSC 19(1) 645):

                  “The meaning of the above is to demonstrate that the legislative intent was but to remove the procedural difficulty as a foreign court decision may not serve as evidence ‘incidentally to the adjudication of another matter’ as long as it was not granted validity…”

                  From this we learn that the foreign decision that has yet to be recognized may not serve as evidence and that the Registrar may request that the parties present a declarative judgment recognizing the foreign decision.

                  Let us assume for a moment that two partners who are Jewish and who have married according to Jewish law travel abroad and divorce there in a civil divorce based on a foreign decision. Would the Registrar be able to register them as divorced based on the foreign decision that has yet to be recognized? The answer is certainly in the negative, despite the fact that this detail does not serve as prima facie evidence. Section 19(e)(b) authorizes the Registrar to approach the family court and seek a declarative judgment that verifies the correctness of the claims.

                  My colleague’s conclusion does not even serve a desirable policy. Registering an adoption decree in the Population Registry, despite the heavy doubt as to its correctness and validity in Israel, would compromise the Registry’s reliability and harm the adopted child’s best interest. This may cause a split in the child’s status because in the eyes of the law the child would not be considered adopted though she would be registered in the Registry as such. This would also open a wide door to registering dubious adoption decrees that clearly could never be recognized whatsoever in Israel and for which one is satisfied with their registration in the Population Registry.

                  In our case it seems the Registrar acted reasonably and within the discretion it was granted when it refused to register, based on the foreign adoption decree, the First Petitioner as the adoptive mother of the Third Petitioner. The legal doubt as to the validity in Israel of a yet to be recognized adoption decree, the uncommon family unit that the decree creates and the seeming tension in registering two mothers to a minor are sufficient to justify the Respondent’s position not to make the registration before the adoption decree is recognized and in such cases the Respondent must refer the petitioners to a family court in order to recognize the adoption decree.

                  At bottom I will note that though the Petitioners do not wish for the adoption to be recognized by the different Israeli authorities in a manner that would mean the parental duties and rights of the Petitioner vis-à-vis the child be recognized as such. However, reviewing the Petition reveals the most of the Petitioners’ arguments concern the consequences of the registration and the importance that the adoption be recognized. In effect, the Petitioners do not seek registration alone, but they seek de facto recognition of the adoption. For such purposes they should have turned to the competent court from the outset in order to be granted recognition for the adoption decree. The Respondent’s argument in this context is correct that since the Registrar has only a registering function, since its registration has no force beyond the fact of the registration itself, then the substantive outcomes of non-registration cannot be relied upon in order to justify registration. If indeed under the circumstances the registration bears any outcomes, then certainly the Registrar’s discretion cannot be eliminated.

                  Therefore, were my opinion heard, I would have rejected the Petition.

 

                                                                                                Justice

 

It was decided, by majority, according to the opinion of Justice Dorner.

Handed down today, 24 Iyar 5760 (May 29, 2000).

 

 

Justice                                                 Justice                                                 Justice