"Jewish Marriage and Joint Partnership" by Rabbi Eliezer Melanmed

[yonaton behar]

 

Jewish Marriage and Joint Partnership

                        Rabbi Eliezer Melamed

 

The Concept of Family in Judaism

The value of marriage is sacred to the Jewish nation. The bond between a chatan (bridegroom) and a kallah (bride) is called kiddushin (sanctification), and the blessing: “Blessed are You Hashem, Who sanctifies His people Israel through Chuppah and Kiddushin” is recited at the wedding ceremony.

By way of the mitzvah of marriage, the love and natural desire that Hashem created between man and woman is elevated and sanctified in a Divine covenant, and a Heavenly spark of unity is revealed in the world. In this manner, the world is continually redeemed from the torment of loneliness, separation and division within it.

In every wedding, the Divine ideal is revealed in the world, and it is another step towards the redemption of Israel and the entire world. In this regard, our Sages said: “Anyone who gladdens the bridegroom and the bride is privileged to acquire the knowledge of the Torah given at Sinai, and it is as if he had restored one of the ruins of Jerusalem” (Berachot 6b). Appropriately, the bond between God and His people Israel at the time of Redemption is likened to the relationship between the bridegroom and the bride, as it is written: “And as the bridegroom rejoices over the bride, so shall your God rejoice over you” (Isaiah 62:5).

Similarly, our Sages said that the Shem Hakadosh (Shechinah) dwells in a proper Jewish marriage: “When husband and wife are worthy, the Shechinah abides with them; when they are not worthy, fire consumes them” (Sotah 17a). On this, Rashi comments: “[What is the meaning of the word] ‘worthy’ – to go in the straight path; neither he nor she should commit adultery”. Therefore, in times of crisis and suspicion between husband and wife, God commanded that His name – written in holiness – be erased, in order to make peace between them (Nedarim 66b). By means of erasing God’s holy name written on parchment, the Shechinah will continue dwelling in the couple’s lives’.

Out of the revelation of achdut (unity) and kedusha (holiness) within the framework of love and devotion between a married couple, subsequently, additional life is drawn into the world, and they merit fulfilling the mitzvah “be fruitful and multiply”.

Owing to the immense importance of marriage, over fifty mitzvoth from the Torah deals with its reinforcement. One of the six orders of the Mishna, Seder Nashim, deals with the arrangement of married life between husband and wife. Therefore the wedding process inherently consists of many halakhot, as does the divorce process – in case, God forbid, their mutual home is shattered.

 

The Humane Problem

Today, there are many people living in the State of Israel who cannot marry kedat Moshe v’Yisrael (according to the Laws of Moses and Israel) – some of them because of their personal status, others due to lack of faith in the Torah of Israel. Having lived together for years, such couples are upset that their relationships are not officially recognized by the state. If they wish to buy an apartment, they are not given a mortgage. In a case where one of the partners is hospitalized and the companion requests to take care of him, since he is not officially recognized as being a spouse, they make it difficult for him to visit, and according to the rules of medical confidentiality, he is not provided information, and not included in decisions. He feels awful. And in the case of death, suddenly he becomes a stranger with no legal status.

True, some of the problems have been solved through regulations and various legal rulings. The problem can also be solved by marital registration in a foreign country like Cyprus. However, some people refrain from doing so because of the hassle involved, or the cost; others are offended for not being allowed to define themselves as a couple outside the framework of Jewish law. They wish to be recognized as a couple by civil registration only, as is the case in numerous countries.

 

The Current Bill: Eliminating the Jewish Character of the State of Israel

Recently, the ‘Yesh Atid’ Party proposed a law entitled ‘Brit HaNisuin’ (The Marriage Covenant), calling for the legalization of civil unions. The aim is to create a channel for civil marriage parallel to the currently accepted marriage procedure – with all its rights and obligations, laws and details. Towards this goal, the proposed law suggests that the State appoint a registry system and declare an application process for registration, while at the same time, allowing individuals to express opposition to a specific registration. The bill also stipulates divorce be resolved through a complex process, granting courts the authority to delay the dissolution of the “brit” (covenant) until the conclusion of all monetary disputes, or, if in their opinion, shalom bayit (a peaceful settlement) can be reached. In the absence of a mutual agreement, the process can take over a year. 

This may not be their intention, but as the law is currently worded, its purpose is clear: to abolish the unique status of Jewish traditions in all matters regarding family life, and thus, eliminate the State of Israel as a ‘Jewish and democratic’ state. This law gives expression to idea of democracy while totally ignoring the Jewish vision, which is the primary motive for the willingness of Jews to give their lives in the struggle for the establishment and existence of the State. After all, Jews are permitted to hold Jewish weddings in every country in the world. If in the State of Israel civil unions are considered equal to the sanctity of Jewish traditional marriage, what makes it a Jewish state?

For the sake of full disclosure, I admittedly would prefer the State of Israel to be defined simply as a “Jewish state”, without the unnecessary addition of “democratic”, seeing as all values are included in the concept of ‘Jewish’.

 

How to Balance between the Values

Alongside our position that the State of Israel should be a Jewish state, we do not want to cause grief to anyone. Neither do we demand the authority to interfere in an individual’s personal life, and tell him whom to live with, or how. It is our religious and moral duty to criticize ways of life that are improper according to halakha and mussar (morality).  Nevertheless, out of respect and love for all people, and out of recognition of the importance of freedom based on the free choice given to man by God, we must recognize their right to choose their own lifestyle.

Some people may claim it a religious obligation to oppose and interfere with any type of relationship that fails to abide by halakha. I cannot expand upon this issue at this time, but it appears that this obligation existed when there was full public consensus to such a lifestyle, and even the few offenders agreed to it in principle, only their compulsions overcame them. But in a situation such as ours the principle of freedom prevails, and our remaining obligation is the duty to object to manifestations opposing halakha. Moreover, an individual who fails to act according to halakha deserves to be judged l’kaf zechut (favorably), for there is no guarantee we would have turned out any better had we been brought up under the same conditions as he was.

The question therefore is: how do we strengthen the Jewish character of the state without harming people who do not wish to live according to halakha? This question is likely to trouble us for many years – even when the religious are a majority in the state – since the question is of a religious and moral nature, and not merely a question of political power.

 

A Proposed Solution

At first, a Basic Law should be enacted that there is one framework of marriage for Jews in the State of Israel – according to the Jewish law from time immemorial. In other words, marriage ‘kedat Moshe v’Yisrael’ is the only option for the establishment of a family in Israel, thereby ruling out any proposal for the creation a new legal/civilian institution of marriage. This is because marriage is a sacred concept based on the foundations of halakha for generations, and it is forbidden for the state to desecrate it with replacements or rituals that are not loyal to this tradition.

Additionally, it should be set in law that the State of Israel will work to strengthen family values ‘kedat Moshe v’Yisrael’, including strengthening the status of the batei din (religious courts), and increasing the number of judges so quick responses can be given to any need. In the educational system as well, family values based on Jewish tradition should be emphasized, without hurting or insulting anyone who acts or thinks differently.

At the same time, it should be determined that any two individuals are entitled to sign a joint partnership agreement, granting them all rights derived from common life – akin to a family. It would not be appropriate to call this agreement a “brit” because the word ‘brit’ expresses holiness and eternity, whereas the state should also enable partnerships devoid of holiness and eternal commitment. Consequently, the appropriate name for this would be “joint partnership”.

 

The Joint Partnership Agreement

The signing of a joint partnership agreement can be performed in front of any Notary Public. He will offer them a standard, monetary partnership agreement, with an option to broaden or lessen the partnership, according to their decision.

Approval of the agreement by the Notary Public will obligate the Interior Ministry to register their status on their Identity Cards as living in a “joint partnership”. With this approval, they will be entitled to all financial rights due a married couple. It is also their right to celebrate this partnership as they please.

Contrary to the current proposal which attempts to create a parallel system to the sacred marriage by burdening the process of registration and dissolution for the couple, and putting them into a halakhic status in which, according to some poskim (Jewish law arbiters), requires a get l’chumra (stricter requirements for a ‘possibly married’ couple) and provokes serious questions of mamzerut (illegitimacy) – a partnership agreement should be based on the concept of freedom. Therefore, each of the partners will be entitled to dissolve the partnership unilaterally by signing a document before a Notary Public and presenting it at the Interior Ministry. If freedom is desired – then complete freedom! No foot-dragging and mutual blackmail. Since the couple partnership is an expression of willingness by one partner for his fellow companion, without any obligation towards Heaven or towards Jewish tradition, when the willingness ends, so does the partnership.  Registration before a Notary Public and in the Interior Ministry is designed so they can be recognized as a couple, and not to create unnecessary burdens.

Of course, if the partners wish, they can sign an agreement that would be difficult to dissolve, but the state should not interfere in agreements between the parties.

In the event of monetary disputes they will be discussed in the courts, however, the dissolution of the partnership will not be delayed, but will take effect the moment one of the partners decides to do so. If there are disputes about raising children, they will be discussed in the courts according to the interests of the child.

 

The Proposal Hinges on Both Sides

This proposal is of value provided both sides feel they have gained something from it. The religious achieve the strengthening of the status of marriage according to halakha in the State of Israel, by its implementation as a positive and central value in the educational system, and by the allocation of all necessary resources for the optimal functioning of the marriage and divorce system in the courts. The free will advocates (liberalism) gain in that the individual receives recognition of his right to define himself and his lifestyle, and this classification is honored by the state by granting him rights equal to those provided for couples married according to halakha.

 

The Additional Struggles

If this proposal gains the support of the religious politicians, anyone who complains afterwards about the Jewish institution of marriage because of personal discrimination, his sole intention will be clear – to harm the status of Jewish tradition in the State of Israel, and not out of concern for anyone’s welfare.

Nevertheless, the religious establishment will still have to take steps to improve the work of the batei din, and clarify important issues such as kefiyat get (compelled divorce) and prenuptial agreements, according to the path of the Torah.

This article appears in the ‘Basheva’ newspaper, and was translated from Hebrew.