This article addresses the Israeli civil law’s treatment of “de facto” divorced couples – i.e., couples that have not officially divorced. It discusses the trend taking shape in legislation, administrative provisions and case law, in a variety of legal areas, to apply the civil law consequences of formal-religious divorce to situations of de facto divorce. The existing legal discourse in academia and in the field has supported this trend on the theoretical basis of a functional approach promoting reality-based policy. According to this approach, applying the consequences of formal divorce to de facto divorce is a move that should be promoted regardless of the civil critique of religious divorce law, and the various reasons for non-divorce shouldn’t be taken into consideration. Contrary to this approach, I argue that applying the civil law consequences of formal divorces to de facto divorce scan only be justified when the difficulties posed by religious divorce law are taken into account, as a mechanism to constitute a secular alternative to religious divorce.The article refers to this approach as the secular alternative approach. It presents modern civil divorce law theory and principles and suggests ways to apply them to the regulation of de facto divorce in Israel, while addressing the circumstances of non-divorce in each particular case. It clarifies that implementing the functional approach without taking into account whether one of the parties to the divorce is a get (Jewish divorce document) refuser, and the related circumstances, could incentivize get refusal and harm the refused. In proposing the secular alternative approach, the article addresses social and institutional considerations that might sometimes hamper its proper implementation. Consequently, it offers ways to create a balance between the secular alternative approach and social and institutional considerations. In light of the suggested balance, the article analyzes and critiques the aforementioned trends taking shape in Israeli law and proposes a systematic model for the regulation of de facto divorce in Israel.
|Translated title of the contribution
|Civil Regulation of De Facto Divorce
|Number of pages
|Published - Jan 2022
- Divorce (Jewish law) -- Israel
- Divorce -- Israel
- Judaism and state -- Israel