High Court petition seeks to decriminalize marriages outside rabbinate

Justices unlikely to intervene in case of Orthodox Israeli couple kept in marital limbo for over three years after marrying outside state religious authorities

Noam Oren (L) and his wife on their wedding day on August 16, 2016. (Yarin Taranos/courtesy)
Noam Oren (L) and his wife on their wedding day on August 16, 2016. (Yarin Taranos/courtesy)

The High Court of Justice on Wednesday heard a petition by an Israeli couple kept in marital limbo for over three years after marrying in a private Orthodox Jewish ceremony without involving the country’s Chief Rabbinate.

The rabbinate has refused to list Noam Oren, 26, and his wife as married on the state registrar but also prohibited them from marrying anyone else. The couple wed in 2016. Both are religious Orthodox Jews.

Wednesday’s hearing — 18 months after the petition was submitted — is the first time a controversial amendment that bans alternative, “private” weddings outside the Chief Rabbinate will be tested in Israel’s top court. Passed several years ago, it designates a possible punishment of up to two years in prison for couples who marry in such ceremonies and for rabbis who perform them.

Attorneys representing the couple asked the justices to repeal the contested amendment, which has not been enforced by police against private marriage officiators.

The petition was lodged in March 2018 by the Mavoi Satum organization, an NGO that aids women who are refused a divorce by their husbands and also runs a program for alternative religious weddings, including that of Oren.

The building of the Chief Rabbinate of Israel in Jerualem. (Flash90)
Illustrative: The building of the Chief Rabbinate of Israel in Jerusalem. (Flash90)

Speaking to The Times of Israel in 2018, as the petition was lodged, Oren said the reason he chose an alternative ceremony was that the rabbinate refuses to conduct weddings if they include a provision that would retroactively annul the marriage in the event one of the partners refuses to grant or accept a divorce, thus avoiding a problematic scenario that can prevent women from being able to remarry for many years.

Orthodox rabbi Dr. Michael Avraham, who teaches at Bar Ilan University’s Jesselson Institute for Advanced Torah Studies but isn’t authorized by the rabbinate to conduct marriages, presided over the couple’s 2016 ceremony.

The couple then had their wedding confirmed by a rabbinical court run by Orthodox rabbi Avraham Dov Levin, a former rabbinate official who joined Mavoi Satum’s alternative marriage program in 2016, after charging that the rabbinate was failing to adequately perform Judaism background checks.

But when the couple tried to register as married with authorities, the rabbinate rejected their request based on the legal amendment banning private weddings. To make matters worse, it ruled that the couple’s marital status was “in doubt,” since their marriage was carried out in accordance with Jewish law, meaning that they are banned from marrying others.

The only way offered by the rabbinate to release the couple from that deadlock was to perform a second wedding ceremony, without their prenuptial divorce safeguard and without the traditional blessings, by a rabbi recognized by the religious authority.

The Mavoi Satum petition to the High Court on Oren’s behalf sought to force the Chief Rabbinate to formalize its position on prenuptial agreements, and, the NGO hoped, roll back the criminalization of officiating weddings outside the confines of the state authorities.

After the hearing, Batya Kahana-Dror, the attorney representing the Orens and former director of Mavoi Satum, said the High Court signaled it would not intervene in the case.

Kahana-Dror said the justices were “sympathetic” to their broader efforts to clarify the issue of marriages outside the rabbinate, but said that in this specific case, the rabbinate had appeared to reject the wedding on the grounds that the officiator was not authorized to perform the wedding, rather than due to their prenuptial agreement.

One of the justices suggested that if the couple attempted to get married with the divorce provision, under the rabbinate, and was rebuffed, “then please, come back to us,” she said.

“That’s what we plan to do,” she added.

Kahana-Dror also expressed confidence the High Court would adopt in its ruling a legal opinion that officiators of non-rabbinate weddings cannot be jailed unless the wedding was kept a “secret,” all but rendering the criminalization amendment toothless.

“Accepting this interpretation would empty the article of its contents and removes the threat of imprisonment for couples who marry outside the rabbinate,” she said.

Oren on Wednesday lamented the justices’ unwillingness to intervene, upholding their uncertain marital status.

“At the same time, the High Court refused to debate the important issue, which is whether a couple is permitted to marry in Israel in a way that will protect a woman from agunah status [the status of a woman whose husband refuses to grant a religious bill of divorce, preventing her from remarrying],” he said.

Israel’s Chief Rabbinate oversees all personal status issues for Jews, including marriage and divorce, and does not recognize civil unions conducted in the country, or ceremonies performed by non-rabbinate officiators, though no such cases have resulted in jail time.

In July 2018, police briefly detained a Masorti rabbi, Dov Haiyun, in a predawn raid on his home over “illegal” weddings that he had conducted. After questioning, Haiyun was released, with his detention sparking a global outcry.

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