Constitutional regulation of civil marriage in Israel

Abstract

The purpose of this paper is to review the history of the constitutional regulation of marriage and divorce in British mandate Palestine and the state of Israel from 1918 on. Israel was subject to British rule (mostly under a mandate of the League of Nations) from 1918 to 1948, and was called Palestine at the time. In 1948 some of this territory claimed its sovereignty as an independent state called Israel. The paper will highlight the different constitutional norms and procedures that govern the field of family law in British mandate Palestine and the state of Israel from the beginning of the British mandate to this day.
 The paper is based upon historic scrutiny of the legislation of British Palestine and the state of Israel in the field of family law, analyzing the law in accordance with the historic developments in the region. The results of this scrutiny are that from 1948 to the third decade of the 21st century, the Israeli legislator has repeatedly acted to prevent the constitutional regulation of civil marriage, preserving the archaic millet system, an Ottoman system of marriage within religious communities, that was the basis of the British mandate’s regulation of marriage and divorce in Palestine. But as much as the original millet arrangement was enacted by the British as a voluntary system, it was given new and compulsory features by the Israeli legislator, all the while avoiding a comprehensive constitutional regulation of Israeli family law.
 The paper concludes that a constitutional regulation of civil marriage is probably not possible in Israel, due to the political inability to reach an agreement between religious and secular Jews in Israel. But this did not prevent the Israeli legislature from fundamentally changing the British mandate constitutional arrangement, leaving behind a patchwork of improvised legislation that violates the basic civil rights of Israeli citizens.