On conducting private kiddushin in a more correct way or: How to contribute your modest share to the Chief Rabbinate's Mitut (column 3)

With God’s help

The factual situation

I have already written about the great damage that the Chief Rabbinate is causing to Israel and the ugliness that prevails in this body, and I will not repeat it again. I think that many have already understood that this institution is like that earthen vessel whose breaking is its purity, and they have no protection except a knife. One of the indications of this was discussed In an article on Channel 2 News, Saturday, November 7th, where a phenomenon that has begun in recent years was described, in which couples are married privately, that is, by a rabbi who is not authorized by the Chief Rabbinate. These are couples who can marry halakhically (not a priest and a divorced woman), including Orthodox ones. Their blessed goal is to protest against this body, to bypass it and thus make it redundant. As part of this article, the interviewer (Yossi Mizrahi) asked me, as someone who supports this phenomenon, who will protect marriage in Israel without the Rabbinate and its regulations? I answered him that there was someone who protected us for two thousand years without a Chief Rabbinate, and I hope that he will continue to protect us from the Chief Rabbinate (although in the meantime, unfortunately, he is messing up a bit). I added that the last body I would entrust with the protection of something related to Judaism is the Chief Rabbinate.

In order to combat the phenomenon of private Kiddushin and preserve its monopoly, the Chief Rabbinate enacted an amendment to the Marriage and Divorce Ordinance, i.e., adding a section to the ordinance (No. 7). From press reports, one gets the impression that this amendment imposes criminal liability for conducting private marriages, and now carries a two-year prison sentence. Ostensibly, this section strengthens the Rabbinate's monopoly even further. This is also the understanding of several legal professionals I spoke with (some of whom are experts in family law and personal status). However, following an investigation I conducted, I revealed to their surprise that this is completely inaccurate, as I will explain immediately.

To understand things better, it is important to consider another fact, which surprised me greatly. Usually, couples who marry privately do not register as married with the Rabbinate or the Ministry of the Interior, as part of the desire not to use the services of the Rabbinate. This is precisely the point for which this section imposes criminal liability. The failure to register, and not the actual performance of the marriage privately. I will add that when I expressed support for private marriages in that article, I did not intend to support non-registration. Couples who marry legally and do not register as married thereby create a very problematic, and completely unnecessary, distortion. At the end of that article, some of these problems could be seen.

I would like to show here that it is possible to protest against the Rabbinate in a much more effective and less harmful way. Moreover, ironically, this possibility was created precisely because of the aforementioned amendment to the Marriage Ordinance. It seems that the Chief Rabbinate has shot itself in the foot (for now, unfortunately, only in the foot).

The legal situation

The latest amendment to the Marriage Ordinance (Section 7) is worded as follows:

Offense:
7. Anyone who does not take care of registering his own marriage or divorce, or the registration of the marriage or divorce he has arranged for another, is liable to two years in prison.

The wording of the law clearly indicates that the offense for which one receives two years in prison is failure to register, and not conducting private kiddushin. Hence, a rabbi and a couple who conducted private kiddushin did not commit any criminal offense (at least not by virtue of this section). Several expert jurists with whom I have spoken and corresponded have already agreed with me on this, and in fact, one can see this in the wording of the law even without being a particularly great legal scholar.

I then put forward another argument (and so far I have not received confirmation from a legal authority), according to which a reasonable interpretation of the law even takes us one step further. An employee of the Rabbinate or the Ministry of the Interior who refuses to register couples who married privately if and when they come to the Rabbinate to register as a married couple, is (and only he) the perpetrator, since he prevents the registration of a couple who married legally (=properly), and therefore, if at all, then he is the one who should be punished.

Although the wording of the law states that criminal liability lies with the person conducting the Kiddushin and the couple, and therefore, ostensibly, criminal liability cannot be imposed on the registration officer at the Rabbinate or the Ministry of the Interior. But it seems to me that a purposive interpretation shows that the purpose of the law is to ensure that legally married couples are registered. The alternative is that the purpose of the law is to give the Rabbinate a monopoly, but then the legislator should have prohibited the holding of private Kiddushin and not just required registration. As stated, this is not what the law does. Furthermore, from a review of the proposed laws and the discussions surrounding it, it clearly emerges that the Rabbinate and its proponents did want criminal liability to be imposed for the mere holding of private Kiddushin, but the legislator chose to word it differently. The obvious conclusion is that the purpose of the law is to prevent a married couple from not being registered, and not to prevent the holding of private Kiddushin. The logic here is self-evident. A married couple who are not registered create a mess of mess and confusion. One can marry several women or several men and no one will know about it. But this is not the fault of the person who performs the private Kiddushin, nor of the couple, but of the rabbinate that refuses to register them (if indeed they come to register and the official refuses to do so). It is important to understand that the accepted approach in the theory of interpretation in law is that even a purposeful interpretation must be nourished by the language of the law and its underlying logic, and not necessarily by the intention of the legislators (in which case some of them want power and monopoly, of course).

If so, the Rabbinate official or the Ministry of the Interior who refuses to register a married couple is the one who creates the wrong that this law is intended to prevent, and therefore, if there is any criminal liability for it, we have no choice but to impose it on him. In my layman's understanding, this is similar to an income tax official who refuses to accept tax payments from a citizen who comes to pay, or a police officer who forces a citizen to travel illegally (without justification). Is it conceivable that they will not be punished? The Rabbinate official is in exactly the same situation. He is the one who causes a legally married couple to not be registered, and he is the one who creates the wrong that the law is intended to prevent. Several jurists told me that they do not think so, but it would be interesting to put it to a legal test.

I will add that in the Supreme Court's past statements, there have been statements that holding private weddings is against public policy, and I did not understand (as did my interlocutors) what exactly the legal meaning of this statement was. Therefore, I will add, and this is again only in my layman's opinion, that the problem of public policy as explained above also arose only because of the failure to register and not because of the actual performance of the marriage in private.

A similar analysis also exists with respect to private divorces. The wording of the section indicates that there is no prohibition against conducting this in a private manner, but only that it should not be recorded if it is done. Conversely, the Rabbinate will now be required to record couples who divorced in a private divorce as divorced precisely by virtue of this amendment to the law.

To summarize, All couples and all private marriage officials should know that the law does not prohibit or impose criminal liability for conducting private marriages, but rather for failing to register a couple who is halachically considered married.. Also, it is possible that the amendment means that now, in contrast to the situation that prevailed before, the Rabbinate must register every married couple who comes before it (including a priest and a divorced woman, of course, since their kiddushes are halachically valid, but certainly a couple who married according to the law). As far as I understand, precisely now after the amendment to the law, the argument that they can make that the rabbi performing the wedding was not authorized has become meaningless, as long as he comes to register the couple with the Rabbinate and the couple is married according to the law of Moses and Israel.

How do you protest?

There is no legal system in the world that allows for the situation in which a married couple who are not registered are recognized. After all, the husband can marry another wife in front of his wife, and vice versa. This is an impossible situation, not only halakhically but also legally (who is married to whom? Who inherits whom? Who receives rights? Who is known in public by whom? Whose child is it? Who is he or his child allowed to marry? Who is whose brother?). And what if the couple quarrel? Sources who deal with the matter told me that in such a situation, serious problems arise (because one of the spouses pulls the other back to the rabbinate, which of course causes them trouble because they are not registered as married. The other may actually want to get a private divorce, and this is not recognized or will not be done correctly halakhically).

Therefore, in my opinion, this form of protest is misguided and harmful, and it should be stopped. As mentioned, the problem is not only halakhic but also legal. You will not be surprised to hear that the Rabbinate, of course, uses this very argument to maintain its monopoly. In fact, this is nothing more than a continuation of the pursuit of power. It turns out that the new section of the Marriage Ordinance allows us to forgo their kind help and solve the problem on our own.

The correct and more useful way to act is to conduct a private Kiddushin and divorce, but then actually come to register at the Rabbinate or the Ministry of the Interior. As mentioned, as far as I understand, they must register the couple as married (or single, in the case of divorce) precisely because of the amendment to the law that requires registration. They may even be happy to do so (those among them who are decent people. Maybe there are a few of them there), in order to prevent the expected problems. But even if they do not agree, it may be possible to petition the High Court of Justice and force them to do so precisely according to Section 7 above. In any case, legally, it seems that there is no criminal liability for the couple or the person conducting the Kiddushin if they actually come to register, even if the Rabbinate refuses to register them.

Conclusion: Most of us are probably wrong about the current legal situation

The conclusion is that, contrary to what is being tried to sell us from all sides, following the amendment to the law, the situation has actually improved for the better. Now we can finally come out of the underground and do things on the table. In the current legal situation, the Rabbinate's monopoly on granting permission to marry or permission to divorce no longer has any meaning, and anyone who knows can do so in the way they wish and at their own will. If I am right, then from a legal perspective, the Chief Rabbinate is already a purely bureaucratic institution (at most a regulatory one. See below), whose job is to record what is done around it in any form and manner, as long as it is in accordance with the halakhah. So why not act accordingly, and bring about a situation that will be the same in practice? A protest of private baptisms and divorces followed by institutional registration is ideal, and it will bring us exactly to the results that the brains want to achieve:

1. None of the participants (the rabbi and the couple) take the risk of criminal sanction. They come to register as the law requires.
2. No problems or complications arise due to failure to register, as might arise in the current situation.
3. The Rabbinate will (probably) be required to register every marriage and divorce of any kind (that is halachically valid) performed by any rabbi, licensed or not. If so, we have achieved the desired result that the Rabbinate remains an irrelevant registration body without any centers of power and influence in this area.

Two final notes

A. Kiddushin not kosher. If I am right, then all my words also apply to situations in which the hall in which the ceremony was performed is not kosher or lacks a kosher certificate from the Rabbinate (or is open on Shabbat, or on Christmas, and other caprices of the Rabbinate), and even if a priest and a divorced woman marry, and if you can find one, then even a high priest with a widow. And even if they did not bless any blessing at the wedding, or a woman blessed all the blessings of the Lord, and even if she added 18 more blessings from the Amidah prayer. And even if there were seven poles for the wedding instead of four, and even if the couple did not undergo halakhic preparation, and certainly even if they did not practice all the details of the customs that the Rabbinate currently insists on (who turns whom how many times, etc.). Once the couple is married according to the law, even if it is done in a gross offense, the Rabbinate must register it (after all, even in such situations, the wrong is created by the failure to register, as the law defines).

To be clear, I myself would not marry a priest to a divorced woman (unlike a couple who would want to forgo the sacred ceremony in which the bride spins seven times in the manner of "a woman spins a man," and would prefer that the groom conduct an irrational number of turns with a helicopter around the bride while his parents fire a salute from a heavy machine gun all around. I have no problem with that), but I think this is the legal situation for it (and in my opinion, it is blessed).

B. The need for a regulator. Anyone who is not legally married or divorced is not required to register and cannot register. Absurdly, when the Rabbinate wishes to criminally charge a rabbi or a couple who married or divorced privately under this section, it thereby recognizes the validity of his or her marriage ceremony or divorce. In order to ascertain whether the marriage ceremony or divorce was lawful, there is certainly room for appointing a regulator to examine each case on its own merits, whether the matters were done according to Halacha. But there is a regulator in many areas, and it stands the test of the High Court of Justice. It is not a monopolistic power that controls the market, as the rabbinate has today. On the contrary, a regulator is important, precisely to prevent the problems described above. It is clear that the regulator will not issue arbitrary powers of attorney on its behalf, as is done today, but will confirm that the consecrations took place at least retrospectively. It will be bound by very clear and completely minimalist rules that will be stipulated by law: giving a ring worth a penny in the presence of two kosher witnesses, while reciting some relevant text. And that is more or less it.

This amendment to the law is of course only the beginning of redemption, meaning that it is useful in breaking down something in the rotten religious establishment in its current dismal state, before we have the wisdom to completely separate religion from the state. Complete redemption will come to Gaza only when the secularists stop repeatedly imposing the most conservative elements on us and place them at the head of the rabbinate and its courts time and time again with uncompromising determination. The secularists' determination to reject every reasonable, sympathetic, and more logical proposal, and their stubbornness to always support precisely the most fossilized and conservative elements, is the sole cause of the unbearable situation of harmful and ugly religious coercion, and the reason why it is necessary to try to find ways to circumvent it. But this issue requires a separate article.