EMANCIPATION OF WOMEN IN ISRAEL: MYTHS AND MISCONCEPTIONS

Since 1950 in Israel, within the framework of the welfare state, the idea of equality has become a legal statement of the principles of equal dignity and social rights of women, protection against forms of violence and abuse, and participation in public life and military service. However, it has been observed that the building process of Israeli political identity has been realised at the expense of the protection of a woman's specific needs. These were reduced in a generic trend towards the integration of women in the pursuit of national ideals; only more recently has there been a transition from the formal statement of equality to the realisation of a more substantial equality.Footnote ¹

The process of legal modification has left the role of religious law unchanged in the ambit of marriage and family law.Footnote ² The presence of distinct religious juridical microsystems within the framework of the secular juridical macrosystem has compromised the realisation of an equal freedom of the sexes, and it has confirmed the conviction that ‘women in Israel have a state of their own’.Footnote ³ The state of Israel, even though considered as both a bastion of democracy and a promoter of liberal political ideals, presents points of convergence with nearby Islamic countries, the latter considered by colonial rhetoric as an incarnation of the traditional oppression of women.Footnote ⁴

The institutions of marriage and divorce remain subject to religiously characterised regulation, which varies according to personal and religious status, following the rule of the Ottoman regime, later maintained by the British Empire. A particular legislative pluralism has been achieved, where civil and religious law are present and sometimes intertwine; as a result, many elements of conflict are caused by the specific relationship between the state and orthodox Jews.Footnote ⁵ The submission to marriage law on the basis of religious or personal status strongly influences marriage freedom both in the access stage – because the exercise of religious freedom regarding marriage in a secular form is limited, and religious homogamy is compulsory – and in the relationship stage – because the law legitimises inequalities and discriminations between spouses, particularly with regard to the ability to free themselves from the marriage bond.

This rule seems to make up an essential element of modern Israeli (and specifically Jewish) identity, in order to cement social peace; in addition, it has become part of a political, social and juridical context where the centrality of the family is emphasised and strong social pressure is imposed on women. In fact, women are still prized for their procreative ability, which is controlled by men, and they are penalised when they choose either not to enter into, or to free themselves from, the state of marriage.Footnote ⁶

ISLAMIC LAW: BETWEEN TRADITION AND MODERNITY

The process of modernising Islamic law began during the Ottoman Empire, which introduced substantial modifications to the original religious law. Various states later realised different levels of secularisation of their juridical systems: some of them abandoned Islamic law in order to conform to Western models (for example, Turkey); others maintained religious law as a rule in a large range of human relationships (for example, Saudi Arabia). A middle course was the maintenance of religious law only in a number of legal sectors (family law, inheritance, forms of religious funding) where the monopoly of religious authorities and their judicial power were more deeply established. In these fields, the abandonment of sharia would have caused conflict between secular and religious authorities. The secularisation in other branches of law therefore reinforced the role of sharia in the areas that remained subject to it.Footnote ⁷ However, religious law is not a monolithic block but a macro-identity that expresses itself in different interpretations of various Islamic schools. Some states have now enforced laws on personal status, creating a hybrid system between Islamic and Western models. These states' policies towards the role of women range from an extreme observance of traditions to more liberal political attitudes.Footnote ⁸

Strong reactionary movements, which qualify themselves as Islamic, have recently developed. They infiltrate more easily into juridical systems lacking a democratic structure, where deep differences between social classes tend to be rooted. Although secularisation seemed to be the dominant trend before 1970, since 1990 there has been a volte face and movements aimed at the ‘purification’ and ‘islamisation’ of the law have developed.

Family law focuses on tensions between modernists and fundamentalists. The debate between modernists and traditionalists is not only concerned with the problem of abandoning the religious model in order to face up to the need for equality and those arising from women's emancipation, but also develops within an Islamic framework. New interpretative solutions, more consistent with the principles of non-discrimination and women's equal dignity, are currently sought, through the elaboration of specific (even if conflicting) models of female emancipation, characterised by ‘alternative modernities’.Footnote ⁹

MARRIAGE AS A CONTRACT IN JEWISH LAW

In Jewish law, a view of marriage as a contract prevails in both the celebration and the termination of marriage, even though the presence of some religious aspects cannot be denied. In this contractual framework, neither a licence nor permission is required in order to form or dissolve a marriage and the role of the state or religious authority is merely declaratory. Marriage is considered as a contract founded on the free agreement of spouses, even though consent is expressed during a formal public ceremony, with some ritual/religious aspects. However, some limits to marriage are given by religious law. Marriage is invalid when the consent is founded on deception or threats, or is in any other way imperfect.

Even though marriage is based on the free consent of both spouses,Footnote ¹⁰ the patriarchal view of family and its consequent favouring of the male appears:

1. i. In religious–legislative promotion of marriage between underage people;

2. ii. In some aspects of a woman's subjection regarding her property (a woman's wealth is subject to male management, while her maintenance right is in relation to her earnings);

3. iii. In some duties coming from the marriage bond (differences of effects as the result of unfaithfulness) and from different importance given to the consent of spouses for marriage termination.

ISLAMIC MARRIAGE: BETWEEN PUBLIC AND PRIVATE

In Islamic law, marriage is a contract made by consent of the parties; it is not strictly necessary that those parties coincide with the spouses. Rights and duties coming from marriage are ruled by religious law and spouses cannot deviate from them by means of a private agreement. Only some rights and duties are mutual; others pertain to the specific gender role. The requirement for the same religious affiliation is applied more strictly to a woman.Footnote ¹¹ A marriage contract is subject to Islamic jurisdiction and this gives a character of holy inviolability to the effects of marriage.Footnote ¹² Marriage is also considered a religious bond and it contains many ethical aspects, even though its juridical structure is that of a contract of exchange.

Originally, the only formal requirement for the celebration of marriage was the presence of two witnesses, in order to make it public. Nowadays, the legislation of various states is oriented to promoting both the presence of a qualified expert, who sometimes exercises the functions of a registrar, and the observance of administrative procedures (registration of marriage and transmission to the registrar). The act of marriage is not therefore limited to a wholly private sphere. However, the non-observance of administrative procedures does not result in the non-recognition of marriage and of some of its effects.Footnote ¹³

Various elements prove either a limitation or an influence on the exercise of freedom to have access to marriage, and on the choice of partner by the family group:

1. i. The influence of the guardian (walī) on the choice of a spouse, taking into account that guardians had coercive powers in the past;

2. ii. The possibility of premature marriages, even though modern Arabic states require a minimum age for marriage in their laws;

3. iii. Women's frequent use of proxy to a guardian in order to arrange a marriage.

DISSOLUTION OF MARRIAGE IN JEWISH LAW

In Jewish law, divorce, even though permitted, is considered negatively in constrast to the positive value of the permanency of the marriage bond.Footnote ¹⁴ Divorce has followed different models, often favouring the male partner.Footnote ¹⁵ In the following models, variously practised, the same trend is explicit, aiming to impose correctives to the disparity in the spouses' positions:

1. i. To extend the exit freedom of women, making it equal to men's, also admitting the possibility of unilateral divorce for women;

2. ii. To restrict men's freedom (divorce by mutual consent);

3. iii. To impose dissolution religiously ‘in law’ of a failed de facto marriage; this happens by granting and accepting the get (divorce paper).Footnote ¹⁶

Within the ambit of a contractual/private conception, judicial authorities have only declarative powers and not constitutive ones; the dissolution of marriage requires the participation of both spouses in the procedure of (male) granting and (female) acceptance of the get.Footnote ¹⁷ This procedure underlines, if only from a formal point of view, male dominance in the conceptual understanding of marriage dissolution in Jewish law.Footnote ¹⁸ Rabbinical authorities are not permitted to ratify a divorce if the consent of both spouses is lacking.

The predominant model, adopted in Europe, Israel and the USA after a decree of Rabbi Gershom, denies both spouses the possibility to free themselves unilaterally from the marriage bond: divorce can only be obtained by the mutual consent of both parties, with the exception of the instance of gross fault. The agreement between parties concerns not only the exercise of the freedom to leave a marriage but also the specific conditions.Footnote ¹⁹ In this model, spouses are set on an essentially equal footing, by a reduction of the rights that formerly pertained predominantly to the husband. The model is strengthened by the prohibition of polygamy, enforced by the same decree. If this prohibition were absent, the stronger party in the relationship (the husband) could abandon his first wife and celebrate a new marriage without the agreement of his partner.

The concept of ‘fault’ is redefined in a stricter way, excluding cases of slight fault. Only in the case of gross fault can one of the spouses, at the request of the other, be forced to dissolve their marriage, by a procedure directed by rabbinical authorities. Marriage has, therefore, apparently evolved from being viewed as a partnership (where each one can freely ‘dissociate himself or herself’) to a state of domestic corporation (where exit freedom is strongly limited by conditions defined in the incorporation act).Footnote ²⁰

DISPARITY BETWEEN SPOUSES IN JEWISH LAW

However, Jewish religious law recognises the possibility of a unilateral divorce to men through a complex procedure (the ‘procedure of one hundred rabbis’). When a woman does not obtain a get, she acquires the status of agunah, even though she is either separated from or abandoned by her husband.Footnote ²¹ This implies the impossibility of celebrating a new religiously valid marriage and the illegitimacy of children born of a new marriage.

In Israel, on the basis of national legislation (following the Ottoman system, later maintained by British mandate), rabbinical courts continue to have jurisdiction over Jewish marriages and divorces.Footnote ²² This happens within the framework of a system that assumes that a jurisdictional dualism only applies to some effects of marriage dissolution. Israeli religious authorities are specifically sensitive to the requirement that a get is granted by free choice and they are reluctant either to authorise a unilateral dissolution of marriage or to order either the granting of a get or fines in order to press for such a concession, with the exception of cases of gross fault or irrecoverable failure of marriage.Footnote ²³ Male violence towards women is sometimes considered as a cause, not for ordering, but only for suggesting divorce.

Rabbinical courts tend to favour mediation, counselling and other means aimed at reconciling spouses, in order to protect children's interests, when present. When reconciliation is not possible, they direct spouses to negotiate conditions for the dissolution of the marriage: as standard procedure, extrajudicial agreements are negotiated by spouses and afterwards ratified by religious courts, in which the woman ‘pays’ in order to free herself from marriage, renouncing her legitimate post-marriage expectations, both personal and financial (custody of children and distribution of assets). Neither secular nor religious law can adequately make up for the imbalance of the contractual power of the parties.

Such a religiously characterised system is counterbalanced by alternative juridical instruments, which allow those who do not wish to make use of a religiously based marriage model to enjoy the same treatment in an indirect way. The possibility of celebrating a civil marriage abroad or a proxy marriage,Footnote ²⁴ or to obtain the protection granted to de facto (also gay and lesbian) partnerships, are the only secular alternatives and are the key to the (political) survival of a marriage model founded on personal status laws in the ‘modern’ state of Israel.Footnote ²⁵ Tolerance of some forms of ‘civil objection’ to religious marriage indirectly offers a civil accommodation of the needs of religious freedom in a negative form.

DISSOLUTION OF MARRIAGE IN ISLAMIC LAW

Islamic law, as is acknowledged in modern Arabic countries, permits dissolution of marriage both in a private form (based on the will of either one or both parties) and in a public form (as an effect of a judicial decision).Footnote ²⁶ Repudiation was originally conceived as a private act of a man aimed at freeing himself unilaterally from marriage. Even though repudiation is considered as a blameworthy act, in some cases it can be considered as ‘recommendable’, ‘licit’ or even ‘compulsory’. A man has to have total mental capacity. He is allowed to change his mind twice: first and second repudiations are revocable, but the third repudiation causes the definitive dissolution of the marriage, and the man will not be able to marry the same woman again. Repudiation has to be pronounced in specific periods, in order to be consistent with sunna, otherwise it will result in ‘prohibition’. Triple repudiation is negatively evaluated (the pronunciation of three repudiations at the same time). Religious law recommends the presence of two witnesses.Footnote ²⁷ In modern Arabic countries, this institution has been subject to a process of reduction as an act of private autonomy, and attempts are being made at including it either in a judicial procedure or in a specific form, in order to guarantee that a woman is at least informed about the dissolution of her marriage. In some countries, repudiation is drafted by a notary and notified to the woman (Egypt); in other countries, a judicial decision or authorisation is required. Courts must first attempt to reconcile the spouses (Libya, Algeria, Morocco) and they can order a payment to be made by the husband, in order to guarantee maintenance to both wife and children (Morocco).Footnote ²⁸

Other forms of unilateral dissolution of marriage are either a vow of abstention from marital relations pronounced by a man (īlā) or an offensive oath (ẓihār), by which a woman is likened to a forbidden one. After some time, the husband has to choose between reconciliation with his wife (through expiation) and repudiation. A mutual cursing oath is a form of dissolution of marriage that involves the participation of both spouses. In the past, this option also offered men a means to disclaim paternity of a child.Footnote ²⁹ In this case, a man charges his wife with adultery but he avoids the corporal punishment that he could receive if his accusation is unfounded. A woman avoids the penalty connected with adultery because she refuses the charge under oath. The marriage is dissolved by this double oath and the woman is forbidden to that man forever. Dissolution can also happen by mutual consent through a sort of consensual repudiation ( hul‘). In this case, the woman presses her husband for the dissolution of the marriage, offering him either a payment of compensation or the return of her dower (mahr); she loses all the rights that she acquired with the marriage contract (dower and maintenance). In some states, the laws verify that hul‘ is required because of a woman's free choice, without any form of pressure or coercion, in order to give better protection to women.Footnote ³⁰ A dispute can be deferred to two arbitrators when the parties disagree on financial aspects.Footnote ³¹

Finally, there is the possibility of judicial dissolution,Footnote ³² at the request of each party (Syria, Morocco, Iraq, Jordan, Algeria, Kuwait, Sudan and Oman), on grounds that either make continuation of conjugal life excessively hard (mental insanity, physical defects) or hinder conjugal relationships; otherwise, when ill-treatment or conflicts between spouses make continuation of conjugal life intolerable.Footnote ³³ In addition, a woman can ask for the termination of marriage because of the absence or imprisonment of her husband. A contractual view of marriage, typical of Islamic law, seems to justify a woman asking for termination of marriage because of her husband's financial difficulties. Nowadays, the balance of these provisions seems aimed at better protection of the weaker party.Footnote ³⁴ In these instances also, courts will try to reconcile parties or to defer the claim to arbitrators (Iran).

THE ‘COSTS’ OF SEPARATION

On the basis of both Islamic and Jewish law, a woman has the right to maintenance by her husband during marriage, even after separation; she loses this right after divorce. However, in both models she can lose this right because of ‘rebellious behaviour’ (for example, abandonment of the family home or refusal to fulfil her marriage duties).

The access of women to the job market has changed their traditional role of total dedication to the marital home, husband and children. It has also introduced new needs for balancing rights and duties, even post-marital ones. Provisions concerning the conjugal and post-conjugal financial regime between spouses (absence of an equal distribution of assets between spouses in the case of démariage in Jewish law; strict separation of each spouse's wealth in Islamic law) may prove to be unsuited to the changed social context, but may reveal the poor care of the weaker party in the marriage, specifically in the broken phase of the relationship.

In Jewish law, a woman's wealth is subject to her husband's control, as either property or management. In the event of the termination of marriage, she has a right to what she brought to the coniugio (in addition to ketubà (the marriage contract)) but she is not entitled to financial increases realised during the marriage. During marriage, a woman is traditionally obliged to give her husband her earnings. For this reason, in a dispute (for example, separation that is not followed by the granting of a get), her earnings are deducted from her maintenance, taking into consideration her financial condition before separation from her husband.Footnote ³⁵ On the basis of the Women Equal Rights Law 1951, Israeli Supreme Court cases have tried to lead disputes concerning post-marriage distribution of property into the ambit of secular law. In the absence of a specific law, the Court has sometimes introduced the presumption of a community property rule. Later, the Spouses Property Relations Law 1973 stated that conjugal property has to be fairly distributed in the event of either divorce or death of each spouse, if a different agreement between parties has not been ratified by a notary, a rabbinical court or a family court. This law determines the distribution of property after divorce has taken place. In this way, the original spirit of the law is distorted: in fact, the granting of get becomes a tool to control the criteria of post-marriage distribution of property. This distribution of property becomes the effect of a private negotiation (to the detriment of a woman) rather than judicial determination.Footnote ³⁶ The rabbinical courts, when petitioned, are required to apply secular law: this increases conflicts between secular and religious law.

In Islamic countries, the absence of regulation concerning joint ownership of property is a common cause of dispute between spouses. Nowadays, there is a discrepancy between the legal model and social reality. According to the former, a man is expected to be the ‘sole provider’ for his family and a woman maintains control of her own wealth and earnings. For this reason, the man often experiences feelings of inadequacy and frustration when he is not able to fulfil his role, and sometimes he reacts with violence, a wish for physical dominance or abandonment. On the other hand, a woman's expectations are disappointed, and she shows her frustration by making financial requests. In addition, this disparity of gender roles usually makes a woman reluctant to ‘invest’ financially in a marriage that is perceived as precarious.Footnote ³⁷

OBLIGATIONS OF POST-MARRIAGE SOLIDARITY

Nevertheless, a gradual recognition of equal female dignity in marital relationships seems to be emerging. Institutions that originally caused a de-subjectification of women in a marriage contract in both Jewish and Islamic law, now ensure the commitment to obligations of post-marriage solidarity in favour of the weaker party in the relationship. These institutions address the choice of one of the spouses over the exercise (or non-exercise) of exit freedom in marriage; they also carry out an indirect function of stabilising marriage, in contrast with the arbitrary exercise of power to divorce by unilateral act (for example, Islamic repudiation).

In Jewish law, in the past, the marriage contract (ketubà) also defined the sum that was due to a woman in the event either of the dissolution of the marriage or of her husband's death; it further established the return of any wealth that a woman brought to the marriage. This is the present-day practice in Israel. Ketubà made termination of marriage indirectly easier for a man, even though a judicially declared fault of the woman was present, offering her a sort of financial compensation. However, this right could be denied to her, for ‘punitive’ reasons. Later, Rabbi Gershom's decrees led to greater parity in the position of spouses, making the consent of both of them necessary for the termination of marriage, with the exception of fault cases; these also gave the woman the possibility to prevent termination, by refusing to accept the get.

The influence of an individualistic concept of marriage, typical of Jewish law, is noteworthy. In consensual religious divorce, conditions, even financial ones, are negotiated by the two parties: this is the most common model. Agreements of maintenance can be fixed, when one of the spouses undertakes to support the other, even in the event of separation. These agreements do not really reflect a recognition in religious law of the need for financial support of the weaker party; instead, they have the indirect aim of pressing for the granting of get.

In Islamic law, a woman has the right to receive dower (mahr) from her spouse in the event of marriage. Giving the dower allows a man to free himself unilaterally from marriage by repudiation; where the reason for a divorce is ascribable to the wife, the husband can claim the return of mahr. A woman can use the dower as a tool of persuasion to obtain termination of the marriage, pressing for a consensual repudiation and offering the return of an inferior, equal or superior sum to the one that she received.

Dower has been qualified either as an effect of marriage (Hanafi school) or as a constitutive element of the marriage contract (Maliki school). In any case, it has evolved from the ‘price of the bride’ to a form of financial support for the woman in the event of divorce or the death of her husband: this understanding is confirmed by the increasingly widespread custom of postponing, either totally or partially, the payment of dower at the moment of divorce.Footnote ³⁸ If mahr has to be paid in a deferred way, it is a deterrent from the exercise of the male right to repudiation, but it also limits a woman's option to petition for hul‘, which implies the return of the dower received.

A woman enjoys maintenance and accommodation rights during the waiting period following the dissolution of her marriage. The female position is more firmly guaranteed when repudiation is not definitive.Footnote ³⁹ When repudiation occurred in the past, Islamic law used to recognise ‘moral damages’ to women, providing a ‘gift of consolation’ in order to repay a woman for the pain that she suffered from abandonment: this compensation was only ‘recommended’, but it was compulsory in the case of a non-consummated marriage. Modern laws have extended this repayment to cases of both illegal and unjustified divorce, confirming its compensatory aim.Footnote ⁴⁰

JUDICIAL AND EXTRA-JUDICIAL NEGOTIATION

The exercise of both ‘entry’ and ‘exit’ marriage freedom is characterised by its typical contractual approach in Israel and Islamic countries. Both judicial and extra-judicial solutions to the problem of the inequality of spouses are sought in a difficult process of accommodating traditional models to the needs of modernity, within the ambit of religious ‘lawfulness’. Compulsory subjection to laws governing personal status remains a strong factor of community identity. The introduction of a free-will element, founded on the recognition of individual choice of self-identification in a specific religion is denied in these systems.Footnote ⁴¹

The Jewish model seems to favour an approach founded on private law, where the solution to disputes between spouses is left in the hands of the parties. In Israel, both a state approach directed towards a model of formal equality and the specific connection between secular and religious law in this field are ineffective to address individual needs within the system. The standard agreement does not allow an equal exercise of ‘exit’ freedom; on the contrary it opens up a process of negotiation, where the husband continues to retain the ‘key’ to a woman's release. Mechanisms aimed at ‘encouraging’ a reluctant spouse to fulfil his religious duty to grant the get have developed, in order to avoid the strict limits that religious or judicial authority may encounter. These agreements allow spouses to participate in a system aimed at governing both the marriage and the conditions of its termination.

According to Jewish law, financial agreements can be drawn up. A husband can commit himself to pay a considerably larger maintenance than is usual to his wife. Maintenance will be due, even during separation, until the moment of termination of the marriage. In Jewish law, a divorce that is granted under either compulsion or threat of penalties, beyond those cases religiously provided, is potentially invalid. An agreement about maintenance is considered consistent with halachà (religious law), as it does not establish penalties but only a right to financial support until termination of marriage, even though it is indirectly aimed at pressing a man to grant the get more quickly. In Israel, termination of marriage requires the mutual consent of the spouses, including provision for maintenance.

According to sharia law, an Islamic marriage contract can include clauses aimed at re-balancing the positions of the spouses within the confines of a conjugal relationship, even ones concerning financial aspects: the delegation to the wife of the right to petition for divorce, in the event that the husband infringes any conditions of the marriage contract, by celebrating a second marriage or through maltreatment; an obligation to agree on the family address; the right to a complete education. In Islamic countries, there is a trend towards permitting judicial intervention in the breakdown of marriage, and the courtroom is increasingly becoming ‘a negotiation area’ for conjugal conflicts.Footnote ⁴² A dichotomy between the juridical identity of marriage and its social reality is emerging, and the difficult task of filling the gap between law and social praxis is entrusted to the judges.

A woman often succeeds in renegotiating the terms of the marriage contract, in order to strengthen her (otherwise unequal) position within the marital relationship (for example, she can prevent her husband solemnising a second marriage).Footnote ⁴³ However, a woman's efforts are more often directed towards better financial provision on divorce or persuading a reluctant spouse to consent to divorce. Legal protection for women seems substantially aimed either at accommodating the negative consequences of divorce (mainly financial) or at freeing the woman from an unsatisfactory marriage bond, rather than giving a woman equality within the conjugal relationship. Family harmony still seems to be founded on female ‘obedience’.

In both models examined, aspects of asymmetry are still present, specifically regarding the exercise of ‘exit’ freedom from a marital relationship. Such freedom seems directly proportional to a woman's ability to afford the financial consequences of her release. However, some aspects of inequality have been reduced.

A totally personal approach permits the use of mechanisms founded on self-determination and intended to correct the injustices caused by a religious model in a religiously non-neutral legal context (Israel). A mixed approach, public and private, is increasingly trying to include a contractual/religious model in the framework of the state legal system. Such a system will reduce the male-centred aspects of the conjugal relationship, even those present in its breakdown, and promote growing gender equality (Islamic countries). However, cultural tradition and social praxis stand in the way of overcoming these matters. Marriage is still not considered as an agreement of mutual solidarity, where both partners have an equal duty of cooperation and an equal power of decision in the most important choices.

The need for greater female awareness of the juridical tools that are available is evident. Such tools are aimed at re-balancing the exercise of exit freedom from the conjugal relationship. Women have to recognise the relevance of such tools, not only in the pursuit of financial claims but also to personalise the rules of marriage. This personalisation allows not only an alternative allocation of rights and duties but also a more authentic definition and understanding of the intrinsic essence of a couple's life.Footnote ⁴⁴