In the thick of the important debates on the "overcoming clause", which is intended to give the Knesset the power to re-enact a law that was annulled by the High Court, family law was neglected. The High Court plays an important role in this area, both as a court of judicial review of the rulings of the religious courts, and as a court Discusses petitions concerning fundamental rights such as the right to found a family and the right to marry.
Basic Law: The Judiciary authorizes the High Court of Justice to invalidate judgments of religious courts when they rule without authority, and to return the hearing to them so that a revised judgment can be issued. "Exceeding authority" can be expressed in the application of religious law to a civil legal issue, such as dividing The common property of a divorcing couple. In its second role in family law, the High Court anchored various rights of married couples and couples living together without marriage ("publicly known"), straight people and LGBT people, and the rights of children.
In fact, apart from marriage and divorce itself, spousal support and child support, which are regulated according to religious law, important and central areas such as the division of joint property and the custody of children, are regulated by civil law and subject to civil constitutional principles, such as the principle of equality.
Most of the civil rights in the field of the family were anchored for the first time in important rulings of the Supreme Courts: starting with the rule of sharing assets which stated that married couples are entitled to equal shares in the property accumulated through joint effort during the marriage, through the expansion of sharing to the public, the obligation to register foreign civil marriage certificates in the population registry, the recognition of two parents Of the same species and more.
The rule that the division of property is not a religious matter and that it is regulated through civil property laws and is subject to the principle of equality between the sexes, was even anchored in the early 1970s in the law on property relations between spouses.
The religious courts (rabbinic, Sharia, Druze, Christian courts) are obliged to rule on this issue if it is brought before them, according to the law and not according to the religious laws practiced in them.
The overcoming clause will also be used in the fight for the image of the Israeli family, the status of women in the family and the welfare of children.
It will enable the annulment of High Court rulings that require the application of civil law to the civil aspects of separation and divorce proceedings, and will open the way for the sweeping application of ancient religious laws and the authority of the religious courts in the field; it will allow the annulment of the High Court ruling from 1963, which required the Ministry of the Interior to register civil marriages held abroad; it will allow the rights of well-known, straight or LGBT persons to be revoked;
apply moral considerations, such as infidelity of one of the spouses, in the division of property during the divorce or separation;
and more.
In Israel, almost every third married couple divorces.
The divorce rate among unmarried couples is similar.
The abolition of equality in the division of family property, the application of religious custody laws and the abolition of the recognition of civil partnerships, mean the application of religious norms created in ancient times to couples today and a return to a world where there is not only a serious violation of gender equality, but also the right to start a family, even for many heterosexual couples who cannot marry according to religious law, or do not wish to marry at all.
For Jews, for example, the meaning of "overcoming" civil family law is that married women will leave their marriages destitute;
that an observant parent be given priority in custody of the children;
that the already difficult divorce extortion phenomenon will only increase;
that unmarried or civilly married couples will immediately lose state recognition of them, and together with that their rights and the rights of their children.
In the escalation clause, there is a potential for serious damage to basic human rights such as freedom of expression, freedom to demonstrate, freedom of occupation and other rights;
It means severe material and emotional harm to hundreds of thousands of Israeli families, and in particular to Israeli women and girls and children.
The overcoming clause will fundamentally change the Israeli family, and not for the better.
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