Israeli Family-Law Forum - Homosexuals/Lesbians

Below are readers' questions about 'Homosexuals' and 'Lesbians', which we have chosen to answer. Further , and more detailed, information on Israeli family law issues that relate to single-sex couples and individuals can be found by running a search on our main site, or looking at :

http://www.family-laws.co.il/agreements-between-cohabiting-couples
http://www.family-laws.co.il/other-topics-adoption-minors
http://www.family-laws.co.il/marriage-options-in-Israel
http://www.family-laws.co.il/other-topics-surrogate-motherhood-fertility

Yes, if this is held to be in the children’s best interests, after the family court receives input from neutral professionals it appoints – court welfare officer  (a social worker), psychologist and even a guardian-ad-litem that  may be appointed to represent the children’s own interests. This was so in a complex case ruled upon by Haifa Family Court  in June 2017 (File 60660-06-16) ,involving two women , ex-partners in a long-standing Lesbian relationship, where one of them had  become pregnant twice , after artificial insemination by a sperm donor, during their period of cohabitation  and the other had officially adopted the first child, who was born while they were a family unit. The women had split up before the second child was born. Stressing that it was putting the minors’ interests foremost, the court made a temporary decision, ordering  the establishment of contact between the second child and the non-biological mother, initially through a communication centre  and via professionals, and set equal parental time between the elder, adopted child, and both parents. It also appointed another psychologist, to make further report and recommendations, and ordered parental counselling. 

Yes, family courts in Israel now recognize an alternative route to adoption, in formalizing the status of partners of biological parents in gay relationship. A declaratory judgment of parenthood can be granted by an Israeli family court vis a vis the gay partner of the biological parent and the Israeli Ministry of Interior can be ordered to register the child as having two mothers, or two fathers, to overcome objections raised by the State Attorney. For example, in May 2017, Petach Tikva family court granted such a parenthood order at the request of a biological parent , the mother, and her long-time Lesbian partner, who had entered into a cohabitation agreement during pregnancy. This agreement had included declarations about parenting of future children born to either of them.

 

Each case will, however, be decided upon its merits, but this legal option now exists in Israel, and enables single-sex couples to overcome difficulties at the Israeli Ministry of Interior regarding registration of parenthood of the biological parent's partner, and any associated requests to change the surname of the child.

The guiding factor in child custody cases is that the choice of custodial parent is to be made on the basis of the children’s welfare/best interests, irrespective of a parent’s sexual preferences, with each case being decided on its own merits. This principle is supposed to be applied in Israeli rabbinical courts, too, but because of their religious viewpoint, their approach , in practice, is likely to be different from that of the secular family courts and it is quite possible that where a rabbinical court hears a custody case as part of divorce proceedings, it may discriminate against a mother who is Lesbian or bi-sexual, subject to proof of her sexual preferences/lifestyle. If a husband claims that his wife is Lesbian or bi-sexual, as part of custody proceedings, within the framework of a divorce file there, it is possible that his claims will be listened to and a finding given, in favour of the father, even if the mother is an extremely capable and competent mother and a worthy custodian. In a case where both parents claim custody, a welfare officer from the local social services will be appointed to make a report and recommendations, as well as an expert, a clinical psychologist will perform parental capability assessments. It is likely that the rabbinical court might appoint an expert with a religious orientation , in which case it would be wise to consider appealing against the appointment at the outset.
Yes! This paradoxical situation is true unless prior to the breakup, the estranged gay guy actually adopted the child of his partner, the biological father, or was recognized as a guardian, in relation to the child, in an agreement and/or by way of court authorization or by a special “case-law parental order” .

Yes – even though Israel does not, at the current time, give judicial recognition to single sex marriages, only recognizing them at an administrative level, by registering them at the Israeli Ministry of Interior. A Lesbian couple who married abroad can end their marriage in Israel in a dissolution of marriage process at the family court, as Tel Aviv family Court ruled in November 2012, in relation to a homosexual couple who had married in Canada.

Yes! For example, a gay marriage between two Israeli men, who had married in a single sex marriage in Canada, was ended by Tel Aviv Family Court in a dissolution of gay marriage judgment in November 2012.

Currently, legally valid gay marriage cannot be performed in Israel, but Israel will register gay marriages performed overseas, at the Ministry of Interior, recognizing it administratively.

Yes! A graduated 7- year process culminating in permanent resident status exists at the Israeli Ministry of Interior for non-Jewish partners of Israeli citizens in single-sexed relationships. It starts with a renewable 12 month visa. 

Yes, Tel Aviv Family Court authorised such an agreement between an Israeli national and his foreign partner,in November 2011. The couple,who had been in a relationship for five years before registering as civil partners in a European Union country earlier in 2011, were represented by our law practice.

No! Cypriot law does not permit marriages between members of the same sex. Accordingly, while non-Cypriots,including Israelis, can marry in Cyprus, this only applies to heterosexuals i.e. a couple comprising a  man and a woman,and not gay couples (two men) or Lesbian couples (two women). It is possible for homosexual or Lesbian couples from Israel to marry in other countries where single-sex marriage is permitted, to get married there and register the marriage at the Ministry of Interior upon their return.

As a rule,  a Jewish wife is entitled to maintenance from her Jewish husband throughout the duration of their marriage, right up until they divorced at the rabbinical court . There are, however, situations where, because of a wife's behaviour, whether  it be by virtue of positive acts or omissions, she may lose her right to maintenance from her husband during the course of their marriage.

One of these situations is where a wife systematically refuses to have intimate relations with her husband, without a justifiable reason or defence, as you may have, because of your sexual tendencies. Where a woman does not have sexual relations with  her  husband she is likely to be considered a 'rebellious' or 'quasi-rebellious' wife  and, as such, is at risk of losing her  right to maintenance under Jewish law. 

Firstly, you are advised to draw up an agreement at the family court, in which you both agree to raise the child jointly, and which gives you visitation rights should you split up. In addition, you would be advised to apply to be an additional guardian for the baby, or even adopt him/her, which would elevate your standing.

There is no automatic bar under Israeli law  preventing  a homosexual father becoming a custodian of his minor children, just because of his sexual tendencies. If a custody case gets underway between him and his ex-wife, at the family court, then most probably a neutral court-appointed clinical psychologist will be appointed to make a report and recommendations on custody. The court will have to decide which parent has superior parenting skills, and whether it will be in the children's interest to be with the mother, or the father.

In general, courts tend to favour mothers, rather than fathers,  as custodians, especially where young children under the age of 6 are concerned, because of the built-in legislative bias towards them, though it is possible for a father to get custody, where this is in the minors' interests and welfare (e.g. where the mother is very career-oriented and has poor parental skills, or is a drug addict/prostitute etc, or has no or poor parental skills for some other reason). Where the father is a homosexual, he may have to invest a lot of time in overcoming prejudice, and persuading the professionals appointed and the court that his private life and sexual tendencies do not have a negative effect on his parenting skills, and that it is still in the children's interest and welfare for him to be the custodian.

Incidentally,there is also nothing theoretically, preventing a homosexual father from making an agreement whereby he gets custody, if the mother is in agreement. Any agreement about custody between parents - whether they agree it should go  to the father, or the mother, is is joint between them- must be authorised by the court.

No! Single-sexed marriage is not legal in Israel. You will have to go abroad and marry where homosexuals can get married in a legally valid ceremony.

Of course  you can leave your property to your gay partner, after you die. There is nothing in Israeli law preventing you from bequeathing your property just because he is your homosexual partner.

You, as any testator, are free to bequeath your property to whoever you wish, providing you are of sound mind when you make your will,are not under pressure,trickery, duress, or undue influence etc. It may be advisable to have documentation about your legal capacity to make a will because of your illness, so as to counter any possible challenges, later. If your physical and emotional condition is bad when you make the will, it could be challenged on the grounds of undue influence on the part of your partner, if you are very frail, isolated and dependent on him.

Accordingly, you would be advised to make your will earlier than later, when you are still strong, and not weak. Incidentally, you are always free to alter, or cancel any will you make. You would be advised to sign the will infront of two witnesses,and even deposit a copy with the Inheritance Registrar. It may be advantageous to let a lawyer draft the will, and authorise your signature,in case it is challenged later.

Yes, providing the sperm was from an anonymous donor ,you can either apply to adopt the child, or become an additional guardian. There is now no automatic  legal bar in Israel preventing partners in single-sex relationships from becoming adoptive parents or additional guardians of their partner's child. However, the adoption or guardianship order will only be granted to a partner in a single-sex relationship if the court considers that it is in the child's good, given all the circumstances.

Yes! A professionally drafted agreement covering their rights and obligations, including the issue of property and finances,can be presented to the family court to be authorised, and incorporated in a judgment, which will give it full legal validity.

Yes, you can have a tailor-made agreement drawn up that covers your lifestyle and wishes, and your rights and obligations vis-a-vis one another, giving them full expression in legal language, and full and binding value legally. For example, you can decide what is to be done with your incomes, whether to open one joint account, into which both of you deposit your salary, or retain separate accounts as well as one joint account , and transfer part of your salaries into it, to cover shared living expenses and savings for the future. You can also decide what is to be done in the event of you splitting up in the future etc.

Such an agreement should be authorised at the family court, to give it full legal value.