1 For a comprehensive review of issues of jurisdiction and law in relation to personal status, see Rosen-Zvi, Ariel, Family Law in Israel – Between Sacred and Secular (Tel-Aviv, Papyrus, 1990) 23–97 Google Scholar; Shifman, Pinhas, Family Law in Israel (Jerusalem, Harry Sacher Institute for Legislative Research and Comparative Law, 1995) (vol. A) 22–135 [in Hebrew]Google Scholar; Shava, Menashe, Personal Law in Israel (Tel Aviv, Masada, 1991) 185–224 [in Hebrew]Google Scholar.

2 For the distinction between marriage as a legal phenomenon and the sociological phenomenon of cohabiting partners, which may be described as the sociological phenomenon of marriage and sociological marriage, See Shifman, ibid, at 141 ff. See also Glendon, Mary Ann, The Transformation of Family Law: State Law, and Family in the United States and Western Europe (Chicago, The University of Chicago, 1989) 10–16 Google Scholar.

3 See Lifshitz, Shachar, “Married Against Their Will? A Liberal Analysis of the Legal Aspect of Cohabitation” (2002) 25 (3) Tel-Aviv University Law Review 741, at 743–750 [in Hebrew]Google Scholar.

4 The project as a whole is due for publication in Lifshitz, Shachar, Cohabitant Law in the Mirror of Civil Theory of Family Law (Haifa, Haifa Press, 2004)Google Scholar.

5 It seems that Joseph Raz made the most successful attempt at designing a modern liberal theory based on the principles of freedom and individual autonomy; see Raz, Joseph, The Morality of Freedom (Oxford, Oxford University Press, 1986)Google Scholar. See also, Gardbaum, Stephen A., “Liberalism Autonomy and Moral Conflict” (1996) 48 Stan. L. Rev. 385 CrossRefGoogle Scholar.

6 The notion of the neutral state was greatly developed in the writings of the renowned philosopher John Rawls, in his book – Rawls, John, A Theory of Justice (Cambridge, Massachusetts, 1971)Google Scholar (see, for example, the manner in which the idea is presented there, ibid., at 560). The concept was refined further in the book, John Rawls, Political Liberalism (N.Y., Columbia University Press, 1993) (see, for example, ibid., at xix). For the centrality of the principle of neutrality in liberal thinking, See, for example, Gardbaum, Stephen A., “Why the Liberal State Can Promote Moral Ideals After All” (1990) 104 Harv. L. Rev. 1350 CrossRefGoogle Scholar, at fns. 6–8. Gardbaum list a number of eminent liberal thinkers who advocate this view. At the same time the notion of the neutral state has been criticized both by non-liberal streams (principally communitarian writers) and liberal philosophers. See, Gardbaum, ibid. We shall deal with this criticism later in this study when we come to consider the argument that from a secular perspective, and even from a liberal perspective, it is legitimate to prefer legal marriage over cohabitation, See Part III Sec B. Para 1.

7 For support for the process of granting rights to cohabiting couples on the basis of liberal rationales of increasing freedom and particularly freedom of choice, See Kay, H. and Amyx, C., “Marvin V. Marvin: Preserving the Option” (1977) 65 Cal. L. Rev. 937 CrossRefGoogle Scholar; Prince, Harry G., “Public Policy Limitations on Cohabitation Agreements Unruly Horse or Circus Pony?” (1985) 70 Minn. L. Rev. 163 Google Scholar; Finlay, H.A., “Defining the Informal Marriage” (1980) 3 U.N.S.W.L.J. 279 Google Scholar.

8 Indeed, the process of recognizing the rights of cohabiting couples has been presented in a number of countries as an element of a general policy emphasizing the neutrality of the state towards various lifestyles. See, for example, in relation to Holland: van de Wiel, A.M., “Cohabitation Outside Marriage in Dutch Law” in Eekelaar, John M. and Katz, Sanford N., eds. Marriage and Cohabitation in Contemporary Societies (Toronto, Buttersworth, 1980) 212, at 215 Google Scholar. The principle of neutrality is also at the center of Sweden's approach to cohabitation, See, for example: Danielsen, Svend, “Unmarried Partners, Scandinavian Law in the Making” (1983) 3 Oxford J. Legal Studies 59, 65 CrossRefGoogle Scholar. See also Regan, Milton, “Calibrated Commitment: the Legal Treatment of Marriage and Cohabitation” (2001) 76 Notre Dame Law Review 1435 Google Scholar.

9 Historically, opposition to recognition of economic rights between cohabiting couples was based, in many cases, on the desire to strengthen the institution of marriage. These types of arguments also appear in a number of modern cases in which opposition was voiced to the recognition of the economic rights of cohabiting couples. See Lifshitz, supra n. 3, at 760-765

10 See supra n. 2.

11 For functional modes of thought, See, for example, C.A. 2000/97 Lindorn v. Karnit 55(1) P.D. 12, 28 In that case, the court analyzed the rationales of Section 78 of the Civil Wrongs Ordinance dealing with claims for compensation by economic dependents, and explained why the rationales of the section are also relevant to cohabiting couples. See also Friedman, D., “The Cohabitee in Israeli Law” (1973) Tel Aviv Studies in Law 459, at 473–474 Google Scholar.

12 This, in effect, is the argument made by Friedman, ibid.

13 Note that in this section, the argument that the differences in terms of commitment between common-law partners and married partners justifies a different legal approach to these institutions does not stand on its own, but is based on previous claims as to the justification of preferring relations that embody a high level of commitment, due to the public interest in promoting such relations. Below in this chapter, however, I shall show that even those who do not accept the principled claim of a civil justification for the preference of relations with a high level of commitment may still agree, in certain cases, that the differences in the level of commitment between common-law partners and married partners may justify a different legal approach toward these institutions. See infra, Section 3, Para C.

14 See Rawls, Political Liberalism, supra n. 6.

15 Ibid., chapter I, section 1, para. A.

16 Extensive literature exists on the subject of Utilitarian thought. See, for example: Kymlicka, Will, Contemporary Political Philosophy (Oxford, Oxford University Press, 2002, 2nd ed.) ch. 2Google Scholar. In legal discourse, this position forms the principle bass for what is termed the economic analysis of law. It is important to note, however, that Utilitarians often present there position as neutral, insofar as it does not stem from any value-based preference for a given group. As an aside, I would note that many critics of Utilitarianism in general, and of the economic analysis of law in particular, deny this claim of neutrality. Discussion of this aspect is beyond the purview of the present article.

17 See for example: Michelman, Frank I., “Law's Republic” (1988) 97 Yale L.J. 1493 CrossRefGoogle Scholar; Michelman, Frank I., “The Supreme Court 1985 Term: Forward: Traces of Self-Government” (1986) 100 Harv. L. Rev. 4 CrossRefGoogle Scholar; Sunstein, Cass R., “Beyond the Republican Revival” (1988) 97 Yale L.J. 1539 CrossRefGoogle Scholar; Sunstein, Cass R., “Naked Preferences and the Constitution” (1984) 84 Colum. L. Rev. 1689 CrossRefGoogle Scholar.

18 See, for example: Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge, Cambridge University Press, 1998, 2nd ed.)CrossRefGoogle Scholar and Macintyre, Alasdair, After Virtue; A Study in Moral Theory (Indiana, University of Notre Dame Press, 1994)Google Scholar. See also: Etziony, Amitai, The Spirit of Community: Right, Responsibilities and the Communitarian Agenda (New York, Crown, 1993)Google Scholar.

19 Some critics believe that even if the ideal is worthy, its application is impossible. See, for example: Alexander, Larry, “Liberalism, Religion, and the Unity of Epistemology” (1993) 30 San Diego L. Rev. 763, at 764 Google Scholar.

20 See Raz, supra n. 6, at 373–374, and, in greater detail Raz, Joseph, “Ethics in the Public Domain: Essays in The Morality of Law and Politics (Oxford, Oxford University Press, 1994), ch. 8Google Scholar.

21 On the debate between political liberalism and perfectionist liberalism, See Gardbaum, supra n. 6; Galston, William A., “Two Concepts of Liberalism” (1995) 105 Ethics 516 CrossRefGoogle Scholar; De Marneffe, Peter, “Liberalism and Perfectionism” (1998) 43 American Journal of Jurisprudence 99 CrossRefGoogle Scholar. It is interesting to note that although this debate is currently raging in the western liberal world, it has received little attention in legal literature in Hebrew. See however: Stetman, Daniel and Sapir, Gideon, “Freedom of Religion, Freedom from Religion and Respect for Religious Feelings” (2004) (1) 21 Bar-Ilan Law Studies 5 Google Scholar. See also: Lifshitz, Shachar, Contractual Regulation of Spousal Relationship in Civil Law (thesis toward a Ph.D. degree, Bar Ilan, 5762), chapter 13, section 7Google Scholar. See also, more recently: Sapir, Gideon and Lifshitz, Shachar, “Who Decides on ‘Who Is a Jew’? The Shalit Incident and the Proper Role of the Court in a Democratic Society” Bar Ilan Law Studies (forthcoming 2005) [in Hebrew]Google Scholar.

22 See Gardbaum, ibid.; Raz, supra, n. 6, and Galston, William A., Liberal Purpose: Goods, Virtues, and Diversity in the Liberal State (Cambridge, Cambridge University Press, 1991) 79–162 CrossRefGoogle Scholar.

23 See Raz, supra n. 6, 265, and Raz, supra n. 21, 117–124.

24 See Galston, supra n. 23, and Gardbaum, supra n. 5, who seek to delineate, alongside individual autonomy, a series of additional values and lifestyles that the liberal state may, and even should, prefer.

25 Thus, for example, the classic definition of marriage in the common law nations was established in the verdict in Hyde v. Hyde as a “voluntary union for life of one man and one woman to the exclusion of all others” (emphasize mine S.L.) Hyde v. Hyde & Woodma; see (1866), L.R.-P. & D. 175.

26 See Nock, Stephen L., “A Comparison of Marriages and Cohabiting Relationships” 16 (1995) J. Fam. Issues 53 CrossRefGoogle Scholar; See also Trebilock, M. J. “Marriage as Signal” in Buckley, Frank H., ed. The Fall and Rise of Freedom of Contract (Durham, Duke University Press, 1999) 245 Google Scholar; Murphy, Russell. D., “A Good Man is Hard to Find; Marriage as an Institution” (2002) 47 Journal of Economic Behavior & Organization 27 CrossRefGoogle Scholar.

27 For the argument that, from a psychological standpoint, the granting and acceptance of commitment through marriage has significant value in personal well-being, selfperception and the realization of autonomy, See Regan, Milton, “Calibrated Commitment: the Legal Treatment of Marriage and Cohabitation” (2001) 76 Notre Dame L. Rev. 1435 Google Scholar, and Frantz, Carolyn J. and Dagan, Hanoch, “Properties of Marriage” (2004) 104 Columbia L. Rev. 101, at 107–120 CrossRefGoogle Scholar. See also Karst, Kenneth L. “The Freedom of Intimate Association” (1980) 89 Yale L.J. 624 CrossRefGoogle Scholar, and Waite, Linda J. and Gallaher, Maggie, The Case for Marriage: Why Married People are Happier, Healthier and Better off Financially (New York, Broadwaybooks, 2000)Google Scholar.

28 See Waite and Gallaher, ibid. See also the classic studies of Gary Becker, in particular: Becker, Gary S.. A Treatise on the Family (Cambridge, Harvard University Press, 1981), ch. 2Google Scholar (Beckers' article appeared in an updated version in: Becker, Gary S., A Treatise on the Family (Cambridge, Harvard University Press, enlarged ed., 1991)Google Scholar. See also the article Cohen, Lloyd, “Marriage, Divorce and Quasi Rents; or I Gave Him the Best Years of My Life” (1987) 16 J. Legal Stud. 267 CrossRefGoogle Scholar.

29 For a comparison between the level of happiness of married partners and of cohabiting partners, See: Stack, Steven and Eshleman, Ross, “Marital Status and Happiness: A17— Nation Study” (1998) 60 J. Marriage and Family 527 CrossRefGoogle Scholar.

30 In sociological literature, and, in recent years, in legal and economic literature, considerable attention has been paid to the subject of social norms (a social norm is a behavioral standard developed and enforced by a social group in light of its values, and through which it defines the expected behavioral pattern in a given social context) and social institutions (social institutions are conventionally considered to be a group of norms that jointly develop an accepted and inculcated modality for the performance of social actions considered central in a given society). The existence of defined social institutions is a clear social interest, since they free humans from problems of communication, the precise definition of goals and, to a large extent, definition of selfperception and understanding. The manner in which legal rules combine with social norms, social institutions and culture in general emphasizes the mutual dependence of society and law, and the fact that the content of law plays an important role in determining the way people define their social relations. Extensive literature exists on this aspect; See, for example: Ellickson, Robert C., “Law and Economics Discover Social Norm,” (1998) 27 Legal Stud., 537 [in Hebrew]CrossRefGoogle Scholar; Mautner, Menachem, “Law as Culture: Toward a New Research Paradigm” in Mautner, Menachem et al. , eds. Multiculturalism in a Jewish and Democratic State (Tel Aviv, Ramot, 1998) 545, at 562 ff [in Hebrew]Google Scholar. See also Lifshitz, supra n. 22, chapter 13, part 2, section D).

31 See Scott, Elisabeth S., “Social Norms and the Legal Regulation of Marriage” (2000) 86 Va. L. Rev. 1901 CrossRefGoogle Scholar. See also Murphy, supra n. 27.

32 For a similar argument, See: Schneider, Carl E., “The Channeling Function in Family Law” (1992) 20 Hofstra L. Rew. 495 Google Scholar.

33 See for example: McLanahan, Sarah and Sandefur, Gary, Growing Up with a Single Parent: What Hurts What Helps (Cambridge, Harvard University Press, 1994)Google Scholar; Hetherington, Eileen Mavis and Arastech, Josephine D. eds., Impact of Divorce, Single Parenting and Step Parenting on Children (Hillsdale, Erlbaum Publishers, 1988)Google Scholar. See also the extensive literature of studies relating to these issues quoted in Wax, Amy L., “The Two Parent Family in the Liberal State: The Case for Selective Subsidies” (1996) Mich. J. Race & L. 491, at fn. 121–123Google Scholar.

34 See Manning, Wendy. D. and Lichter, Daniel T., “Parental Cohabitation and Children's Economic Well-Being” (1996) 58 J. Marriage & Fam. 998 CrossRefGoogle Scholar.

35 On the need to integrate the well-being of children in laws on intimate relations, and the argument that the latter laws should, therefore, be considered not through a private prism but through a public prism, See the Contractual Arrangement study, supra n. 22, ch. 13, part 2.

36 Scott, Elizabeth .S., “Rational Decision Making About Marriage and Divorce” (1990) 76 Va. L. Rev. 9 CrossRefGoogle Scholar.

37 For an economic analysis of the settled aspect of marriage and the social benefit thereof, See Bishop, William, “Is He Married? Marriage as Information” (1984) 34 U. Toronto L. J. 245 CrossRefGoogle Scholar, and Haddock, David D. and Polsby, Daniel D., “Family Rational Classification” (1996) 74 Wash. U.L.Q. 15 Google Scholar.

38 Cf Chambers, David L., “What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples” (1996) 95 Mich. L. Rev. 447, at 489–491 CrossRefGoogle Scholar (explains why the very existence of a legal institution of marriage receiving preferences from the state, even if same-sex couples are included, is inherently discriminatory against other lifestyles, such as people who live alone).

39 See Lifshitz, supra n. 3

40 As will be recalled, the foundation of the liberal arguments against applying the laws of cohabiting couples to married couples was based on the claim that, in many cases, cohabiting couples consciously reject marriage and the commitment it entails. Although the discussion of this argument revealed its limitations, we have seen that economic, social and psychological studies have identified significant distinctions that still apply in terms of the level of commitment of cohabiting couples as compared to married couples. We have subsequently seen that relations between married couples are more stable than those between cohabiting couples. On these aspects, See also the recent article: Lewis, Jane, “Debates and Issues Regarding Marriage and Cohabitation in the British and American Literature” (2001) 15 International J. of L. Policy and the Family 159, at 170–171 Google Scholar.

41 See, for example: Stack and Eshleman, supra n. 29, who discuss the advantage of marriage in terms of mental resilience and the happiness of the couple; see also Manning and Lichter, supra n. 34, who discuss the advantage of marriage for the couple's children; and Haddock and Polsby, supra n. 37, who explain why legal marriage is a preferable institution from a social perspective. In general, see Gallagher, Maggie, “What is Marriage for? The Public Purposes of Marriage Law” (2002) 62 La. L.Rev. 773, at 777 Google Scholar, and the sources quotes in the footnotes thereto.

42 See Glendon, supra n. 2.

43 In this respect, modern recognition of the right of cohabiting partners differs from the traditional concept of common law marriage, which recognized couples who agreed to marry and lived together as a married couple, but did not hold a public wedding ceremony.

44 For a full analyses of the differences between the legal commitments of cohabitants and married couples See Lifshitz, supra n. 3.

45 Cf. the common statement in family law rulings, to the effect that “there are three parties to a marriage contract: the husband, the wife and the state.” See, e.g.: Ritchie v. White 225 N.C. 450, 453, 35 S.E.2d. 414, (1945) at 415.

46 A similar claim was made by Judge Gribaldi in Dunphy v. Gregor 136 N.J. 99, 642 A.2d 372 (1994), a ruling given by the Supreme Court in New Jersey, in a case in which a cohabiting partner who saw her partner die in a road accident demanded compensation for mental damages. While it is true that the claim made in this case was a minority opinion, a review of additional rulings will show that the minority position in this case actually reflects the ruling of US courts – see below in this chapter for a comparative review of the rights of cohabiting partners in the Western World (Part II Section D infra).

47 On this point, it is important to emphasize that cases of ostensible marriage also occur. On the distinction between fictitious or ostensible marriage and real marriages undertaken for utilitarian motives, See, recently: Cr. A. 3363/98 Kaniazhansky v. State of Israel P. D. 53(2) 479. However, the formal character of marriage makes it more difficult for someone who was not married at all to argue retrospectively that marriage existed. In addition, the commitments inherent in marriage, particularly the need for divorce and alimony laws, nevertheless limit the fear of fictitious marriages.

48 In my previous article I noted the tension between cohabitation laws and the desire to protect family intimacy in the discussion on the internal relations between the parties. See Lifshitz, supra n. 3, at 794–795.

49 For a detailed analysis of the calls for a counter-revolution in various aspects of the laws governing intimate relations that emerged in the 1990s and have grown stronger in the beginning of the current century, see Contractual Regulation, supra n. 21, ch. 12, parts 1 and 2.

50 On conservatism as a sociopolitical ideology, See Zisser, Baruch, Of Left and Right: A Glance at Modern Ideological Discourse (Jerusalem, Shoken, 1999) Ch. 2Google Scholar.

51 See Judge Ta's comments on the importance of the family and marriage in Cr. A. 1915/91 Ya'aqobi v. Ya'aqobi P.D. 49(3) 529, at 583–584: “Does the easy possibility of distributing and securing a share of assets not encourage the cavalier and hasty dissolution of the family which even today, despite all the new trends, is the fundamental unit of society on which the stability of the world depends?”. And on 598–599: “If the court must choose between two value-based approaches, one of which seeks to maintain the stability of the family, as long as all hope is not lost, and the other of which is likely to encourage a partner to act as he chooses, I believe that the first choice has preference.”

52 See for example: Carter, Stephen L., “‘Defending Marriage:’ A Modest Proposal” (1998) 41 Howard Law Journal 215 Google Scholar; Brooks, Michele Brewer, “The Biblical View of Marriage: Covenant Relationship” (1999) 12 Regent U. L. Rev. 125 Google Scholar.

53 For the renewed use of claims based on “natural law” in the context of marriage law, see for example: Lee, Patrick. and George, Robert P., “What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union” (1997) 42 Am. J. Juris. 135 CrossRefGoogle Scholar; Finnis, John M., “Law, Morality and ‘Sexual Orientation’” (1994) 69 Notre Dame L. Rev. 1049 Google Scholar. For a critical analysis of these arguments per se, and of the legitimacy of their use, See Culhane, John G. “Uprooting the Arguments against Same-Sex Marriage” (1999) 20 Cardozo L. Rev., 1119, at 1198 et seq.Google Scholar

54 The distinction presented in this paragraph is largely consonant with that made by William Galston between the Intrinsic Traditionalist, who believes that tradition has value in its own right, and the Functional Traditionalist, who supports traditional institutions because of the social value he identifies therein. As Galston explains, the position of the Functionalist Traditionalist may often match liberal policy. For this distinction by Glaston and its use in the context of family law, See: Galston, supra n. 22. Our distinction may also integrate with that applied in German constitutional discourse between rational grounds and historical, cultural and religious grounds. On this aspect See Krause, Harry “Marriage for the New Millennium: Heterosexual, Same Sex, or Not at All?” (2000) 34 Family L.Q., 271, at 285 Google Scholar.

55 See, for example: Galston, William “A Liberal-Democratic Case for the Two-Parent Family” (1990) The Responsive Community 14 Google Scholar; and Wax, supra n. 33.

56 See for example, the sources quoted in: Bradford, Laura, “The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws” (1997) 49 Stan. L. Rev. 607 CrossRefGoogle Scholar, at fn. 11, according to which almost all the ills of modern society are related in one way or another to the crisis in the family. See also Selznick, Philip “The Idea of Communitarian Morality” (1987) 75 Cal. L. Rev. 445, at 452 CrossRefGoogle Scholar; PatrickMoynihan, Daniel Family and Nation (Florida, Harcourt Brace, 1986)Google Scholar; Popenoe, David, Disturbing the Nest; Family Change and Decline in Modern Societies (New York, Aldine de Gruyter, 1988)Google Scholar; Whitehead, Barbara Dafoe, “Dan Quayle Was Right” (1993) 271 The Atlantic Monthly 47 Google Scholar.

57 See for example: Gardbaum, supra n. 21.

58 See Gardbaum, ibid.

59 I discussed this in depth in Lifshitz, supra n. 3, at 768–766

60 On this matter, see the pioneering article of Atiyah, Patrick S., “From Principle to Pragmatism: Change in the Function of the Judicial Process and the Law” (1980) 65 Iowa L. Rev. 1249 Google Scholar.

61 Extensive literature exists on this aspect in various fields. In the field of damages, for example, See Fletcher, George P., “Fairness and Utility in Tort Theory” (1972) 85 Harv.L.Rev. 537 CrossRefGoogle Scholar. See also Englard, Izhak, The Philosophy of Tort Law (Dartmouth, Aldershot, 1993)Google Scholar, Porat, Ariel “Negligence and Interests” (5761) 24 Iyunei Mishpat 275 Google Scholar [in Hebrew], and Gilad, Yisrael, “On the Limits of Deterrence in Damages Law” (5753) 22 (2) Mishpatim 421 [in Hebrew]Google Scholar. In the field of contract law, See Porat, Ariel, “Considerations of Justice between the Contractual Parties and Considerations of Behavioral Direction in Israeli Contract Law” Iyunei Mishpat (5759) 22 647, at 657–667 Google Scholar [in Hebrew] and the sources quoted therein.

62 For fascinating analyses of the functions inherent in family law, See Eekelaar, John, Family Law and Social Policy (London, Fred B. Rothman & Co, 1978)Google Scholar. Eekelaar discusses conflict resolution and protection of weaker parties and, to a lesser extent, support for the stability of intimate relations. For the use of Eekelaar's insights, See: Shifman, supra n. 1, at 163). Cf Schneider, Carl E. and Brinig, Margaret F., An Invitation to Family Law (St. Paul, Minn., West, 1996)Google Scholar. See also Schneider, supra n. 32, which discusses the guiding function of family laws, and Weisbrod, Carol, “On the Expressive Functions of Family Law” (1989) 22 U.C. Davis L. Rev. 991 Google Scholar.

63 In recent decades, the view that marriage is a superfluous institution, and the consequent call to abolish it, has been widely manifested in legal literature. See for example: Hoggett, B., “Ends and Means: The Utility of Marriage as a Legal Institution” in Elkelaar, John M. and Kaats, Stanford N., eds. Marriage and Cohabitation in Contemporary Societies (Toronto, Butterworths, 1980) 94 Google Scholar; Clive, Eric M., “Marriage: An Unnecessary Legal Concept?” in Elkelaar, John M. and Kaats, Stanford N., eds. Marriage and Cohabitation in Contemporary Societies (Toronto, Butterworths, 1980) 71 Google Scholar. See also: Kandoian, Ellen, “Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life” (1987) 75 Geo. L.J. 1829 Google Scholar. A similar conclusion emerges in the work of Rraus, supra n. 44, and Fineman, Martha Albertson, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (New York, Routledge, 1995) 5–6 Google Scholar (in a slightly different context: See also Shifman, supra n. 1 ff). It is important to note that although all the authors mentioned in this note discuss the possibility of abolishing marriage as a legal institution, they sometimes blur the distinction between two legal models, According to one model, which recalls the liberal intuition that seeks to apply marriage law to cohabiting couples, formal marriage is abolished, but the law continues to attribute to sociological marriage legal consequences that were formerly attributed to legal marriage. According to the other model, reflecting the “radical” approach, the law completely abolishes the legal significance of marriage, confining itself to applying regular law to the relations between couples. A careful review of these studies in light of this distinction will reveal that Kandoian is effectively proposing the former model, and Kraus and Hoggett are also close to this position. Fineman clearly supports the latter model, while Clive's position is ambivalent.

64 See Lifshitz, Contractual Regulation, supra n. 21, ch. 12, part 3.

65 For a representative article, See Young, Iris M., “Mothers, Citizenship and Independence: A Critique of Pure Family Values” (1995) 105 Ethics 535 CrossRefGoogle Scholar: as well as Fineman, supra n. 63. For a description of this stream, see Katherine T. Bartlett, “Saving the Family from the Reformers” (1998) 31 U.C. Davis L.Rev. 809, as well as Lifshitz, ibid.

66 For an extremely forceful example of this, see Fineman, Martha and Opie, Anne, “The Uses of Social Science Data in Legal Policymaking: Custody Determination at Divorce” (1987) Wis. L Rev. 107 Google Scholar. See also Dowd, Nancy E., In Defense of Single-Parent Families (New York, New York University Press, 1997)Google Scholar. More recently, however, cf. Bahr, Stephen J., “Social Science Research on Family Dissolution: What it Shows and How it Might Be of Interest to Family Law Reformers” (2002) 4 Journal of Law and Family Studies 1 Google Scholar.

67 Young, Iris M., “Making Single Mothering Normal” (1994) 41 Dissent 88 Google Scholar; cf. Dowd, ibid.

68 See; Dowd, ibid. and Fineman, supra n. 63.

69 Dewar, CF John and Parker, S., “English Family Law since World War II: From Status to Chaos” in Katz, Sanford N., Eekelaar, John and Maclean, Mavis, eds. Cross Currents: Family Law and Policy in the US and England (Oxford, Oxford University Press, 2000) 123, at 131 Google Scholar.

70 See Carbone, June, From Partners to Parents: The Second Revolution in Family Law (New York, Columbia University Press, 2000)Google Scholar.

71 Krause, Harry D., “Child Support Reassessed: Limits of Private Responsibility and the Public Interest” in Sugarman, Stephen D. and Kay, Herma H., eds. Divorce Reform at the Crossroads (New Haven, Yale University Press, 1990) 166 Google Scholar. See also Dowd, supra n. 66, and Fineman, supra n. 63.

72 See supra at the beginning of this Part, section B para 2.

73 See supra Part II, Section A. para. 1.

74 See infra Part II, Section C. para 2.

75 See supra, Part II, Section B, Para. 4.

76 Ibid., para. 5.

77 See Lifshitz, supra n. 3, at 824

78 See supra, Part II, Section B, Para. 3.

79 However, it is important to emphasize that I am referring only to a situation in which a single person or couple asks the authorities to help him/her or them to obtain a child for adoption. By contrast, when the request for an adoption order is submitted in the context of a child who has already grown up in a family framework different from marriage, the response aspect of the law supports granting such an order. Accordingly, I feel that in such cases as addressed by the Supreme Court in H.C.J. 1779/99 Brenner-Kaddish v. Minister of Interior P.D. 44(2) 368, in which a female same-sex couple are actually jointly raising their children, it is appropriate to recognize existing reality and enable adoption by the non-biological parent.

80 As we shall see below, Israeli law does not ensure such a balance, and accordingly the courts focus on the right to parenthood while ignoring the additional aspects.

81 A characterization of the situations in which the right to parenthood exists, and discussion on the very existence of such a right, are beyond the purview of this study. Accordingly, in this framework I cannot offer a formula for balancing this right with the public interest in protecting the welfare of children. The only point I seek to make is that the right to parenthood, insofar as this exists, is not the sole determining factor in this context.

82 In this respect, my position is closest to that of the radical stream as presented above.

83 See Danielsen, Svend, “Unmarried Partners: Scandinavian Law in the Making” (1983) 3 Oxford J. Legal Studies 59 CrossRefGoogle Scholar, and, more recently: Kiernan, Kathleen, “The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe” (2003) 15 International J. of L. Policy and the Family 1, 3–8 Google Scholar.

84 For an in-depth discussion on the legal attitude to cohabiting partners in Germany, emphasizing the restrictions imposed by the constitution on efforts to improve their status, See Lucke, H. “Dividing the Assets on Family Breakdown: The German Civil Code” in Harris, Rebecca Bailey, ed. Dividing the Assets on Family Breakdown (Bristol, England, Jordan Publishing Limited, 1998) 29, at 50 et seq.Google Scholar

85 See Glendon, supra n. 2, ch. 6; Bruch, C.S., “Cohabitation in the Common Law Countries a Decade after Marvin: Settled In or Moving Ahead?” (1989) 22 U.C. Davis L. R. 717 Google Scholar; Devichi, Jacqueline Rubellin “Family Law: The Continuity of National Characteristics” in Commaile, J. and de Singly, F., eds. The European Family (Dordrecht, Kluwer, 1997) 45, at 56–58 Google Scholar; See Mee, John, The Property Right of Cohabits (Oxford, Oxford, 1999)Google Scholar. See also Hamilton, Carolyn and Standlry, Kate, eds. Family Law in Europe (London, Butterworth, 1995)Google Scholar. Accordingly, the review and findings in the text and the following footnotes will be based on these sources, as well as additional sources noted in these footnotes on an individual basis.

86 Thus in New Zealand, for example, several laws that originally related to married couples have recently also been applied to cohabiting couples, See Merin, Yuval, Equality for Same-Sex Couples (Chicago, University of Chicago Press, 2002) ch. 6CrossRefGoogle Scholar. Similarly, an extensive reform of cohabitation laws in New South Wales, Australia related not only to internal rights, but also third party rights. See Blumberg, Grace C. “The Regulation of Non-Marital Cohabitation: Right and Responsibilities in the American Welfare State” (2001) 76 Notre Dame L. Rev. 1265 Google Scholar, fn. 150 and the accompanying text. Similarly, in Portugal cohabiting partners enjoy numerous external rights, see Pais, Saiba O., “De Facto Relationship and Same-Sex Relationship in Portugal” in Bainham, Andrew, ed. The International Survey of Family Law – 2002 Edition (Bristol, International Society of Family Law, 2002) 337, at 339–342 Google Scholar.

87 See, for example, the Canadian ruling in Miron v. Trudel [1995] S.C.R. 18, which established that the discrimination against cohabiting partners in legislation relating to insurers' liability was unlawful.

88 See, for example, the ruling in Davis v. Employment Security Department 737 P.2d 1262 (Wash, 1987) and in Norman v. Unemployment Insurance Appeals Board 663 P.2d 904 (Cal. 1983), in which the Supreme Courts of Washington and California, respectively, rejected claims for compensation by women who left their place of work in order to move to the place of residence of their unmarried partner. For a contrary ruling, See Dunphy v. Gregor, supra n. 46.

89 See, for example, the ruling in Peffley-Warner v. Bowen 113 Wn.2d 243; 778 P.2d 1022; 1989 Wash, in which the Supreme Court in Washington rejected a claim by a woman whose unmarried partner died to receive benefits from Social Security.

90 Thus, for example, in Germany recognition of the rights of cohabiting partners is relatively limited – see supra n. 84. Another prominent example of the limited recognition of the external rights of cohabiting couples is provided by many states in the USA in which fundamental components of marriage law are not applied to cohabiting couples. See, for example, the positive review in Ellman, Ira Mark, Kurtz, Paul M. and Scott, Elizabeth S., Family Law (Charlottesville, Lexus Publishers. 3rd ed., 1998), 988–996 Google Scholar, and American Law Institute Principles of the Law of Family Dissolution: Analysis and Recommendations (2002)s 6/01 comment a. The ALI itself has maintained this policy and has not discussed the rights of cohabiting partners vis-à-vis third parties. On these trends in most nations that follow the British legal tradition, see Harris, Leslie J. and Teitelbaum, Lee E., Family Law (New York, Anderson Publishing, 2nd ed., 2000) 230 Google Scholar.

91 For criticism that the American legal system has focused on the financial relations between the parties, ignoring their external rights, see Ertman, Martha M., “The ALI Principles Approach to Domestic Partnership” (2001) Duke J. Gender L. & Pol'y 107 Google Scholar. Note that even in Washington, where rulings have considerably expanded the internal rights of cohabiting couples a very conservative approach has been maintained in terms of the rights of cohabiting couples.

92 For the general trend in Canadian law to narrow the gap between cohabiting couples and married couples, see Bala, Nicholas and Jaremko, Rebecca, “Non-Marital Unions, Finality of Separation Agreements and Children's Issues” in Bainham, Andrew, ed. The International Survey of Family Law – 2002 Edition (Bristol, International Society of Family Law, 2002) 111 Google Scholar.

93 A recent ruling by the Canadian Federal Supreme Court emphasized the obligation to distinguish between marriage and cohabitation. See Nova Scotia (Attorney General) v. Walsh 2002 Can. Sup. Ct. LEXIS 99; 2002 SCC 83 (note that while this ruling related to the internal aspect of the relations, the analysis emphasizing the substantive difference between the institutions also applies to the realm of external relations).

94 See Lifshitz, supra n. 3, at 778–780

95 On this point, see, for example Dewar and Parker, supra n. 69; Carbone, supra n. 70; Krause, supra n. 73; and Krause, supra n. 56.

96 On the fact that even in Western civil states there are those who have reservations about the institution of marriage due to its historical, social and gender context, see Kogan, Terry S., “Competing Approaches to Same Sex Versus Opposite Sex, Unmarried Coupels in Domestic Partnership Laws and Ordinaces” 2001 B.Y.U.L. Rev. 1023, at 1032–1033 Google Scholar. See also Payne, Julien W. and Canadian, Marilyn A. Payne, Family Law (Toronto, Irwin Law, 2001) 50 Google Scholar.

97 For a similar idea, see Chambers, David L., “For The Best of Friends and Lovers of All Sorts, A Status Other Than Marriage” (2001) 76 Notre Dame L. Rev. 1347 Google Scholar. As will be detailed below, institutions of this type have recently been established in numerous Western countries, although in some cases the reasons for the establishment of the institution relate to the need to fins a solution for same-sex intimate relations.

98 In this respect, my position differs from that of the American scholar Chambers, who proposed the establishment of a registry of couples whose members would enjoy the rights of married couples, despite the fact that their internal commitments would be less than those pertaining to married couples. See Chambers, ibid. As I explained at length in presenting the public argument, I believe that there must be a correlation between the scope of rights and the scope of commitment of cohabiting couples. However, it may be possible to consider the establishment of an intermediate institution in which couples will accept part of the commitments of married couples, and will therefore be entitled to part of the rights.

99 For the tension between the recognition of the cohabitation relationship and the religious view point, See, for example, the comments of Justice Silberg in C.A. 337/62 Rizenfeld v. Yakobson 16(2) P.D. 1009, at 1021 (hereinafter: “the Rizenfeld case”); Tedeschi, Gad, “Family Crisis and Traditionalists” in Tedeschi, Gad, ed. Legal Studies in Memory of A. Rozenthal (Jerusalem, Magnes 1964) 282, 324 [in Hebrew]Google Scholar; Shifman, Pinchas, Who is Afraid of Civil Marriage (Jerusalem, the Jerusalem Institute for Israel Studies, second ed., 2000) 33–35 Google Scholar, and the sources referred to there at note 30; and Rozen-Zvi, supra n. 1, at 132 and 306. For the removal of the hearings on cohabitation from the Rabbinical courts, See H.C.J. 673/89 Meshulam v. Great Rabbinical Court, 45(3) P.D. 594 and recently H.C.J. 4122/02 Bat Chen Groni v. Great Rabbinical Court in Jerusalem, Tak-Al 26(4) 2003 See also Rozen-Zvi, Ariel, “Family Law” in Rozen-Zvi, Ariel, ed. Israeli Law Year Book – 1992–1993 (Tel-Aviv, Israel Bar Association, 1994) 267, 279–282 Google Scholar.

100 The Succession Law, 1965, S.H 63.

101 The Names Law, 1973, S.H. 94.

102 The Family Courts Law, 1993, S.H. 393.

103 See, for example, Section 3 of the Evidence Ordinance (New Version), 1971, K.T. 421: prohibition on testifying against a spouse; Section 3 of the Adoption of Children Law, 1981, S.H. 293: the right to adopt a child; the Litigation between Spouses (Regulation) Law, 1969, S.H. 151: staying a civil action in order to restore domestic peace.

104 For a particularly detailed review of the laws dealing with cohabiting couples, see Shava, Menashe, “The Cohabitee – Defining her Status and her Rights” (1973) 2C Tel Aviv Studies in Law 484, 484–492 (the first vol. is from 1975)Google Scholar; what type is it format Shelach, Chaman P., “The Cohabitee” (1975) 6 Mishpatim 119, 120–128 Google Scholar also type of publication. For a more recent review see Ben-Dror, Amnon, The Cohabitee in Israel – Wedded Without Marriage (Tel Aviv, Yaalom, 3rd ed., 2000), ch. 2Google Scholar.

105 For a definition of cohabiting couples in case law and legislation, see, for example Friedman, supra n. 11, 461–463. Shava, ibid., at 137–150, and Ben-Dror, ibid., at chapter 1. For the growing trend towards easing the threshold conditions for being acknowledged as a cohabitee, See Rosen-Zvi, supra n. 1, at 304; and more expansively, Rosen-Zvi, Ariel, “Israel: An Impasse” (1991) 29 J. of Family Law 379, 382–383 Google Scholar. For clear examples, See supra part II sec B Para 5

106 For the origin of this expression, see Friedman, supra n. 12, at 474.

107 See, H.C.J. 73/66 Zmulon v. Minister of the Interior 20(4) P.D. 645 (hereinafter: “the Zmulon case”) and H.C.J. 243/71 Iyzik v. Minister of the Interior 26(2) P.D. 33 (hereinafter: “the 2^nd Iyzik case”).

108 See H.C.J 693/91 Ephrat v. Officer Responsible for the Population Registry 47(1) P.D. 749 (hereinafter: “the Ephrat case”). For the importance of this case, See Rosen-Zvi (Year Book), supra n. 99, at 268. According to Rozen-Zvi, the Ephrat case hints at the willingness of the court to deal with matter of an ideological nature and grant symbolic rights as well as more substantive rights.

109 See H.C.J. 6086/94 Ella Nazri v. Officer Responsible for the Population Registry 49(5) P.D. 693 (hereinafter: “the Nazri case”).

110 C.A. 2000/97 Lindorn v. Karnit, 55(1) P.D. 12 (hereinafter: “the Lindorn case”). In this case the court held, contrary to earlier precedent, that the term “spouse” in Section 78 of the Civil Wrongs Ordinance embraced cohabiting couples. Consequently, the court held that the cohabiting couples of the victims could also obtain financial compensation under that section. In this the court departed from its earlier policy refusing to extend rights to cohabiting couples which had not been expressly conferred by statute.

111 See A.P.O.H. 1/80 Levy v. Court Director 36(4) P.D. 123. See also F.H. 13/84 Levy v. Chairman of Finance Committee of the Knesset, 41(4) P.D. 291,295; C.A. 640/82 Cohen v. Attorney General, 39(1) P.D. 673; C.A. 155/87 Ochion v. Hasneh (unpublished) referred to in Shava, Menashe, “The Significance of ‘Spouse’ in Legislation in the Light of Basic Law: Human Dignity and Liberty” in Barak, Aharon and Shava, Menashe, eds. Mincha Le'Yizhak (Jerusalem, Israel Bar Association, 1999) 197 Google Scholar, n. 5 [in Hebrew][ which dealt with the same matters as the Lindorn case (the definition of dependants for the purpose of the Civil Wrongs Ordinance), and did not include cohabiting couples among the dependants].

112 Thus, for example, recently in C.A. 2622/01 Manager of Land Betterment Tax v. Aliza Lebanon (unpublished), the court continued this policy by granting cohabiting couples tax benefits available to married couples, without seeking express legislative authority. For additional recent rulings in various areas where the court equalized the status of cohabiting couples with those of married couples, see infra sec B para 1 and 2.

113 See, for example, the rulings in C.A. 4385/91 Salem v. Karmi, 51(1) P.D. 337 (hereinafter: “the Salem case”) and T.A.Z. (Tel-Aviv) 3693/90 Amir v. Zeger (unpublished).

114 See infra Para. 1 This was also pointed out by the late Prof. Shava, who stated that the legal recognition of cohabiting couples in Israel has no parallel in other systems in the world. See Shava, Menashe, “Known in Public as His Wife – A Definition of Her Status and Rights” (5733) 3 (2) Iyunei Mishpat 484 [in Hebrew]Google Scholar.

115 See supra n. 114–112

116 Note that the ruling in the Lindorn case is that a provision in an act of legislation relating to a “partner” may also apply, if necessary for the purpose of the act of legislation, in the case of cohabiting partners, even if this is not explicitly established in the said act of legislation. Accordingly, at least in formal terms, the ruling prevents the application of marriage law to cohabiting couples in any case in which the law explicitly uses the words husband and wife. Additionally, the ruling recognizes that there will be situations in which the purposeful interpretation of the law will lead to the conclusion that, in a particular context, the word partner does not include cohabiting partners. Accordingly, it cannot be argued that the ruling is tantamount to the complete equation of the status of married and cohabiting couples. However, as will be explained below in this chapter, the Lindorn ruling and subsequent rulings reveal a clear trend to extend the rights of cohabiting couples.

117 As mentioned, until the Lindorn ruling the rights of cohabiting couples were restricted to those cases where this is mentioned explicitly in the law.

118 Many of the laws granting rights to cohabiting couples are indeed social in character — see the list of laws in Ben Dror, supra n. 106

119 Thus, for example, until the ruling in the Lebanon Case, supra n. 112, in the case of real-estate transactions not involving residential apartments, only transactions between married partners were entitled to an exemption in accordance with Article 62(A) of the Real Estate Taxation (Betterment, Sale and Purchase) Law, 1963, S.H. 156 (hereinafter – “the Real Estate Taxation Law”).

120 According to Ministry of Housing guidelines, unmarried couples are entitled to assistance as individuals, but two eligibilities may not be combined to purchase a single apartment. See Shalev, Carmel, “Freedom of Association in Marriage and Joint Life – Joint Life and Marriage outside Religious Law” in Radai, P., Shalev, C. and Koby, M. Liban, eds. The Status of Women in Society and Law (Tel Aviv, Shoken, 1995) 459, 497 Google Scholar.

121 See Article 8 1) of the Dismissal Compensation Law, 5723–1963 (hereinafter “the Dismissal Compensation Law”), which establishes that the relocation of a place of residence on marriage constitutes resignation eligible for compensation. By contrast, the right to receive dismissal compensation for a deceased partner has a clearly social character, and is also awarded to cohabiting partners, see Article 5(a) of the Dismissal Compensation Law. Similarly, the right to resign due to the sickness of a partner and to receive dismissal compensation has been granted to cohabiting partners, see Article 6 of the above-mentioned law, as well as Regulation 1 of the Dismissal Compensation Regulations (Calculation of Compensation and Resignation considered as Dismissal), 5724–1964.

122 Thus, for example, in accordance with Regulation 20A of the Real Estate Betterment Tax Regulations (Purchase Tax), 1974, K.T. 140 (hereinafter: “the Purchase Tax Regulations”), the sale of an asset without remuneration in a residential apartment between cohabiting partners incurs reduced payment of purchase tax, whereas the same action between married partners is completely exempt from purchase tax – see Regulation 21 of the Purchase Tax Regulations.

123 See Section A, Para. 3 of the Evidence Ordinance (Revised), 1971, S.H. 10.

124 For a similar analysis of the legal situation in Israel and the reasons therefore, see Shifman, supra n.1, at 159 ff.

125 See C.A. 640/82 Kohen et al. v. Attorney-General P.D. 39(1) 673, in a ruling by Judges Ben Porat, Shamgar and Barak (note that although in this specific case Judge Barak dissented from the opinion of Judges Ben Porat and Shamgar and approved the agreement, his comments suggest that he shared the principled position of the other judges mentioned, that an agreement between cohabiting partners cannot be authorized; accordingly, Judge Barak emphasizes that the authorization is granted due to the specific circumstances of the verdict, namely the presence of a private marriage between partners unable to marry).

126 In particular, see the comments of Judge Ben Porat in the ruling, ibid., at 685–687.

127 See the discussion of the “names war”, supra n. 114–112.

128 See supra n. 110.

129 See the comments by Judge Barak in para. 12 of his ruling: “When a cohabiting partner is effectively dependent on the deceased, with whom she maintained an intimate relationship and managed a joint home within the framework of a united family – she is to be seen as the “partner” of the deceased for the purpose of her claim as a dependant…” Further on: “The death of the deceased leads to injury to the dependence of the cohabiting partner on the deceased, in the same manner that it leads to injury to the dependence of a married woman no the deceased.” And further on again: “Why should her portion in the matter of her right as a dependant be less than that of a married woman? The right of a dependant woman to compensation on account of the death of her husband in accordance with the Damages Ordinance is not acquired because she married him properly, but because she lost her provider.” (Emphasis added S.L.). Similar comments appear throughout the ruling – see, for example, paras. 16,18 and 19 of President Barak's ruling.

130 See paras. 13–16 of President Barak's ruling in the Lindorn case. See also the Levanon case, supra n. 112, in para. 3 of President Barak's ruling, which states: “A distinction between married couples and cohabiting couples in the matter of betterment tax and purchase tax arrangements is improper discrimination contrary to the principle of equality.”

131 See Article 16 of the Names Law, supra n. 101. H.C.J. 693/91 Efrat v Population Registry Officer P.D. 47(1) 749; and H.C.J. 6086/94 Alla Nazri v Population Registry Officer P.D. 49(5) 693.

132 See Article 62B) of the Real Estate Taxation Law, which provides equal status for married and cohabiting couples in all matters relating to the sale without remuneration of the couple's residential apartment. See also the Levanon case, op. cit, n. 121, in which the court applied to cohabiting couples the exemption from betterment tax established in Article 62A) of the law to transactions for the sale of a right to real estate without remuneration for assets other than the couple's residential apartment.

133 See C.C. 6854/00 Attorney-General v. Zemer (not yet published). However, in its verdict the court defines as “requiring study” the question as to whether the Financial Relations Law applies to cohabiting couples, basing its decision to authorize the agreement on a specific article in the Family Affairs Courts Law. The court determined that, within the framework of Article 3C of the law, the court is empowered to authorize agreements of all types between cohabiting partners, including agreements relating to financial affairs. Prior to the issuing of the Zemer ruling, the Family Affairs Court in Beer Sheva issued a decision by Judge Alon-Laufer authorizing the pre-nuptial agreement made by cohabiting partners, and granting it the status of a ruling. On this matter, see F.C. (BS) 8510/01 Anonymous v. Anonymous (unpublished).

134 See Article 20A of the Tenant Protection Law, 1972, S.H. 176 which permits a tenant to bring into his apartment his cohabiting partner, and establishes the right to protected tenancy, provided that the partners have lived in the apartment for at least six months. See also C.C. 4100/97 Rinder v Viseltir P.D. 52(4) 580 (hereinafter: “the Rinder ruling”) which establishes that the eligibility of a cohabiting partner in accordance with the law overrules the clause in the standard rental contract prohibiting the transfer of the right of possession or use of the premises without the lessor's consent.

135 See C.A. 1165/01 Anonymous v Attorney-General P.D. 57(1) 69 (hereinafter: “the case of Anonymous v. the Attorney-General”) in which the court enabled a man's cohabiting partner to adopt his son, a major. In this case, however, the court utilized the special provisions in the adoption laws (particularly a combination of Article 3 (2) and Article 25 (2) in the Child Adoption Law, 1981 H.H. 1533 (hereinafter: “the Adoption Law”)), and accordingly this ruling did not reach a final decision as to whether Article 3 (1) of the Adoption Law, which permits a person to adopt the child of his partner also applies to a cohabiting partner. See also the principled reservation of Judge Heshin, in H.C.J 2458/01 New Family v. Committee for the Authorization of Fetal Surrogacy Agreements (not yet published) regarding the position of the Adoption Law that “there is no adoption other than by a man and his wife jointly.”

136 Thus, for example, in the case of the Tenant Protection Law, I believe that against the desire to direct people toward the framework of family marriage and the property rights of the apartment owner, significant weight is to be given to the injury to a protected tenant who is unable to live in his protected apartment with his partner. Accordingly, I believe that the Rinder ruling is logical. Similarly, in the above-mentioned case of Anonymous v the Attorney-General, the daughter of the biological father actually raised the child after his mother's death; moreover, it was the child himself – who was a major by this point – who initiated the adoption application. In these circumstances, our position would also validate existing reality and approve the adoption.

137 Thus, for example, the desire to encourage intimate relations might actually create a public interest to encourage cohabiting couples to form agreements, and this interest might justify the Zemer ruling.

138 Thus, for example, in the Zemer case, supra n. 133, in para. 8 of her ruling, Judge Dorner states: “Secondly, and most importantly, the purpose of these two acts of legislation – the Financial Relations Law and the Family Affairs Courts Law – is not to create a distinction between married couples and unmarried couples.” Similarly, in the Efrat case, supra n. 131, on page 784, Judge Barak clarifies that the gap between the status of marriage and the institution of cohabitation does not reflect the public good in Israel. He subsequently determines that there is no room for the argument that the public good in Israel lies in maintaining or even extending this gap (later in his comments, however, President Barak notes that it should not necessarily be stated that narrowing this gap reflects the public good in Israel). (In this context, see also the claim by the late Prof. Rosen Zvi that in the Efrat case, op. cit., an important step was taken toward recognizing the institution of cohabitation. See Ariel Rosen-Zvi, supra n. 99, at 268. Contrary to the position of the majority judges in the rulings discussed here, the minority judges showed greater sympathy for the public argument for preferring legal marriage. Thus, for example, Judge Strassberg Cohen in the Levanon case, supra n. 112 fn. in para. 15 that: “the institution of marriage is still a central institution in society that the public good requires be protected, including from injury by the institution of cohabitation, although this is no longer perceived as contrary to the public good.” In later stages of her response to President Barak's ruling, however, a certain retreat from this position is apparent; for example, see para.18 of the ruling). Similarly, there have been cases in which some of the majority judges have sought to present an independent explanation emphasizing their commitment to the public argument for preferring legal marriage. Thus, for example, the ruling of Judge Ilan in the Lindorn case emphasizes concern at the injury that may be caused to the institution of marriage by the extensive recognition of the rights of cohabiting couples. Similarly, Judge Engelaard in the Zemer case, supra n. 133, notes that the existing legislation blurs the distinction between the institutions of marriage and cohabitation. Against this background, he believes that a policy that distinguishes between agreements between married partners, to be made in accordance with the Financial Relations Law, and the authorization of agreements between cohabiting partners, which will be effected in accordance with the Family Affairs Courts Law, is a desirable policy.

139 See H.C.J. 998/96 Yerus Hakak v Director-General, Ministry of Health (unpublished) which recognized the full and equal right of a lesbian couple to receive artificial insemination services, nullifying the regulations that established that, in the case of an unmarried woman, a preliminary opinion would be required from professionals as a condition for receiving artificial insemination services.

140 See the New Family case, supra n. 135, which discussed the argument that the provision in the Agreements for Fetal Surrogacy (Authorization of Agreement and Status of Newborn) Law, 5756–1996 establishing that only a couple may form an agreement with a surrogate mother in order to have a child is a discriminatory provision.

141 See supra n. 135.

142 See supra Part II, Section C. para 5.

143 See, in particular, paras. 23–25 of Judge Heshin's ruling in the New Family case.

144 Thus, for example, in the Yerus Hakak case, the court nullified the Insemination Regulations, despite the fact that these regulations did not prohibit artificial insemination in the case of an unmarried woman, but rather demanded a psychological opinion in such cases. This position reflects an evident rejection of any argument relating to the differences between childrearing in the framework of marriage and childrearing in an alternative framework. Similarly, all the judges in the New Family case, with the exception of Judge Engelaard, forcefully expressed the position that there was no justification for preventing a single woman from using surrogacy services (although, due to the newness of the law, they ultimately preferred not to nullify its provisions). Judge Heshin's position is particularly clear. As I have already noted, Judge Heshin has strong reservations with the provisions of Article 3 of the Adoption Law, which states that “there is no adoption other than by a man and his wife jointly.” According to Judge Heshin, ibid., p. 773: “I am not at all convinced that the provision of the Adoption Law is a proper provision for our time and place, and all the more so I am doubtful whether it deserves to serve as model to be extrapolated from the article in the Adoption Law establishing that, excluding the detailed exceptions, there is no adoption other than by a man and his wife jointly.”

145 Judge Heshin's ruling in the New Family case, supra n. 135 may also serve to illustrate this aspect. Heshin opposes the argument that “it is a social convention… that a child requires a mother and a father – a pair of parents and not a single parent,” considering this argument to be improper discrimination. See Heshin's comments at 775: “I shall find it difficult to accept that an ‘accepted social perception’ – per se – acquire the force to support a claim of equality or overcome a claim of discrimination. The concept of equality and its partner, the prohibition of discrimination, are concepts drawn from the field of values: good and not good, proper and improper, just and unjust, fair and unfair. An ‘accepted social perception’ is not such, essentially being no more than the description of an existing reality without expressing an opinion on that perception in value terms. The placing of an ‘accepted social perception’ alongside the values of equality and the prohibition of discrimination, as if these were – always and without reservation – concepts that have a common denominator entails, in my opinion, the admixture of distinct matters.” Heshin completely ignores the possibility that the social perception is also rooted in psychological logic. Moreover, he does not address the possible argument that even if there is no substantive logic in the supposition that marriage constitutes a better framework for childrearing, existing social perceptions are themselves liable to injure children growing up in non-family frameworks.

146 Supra n. 121.

147 Ibid., para. 13 of her ruling on the discrimination against married couples in tax laws. This argument has already been raised by Professor Shiffman, supra n. 101, 26–27. See also Shalev, supra n. 120, p. 496. Cf. the recent ruling of the Supreme Court in H.C. J. 900/01 Ron Klass v Assessing Officer 4 (unpublished) in which the cases in which the unified calculation is applied were restricted, thus limiting discrimination against married couples in this context. For a similar critique relating to Portuguese law, see Pais, supra n. 86, at 341.

148 See Article 1 of the Single-Parent Families Law, 1992 S.H. 147. On this point, however, the law has been amended, establishing that a “single parent” is a parent who is not married and has no cohabiting partner. A further incentive against marriage is embodied in the mortgage laws. It emerges that the mortgage benefit for a single mother is higher than that for a married couple – a further incentive not to marry. On this subject, See para. 4.5 in Judge Rothschild's ruling in the case of K.N. v K.N., in which the court notes that, according to the man, the difference is $ 5,000 (!), and this is why the parties refrained from marrying.

149 See the Families of Soldiers Killed in Action (Payments and Rehabilitation) Law, 1950, S.H. 162. which establishes, in Article 12(A), that a widow who remarries loses her eligibility to payments from the date of her marriage.

150 On the desire not to lose a pension as a reason to choose cohabitation, See Friedman, supra n.12, at 459, 461. Indeed, most of the laws relating to the financial rights granted due to bereavement of a partner state that these are provided so long as the surviving partner does not remarry. See, for example, in the context of the right to alimony from the estate (Article 57(A)1 of the Inheritance Law); the right to retirement pension to a surviving partner (Article 28(A)1) of the Civil Service (Pensions) Law [combined version], 1970, S.H. 65. See also Article 135(A) of the National Insurance Law [Combined Version], 1995, S.H. 205, which states: “If the widow remarries, her eligibility to the pension will expire.” By contrast, cohabitation does not provide such benefits. For a description and critique of this situation, See Shiffman, supra n. 101, pp. 26, 32. A recent ruling by the Haifa District Labor Court in N.I. 3740/00 Kalika v National Insurance (unpublished) further strengthens the incentive for widows not to marry. According to this ruling, a widow who lived with a cohabiting partner during her period of widowhood will, after the death of the cohabiting partner, be recognized for two pensions, both as the widow of the first partner and as the widow of the second. By contrast, according to Article 135 of the National Insurance Law, a period of marriage of the widow exceeding ten years perpetually nullifies her right to a pension on account of the first partner.

151 See C.C. 481/73 Rosenberg v Stesse P.D. 29(1) 505 where a person was granted the right to sheltered housing because he was the cohabiting partner of a woman who, while alive, received a pension as a single widow. See also the criticism of Judge Y. Cohen on this point.

152 Thus, for example, a phenomenon has recently been seen of people who formally divorce, but continue to live with their partners, in order to receive the benefits of single-parent families. On this, see, for example, the article by Rabin, A. “Dozens of Single Parents Have a Providing Partner” in Ma'ariv, August 31, 2003 Google Scholar. For an illustration of the phenomenon, see also the facts in N.I.A. 405/97 Boretzky v- National Insurance Institute (unpublished). For an effort to confront the problem, see N.I.A. Aluf Einat v National Insurance Institute (unpublished) and L.C. 53/290–0 Par'oni v National Insurance Institute (unpublished). Another type of fictitious divorce is found mainly among the Bedouin population, reflecting a desire to take additional wives while avoiding the charge of bigamy. For efforts in the rulings to cope with these phenomena, see, for example, L.C.A. 49/136–04, Aziza Alabid et al. v. National Insurance Institute, P.D. Avoda 29(309) and L.C.A. 750/150–04 Abu Adra v National Insurance Institute P.D. Avoda 29(94). However see the lenient attitude adopted recently by the National Labor Court in L.C.A. 56/257–04, Lustig u. National Insurance Institute (unpublished). In a slightly different context, the courts have facilitated the possibility for a person living with their cohabiting partner to receive the rights granted to single persons. See the recent ruling in I.N. 1118/01 Sopkia v. National Insurance Institute (unpublished) in which the court granted income supplement to a woman despite her declaration before a National Insurance investigator that she lives together with her son's father. The court argued that the woman did not understand the concept of a cohabiting partner, and that the relationship between the woman and her son's father are purely romantic.

153 This is effectively the argument made by Judge Strassberg-Cohen in the Levanon case, supra n. 121. See para. 12 of her ruling, which states: “Married couples do not merely enjoy tax benefits, but are subject to other tax provisions that are stricter with them (for example, when a married person sells an apartment, his partner's apartments and the exemptions he enjoyed are also taken into account in calculating tax liability). Imposing certain benefits on cohabiting partners without imposing all the obligations that apply to married couples would have a negative broad influence.” See also the comments of Shiffman, supra 101, at 33.

154 See, for example, C.A. 4341/99 Vidal v State of Israel P.D. 43(3) 329, in which Judge Strassberg-Cohen was inclined to adopt the position that Article 31 of the Dangerous Agreements Ordinance, 1973 S.H. 526 which establishes an assumption that the assets of the partner of a person convicted of being a drug dealer are the assets of the offender secured through the drugs offense – may be applied to cohabiting partners. See also L.C. 54/85–0 Ornan v National Insurance Institute (unpublished) which establishes that Article 8 of the National Insurance Law, which releases a housewife from the obligation of insurance, also applies to a cohabiting partner, and not only to a married woman. Judge Goldberg notes that although, in some cases, the status of a housewife is inferior to that of an insured woman, the law should be interpreted according to its objective and purpose, and “the legislator should not be assumed to have intended to award the ‘cohabiting partner’ only the honey, while saving her the sting.” Moreover, several laws exist that stipulate that life with a cohabiting partner does not permit a person to receive the rights of a single person. See for example, Article 1 of the Single-Parent Families Law, 1992, S.H. 147 Regarding the application of this law, see the recent ruling in L.C. 57/743–0 Abu Amra v. National Insurance Institute P.D. Avoda 98(10)48. See also Amendment 5 from 1988 to the Supplementary Income Law, H.H. 1731 which amended Article 1 of the law, establishing that cohabiting partners would not be considered single persons for the purpose of eligibility to supplementary income. However, as I have explained in the body of this study, it is extremely difficult to enforce these laws.

155 For a similar critique of the law in Portugal, see Pais, supra n. 86, at 341.

156 See Lindorn case, supra n. 110, at para. 18 of President Barak's ruling.

157 It is important to emphasize on this point that President Barak's ruing in the Lindorn case includes a measure of recognition of the difference that exists between the relationship of married and cohabiting couples. In para. 12 of his ruling, for example, he states: “Naturally, due to the absence of a proper married relationship, the chance may be present that the relationship between the cohabiting partner and the deceased would not have been maintained in the future. It is easier to sever the relationship of cohabitation than it is the relationship of marriage (See Shiffman, supra n. 1, at 158). This fact should be taken into consideration. It may be manifested in evaluating the chance of future dependence on the deceased were it not for the act of tort. It cannot be manifested in the total denial of this future dependence.” However, a careful review of the matter shows that the court recognizes the differences between the institutions solely regarding the chances of separation, and accordingly considers this a factual matter to be determined by the inferior court. (In this context, see also the comments of President Barak on pages 28, 34 and 42 of the ruling). By contrast, I argue that it is not only the factual question of the chances of separation that is important, but also the legal question as to whether a valid economic commitment existed between the parties; accordingly, the Supreme Court should have ruled on this aspect.

158 Supra, n. 121.

159 President Barak agrees on this – see para. 10 of his ruling, which states: “It is clear, however, that at the time that the 5754 amendment was made, the interpretative assumption of the legislator, forming the basis for this amendment, was that the provision of the general exemption from betterment tax for couples does not apply to cohabiting couples.” See also para. 11 of the ruling: “There is no doubt that the 5754 amendment was made against the background of the interpretative assumption of the legislator that the term ‘partner’ in the provision for the general exemption does not include cohabiting partners.”

160 President Barak is also fair enough to admit this argument – see para. 12 of his verdict: “On the one hand, it may be said that considerable weight should be attached to the interpretative assumption of the legislator in the 5754 amendment. Two principal considerations contribute to this, as noted by my colleague, Judge Strassberg-Cohen. Firstly, recognition of cohabiting partners as partners for the purpose of the general exemption from betterment tax would, to a certain extent, make the 5754 amendment (which specifically established an exemption for transactions of the transfer of a residential apartment between cohabiting partners – S.L.) superfluous. It is undesirable to give an original law an interpretation that makes its amendment superfluous. Secondly, the distinction created in the conditions required for receipt of the betterment tax for cohabiting couples regarding an asset other than a residential apartment and the conditions required of them for a special exemption from betterment tax regarding a residential apartment is unreasonable. “What logic is there in requiring, for the purpose of an exemption for a residential apartment, the condition that the cohabiting couple lived in the residential apartment for at least one year prior to the sale, while not requiring a similar condition in the sale of an asset other than a residential apartment? A similar anomaly is found in the case of purchase tax. For the purpose of an asset other than a residential apartment, a cohabiting partner is entitled to a partial exemption (“one-third of the usual additional tax:” Regulation 20 of the Regulations), without any requirement that the couple lived together for one year in the residential apartment prior to the sale. By contrast, in the case of a residential apartment, a cohabiting partner is entitled to a partial exemption (“one-third of the usual purchase tax:” Regulation 20A of the Regulations), provided that the conditions established in the 5754 amendment apply – viz., joint life for a least one year prior to the sale of the residential apartment. What reason is there in this distinction?”

161 See para. 3 of Justice Barak's ruling: “The foundation of the exemption (from betterment tax and purchase tax) is a social goal intended to facilitate internal family arrangements… A distinction between married partners and cohabiting partners for the purpose of betterment tax and purchase tax arrangements is improper discrimination contrary to the principle of equality.”

162 See para. 12 of Barak's ruling: “For our purposes, the principle of equality requires that there be no discrimination, in the matter of the general exemption from betterment tax and in the matter of the partial exemption from purchase tax in an asset other than a residential apartment, between a married couple and a cohabiting couple.”

163 See C.A. 4385/91 Salem v. Karmi P.D. 51(1) 337 (hereinafter: “the Salem case') as well as the earlier ruling in C.A. 52/80 Shachar v. Friedman P.D. 38(1) 443 (hereinafter: “Shachar v. Friedman”).

164 See the comments of Judge Matza in the Salem case, ibid., at 350–351: “The essence of the difference between the level of mutual commitment typical of the marriage relationship and that typical of the relationship between cohabiting partners is that the high level of commitment involved in marriage is inherent in the institution of marriage itself, and cannot easily be evaded by either partner, while the level of commitment between the cohabiting partners derives from the circumstances of the relations in a given case, and is entirely dependent on the fluctuating wills of the partners.”

165 Indeed, the exemption from betterment tax for the transfer of an asset also applies in the case of a transfer from parents to children and/or the reverse, in which cases there is obviously no element of legal joint assets.

166 On this aspect, see, for example, A. Smadar, Real Estate Betterment Tax – Exemption for Residential Apartments (5757), Chapter 3.

167 See Article 4A (transfer pursuant to divorce) in the Real Estate Taxation Law, which establishes that “the transfer of ownership of real estate… executed in accordance with a divorce ruling shall not be considered as a sale… for the purpose of this Law.”

168 For a rejection of the public arguments seeking to narrow the definition of cohabitation, See L.A. 30/19–0 Mano v. Social Security Institute P.D. Avoda 2(72) (hereinafter: “the Mano case.”)

169 The trend to facilitate the possibility for a person to be considered a cohabiting partner, particularly in cases in which the laws have a social tone, has been emphasized several times in rulings. For example: the Mano case, ibid., and L.C. 56/117–3 Boharon v. Aloush, (unpublished) (hereinafter: “the Boharon case”) L.C. 37/3–0 National Insurance Institute v. Aldar, unpublished; and, more recently, I.N. 1313/98 Simyon v. National Insurance Institute (unpublished) and the wide range of sources quoted in para. 14 thereof.

170 See Article 5 of the Dismissal Compensation Law, 1963, S.H. 163; Article 1 of the Families of Soldiers Killed in Action (Payments and Rehabilitation) Law, 1950, S.H. 162; Article 1 of the Disabled Veterans of the War against the Nazis Law, 1954, S.H. 76; Article 86 of the Penal Code, 1977, H.H. 25; Article 1 of the Prevention of Domestic Violence Law, 1991, S.H. 138; Article 1 of the Disabled Persons (Payments and Rehabilitation) Law, 1959 [Combined Version] S.H. 295; Article 21 of the Standing Service in the Israel Defense Forces (Retirement) Law [Combined], 1985, S.H. 141. Many other laws refer to the definition of cohabitation in these laws; accordingly, the definition of cohabitation in these laws and the absence of any demand for a minimum period of cohabitation is highly important.

171 See, for example, the Real Estate Taxation (Betterment, Sale and Purchase) Law, 1963, S.H. 156 which establishes, in Article 62(B) the condition of cohabitation in a sold residential apartment for a duration of at least one year prior to the sale. In addition, several laws require a minimum period of joint cohabitation even in the case of a married couple, and this requirement naturally also applies to cohabiting couples. See for example, Article 20Aof the Tenant Protection Law [Combined Version], 1972, S.H. 176 which requires a minimum period of cohabitation of at least six months. See also Article 11A(2) of the Inheritance Law, 5725–1965, which establishes that a partner who was married to an inheritor for 3 years or more, and who lived with him during this period, will receive his entire share in an apartment. See also Article 238 of the National Insurance Law, which establishes that the right to old age pension and survivor's pension is conditioned on the couple's having been married for at least one year. Court rulings – cf. I.N. 1826/99 Shelly Meir v. National Insurance – Haifa Branch (unpublished) have generally applied this rule in the case of cohabiting couples. See also Article 28A(1) of the Civil Service (Retirement) Law, 1970, S.H. 65 which requires a minimum period of three years as a condition for receipt of rights. For the strict enforcement of this requirement, see the recent ruling of the National Labor Court in L.A. 183/99, Aaron v. Supervisor of Pension Payments (unpublished).

172 Thus, for example, in the above-mentioned Aharon case, while the cohabiting partner's claim for a pension was rejected, her claim for a grant was accepted, since the legislation relating to the right of a cohabiting partner to a grant does not include any time restriction.

173 Thus, for example, in C.A. 621/69 Nissim v. Juster P.D. 24(1), 617, which related to the inheritance laws, the court established that a period of close to one year could be sufficient, provided that during this entire period the joint life took place on the basis of the same profound relations that generally exist between a legally-married husband and wife. In this respect, the court determined, on pp. 623–624, that: “There can be no doubt that such a period of time (viz. one year – S.L.) and even much shorter than that is certainly sufficient.” These comments were recently quoted in C.A. 4305/91 Sadeh v. Kavors, Dinim Elyon 32 803, and have been quoted frequently by the labor courts in discussing the rights of cohabiting partners. See, for example, L.C.C. 57/14–6 Ohana v. Makefet Pension and Payments Fund, Cooperative Association Ltd., Labor Regional 9 985.

174 See the definition of a cohabiting partner in the National Insurance Law, one of the components of which is that “she resided with him at the time of his death.” See also L.C. 44/62–0 National Insurance Institute v. N. Mishali P.D. Avoda 16 3, in para. 3 of the ruling, as well as Article 4(A)(1) of the Civil Service (Retirement) Law, supra n. 171.

175 On this subject see the recent Meir case, supra n. 171. Para. 14 of the ruling states: “Regarding the requirement of the law in defining ‘his wife’ for joint habitation – this is not necessarily an additional requirement for habitation under the same roof, but rather the meaning of this requirement is that the relations between the partners in accordance with the double test is such that it may accordingly be determined that she lives with him in light of the manner in which the partners managed their joint lives.” For an analysis of the term “and she lived with him,” See the Mishali case, ibid., in para. 3 of the ruling. On this general subject, see Goldberg, Menachem Social Insurance File: National Insurance Laws, National Health Insurance Laws, Pension Laws; Laws, Regulations, Orders, Precedents, Explanations (Tel Aviv, Sadan, 7th ed. 1985), p. 42 Google Scholar, and the rulings noted therein.

176 See, for example, the Shelly Meir case, ibid., and L.C. 56/117–3 Boharon v. Aloush (unpublished) and L.C. 57/14–6 Ohana v. Makefet Fund case, supra n. 152; and I.A. 5455/98 Kochava v. Mivtachim Ltd. (not yet published). See also the ruling of the National Labor Court in L.C. 56/255–0 Atar v. National Insurance Institute (hereinafter: “the Atar case”) (although special circumstances apply in this case, since the cessation of joint habitation was due to the man's difficult financial situation).

177 See I.A. 8010/01 Zelikowitz v. Magen Central Pension Fund for Cooperation in Manufacturing and Cooperative Services Ltd. (unpublished), where a woman was recognized as the cohabiting partner of a man despite the fact that during the last part of his life he resided in a senior citizens' home and the relations between them were almost completely disconnected. In this case, however, the court notes that the behavior of the man's children was responsible for the disconnection of the relations between the parties, and this may justify the ruling. The lenient position of the court in this case is particularly notable given the stricter approaches manifested y the court in the context of defining separation in the case of married couples. See, for example, IA 55/117–0 Komolush v. National Insurance Institute P.D. Avoda 29 (5759) 49, in which the court ruled that a woman who left Israel for protracted periods after her husband was hospitalized in a vegetative state is considered separated for the purpose of the law.

178 See, for example, the Shelly Meir case, supra n. 171, as well as the Ohana v. Makefet Fund case, supra n. 173 (although, in this latter ruling, the court argues that the alternative relations were merely casual). In a more extreme context, See L.C. 56/117–3 Boharon v. Alloush (unpublished) in which a woman was recognized as a cohabiting partner despite the fact that during most of the period of their relations, the man was in fact married and residing with his wife.

179 See case of Rosenberg v. Stessel, ibid. See also the Atar case, supra n. 151.

180 In light of my criticism of the Rosenberg case, it is worth noting that in several recent rulings, the courts have warned of a “double game” in which the same person sometimes declares that they are single and sometimes that they are cohabiting, according to their needs. See, for example, the recent ruling in I.N. 92711/99 Axelrod v. National Insurance Institute (unpublished), para. 6 of the ruling.

181 Thus, for example, in C.A. 384/61 State of Israel v. Fessler P.D. 16(1) 102, 110 (hereinafter: “the Fessler case”). Judge Haim Cohen comments, in the context of the legislation relating to cohabiting couples: “As far as I am concerned, legislation such as this is proper for any system and fair for any state.”

182 See in particular, the numerous functional arguments mentioned in the Lindorn case, supra n. 110, and the Levanon case, supra n. 112, which were analyzed above in this chapter.

183 On the civil difficulties aroused by the religious wedding ceremony and the content of religious marriage law, See Lifshitz, Shahar, “A Civil Reorientation in Israeli Family Law” in Stern, Yedidia Z. and Zilbershats, Yaffa, eds. Zivion 3 (Ramat-Gan, Julson Center for Judaism and Democracy, 2001)Google Scholar.

184 On this argument, see Shiffman, supra n. 101, at 34–35. See also Rosen-Zvi, supra n. 1, at 131–133.

185 See Lifshitz, supra n. 3, at 788–789.

186 Indeed, at least some Supreme Court judges have been willing to acknowledge this. For example, see the “Nazri case, supra n. 109, where Justice Vitkon clarifies that the rationale for cohabitation laws in Israel is closely related to the religious nature of marriage law. See also the comments by Justice Barak in the Efrat case, supra n. 131, at para. 38 of the ruling.

187 For similar positions, see Gad Tedesci, supra n. 99; Friedman, supra n. 12, at 460–461; Shava, supra n. 116, at 492–494; Shelach, supra n. 104, at 131–134; Shalev, supra n. 120, at 492–494; Rosen-Zvi, supra n. 1, at 303–306; and, in depth, Shifman, supra n.101, at 57–61.

188 Accordingly, my criticisms of the recent court rulings in this matter, particularly the text relating to supra n. 158, are still valid.

189 Thus my criticism on this aspect above, in Section B, Para 3 and 5, is still valid.

190 See Lifshitz, supra n. 3, at 788–792.

191 See ibid.

192 In this respect, inheritance laws differ from the other issues we addressed in our discussion of the sphere of internal relations.

193 Accordingly, in my discussion of the general normative course, I recommended that, insofar as the realm of external relations is concerned, the entry conditions conferring the rights of cohabiting partners should be based on as formal criteria as possible. See supra, Part II, Section C, para 4.

194 This is the situation in some of the pension funds. The Makefet Fund, for example, requires those claiming the rights of cohabiting couples to obtain a declarative court ruling. See the case of Ohana v. Makefet Fund, supra n. 173.

195 In this sense, another significant difference may be seen between the issue of internal relations and the question of external rights. As far as the issue of internal relations is concerned, a policy that extend the rights of cohabiting couples and the entrance conditions for this institution will indeed benefit a section of cohabiting partners (those enjoying the said rights), but will at the same time injure the partners of those cohabiting individuals, who may be bound by commitments they did not undertake. Accordingly, in the context of this issue, the desire to solve the distress of Israeli-made cohabiting couples and the difficulty in distinguishing between Israeli-made and universal cohabiting couples do not necessarily imply an extension of rights. By contrast, from the perspective of cohabiting couples themselves, there is no problem in extending their rights vis-à-vis external bodies; accordingly, it is evident that, from their perspective, an expansive policy that also includes undeserving rights and beneficiaries is preferable to a restrictive policy that may deny justified rights.

196 However, it may nevertheless be appropriate to distinguish between rights directed toward the state and rights activated toward private bodies, such as insurance companies, in the case of bereavement claims following tort damage, or even private individuals, as in cases relating to tenant protection. As far as rights directed toward the state are concerned, the state's responsibility for the plight of cohabiting couples in Israel may justify the adoption of an expansive policy that seeks to avoid injuring cohabiting couples, even at the expense of extending the scope of rights and beneficiaries beyond that required. By contrast, in the case of private bodies, it is unclear what justification there could be for these bodies being required to pay the price for the problems of Israeli family law. Accordingly, it seems to me that, in these contexts, greater caution is required before implementing a policy that expands the rights of cohabiting couples in Israel.

197 See, supra n. 116.

198 See I.A. (Hi) 3190/02 Sharf v. Miri (unpublished); I.A. (Hi) 3770/02 Rosengarten v. Nativ (unpublished), and M.A. (T.A.) 35200/03 Greshawitz v. Municipality of Ramat Gan (unpublished) in which the courts refused to provide a generalized declaration on the status of a person as a cohabiting partner, confining themselves to granting specific rights.

199 Cf. Shiffman,, supra n. 101, at. 58–61, who raises similar arguments.

200 See in detail, supra, Part II section B.

201 According to Prof. Shiffman, this is a commonly-held view among a significant section of the secular population in Israel. See Shiffman, supra n. 101, at 59. For an argument against this view, see the recent explanations of Professor Ruth Gabison in the introduction to a section on the subject of personal status written as part of an attempt to draft a social covenant between observant and secular Jews in Israel – see Gabison, Ruth and Meidan, Ya'akov, Foundation for a New Social Covenant between Observant and Secular Jews in Israel (Jerusalem, Israel Democracy Institute, temporary edition, 2003), 174–190 Google Scholar.

202 Most countries that empower their representatives in Israel to hold such weddings are willing to do so only when both the partners are citizens of the foreign country. In addition, as mentioned with regard to overseas civil marriage, the recognition of the validity of these marriages is limited to the registry laws. On this subject, see Shiffman, supra n.1, at 346–349.

203 Private marriage constitutes a less successful alternative to marriage than the other alternatives, since court rulings have permitted the registration only of persons prevented from marrying who have married in private weddings. By contrast, the rulings have refused to register as married those who refuse to marry in a religious wedding for ideological reasons or for reasons of convenience. Moreover, the rulings have denied those who married in a private wedding although they could have married in accordance with religious law significant rights accruing from marriage, such as the right to alimony. See C.A. 32/81 Zonen v. Shtel P.D. 37(2) 761. For a description of these issues and a critique of the civil rulings, See Shiffman, ibid., at. 325–344.

204 See supra Part II.

205 See Waltjen, Coester “Formation of Marriage' in Glendon, Tubingen M.A. ed. “Persons and the Family” International Encyclopedia of Comparative Law (Boston, Martinus Nijhoff Publishers, 1997), vol. IV, ch. 3, 50–51 Google Scholar; Winemute, Robert and Andenaes, Mads, eds. Legal Recognition of Same Sex Partnership; a Study of National, European and International Law (Oxford, Hart Publishing, 2001)Google Scholar part 2 – part 4 (infra, Legal Recognition). See also: Eskridge, William N. “Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step Approach toward State Recognition” (2000) 31 McGeorge L.Rev. 641, 647 et seqGoogle Scholar. See also on this subject: Merin, Yuval, “Same-Sex Marriage and the Flaw in the Alternatives for the Legal Regulation of Same-Sex Intimacy” (2002) 7 Hamishpat 253 Google Scholar, and Merin, supra n. 86.

206 In recent years, however, a different trend has emerged providing recognition for same-sex marriages. In the first stage, same-sex marriages were recognized solely in the Netherlands – See Merin, ibid., at 111–129. See also: Seufert, Scott C. “Going Dutch? A Comparison of the Vermont Civil Union Law to the Same-Sex Marriage Law of the Netherlands” (2001) 19 Dick. J. Intl. L. 449, at 454–457 Google Scholar. See also Winemute and Andenaes, supra n. 205 at ch. 23. Additional countries (e.g. Belgium) have followed the lead of the Netherlands. In addition, new court rulings in various Canadian provinces have required that the state recognize same-sex marriages. Regarding these marriages, See “Developments – The Law of Marriage and Family” (2003) 116 Harv. L. Rev 1996, at 2007–2008Google Scholar.

207 This is the situation in New Zealand and several Australian states; see Winemute and Andenaes, supra n. 205, at chapter 15, and Merin, supra n. 86, at ch. 1(A). By contrast, in France the court refused to grant rights to same-sex couples by means of cohabitation law, arguing that thee were distinct institutions. See Devichi, Jacqueline Rubellin “Family Law: The Continuity of National Characteristics” in Commaille, Dordrecht J. and de Singly, F., eds. The European Family (Holland, Kluwer Academic Publishers, 1997) 45, 49–50 Google Scholar. As an aside, I would note that in Israel, too, recent years have seen recognition of the rights of same-sex couples through cohabitation law. See, for example, H.C.J. 721/94 El-Al Airlines Ltd. V. Danielowitz et al. P.D. 48(5) 749, and I.A. (Tel-Aviv) 3816/01 Patrick Levy v. Mivtachim (not published), which recognized for the first time the applicant's right to receive bereavement pension from Mivtachim Fund as the cohabiting partner of the deceased. It should be noted that Mivtachim Fund clarified that whenever the term “partner” appears in the fund's regulations, the reference is also to a same-sex partner. However, rulings from lower courts often reflect ambivalence on this subject: Thus, for example, at about he same time as the ruling was given in the case of Patrick Levy, Judge Alon Laufer, in M.C. (B.S.) 8510/01 Anonymous v. Anonymous (unpublished) gave a ruling authorizing an agreement made between a same-sex cohabiting couple and granting it the validity of a court ruling. On the other hand, a ruling of Judge Shenhav, M.C. (T.A.) 21030/00 Livman Nurit v. Attorney-General (unpublished) rejected the application by a same-sex cohabiting couple to authorize a joint life agreement, basing his decision on the (minority) opinion of Justice Kedmi in the Danielowitz case, and determining that same-sex cohabiting partners do not constitute a “couple” and accordingly cannot be considered “a cohabiting couple.” The ambivalence in court rulings is even seen with regard to the same applicant. Thus, for example, the appeals committee in accordance with the Standing Service in the Israel Defense Forces (Retirement) Law accepted an appeal by Adir Steiner, establishing that he was entitled to a pension in accordance with the law as the partner of a deceased [male] IDF officer (see S.A. 369/94 Steiner v. IDF (not published)). His application for eligibility for the commemorative rights granted to such partners was also recognized in H.C.J. 5398/96 Steiner v. Minister of Defense, (not published). On the other hand, Steiner's demand to receive an exemption in accordance with Article 62(B) of the Real Estate Taxation (Betterment, Sale and Purchase) Law, supra n. 119, Regulation 20A (or Regulation 21) of the Real Estate Betterment Tax Regulations (Purchase Tax), supra n. 122, were rejected. See C.A(T.A.) Steiner v. TA Betterment Tax 2 (unpublished).

208 For a comprehensive comparative review of such institutions in various parts of the Western world, see Merin, supra, n. 86. However, alongside countries (mainly in Northern Europe) in which the gap between the status provided by registration and the legal status of marriage is extremely minimal – see for example; Sloane, Carig A., “A Rose by any Other Name: Marriage and the Danish Registered Partnership” (1997) 5 Cardozo J. Intl. and Comp. L. 189 Google Scholar (which describes the Danish arrangement granting alternative partnerships most of the rights of marriage, though not allowing them to adopt children, and also preventing international recognition); and see also Roth, Marianne “The Norwegian Act on Registered Partnership for Homosexual Couples” (1997) 35 U Louisville J. Fam. L. 467 Google Scholar; in general, See Eskridge, supra n. 205, at 654, 652, and see also Legal Recognition, ibid., Chapters 21–22 – there are other countries in which a significant gap remains between marriage rights and the rights of those who register in the alternative institution. For the example of Germany, See Levitt, Stephen Ross, “New Legislation in Germany Concerning Same-Sex Unions” (2001) 7 ILSA J. Intl. and Cop. L. 469 Google Scholar (which describes the new legislation in Germany, but notes concern that this may be subject to attack in the Constitutional Court). See also Legal Recognition, ibid., Chapter 32.

209 For a list of rulings in which the US courts have refused to recognize same-sex marriage for various purposes, see Katz, Sanford N. “State Regulation and Personal Autonomy in Marriage: How Can I Marry and Whom Can I Marry” in Bainham, Andrew, ed. The International Survey of Family Law 1996 (The Hague, Martinus Nijhoff, 1998) 487, at fn. 16Google Scholar. The conservative approach on this subject is reflected in Bowers v. Hardwick 478 U.S. 186 (1986), in which the US Supreme Court refused to consider the criminal prohibition against “sodomy” unconstitutional. However, a recent ruling by the Federal Supreme Court of the US overturned this ruling, See Lawrence v. Texas 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003).

210 One development is the enactment of municipal and state laws enabling same-sex couples to register as domestic partnerships, and thus to receive a range of rights. See Katz, ibid.; See also Marin, supra n. 86, Chapter 1(C). Another development relates to several US court rulings determining that non-recognition of same-sex couples is unconstitutional. See, in particular, Baker v. State of Vermont 170 Vt. 194, 744 A.2d 864, 1999 Vt., and an earlier ruling on the subject: Baehr v. Lewin 74 Haw. 530; 852 P.2d 44; 1993 Haw. Following these rulings, some US states have established state institutions similar in character to the registered partnerships in Northern European countries. See, for example, 15 V.S.A. Ch. 23., and the extensive discussion of this law at a symposium devoted to the subjected, the articles of which were published in Vermont Civil Unions, 25 Vt. L. Rev. (2000) 1–353. For discussion of the domestic partnership in California, see the recent article: Callan, Megan E., “The More, the Not Marry-Er: In Search of a Policy Behind Eligibility for California Domestic Partnerships” (2003) 40 San Diego L. Rev. 427 Google Scholar.

211 See supra, Part II, Section B 6. Indeed, at least some of the Western countries (e.g. the Netherlands, France and Belgium) that enable registration in alternative civil institutions do not restrict these solely to same-sex couples. For a general discussion of the relations between domestic partnerships between same-sex and opposite-sex partners, see Kogan, Terry S., “Competing Approaches to Same Sex Versus Opposite Sex, Unmarried Couples in Domestic Partnership Laws and Ordinances” (2001) B.Y.U.L. Rev. 1023 Google Scholar.

212 The reference is to the proposed Intimate Relations (Registration and Dissolution) Law, the name of which was changed in later versions to the Registration of Couples Law. This preliminary initiative is the product of cooperation between Prof. Shiffman and the author of this article, on the one hand, and the Ministry of Justice and then minister Dr. Yossi Beilin, on the other, and is currently at an advanced stage of work in the Ministry of Justice, which is consulting with varies bodies and individuals on this matter. For a preliminary description of the proposal, See Lifshitz, Shachar “A Civil Turning-Point in Family Law” (5762) 3 Zivyon Google Scholar.