The Changing Family and the Legal System

I attended a conference yesterday sponsored by the Rackman Center for the Advancement of the Status of Women at Bar Ilan University entitled:
יש גבול? הגבולות המשתנים של המשפחה הישראלית והשלכותיה המשפטיות.
Which, roughly translated means: Is there a limit? The changing borders of the Israeli family and its legal ramifications.

(For those of you not familiar with the Rackman Center, headed by Prof. Ruth Halperin-Kedari, it has been around for nearly a decade, does good research on issues in Family Law, publishes a regular survey of important decisions from the Beit Din, the Rabbinic Court, and also sponsors a legal aid clinic which provides legal representation for women.)

The statement that the borders of our families are changing is actually laughable in the extent to which it understates the case. To say that they are changing incredibly quickly is at best stating the obvious. Human life is always evolving and we are always creating new forms of living and co-existing. However, it seems that in the past two or three decades we are experimenting with families – and society – to such an extent that changes which took millenia to develop and coalesce are unraveling and reshaping themselves a such a speed that we can’t keep up.

When I say we I mean society as a whole; though we talk the talk of keeping up, I suspect we haven’t internalized the changes, since they are happening too quickly, and we don’t know their impact on issues of identity. Indeed, it may be that the importance of identity formation in both psychological and sociological terms may become a thing of the past. Personally, I find all of this makes me dizzy, and sometimes I’d like to hide my eyes and not see what I see, not for any reasons of value judgments, just that it is all so hard to take in and assimilate.

The law certainly does not have the privilege of hiding its eyes; it needs to adjust and to adjust in real time, because when people come before a court to adjudicate their claims or to ask for answers, a court does not have the privilege of saying “I don’t know”, or “Give me more time until we can see how this particular experiment works out.”

The Rackman Center should be applauded for tackling some of these issues, though of course, each one of the lectures could have been the focus of a full-blown seminar.

I particularly enjoyed Adv. Yossi Mendelson’s lecture (he’s smart, funny and original, what more could one ask for in a lecture?). He pointed out that due to political reasons, specifically the impact of religious law on Family Law in Israel, the Family Law legislation here is not well developed. I’m sure there are those who would take issue with him, as did Judge Moshe Drori of the Jerusalem District Court in his lecture which followed in the second half of the program. However, Mendelson’s point was that in place of clear statutes governing Family Law, what we see is a growing trend to determine various issues in the field based on Contract Law, particularly legal doctrines of an implied binding contract based on the parties’ behavior.

As a result, according to Mendelson, specifically in that area of law where litigants are in the midst of emotional and personal turmoil, frequently motivated by irrational impulses and calculations, we are left with vague categories to be filled in by the courts, rather than clear and unequivocal legislation.

He saved particular criticism for a Supreme Court decision from May 2010 in which the court ruled that an unmarried couple who had actually maintained separate residences, was considered a common-law couple for the purposes of inheritance. Because the man died intestate, the woman thereby inherited 50% of his estate, while his children had to forfeit their claims to 100% of his estate.

Vague is rarely good, especially when the person who could tell us what his true intentions were, is no longer in this world!

In the words of Mendelson, we’ve gone to a situation where it’s not just contract law that creates the family, but the court itself has the power to decide whether a particular constellation does or does not constitute a family.

The practical response to this state of confusion is to make agreements between couples and to make them well. For many years now I have counseled individuals in a long-term relationship, whether living together or not, to make agreements protecting their property and to make sure their will is in good order. The courts – in many areas of law in Israel – have exercised their interpretive powers very broadly, and the couple can’t leave anything to guesswork.

The problem with this approach is that it may exact a price from the couple itself. One might say, better to discuss difficult issues while the relationship is good, but more than one person has told me that he or she enjoys the company of their girlfriend/boyfriend, but if they can’t negotiate an agreement to their liking, they’ll break off the relationship.

It’s a sad day when fear of legal proceedings leads us to abandon companionship and friendship.

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