Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel - On Religious Norms and Secular Reforms
College of Management (Israel)
May 17, 2011
Brooklyn Journal of International Law, Vol. 36, p. 509, 2011
Israeli same-sex couples who marry abroad may register as "married" in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli same-sex couples (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, and based on the scope and interpretation of the public policy doctrine in Anglo-American law, the prohibition on same-sex marriages within Israel does not reflect a strong enough public policy for the invalidation of such marriages when contracted abroad.
Number of Pages in PDF File: 57
Keywords: same sex marriage, private international law, family law, gay rightsAccepted Paper Series
Date posted: May 18, 2011
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