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Israel: Family Court Recognizes Right to Adopt for a Man and a Woman “Known to the Public as Married”

(Oct. 31, 2019) On September 17, 2019, the deputy president of the Be’er Sheva Family Court approved the adoption of a minor by a heterosexual unmarried couple the Court determined to be “known to the public as married.” Israeli law does not recognize common-law marriage. Cohabitation and evidence of sharing life together as a husband and wife, although not equivalent to marriage, may provide eligibility for various rights under a number of Israeli laws. (Adopt. Case 30-19 Anonymous v. Anonymous (decision by Judge Alon Gabizon rendered Sept. 17, 2029), Takdin Legal Database (in Hebrew, by subscription) (all translations by author); on the rights of couples “known to the public as married,” see Ruth Levush, Israel: Spousal Agreements for Couples Not Belonging to Any Religion—A Civil Marriage Option?, Law Library of Congress (Sept. 2015).)

According to Judge Gabizon, section 3 of the Adoption Law 5741-1981 generally authorizes adoption “jointly by a man and his woman.” Unlike section 3(2) of the Law, which identifies the single status of a relative who may adopt a child, both of whose parents have died, the marital status of a “man and his woman” under the general rule provided by section 3 is not defined as spouses who are married to each other. (Adoption Law 5741-1981, Sefer HaHukim (SH, Book of Laws, official gazette) 5741 No. 1028 p. 293; Adopt. Case 30-19, para 12.)

According to Judge Gabizon, the Law, enacted 30 years earlier, was based on the assumption that the best interest of a minor is to find stability in a family that includes a man and a woman who were married to each other. Today, however,

when the family unit takes various forms, including couples who are known to the public as married, it cannot be said that the stability of … [such married couples] exceeds the stability of a family unit that includes a man and woman who are known to the public as married. (Adopt. Case 30-19, para. 11.)

Judge Gabizon noted that the Foster Care Law, 5776-2016 allows unmarried couples to serve as foster parents. Interpretation of the adoption law, he determined, should be done in the spirit of the Foster Care Law

to enable a therapeutic continuity for a child who has transformed from foster child to adopted child.

As the Foster Care Law allows a man and a woman who are known to the public as married to serve as a foster family, it is reasonable that the legislature did not mean that a child who is in a foster family and has been declared … adoptable should not be adopted by the same couple that is known to the public as married [who were the foster parents and] who wish to adopt the child … and [thus the child] would have to move again to another family where the couple is married. (Adopt. Case 30-19, para 14; Foster Care Law, 5776-2016, SH 2534 p. 586.)

Judge Gabizon concluded that the applicants were qualified to adopt because they met the definition of “a man and a woman who are known to the public as married,” maintained a stable relationship, and gave the minor a stable and loving family unit. He held that it was in the best interest of the minor to be adopted by the applicants who have raised her since birth. (Adopt. Case 30-19, para 16.)