Case Number

HCJ 3045/05

Date Decided

11-21-2006

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The petitioners are five same-sex couples of Israeli citizens who underwent ceremonies of marriage in Canada in accordance with Canadian law. Upon returning to Israel, they applied to the population registry to be registered as married. Their application was refused. They petitioned the court.

Held: (Majority opinion — President Emeritus Barak, President Beinisch, Vice-President Rivlin, Justices Procaccia, Naor, Hayut) Following the rule in Funk-Schlesinger v. Minister of Interior, that the purpose of the registry is merely statistical, the registration official at the population registry is not competent to examine the validity of a marriage. When he is presented with a marriage certificate, he is obliged to register the applicants as married, unless such a registration would be manifestly incorrect. The ‘manifestly incorrect’ exception does not apply in this case.

(Minority opinion — Justice Rubinstein) The rule in Funk-Schlesinger v. Minister of Interior, which held that the registration official is not competent to examine the validity of a civil marriage and should register the applicants as married when presented with a marriage certificate, should not be extended to the case of a same-sex marriage conducted in one of the few countries around the world where such marriages are conducted. Registration at the population registry is not merely statistical; it involves a de facto recognition of same-sex marriages. The question of same-sex marriages differs from that of civil marriages in that civil marriages are almost universally recognized around the world, whereas same-sex marriages are only recognized in a small minority of countries. The registration of same-sex marriages should therefore be left for the Knesset to decide.

Keywords

Constitutional Law -- Equality Before the Law, Family Law -- Marriage

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