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Nazareth court sets precedent in same-sex couple case
By Yuval Yoaz
November 15, 2004
Same-sex partners are eligible to be considered common-law spouses according to
the inheritance law, Nazareth District Court ruled yesterday in a
precedent-setting decision.
According to the decision, taken by a majority of two judges to one, an
individual who maintained a joint household for some 40 years with his partner,
who died four years ago, is eligible to inherit that partner's apartment even
though a will had never been written concerning the matter.
The relationship between the plaintiff, 77-year-old I.M., and his partner S.R.,
began in the early 1960s when they worked together at the Italian Embassy in
Tel Aviv. A romantic relationship developed between the two over the years.
S.R. purchased an apartment in 1972 in which they both lived.
In 2000, S.R. died without formally leaving the apartment to his partner. As he
has no close family members who could be considered heirs, S.R.'s property must
be transferred to the state, according to law.
I.M. asked the family court to recognize him as the common-law spouse of S.R.
When his request was not granted, I.M. appealed to the district court.
The legal debate revolved around a clause in the inheritance law, which states
that in the case of "a man and a woman who live a family life in a joint
household, yet who are not married to each other," the surviving partner is
entitled to benefit from the will as would an heir, as if the couple had been
legally married.
The state claimed that it is impossible to interpret the words "man and woman"
as relating to two partners of the same sex, and thus the clause does not apply
to homosexual and lesbian common-law couples.
Nevertheless, Judges Nissim Maman and Gabriella (De Leo) Levy ruled that since
the legislation of the inheritance law in 1965, "there have been wide-reaching
changes in interpretation, and legal rulings have widened the meaning of the
term `partners' to include common-law partners, as well as same-sex common-law
partners."
Family without marriage
These changes have also influenced the interpretation of "man and woman"
because a family unit "can also be created without marriage and also if the two
partners are of the same sex," according to the ruling.
The judges also ruled that the phrase "man and woman" was not intended to
deprive homosexuals and lesbians of common-law status, but rather simply to
provide the right of inheritance to common-law couples who are not married.
"The legislature did not even give its opinion on the status of same-sex
common-law couples, not because it sought to revoke their rights, but rather
because the existence of a same-sex family was not even considered," the court
said.
Maman said the expression "man and woman" does not mean "not a man and a man"
or "not a woman and a woman," but rather "a couple who is not married."
It is for this reason, Maman wrote, that even though "we do not intend to
create a new status ... there is no reason that recognition of the inheritance
rights of same-sex common-law couples not be seen as a necessary step."
The dissenting judge wrote that "the letter of the law is clear and unequivocal
and you cannot read into it any meaning other than what is written - `man and
woman.' The letter of the law cannot tolerate the interpretation according to
which this would be `man and man.'"
I.M.'s attorney, Dori Spivak, said in response to the court's ruling: "We live
in a world where same-sex common-law couples are common-law in all respects and
the homosexual family unit has now secured a standing equal to every other
family unit."
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