The Forward and friend of Letters Blogatory Eugene Volokh have both written about an interesting case before the Israeli Supreme Court. In Israel, which kept the old Ottoman laws on personal status after independence, all marriages must be contracted in a religious ceremony; there is no civil marriage. This law makes it impossible for some Jews to marry in Israel, for example, because the Chief Rabbinate does not recognize one of the spouses as Jewish. Many Israelis in this situation have gone to Cyprus to have a civil marriage, and under ordinary rules of private international law Israeli courts do recognize such marriages as valid (because they were valid where contracted). But COVID travel restrictions have made that avenue difficult.

Enter Utah, which allows “virtual” weddings in which neither spouse has to be present in Utah. The question is whether Israeli law recognizes such marriages as valid.

Your first reaction might be, “of course the Utah law is crazy, how can two people be married if they and the officiant are not in the same place at the same time for the wedding?” Heh. The first thing to know is that until the eighteenth century, the common law did not require an officiant at all for a valid marriage. It was enough for the spouses to give their consent to each other per verbal de presenti (that is, in the present tense). Future tense words (“I promise to marry you”) were not enough. In Pollock and Maitland, the authors point out the silliness of this distinction by noting that “of all people in the world, lovers are the least likely to distinguish precisely between the present and future tenses.” Sure, but don’t the spouses at least have to attend the ceremony together, with the officiant? Proxy marriages have a long and even aristocratic history. For example, for you Hilary Mantel fans, Catherine of Aragon’s marriage to Prince Arthur was a proxy marriage.

There is even a short law review article on some of this history if you are interested: Ernest G. Lorenzen, Marriage by Proxy and the Conflict of Laws 32 Harv. L. Rev 472 (1932).

Now, what will the Israeli court do? I won’t hazard a guess, but I can give a view about how it may approach the question and what the right answer might be. It seems to me that the real question is whether there is a fundamental public policy in Israel that forbids proxy marriages. This seems unlikely, since Israel’s marriage law is religious law, and at least in the canon law and, I think, in Sharia law, proxy marriage is recognized! Barring a public policy issue, it seems to me that the court ought to recognize the marriage on ordinary grounds.