In earlier times, before two persons conclude marriage, they would go through the process of betrothal. Mainly the betrothal was concluded between the parents of the future spouses. Betrothal is defined under article 560 of the civil code as a contract between the members of two families that a marriage shall take place between two persons, the fiancé and the fiancée, belonging to these two families. Hence, under the Civil Code, the betrothal contract is to be concluded between family members of the future spouses and more emphasis is given to the choice, consent and interest of these family members rather than the future spouses. Moreover, in many circumstances the practice shows that betrothal was concluded when the future spouses are underage and sometimes not yet born. This means, the interest and choice of the future spouses was not considered at all.
On the other hand, the Constitution of 1995 recognizes the right of individuals to form a family with their own free and full consent. As result, the provisions of the Civil Code dealing with betrothal were found to be contrary to this fundamental right of individuals. Hence, the RFC has excluded the concept of betrothal as a whole.
However, some regional family codes maintain the concept of betrothal with modification. The major modification made relates to the definition given to betrothal. All the regional laws which incorporated the concept of betrothal defined it as a pact between the fiancé and fiancée to conclude marriage sometime in the future. This is unlike the definition given by the Civil Code which involves only the parents or guardians of the future spouses.
The Family Code of the Amhara region requires the contract of betrothal to be made in a written form signed by four family witnesses, two from each side. On the other hand, the family code of the Benishangul Gumuz region allows betrothal to be concluded pursuant to the custom of the area. This may be either in writing or orally, whichever is customarily practiced in the region. When we look into article 4 of the SNNP regional family code, both options are included.
The family codes have also provided a time framework for the duration of the betrothal. Article 6 of the SNNP family code leaves it open for the parties to determine the duration of betrothal. However, if the parties fail to mention the time for the conclusion of marriage, it requires them to tie the pact within a year after the conclusion of the betrothal contract. The family code of the Benishangul Gumuz, on the other hand, gives only six months after the conclusion of the betrothal contract. The time framework given under article 6 of the Amhara regional family code is two years. Hence, the marriage has to be concluded within two years following the betrothal contract.
The family codes have also envisaged a situation for the invalidation of the betrothal contract. If one of the parties to the betrothal contract communicate their intention to invalidate the betrothal, or refuse to conclude marriage within the intended period or engaged in any act to impede the conclusion of marriage, the betrothal contract will be invalidated. The consequences of breach of the contract are also illustrated in the subsequent articles.
Definition of Marriage
The family in the Ethiopian Constitution is recognized as the natural and fundamental unit of a society and an important legal and social institution. As a result, it is given legal protection. One thing that should be noted here is that a marriage may be regarded as either a status or a contract. As Jonathan Herring noted
Marriage could be regarded as either a status or a contract. In law a status is regarded as a relationship which has a set of legal consequences which flow automatically from that relationship, regardless of the intention of the parties. A status has been defined as ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities.’ So the status view of marriage would suggest that, if a couple marry, then they are subject to the law governing marriage, regardless of their intentions. The alternative approach would be to regard contract as governing marriage. The legal consequences of marriage would then flow from the intentions of the parties as set out in an agreement rather than any given rules set down by the law.
Marriage is perhaps best regarded as a mixture of the two. There are some legal consequences which flow automatically from marriage and other consequences which depend on the agreement of the parties. The law sets out: who can marry, when the relationship can be ended and what are the consequences for the parties of being married.
In Ethiopia, marriage is regarded in both the Civil Code. The Revised Family Code and the regional family codes as an institution, rather than a contract. However, when it comes to defining this institution, neither laws are helpful. Hence, to have a common understanding of the institution, it is necessary to resort to the definitions given by other foreign laws.
In the English legal system, marriage, as defined by Sir James Wilde in the land mark case of Hyde Vs Hyde, is the voluntary union for life of one man and one woman to the exclusion of all others. This same definition is also upheld under the Australian Marriage Act of 1961. The definitional part as well as Section 46 of the Australian Marriage act defines marriage as the voluntary union of one man and one woman for life to the exclusion of others. This definition has been taken from the English definition of marriage. Both definitions contain three common elements. First, the marriage has to be concluded between a man and a woman, there is no legal marriage between same sex persons. Secondly, the institution of marriage is to be entered into with the absolute consent of the parties i.e., voluntarily. In addition, the marriage is expected to last for a life time, death being the only cause for dissolution.
The Philippines Family Code of 1987, on the other hand, defines marriage as a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. In addition to the elements that are present in the English and Australian definition of marriage, the Philippines family code considers the establishment of conjugal and family life as essential elements for marriage.
The definitions given by the different legal systems have their own shortcomings. All the documents tend to be ideal in the sense they expect the union to last for life, while in reality marriages breakdown for different reasons other than death. Moreover, the central aim of concluding marriage seems to be establishment of a family, while in reality, some couples conclude marriage knowing that they cannot have their own children.
Taking into account the insufficiency of the definitions given by many foreign laws, the Ethiopian legislature opted not to give any definition at all.
Modes of Conclusion of Marriage
The Revised Federal Family Code as well as the Regional Family Codes recognized three modes of conclusion of marriage. These are: Civil Marriage, Religious Marriage and Customary Marriage.
Civil Marriage (Marriage Concluded before an Officer of Civil Status)
For a marriage to be considered as being concluded before an officer of civil status, a man and a woman need to appear before the officer for the purpose of concluding marriage and give their respective consent to enter into marriage. Hence, the phrase civil marriage basically refers to the fact that the marriage has been solemnized in front of an officer who is empowered to accept the consent of parties wishing to enter into marriage.
The 1960 Ethiopian Civil Code provides for the establishment and the duties of the office of civil status. However, implementations of the provisions which deal with this office have been made to wait for the issuance of an Order to be published in the Negarit Gazeta, which has never come into life. As a result, currently there is no established office of civil status. In municipal areas, the functions of the officer of civil status are assumed and performed by the municipalities. For instance in Addis Ababa the offices of the Kifle ketemas are the ones who oversee the performance of civil marriages.
In order to conclude civil marriage, there are certain formalities and requirements which are stipulated by the RFC. The first formality is that of a residence. Pursuant to article 22 of the code, civil marriage is concluded before the officer of civil status of the place where one of the future spouses or one of the ascendants or close relatives of one of them has established a residence by continuously living there for not less than six months before the conclusion of the marriage. Hence, the solemnization of a civil marriage is to be conducted in the place in which one of the aforementioned has established a residence for a minimum of six months. Residence, on the other hand is defined by the Civil Code as the place where a person normally resides. The code also tries to distinguish between residing in a place and a mere sojourn in a particular place. In determining existence of a residence, the notion of normality and intention of the person concerned are vital. In addition to this, article 175/2 requires staying in a particular place for a minimum of three months to constitute residence. ‘Although the code does not settle the point, it seems that the period of three months must be uninterrupted.’ However, when it is for the purpose of conclusion of marriage, this article of the Civil Code is qualified by virtue of article 22 of the RFC. As a result, those persons enumerated under article 22 of the RFC have to reside in the place for a continuous period of six months. This article also answers the question as to whether the period should be interrupted or uninterrupted one.
The other formality is that of giving notice. The RFC requires the future spouses to inform the officer of Civil Status of their intention to conclude marriage not less than a month before the celebration of the marriage. The purpose of notifying the officer is to make sure that there are no impediments to the conclusion of marriage and to allow anyone who want to oppose to the marriage to do so in accordance with the law. This can be understood from the requirement on the part of the officer to publicize the notification stipulated under the same article as well as the subsequent articles of the Code.
The process of notification and waiting period (or the formal requirements for conclusion of marriage before an officer of civil status) are available in other countries’ laws as well. For instance, all states in America prescribe some formalities for conclusion of marriage. And the regulations are categorized into two classes: licensure and solemnization.
As Ellman et al put it:
‘All states have marriage license laws. Applicants provide certain information to a governmental office concerning age, prior relationship by blood or marriage, previous marriage etc. This information helps in compiling vital statistics and could facilitate enforcement of substantive marriage regulations by permitting the clerk to screen out ineligible applicants. For example, if the application revealed the bride and groom were siblings, the license would be denied under laws prohibiting incestuous marriages. In practice, the license law does little to restrain intentional violation of substantive regulations, because little effort is made to confirm the truth of the license application information.’
On the issue of waiting period, the authors have noted that:
‘Most states impose a waiting period (of either 3 or 5 days), either between the application and issuance of the license or between issuance and performance of the ceremony. …the waiting period requirement as well as the entire licensing procedure is explained as impressing upon the parties the seriousness of the entry into marriage.’
The 1949 Marriage Act of the UK also stipulates some formalities for conclusion of marriage. Under this law, the parties are required to give notice in prescribed form to their local superintendent registrar (in whose area they must have been resident for seven days preceding the giving of notice) of their intention to marry. Here one should note the difference in the requirement to constitute a residence under the Marriage Act of the UK with that of the Ethiopian Revised Family Code. Under the 1949 Family Act of the UK, the requirement is only seven days while in the Ethiopian context, the parties have to reside in that particular area for a period not less than six months. In addition to the notice requirement, the parties are also expected to provide a declaration that there are believed to be no lawful impediments to the marriage.
Once these preliminary formalities are fulfilled and the work of publicizing the intention of the parties to marry has been made by the civil status officer, the next step is the celebration (solemnization) of marriage. Celebration of marriage is to be made publicly in the presence of the future spouses and two witnesses for each of the future spouses. One requirement stipulated under article 25 of the RFC is that the future spouses have to personally appear for the solemnization process. In connection to this requirement, the issue of proxy marriages can be raised.
The question of whether marriage can be concluded by proxy is of little practical importance in modern times. However, there may be circumstances which would necessitate the use of representation for marriage. Historically, the late Roman law and the Canon law allowed in a clear manner celebration of marriage by proxy. In the words of Pomponius:
A man who was away from home might marry a woman by letter or messenger, but marriage could not be contracted in this manner by a woman who was absent from the man's place of residence. The reason for this difference between the man and the woman resulted from the requirement of the Roman law that the wife be led to the husband's home.
The Code Napoleon, on the other, does not prohibit proxy marriage in express terms. It simply puts an obligation on the officer of civil status to read the parties the requirement of the law with respect to marriage and the mutual right and duties of the parties which emanates from the marriage. In order to achieve this purpose, it seems that the parties need to personally be present at the ceremony. However, some French writers held the view that in the absence of express provision which made marriage concluded by proxy void, it should be considered as valid.
Marriage by representation is necessary when one of the parties cannot be present for the ceremony. ‘While its most prominent use has been in wartime with one party on duty overseas, sometimes it is used by prisoners.’ The First World War was the main reason for many European countries to allow in their laws for the conclusion of marriage through representation.
The French Law of April 4, 1915 authorized soldiers and sailors with the colors to marry for grave reasons by proxy with the permission of the minister of justice and of the minister of war or the minister of the navy…. Soldiers and sailors, employees of the Army and Navy, and persons in the service of the Army and Navy, were authorized in Italy to marry by proxy by a decree of June 24, 1915.
Considering the need to conclude marriage by representation, the Civil Code of 1960 as well as the RFC allowed by way of exception for the conclusion of marriage through representation. One should note here that in principle each of the future spouses are required to appear personally and give their consent to the marriage at the time and place of celebration. However, if one of the parties, for serious cause, could not be personally present, marriage by representation may be allowed by representation. Here one question that needs to be addressed is, what does it mean by ‘serious cause’?
The RFC does not go beyond requiring the existence of a serious cause and the existence of consent of the represented person and define what a serious cause could be. We can attempt to identify what a serious cause is by looking into the laws of other countries and the reason for these countries to allow marriage by proxy. As discussed above, many countries allow marriage by proxy when one of the spouses are away on military work or in the navy and sometimes also for prisoners, among others. Hence, one can conclude that ‘serious cause’ in the Ethiopian Family Code will also be interpreted in light of these grounds.
The other formality incorporated under article 25 of the RFC is the obligation on the witnesses to declare, under oath, that the essential conditions for marriage are fulfilled. As mentioned earlier, one purpose of imposing these formality requirements is to make sure that the substantive requirements for conclusion of marriage are fulfilled. One way of achieving this purpose is by requesting the witnesses to confirm under oath the fulfillment of these conditions. As can be grasped from the next sub-article, the taking of the oath has its own consequences, and the consequences should be explained to the witnesses by the Officer.
The third formality requirement for celebration of civil marriages is that the future spouses need to declare openly that they have consented to enter into the marriage. Marriage is an institution which is to be entered into by the parties of their free will. The existence of their free will has to be openly communicated to the officer of civil status. Apart from the open communication of their will, the future spouses as well as the witnesses are required to sign in the register of the Civil Status.
After the fulfillment of all the above mentioned formalities, what is left is for the Officer of civil status to pronounce them united in marriage and issue a certificate of marriage.
The second type of marriage which is given recognition by the RFC is religious marriage. Pursuant to article 3 of the RFC, a religious marriage takes place when a man and a woman have performed such acts or rites as deemed to constitute a valid marriage by their religion or by the religion of one of them. As a result, the formal requirements for the conclusion of religious marriage are dictated by the religion itself. This is further corroborated by article 26/1. Hence, the conclusion of the religious marriage as well as the formalities to be followed is as prescribed by the concerned religion. However, one should note here that the essential conditions that are stipulated by the RFC need to be observed whatever the manner of celebration of marriage is.
Ethiopia is a nation which is believed to be home for more than eighty nationalitites. These different nationalitites have their own peculiar customs. The diversity in the customs of the people has been recognized by the 1995 FDRE Constitution. Particularly, Article 34/4 of the Constitution stipulates for the enactment of a specific law which gives recognition to marriage concluded under systems of religious or customary laws. In light of this obligation, the RFC gives the future spouses the option to conclude their marriage in accordance with customary practices.
Pursuant to Article 4 of the RFC marriage according to custom takes place when a man and a woman have performed such rites as deemed to constitute valid marriage by the custom of the community in which they live or by the custom of the community to which they belong or to which one of them belong. One important thing which needs to be noted here is that for a marriage to be concluded according to custom, the custom referred to is of three: the custom of the community in which they live, or the custom of the community to which both future spouses belong or alternatively to which one of them belong. This is in contradistinction to the Civil Code of 1960. Article 580 of the Civil Code considers a marriage to be customary marriage when it is concluded under the rules of the community to which the future spouses belong or to which one of them belongs. Defining customary marriage in such manner has the effect of excluding marriages concluded by two persons belonging to a certain tribe but the marriage was concluded using the rites of a different tribe. For instance if a man from the Oromo tribe concludes marriage with a woman from the Tigray tribe and the marriage was concluded in Amhara region by fulfilling the rites of the Amhara tribe, such marriage will not be considered as a customary marriage concluded by fulfilling the requirements of the Amhara tribe, because neither of the spouses belong to that tribe. Considering the shortcoming of article 580 of the Civil Code, the RFC included the custom of the community in which the parties are living at the time of conclusion of marriage.
The conclusion of the marriage as well as the formalities, hence, is to be prescribed by the concerned community. Here also note should be made to the effect that the customary marriages also need to observe the essential conditions of marriage stipulated by the RFC.
Marriage Celebrated Abroad
The other new introduction in the RFC is the recognition of marriages that are celebrated abroad. This is necessitated by the increase in the movement of people from one place to another. Not recognizing a marriage which is concluded by fulfilling the legal requirements of the place of celebration would result in unfair and undesirable consequences. As a result, article 5 of RFC provides for the recognition of marriages which are celebrated abroad as valid in Ethiopia. Here, two things are worth mentioning. The marriage whose recognition is sought in Ethiopia has to be concluded by fulfilling the legal requirements of the place of celebration. This can be gathered from the phrase ‘…in accordance with the law of the place of celebration…’. Hence, when recognition of the marriage is sought, it has to first be identified whether the legal requirements of the place of celebration were fulfilled. Moreover, the law puts public morality of the Ethiopian people as a limitation on the recognition of marriages celebrated abroad. That is to say, the foreign marriage will be recognized in Ethiopia only in respect of its formality and not as to its substance. A good example here is the case of same-sex marriage. Some western countries and one African country have made same-sex marriage lawful. Hence same-sex marriages could be concluded lawfully in these countries. However, these types of marriages cannot be recognized in Ethiopia for different grounds. First, the law, though indirectly, considers marriage to be a union between a man and a woman, not between the same sexes. Hence, same-sex marriage does not fulfill the definitional requirement of marriage under Ethiopian law. Secondly, article 629 of the new criminal Code made sexual activity and any indecent act with persons of the same sex a crime. For stronger reason, marriage between same sexes will be prohibited. In addition to this, article 5 of the RFC provides for the recognition of marriages celebrated abroad as far as doing so will not be contrary to public morality. The ground for criminalizing sexual activity between same sexes is that it is repugnant to the morality of the Ethiopian people. For the grounds discussed above, marriage between same sexes will not be recognized in Ethiopia.