28 March 2014 Written by  Aschalew Ashagrie and Martha Belete

Essential Conditions of Marriage

Essential conditions for validity of marriage pertain to biological, psychological and sociological factors. The biological factors relate to age, sex and state of health of the future spouses, whereas the psychological factor relates to the freedom of will of the parties. On the other hand, the sociological aspect pertains to issues like marriage between persons related by consanguinity and affinity as well as by adoption and it also incorporates bigamy. When we come to the sources of such restriction, O’Donovan had the following to say:

Such impediments were known to the Feteha Negest and covered obstacles to the union arising from prior relationships, from previous marriage, or from age. Also included were defects arising from the ceremony itself. Such marriages were prohibited and in some cases gave rise to penal sanctions. Many of the impediments found in the Feteha Negest have been retained in the Civil Code. But those related only to the rules of religion have been dropped.

The essential conditions that are found in the RFC are derived from the Civil Code, which in turn is derived from the Feteha Negest. So we can say that most of the conditions are derived from the Feteha Negest.

In the following sub topics, discussion will be made on these essential conditions for the conclusion of a valid marriage.

Consent

Marriage is an institution which is to be entered into by the parties with their free and full consent. The UN Convention on Consent to Marriage, Minimum age of Marriage and Registration of marriage as well as the Recommendation of the UN General Assembly which was adopted in 1965 provide consent as a prerequisite for the conclusion of marriage.

Pursuant to article 1 of the UN Convention, no marriage shall be legally entered into without the full and free consent of both parties. This requirement is further strengthened by the Recommendation. The Convention as well as the Recommendation put an obligation on member states to make sure that future spouses have decided, of their free will and consent, to enter into marriage. One way of compliance with this obligation is the harmonization of domestic laws in line with the international commitments of the countries. Ethiopia is one of the countries who have acceded to this Convention. As a result, the Constitution as well as the RFC and the regional family codes incorporate consent as a validity requirement of marriage.

In some parts of Ethiopia, the culture does not require the consent of the future spouses for conclusion of marriage; rather what really matters is the willingness of their parents to tie their children in bond of marriage. In effect many marriages have been concluded not on the basis of the willingness of the spouses but of their parents. This has been considered as a ground for many disputes in families. Considering this deep rooted culture, many efforts have been made to bring change, particularly through the use of legislations. In this respect what comes in the fore front is the 1995 Constitution. Article 34/2 of the Constitution reiterates the requirement that marriages should be entered into upon the free and full consent of the parties. In addition to this the RFC considers the free and full consent of the parties as a validity requirement for conclusion of marriage.

When the international as well as domestic legal instruments require existence of consent as a requirement for marriage, it implies that ‘there must be no duress or force inducing the marriage or any misunderstanding as to the effect of the marriage ceremony.’ Hence, the RFC recognizes some grounds which would vitiate the consent of the spouses.

 

Fundamental Error

The first ground which is considered as a base for vitiating consent of the parties is error. However, it is not all types of errors which would vitiate the consent, rather, as per article 13/2 of the RFC; the error has to be a fundamental one. What the law considers to be fundamental errors are illustrated under sub article 3 of article 13. These include:

    1. Error on the identity of the spouse where it is not the person with whom a person intended to conclude marriage: - here the mistake has to be as to identity rather than as to attribute. Cases of impersonation can be considered as fundamental error falling under this category. However, if the error pertains to the attribute of the person like for instance if one party mistakenly thought that the other was rich, it can not be considered as a fundamental error as per the requirement of the article and hence, will not be a ground to invalidate the marriage.
    2. Error on the state of health of the spouse who is affected by a disease that does not heal or can be genetically transmitted to descendants:-
    3. Error on the bodily confirmation of the spouse who does not have the requisite sexual organ for the consummation of the marriage
    4. Error on the behavior of the spouse who has the habit of performing sexual acts with person of the same sex.

 

Violence (Duress)

The other ground which would vitiate the consent of spouses to enter into marriage is violence. If the consent to marry was extracted by violence, it cannot be said that the party has freely consented to the marriage. As a result, article 14 of the RFC considers a marriage concluded when consent is extorted by violence as an invalid marriage. Moreover, the article further illustrates situations which might lead the court to determine whether the consent was extorted by violence or not. Hence, if the consent was given to protect himself/herself or one of his/her ascendants or descendants or any other close relative from a serious and imminent danger or thereat of danger, it can be said that the consent was extorted by violence.

Some of the issues which need further clarification on consent extorted by violence include the following.

  1. What must the threat or fear be of? At one time it was thought that it was only possible for duress to render a marriage voidable if there was a threat to life, limb or property. Recently the court of appeal in Hirani vs Hirani suggested that the test for duress should focus on the effect of the threat rather that the nature of the threat. In other words, the threat can be of any kind, but it must be shown that the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual. In the case of Hirani vs. Hirani the court accepted that social pressure could overbear the consent. The woman was threatened with ostracisation by her community and her family if she did not go through with the marriage and the fear of complete social isolation was such that there was no true consent. The effect of the Hirani decision is that those who have undergone an arranged marriage in the face of a serious threat have the choice of either accepting their culture and the validity of their marriage or accepting dominant culture’s view that marriage should be made voidable. This could be regarded as an appropriate compromise between respecting the cultural practice of arranged marriages and respecting people’s right to choose whom to marry. 
  1. Must the fear be reasonably held? What if threat was made, but a reasonable person would not have taken it seriously? In Szcher it was suggested that duress could not be relied upon unless the fear was reasonably held. Against this is Scott v Selbright in which it was suggested that as long as the beliefs of threats were honestly held, duress could be relied upon. The second view is preferable because it would be undesirable to punish a person for their careless mistake by denying them an annulment.  
  2. By whom must the threat be made? The thereat can emanate from a third party; it need not emanate from the spouse.

 

Judicial Interdiction

Judicial interdiction exists in the cases where a person is insane according to article 339 of the Civil Code and where he has bee n interdicted by the court. The court orders interdiction of the person because his health and his interest so requires or because his heirs’ interest so require. These two conditions have to simultaneously be present for the court to give order of interdiction. The order of interdictions means the interdicted person will have lessened capacity and hence need to be protected. ‘The basic idea underlying these protective measures is to ensure that the physical person who holds rights and duties but cannot exercise them is provided with the assistance of some other person who shall act on his behalf in most acts of juridical life.’As a result of the lessened capacity, an interdicted person may conclude marriage only with the authorization of the court.

Age

As discussed above, under Ethiopian law, marriage is an institution to be entered into by the full and free consent of the parties. In order to freely consent to the marriage, the parties should understand the consequences of their acts, and hence need to attain a certain age. The Convention on Consent to Marriage, Minimum age of Marriage and Registration of Marriage under the preamble, by making cross reference to the Universal Declaration of Human Rights provides that it is only those men and women who attained full age who can enter into marriage. This being the requirement, the next question would be as to who could be considered as being of full age. Specifying the minimum age for marriage is left for the individual countries to govern through legislation. However, this power of the state is not without any limitations. As can be seen from the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, General Assembly resolution 2018 (XX), principle II, Member States shall take legislative action to specify a minimum age for marriage, which in any case shall not be less than fifteen years of age. Hence, the minimum marriageable age in any country will be 15 years, though it can be set at higher age than this.

There are different reasons which can be raised as a ground for limiting the minimum marriageable age of spouses.

‘The standard justification for age restrictions has been the claim that “[m]arriage involving teenagers are more unstable than other marriages and are more likely to end in divorce than other marriages.” It is not clear, however, that the youth of the participants is what causes their marital failure. A number of studies point to non-age related factors as important predictors of marital failure.’

When we come to the RFC, the minimum marriageable age is 18 years for both sexes. Hence, any person who has not attained the full age of 18 years may not conclude a valid marriage. However, there are circumstances in which a valid marriage could be concluded without the fulfillment of this requirement. This is provided as an exception under sub article two. If the Minister of Justice, for serious cause, grants for dispensation, on application of the future spouses, or the parents or guardian of one of them, marriage could be validly concluded. The dispensation, however, may not be more than two years. This means, the maximum year that can be dispensed by the Minister is 2 years, and hence, the lowest age of marriage can be 16 years.

This exception provided under the RFC is in line with the power given to states by the Convention as well as the Recommendation. Both documents recognize the power of the appropriate authority to grant dispensation for serious reason in the interest of the future spouses. The very basic question here is as to how the serious cause can be identified.      

 

Relationship

The other essential condition for the conclusion of marriage is relationship, or rather the existence of prohibited degrees.

Although it would be true to  say that restrictions on certain types of sexual relations are a universal feature of primitive and advanced societies, it should be remembered that ‘this must be understood as meaning that some sort of prohibition on mating is universal, not that a particular set of relations is universally tabooed’. Thus a wide variety of restrictions are possible, ranging from ‘elementary’ systems in which prohibitions on certain relations are accompanied by a requirement that individuals marry only from within a certain group, to ‘complex’ systems in which only certain relations are excluded and the choice of partner is left to the individual.

In many societies across the world there are laws which prohibit marriage between people who are related. The same is true in Ethiopia. The restrictions under the RFC are based on two groups of relations: those based on blood relationships i.e. consanguinity and those based on marriage, i.e. affinity. These restrictions were also maintained under the 1960 Civil Code, though with a different degree of restriction.

The prohibited consanguinity restrictions involve marriage between persons related in the direct line between ascendants and descendants. Hence, marriage between parent and child, grandparent and grandchild is prohibited. On the collateral line, article 8/2 prohibits marriage between a man and his sister or aunt and also a woman and her brother or uncle.

There are different reasons given for prohibiting marriage between related persons. The first argument is the fear of genetic danger involved in permitting procreation between close blood relatives. In technologically advanced countries, however, it is argued that the availability of genetic screening could avert the danger, and hence the restriction cannot be supported.

The other arguments raised for the restriction include

 ‘…permitting marriage between close relations may undermine the security of the family. The argument is that children should be brought up without the possibility of approved sexual relations latter in life with the members of their family. The third argument can be based on the widespread instinctive moral reaction against such relationships.’

At the time of debating on the draft RFC, the reason for restriction as well as up to what degree the restriction should be was discussed thoroughly. Under the 1960 Civil Code, marriage between ascendants and descendants as well as collaterals up to the 7th degree was prohibited. Some suggested that the ground for this restriction is Christianity and the culture of the Northern parts of the country, and hence is not representative of the whole society. However, as discussed above, the restriction is also available in other countries of the world and is also supported by medical evidence. Hence, in order to reconcile the different religions and culture in the country with the science a limited restriction as far as collaterals is concerned, is adopted by the RFC.

Marriage between persons who are related by affinity in the direct line is also prohibited under the RFC article 9. On the collateral line, marriage between a man and the sister of his wife, and a woman and the brother of her husband is also prohibited. When we analyze the restriction in light of the grounds for restriction, not all the arguments hold water. Though there are genetic dangers involved in permitting procreation between close blood relatives, these dangers do not exist at all between affinies. Hence, it can be argued that the reason for such prohibition in the affiny is one of moral, rather than scientific.

Bigamy

The other essential condition for the conclusion of a valid marriage is the absence of prior marriage. As stipulated under article 11 of the RFC, a person is not allowed to conclude marriage when he is bound by the bonds of a preceding marriage. Many countries have laws which prohibit bigamous marriages. For instance, if we look at article 35/4 cumulative article 41 of the Family Code of the Philippines of 1987 contraction of marriage by a person during subsistence of a previous marriage makes the subsequent marriage null and void.

On the issue of bigamy Herring has the following to say in relation to the English law

If at the time of the ceremony either party is already married to someone else, the ‘marriage’ will be void. The marriage will remain void even if the first spouse dies during the second ‘marriage’. So if a person is married and wishes to marry someone else, he or she must obtain a decree of divorce or wait until the death of his or her spouse. If the first marriage is void it is technically not necessary to obtain a court order to that effect before marrying again, but that is normally sought to avoid any uncertainty. In case of bigamy, as well as the purported marriage being void, the parties may have committed the crime of bigamy.

Many cultures do permit polygamous marriages, although in British society monogamous marriages are the accepted norm. There are concrete objections to polygamous marriages. Some argue that polygamy may create divisions within the family, with one husband or wife vying for dominance over the other, and particularly that divisions may arise between the children of different parents. Supporters of polygamous marriage argue that polygamy lead to less divorce and provide a wider family support network in which to raise children. Polygamy could also be regarded as a form of sex discrimination unless both men and women were permitted to take more than one spouse. There have also been suggestions that permitting polygamous marriages involves an insult to the religious sensitivities of the majority. 

These arguments in favor and against polygamous marriages were also reflected at the time of debating on the draft RFC. Ethiopia is a multi religious and multi cultural country. Some consider condemnation of polygamous marriage against their culture and religious beliefs. Some followers of Islam religion were arguing at the time of the debate that it would be against the right that they obtain by virtue of their religion, and hence polygamous marriages should not be prohibited. However, there was also division of opinion on the part of the followers of Islam on this. On the other hand, female right advocates were arguing that it is against the Constitutional right of female to allow polygamous marriage. Taking into account the diverse views on the issue, the law opted for the first view. Hence, for a person to conclude a valid marriage there should not be a preceding marriage.   

Period of Widowhood

The concept introduced here by the legislature relates to the fact that a woman is under prohibition to remarry within the next one hundred and eighty days following the dissolution of her former marriage. This condition was also included in the Civil Code of 1960 and was subject to criticisms from different parties, particularly from female right advocates. They construe this provision as limiting the right of female to conclude marriage at any time she wants, mainly because the limitation does not apply for males. However, when one looks into the rationale for this restriction, it will be clear that the limitation is nit designed to discriminate between the two sexes.

The rationale for the limitation under article 16 is to respect the right of children enshrined in the Constitution and other international human right instruments to which Ethiopia is a party. Article 36/1/c of the 1995 FDRE Constitution provides that each child has the right to know and be cared for by his/her parent or legal guardian. This principle is also enshrined under article---- of the UN Convention on the Right of the Child (CRC) to which Ethiopia is a party. In addition to this right, article 128 of the RFC provides a presumption as to the duration of pregnancy. In order to respect the right of children and also to comply with the presumption, it is necessary to avoid any circumstances which would create a doubt as to who the father of that child is. Hence, by requiring the female to wait for a period of 180 days following the dissolution of a previous marriage, the law tries to avid any conflict of paternity.

Taking into account the modern advances of medical science in which the existence of pregnancy can easily be identified, it may be argued that the condition is unnecessary. However, we have to also look into the fact that many women in the country do not have access to facilities providing the service. In addition to this, the article also provides for some exceptional circumstances in which the 180 days restriction need not be observed.

The first of such exceptions is if the woman gives birth after the dissolution of marriage and before the lapse of the 180 days. In such a situation, it is presumed that the child is born from the previous marriage and hence there will not be any conflict on paternity. Hence, she may remarry even before the 180 days lapsed. Remarrying the former husband will also avoid the conflict on paternity and hence if the woman is marrying her previous husband, she may do so without waiting for the 180 days. In addition to this, if she can prove by medical evidence that she is not pregnant, she need not wait for the lapse of the specified time before concluding another marriage. Taking into account the fact that it is impossible to list all the grounds which may dispense a woman from observing the period of widowhood, the law gives discretion for the court to dispense her from observing the this requirement for any other valid reason.

Last modified on Friday, 28 March 2014 16:38