As discussed earlier, marriage is an institution to be entered into with the full and free consent of the parties. This assertion suggests that it is primarily the parties themselves who will have a say on whether they should be joined by matrimony or not. However, from our discussion on chapter one, what we can also infer is that the society and the state also have interest in the marriage of the two individuals. The society and the state regulate and provide protection for the institution of marriage. The law, by way of regulating the relationship, has provided certain conditions which are essential for the validity of a marriage. The society as well as the executive organ of the government, on the other hand, has the obligation to oversee the observance of these essential conditions prior to the conclusion of the marriage.
In the following section the discussion will focus on as to who may bring an opposition for the conclusion of marriage, to whom this opposition may be made, when this opposition should be made and the form of the opposition.
Who may oppose?
Depending on the essential condition which is violated, the persons who may oppose to the conclusion of the marriage differ. When the condition violated is age, there are potentially three groups of persons who are given the right to oppose. The first one is the parents of the minor. If one of the future spouses have not attained the minimum marriageable age stipulated by the law i.e. 18 years, then the parents of that minor may oppose to the marriage. In many instances underage marriages are arranged by the parents of the minor themselves. In such situations obviously other persons should be given the right to oppose for the marriage. This is where the public prosecutor comes into picture. Apart from the fact the parents of the minor are involved in the planning of the marriage and hence not opposing to its conclusion; underage marriage is considered as a criminal act. Moreover, the state has also the obligation to see the respect for the essential conditions of marriage. Therefore, the law gives the public prosecutor the right to oppose the underage marriage. Last but very importantly, the law gives ‘any other interested person’ a right to oppose the underage marriage. Here, one very important question is as to who can this ‘any interested person’ be. Does it refer to any passerby or it has qualifications?
In civil suits persons who may by plaintiffs are qualified under article 33/2 of the Civil Procedure Code. This article requires a person to have a vested interest in the subject matter of the suit, to be qualified as a plaintiff. That is to say, the outcome of the suit has to affect the person either positively or negatively so that he can be the real party in the suit. Article 18/a of the RFC should also be construed in this manner even if we are not talking about court proceedings. As a result, when the law refers to ‘any other interested person’ it refers to those parties who may be directly or indirectly affected by the conclusion of the underage marriage. Under this group are included those NGOs which are working on the prevention of underage marriages. If they oppose the conclusion of an underage marriage, it means they are achieving one of the goals of their establishment, and hence making them an interested party.
When the essential condition violated is relationship by consanguinity or affinity, the right to oppose the marriage is given to the ascendants of both or one of the future spouses as well as their brothers and sisters who have attained the full age of 18 years. Apart from these persons, the public prosecutor, as the organ having the obligation to safeguard the interest of the society and the state, is given the right to oppose this marriage.
In cases of bigamous marriages, there are two persons who may oppose. The first one is the previous wife or husband of the bigamous spouse. Bigamy is considered under the criminal code of 2004 as a crime, unless it is justified by the religion or custom of the person. Hence, the public prosecutor has some interest in the prevention of conclusion of this kind of marriage. As a result, article 18 also provides the public prosecutor a right to oppose such marriages.
In the case of judicial interdiction, it is the guardian of the interdicted person and the public prosecutor who may oppose to the marriage.
As we can see from the above discussions, the persons who have the right to oppose conclusion of marriage is different with the difference in the type of condition violated, with the exception of the public prosecutor. One of the functions of the public prosecutor is to see that the peace, security and interest of the general public are fulfilled (respected). The public, on the other hand, has an interest in the marriages of individuals. Hence, the public prosecutor will have the duty to take action (by way of opposition) whenever essential conditions of marriage are to be violated.
The next question to be raised in relation to opposition is ‘to whom should it be made?’ this is answered by referring article 19 of the RFC. The Amharic version of this article provides that opposition is to be made to the marriage celebrating officer while the English version limits it to the officer of civil status. Following the English version will have its own dangers. First, it makes reference only to civil marriages because it makes only the officer of civil status the competent organ to receive complaints (oppositions). This means, if the marriage is either religious or customary marriage, there is no organ empowered to entertain the opposition, as the officer of civil status is not empowered to celebrate these marriages. Secondly, one of the rules of interpretation of laws as enshrined under article 2/4 of proclamation 3/95 (Federal Negarit Gazeta establishment Proclamation) states that in cases of discrepancy between the Amharic and English version of the negarit gazeta, the Amharic version prevails. Hence, for these two reasons we have to follow the Amharic version of the code.
Accordingly, opposition is to be made to the organ which has the power to celebrate the marriage. If the marriage to be celebrated is a civil marriage, opposition will be made t the officer of civil status. On the other hand if it is a religious or customary marriage, the opposition has to be made to either to religious fathers or to the elderly people celebrating the marriage, depending on the situation.
In order to show the seriousness of the case, the opposition is required to be made in a written form. Hence, there is no oral opposition to marriage. There is also a time limit attached. The opposition has to be made 15 days before the celebration of marriage. In civil marriages, there may not be that much of a problem in the time limit at least as far as the law is concerned. Article 23 of the RFC requires the future spouses to notify the officer of civil status of their intention to conclude marriage, a month before its celebration, and the latter has the obligation to publicize the same. The idea here is everyone will have access to the notification publicized by the officer of civil status and hence within two weeks those interested persons will make opposition. (there will be 2 weeks left prior to the conclusion of the marriage). However, when it comes to the other modes of conclusion of marriage, this kind of stipulation is not provided, making observance of article 19 somehow impractical. The law provided the maximum time within which the opposition has to be made. This limitation takes into account various societal values and the burden on the future spouses. Hence, the observance has to be strictly followed.
The other very important issue in relation to opposition is issue of appeal from the decision on opposition. The person to whom opposition is made has to make its decision within five days. If the celebrating officer rejects the opposition and decides to continue the celebration of the marriage, the decision will be final one. However, if the decision is to accept the opposition and suspended the celebration of the marriage, the future spouses or one of them may appeal to the court against the decision. This article shows the weight given to the right of the future spouses to form family.