- Category: Family Law
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The law has provided for certain conditions which need to be fulfilled for the conclusion of a valid marriage. In addition to stipulating conditions, it also provides the chance for certain group of persons to oppose and therefore prevent the conclusion of marriage which does not fulfill the necessary conditions. However, what would happen to a marriage which was celebrated when one of the conditions is absent? In the forgoing discussions an attempt will be made to answer this question.
Before looking into the consequences of violation of each and every conditions, we have to first identify the difference between void and voidable marriages and if such a distinction exists under Ethiopian law.
Katherine O’Donovan had to say the following on this issue:-
The term void and ‘voidable’ are found in the common law system. They have their counterparts in the laws of continental European countries. In both legal systems he terms used lack a clearly defined meaning and the transposition of a term from one system to another is virtually impossible, in the Amharic version of the civil code there is no exact term to convey the concept ‘void’ or ‘voidable’. Nevertheless these terms will be used since they are the most apt terms available for elucidating the law.
A void act is an empty act. It does not achieve what it sets out to do so. It does not achieve its intended legal consequences. “quod nullum est, nullum producit effectum.” An act is void due to a defect therein which is so fundamental as to deprive the act of its very existence. ‘A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated, then the act is said to be void.” The conventional wisdom concerning the void act is that it has no legal effect, but this is not strictly so as the act may have effects unforeseen by the actor, such as those of criminal prosecution, because of the illegality of the act. The point about the void act is that it achieves no part of its intended legal consequences and in so far as these are concerned it has no effect and can be ignored.
A voidable act is an act which, although it contains a defect, has its intended legal effect. The defect in the voidable act is not so serious as to prevent it from coming into effect.
“An act that is incapable of taking effect according to its apparent purport is said to be void. One which may take effect but is liable to be deprived of effect at the option of some or one of the parties is said to be voidable.”
The defect contained in the voidable act is sufficiently serious to enable the act to be subsequently attacked by one of the parties and declared void by the courts. If, however, it is not avoided the act will take effect as a valid juristic act. One learned writer has suggested that the correct way to view the voidable act is as “an act which gives rise to the intend-ed legal consequences, but at the same time gives rise to a counteractive right which may neutralize those consequences in so far as one of the parties is concerned.”
A void marriage, if such exists in Ethiopian law, is one to which there is such a serious objection in law because of a grave defect that, should its existence be in question, it will be regarded as never having taken place and can be so treated by all affected or interested parties. Any court declaration made would merely have the purpose of affirming that the marriage never existed and of clarifying the status of of the parties as never having been married. Any person having an interest therein could petition for a declaration of non existence of the marriage at any time, even after the death of the parties. Since the parties never had the status of husband and wife none of the normal consequences of marriage would follow. ……
A voidable marriage is quite different from a void marriage. The marriage will be regarded as a valid subsisting marriage unless and until it is attacked. As to the effects of a voidable marriage, a distinction must be drawn between a marriage which, although voidable, is never attacked and therefore never avoided, and a marriage which is avoided. In the former case the marriage will be valid and all the normal legal consequences of marriage will follow. In the latter case, a further distinction must be made between those marriages which are given effect up to the day of avoidance. It is here that the use of the word “voidable” may be criticized. It fails to distinguish between the act which is not void ab initio but is declared void retroactively by a court, and the act which is deprived of all future effect by the court but which retains such effect as it has had up to avoidance.
Three categories then emerge. The marriage which is void ab initio, that is which never came into being or had any effect; the marriage which is void retroactively, (ex tunc), that is which came into being, would have been valid had it not been found out, but is not deprived of all effect: and the marriage which is void ex nunc, that is which is deprived of effect for the future but which holds good for the past. The only category into which the Ethiopian marriage law clearly falls is that of void ex nunc.
As we can see from the above discussion, unlike other legal systems the Ethiopian law recognizes only voidable marriages. A marriage which has been concluded when one or more of the essential conditions are lacking will be invalidated. That is to say, from the date of invalidation, the marriage will cease to exist, and the consequences of dissolution of marriage will follow. However, for the time being that the marriage was intact, it will be considered as a valid marriage.
The other very important thing that needs to be noted here is the change made by the RFC in respect of provisions dealing with punishment for violation of essential conditions. The Civil code, apart from providing for the civil consequences of violating essential conditions, also makes reference to the Penal Code for criminal punishment. However, the civil code did not show the exact punishments accompanying. As a result maintaining these provisions was not necessary. The RFC provide only the civil consequences and if one wants to know the criminal consequences, reference has to be made to the Criminal code.
In our subsequent discussion, we will look into the civil as well as criminal consequences of violating each essential condition.
As far as the consequence of violation of essential conditions is concerned, we may classify the conditions into three categories. The first one is the impediment to the celebration of the marriage which does not affect its subsequent validity, its purpose being only prohibitory. The first condition which falls under this category is period of widowhood. As discussed earlier, the purpose of this condition is to avoid conflict of paternity and to ensure the right of children to know their parents. If, however, marriage is concluded without the lapse of the 180 days stipulated by the law, the marriage will not be dissolved.
Civil marriages are to be concluded before an officer of civil status, who is competent enough to celebrate marriages, and by fulfilling certain formalities. However, the fact that the officer does not have competence to celebrate marriage will not be a ground to dissolve the marriage. Moreover, article 25/3 requires the officer to tell the future spouses and the witnesses the consequence of their declaration before taking an oath. The failure of the officer to inform this fact to the future spouses and the witnesses will not be a ground to dissolve the marriage. Another formality related to celebration of marriage, as incorporated under article 25/6 is, the requirement on the part of the officer to pronounce the parties united in marriage after they have fulfilled all the requirements and issue certificate of marriage. The failure to fulfill this requirement is also not considered as a ground for dissolution of marriage.
The other group of impediments relates to those which will prevent the marriage from taking place and make the marriage voidable if it takes place, but for reasons occurring after the marriage, the impediments cease to exist and the marriage becomes valid. ‘The distinguishing aspect of this group is that the marriage, although voidable after celebration and thus open to dissolution, can be subsequently validated. This means that the marriage which is voidable after its celebration due to a defect therein can subsequently become valid through the ex facto removal of the impediment or by the passage of time. This process is known as validation’
Those marriages which are voidable, but may be validated include underage marriages, bigamous marriages, marriages concluded by judicially interdicted persons, marriages concluded under the influence of violence, marriages concluded in the existence of fundamental error.
Underage marriages: - the RFC under article 31 states that marriages which are concluded by a man and a woman who have not attained the full age 18 years can be dissolved. The dissolution obviously is to be made by the court by application. As to who may apply for the dissolution of this marriage, article 31 states that any interested person and the public prosecutor may do so. The term ‘any interested person’ for purposes of application for dissolution should be construed in a similar manner as it is construed in article 18.
What makes this condition a relative condition is that the dissolution of the marriage may not be sought once the spouses have attained the minimum marriageable age. Hence, even if the marriage is voidable for non fulfillment of the required age, it may latter be validated as a result of attaining the required age.
The Criminal Code, on the other hand, attached criminal sanction on this voidable but validatable marriage. A person who concluded marriage with an underage, knowing that she has not attained the minimum marriageable age stipulated under the family law, will be subject to rigorous imprisonment for not more than three years. This is so if the victim is 13 years and above. However, if the victim is below 13 years, the punishment will be a rigorous imprisonment not more than seven years.
Bigamous Marriages: - the bigamous marriage also falls into the category of marriages which are voidable but validatable. Either spouses of the bigamous marriage and the public prosecutor are given the right to apply for the dissolution of the bigamous marriage. The application for dissolution may be made only as long as the former spouse of the bigamous marriage is alive. If however, the former wife dies, it can be validated. A presumption of validity is attached to bigamous marriages until avoided by dissolution. ‘Nevertheless the bigamous marriage is unique in that its validation does not come about automatically after a lapse of time; its validation occurs upon the death of the first spouse.’
Article 650 of the Criminal Code, on the other hand, stipulates the criminal consequence of concluding a bigamous marriage. The party who concluded a bigamous marriage will be sentenced to a simple imprisonment, but if he/she concluded the second marriage by concealing the truth and deceiving the new spouse, the punishment will be five years rigorous imprisonment. On the other hand, if the new spouse was aware of the previous marriage of the bigamous spouse, he/she will be sentenced to simple imprisonment. One thing that needs to be noted here is that bigamy is not always a punishable act. Bigamous marriages may be allowed in some religions and cultures. If the family law of a certain region allows the conclusion of a bigamous marriage, there is no reason for the criminal code to penalize those who concluded a bigamous marriage.
Defective Consent: - consent constitutes the basic element for the conclusion of marriage. There are various grounds which may vitiate the consent of a person. Articles 34-36 of the RFC deal with the fate a marriage which has been concluded in the absence of the consent of one or both of the parties. Whatever ground causes the defective consent, the marriage concluded in such manner will be dissolved. However, there is a difference in the time limit within which the application for dissolution may be made to the court.
In case of a judicially interdicted person, it is the judicially interdicted person and the guardian who are given the right to request the dissolution of the marriage. The JIP may not apply for dissolution six moths after the date of termination of his/her disability. And as for the guardian, the application has to be made within six month after the day on which the guardian becomes aware of the existence of marriage, and in any case after the disability has ceased. Here we arae dealing with two types of limitations. The first one is a relative limitation in that it depends on when the guardian becomes aware of the existence of the marriage. The second is an absolute limitation. In all the circumstance, unless an application is made within the specified time the marriage will be validated.
When the consent is vitiated as a result of an act of violence, the party who concluded the marriage under the influence may apply to the dissolution of marriage. However, the application cannot be made six months after the cessation of the violence. So, the party seeking for the dissolution of the marriage has to make application at the time when the violence is still intact or alternatively within six months after the cessation of the violence. There is also a two year absolute limitation which will be counted beginning from the date of conclusion of marriage. Once these time limitations have passed, the marriage becomes a valid one.
In case where the consent was vitiated by error, whosoever has concluded marriage due to fundamental error may apply for the dissolution of the marriage. The application has to be made within six months after the discovery of the error. Otherwise, the marriage will be valid. It also has a two year absolute period of limitation.
Apart from dissolution of marriage which suffers from a defect in consent, there is also a criminal sanction attached. The party who has concealed the existence of one or more conditions which will cause the dissolution of marriage will be punished by simple imprisonment not exceeding two years and a fine not exceeding five thousand birr.
One very important thing which needs to be noted here is it is not only those persons who concluded the voidable marriage who will be liable to criminal punishment. Rather the law also includes those persons who celebrated such marriages.
The third category of impediments is absolute impediments. Under this falls relationship by consanguinity and affinity. ‘These obstacles are so grave that they can never be cured and therefore the marriage can never be validated….if a couple are married despite this impediment their marriage remains voidable.’ That means it may be dissolved at any time. The public prosecutor and any other interested person are given the right to apply for the dissolution of such marriage.
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.
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.
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.
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:
- 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.
- 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:-
- Error on the bodily confirmation of the spouse who does not have the requisite sexual organ for the consummation of the marriage
- Error on the behavior of the spouse who has the habit of performing sexual acts with person of the same sex.
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.
- 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.
- 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.
- By whom must the threat be made? The thereat can emanate from a third party; it need not emanate from the spouse.
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.
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.
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.
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.
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.