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.