LAW OF FAMILY

COURSE MATERIAL
Prepared by
ASCHALEW ASHAGRIE
MARTHA BELETE
1USTICE AND LEGAL SYSTEMS RESEARCH
INSTITUTE
ADDIS ABABA, ETHIOPIA
2008
TABLE OF CONTENTS
General Course Introduction...
Chapter One: General Consideration
1.1 Introduction to Family Law
1.2 Definition and Sources of family law
1.3 Rationale Beind !rotection and re"ulation of te family
1.# Sources of family relationsi$s
1.#.1 Relationsi$ %y consan"uinity
1.#.2 Relationsi$ %y &ffinity
1.#.3 Relationsi$ %y &do$tion
1.' (ffect of Family Relationsi$
Chapter Two: Marriage
2.1 Betrotal
2.2 Definition of )arria"e
2.3 )odes of Conclusion of )arria"e
2.3.1 Ci*il )arria"e
2.3.2 Reli"ious )arria"e
2.3.3 Customary marria"e
2.3.# )arria"e cele%rated a%road
2.# (ssential Conditions of )arria"e
2.#.1 Consent
2.#.2 &"e
2.#.3 &%sence of oter Im$ediments to )arria"e
2.' +$$osition to )arria"e
2., (ffects of -iolation of (ssential Conditions of )arria"e
Chapter Three: Effects of Marriage
3.1 General +*er*iew
3.2 !ersonal (ffects of )arria"e
3.2.1 Res$ect. su$$ort and assistance
3.2.2 Family )ana"ement
3.2.3 Coa%itation
3.2.# Duty of Fidelity
3.3 !ecuniary (ffects
3.3.1 !ersonal !ro$erty of S$ouses
3.3.2 Common !ro$erty of S$ouses
3.3.3 )ana"ement of !ersonal and Common $ro$erty of S$ouses
3.3.# De%ts of S$ouses
Chapter Four: Proof of Marriage
#.1 Re"istration of )arria"e
#.2 !roof of )arria"e %y Certificate of )arria"e
#.3 !roof of )arria"e %y !ossession of Status
Chapter Five: Dissolution of Marriage
'.1 Grounds of Dissolution
'.1.1 Dissolution %y o$eration of te law
'.1.2 Di*orce
'.1.2.1 Di*orce %y )utual Consent
'.1.2.2 Di*orce %y !etition
'.2 (ffects of Dissolution of )arria"e
'.2.1 Cild Custody
'.2.2 Li/uidation of !ecuniary Relations
'.2.3 !artition of )atrimonial !ro$erty
CHAPTER SIX
IRREGULAR UNION
,.1. Introduction ..
,.2. +%0ecti*es ..
,.3. 1e Conce$t of Irre"ular 2nion .
,.#. 3y Do !eo$le Li*e in &n Irre"ular 2nion4
,.'. 1e 5eed to !rotect Irre"ular 2nion
,.,. Le"al (ffects of Irre"ular 2nion .
,.6. !roof of Irre"ular 2nion ...
,.7. 1ermination of te 2nion .
,.8. Summary ..
,.19. Re*iew :uestions
CHAPTER SEVEN
FILIATION
6.1. Introduction ..
6.2. +%0ecti*es ..
6.3. )aternal Filiation ..
6.#. !aternal Filiation ..
6.#.1. !resum$tion of !aternity ..
6.#.2. &c;nowled"ment of !aternity .
6.#.3. <udicial Declaration
6.#.#. Re"ulation of Conflict of !aternity .
6.#.'. Disownin" .
6.'. !roof of Filiation .
6.'.1. General
6.'.2. !roof %y Record to Birt .
6.,. Summary ..
6.6. Re*iew :uestions ..
CHAPTER EIGHT
ADOPTION
7.1. Introduction ...
7.2. +%0ecti*es
7.3. &do$tions Defined
7.#. (ssential Conditions and (ffects of &do$tion .
7.#.1. (ssential Conditions .
7.#.2. (ffects of &do$tion .
7.'. Inter=country &do$tion and Safe"uards of cildren ....
7.'.1. Inter=country &do$tion in General
7.'.2. !lacement of te Cild .
7.'.3. Selection of &do$ti*e !arents .
7.,. Safe"uards for Cildren in Inter Country &do$tion .
7.,.1. Follow >2$..
7.,.2. 1e Cild?s Ri"t to Identity and Secrecy .
7.,.3. !re*ention of 2nlawful acts in Inter=Country &do$tion.
7.6. Re*ocation of &do$tion ...
7.7. Summary..
7.8. Re*iew :uestions .
CHAPTER NINE
OBLIGATIONS OF SUPPLY MAINTENANCE
8.1. Introduction.
8.2. +%0ecti*es
8.3. Rationale Beind te +%li"ation .
8.#. Su%0ect )atter of te +%li"ation .
8.'. !ersons %etween wom te +%li"ation (@ists
8.,. 1ermination of te +%li"ations
8.6. Summary .
8.7. Re*iew :uestions
CHAPTER TEN
SETTLEMENT OF DISPUTES
19.1 Introduction ..
19.2 +%0ecti*es
19.3 Settlement of Dis$utes &risin" out of )arria"e and Irre"ular 2nion

19.3.1 !reliminaries .
19.3.2 Settlement of Dis$utes %y Court ...
19.3.3 Settlement %y &r%itration .............
19.# Settlement of oter Family Dis$utes ....................
19.#.1 !reliminary ......................................................
19.#.2 Cild Custody.....................................................................
19.#.3 )aintenance &llowance .
19.#.# -isitation Ri"t .
19.' Summary .
19., Re*iew :uestions .
General Course Introduction
It is clear tat family is te fundamental unit and te core of a "i*en society. 1at is wy
family as %ecome te concern of different disci$lines suc as sociolo"y. antro$olo"y.
istory. law and oters. 1ese disci$lines "i*e attention to te institution of family as te
stren"t of a society to te lar"est e@tent in"es u$on te stren"t of te family it as. It
is %ecause of tis tat we need to "i*e reco"nition and $rotection to tis unit of society %y
law. &s a result. e*ery country in te world as enacted laws wic a*e reco"niAed and
$rotected te institution of family. In addition to domestic laws. tere are international
uman ri"t con*entions wic a*e accorded $rotection to te institution of family.
(tio$ia. %ein" $art of te international community. as $ut in $lace laws wic a*e
reco"niAed and $rotected family. 1is course is. terefore. meant to e@$ose students
ta;in" te course to te %asic $rinci$les of family law incor$orated under te (tio$ian
le"al system Bte FDR( Constitution. Re"ional Constitutions. te Re*ised Family Code
of te FDR( and oter re"ional family lawsC.
In order to acie*e tis o%0ecti*e. te course deals wit rationale %eind reco"niAin" and
$rotectin" te family. sources of familial relationsi$. formation and effects of marria"e
and irre"ular union. issues $ertainin" to filiation. ado$tion. te o%li"ation to su$$ly
maintenance and settlement of dis$utes.
&t te end of tis course. students sould %e a%le toD
= analyAe te rationale %eind reco"nition and $rotection of te familyE
= identify sources of family relationsi$ and e@$lain te effects of suc
relationsi$s as incor$orated under (tio$ian family lawsE
= define marria"e and discuss te essence of te institution of marria"eE
= state te essential conditions for te *alidity of all forms of marria"eE
= e@$lain irre"ular union and analyAe its distin"uisin" furter as com$ared to
marria"eE
= identify and analyAe te de$arture made %y te new family laws of (tio$ia from
te 18,9s Ci*il Code $articularly wit re"ard to te ri"ts of women and
$rotection of cildren.
= discuss te rules $ertainin" to ascertainment of material and $aternal filiationsE
= identify and analyAe mecanisms desi"ned %y te family laws to resol*e
dis$utes arisin" in marria"e and irre"ular unionE
= define ado$tion and discuss te essential conditions for esta%lisments of
ado$tion. its effects and causes of re*ocation of ado$tionE
= define te o%li"ation to su$$ly maintenance and analyAe te rationale %eind suc
o%li"ation.
Chapter One: General Consideration
Introduction
Family is te %asic unit of a society. It as social as well as economic im$ortance in any
society. 5aturally. $ersons %ound %y consan"uinity and affinity are united to form te
community. F3it time. te "rowin" family as a tendency to %ecome a tri%e.?
1
1e
formation of a tri%e entails te s$littin" u$ or disinte"ration of te family. so as to ma;e a
new and additional family in te society. 3it te increase in te num%er of families
arise *arious issuesE li;e res$onsi%ilities and ri"ts of te family mem%ers. 1e need to
a*e a law "o*ernin" te family relationsi$ is someow tied wit te de*elo$ment of
family trou" time. Considerin" tis need. societies a*e de*elo$ed one %ranc of law
solely dealin" wit issues related to te familyD Family Law.
Family Law is te %ranc of law wic sets te rules to "o*ern te on"oin"
res$onsi%ilities of family mem%ers to eac oterE %ot at te time families are formed and
after relationsi$s dissol*e. 1e a$$lication of te family law %e"ins at te time of
formation of family eiter trou" marria"e or irre"ular union. Its a$$lication e@tends
trou"out te life time of te e@istence of te family relationsi$ as well as at te time
of its dissolution.
In tis ca$ter. you will learn a%out te sources of family law. te reasons for $rotectin"
and re"ulatin" te family. te sources as well as effects of family relationsi$s.
Objectives
&t te end of tis ca$ter. students will %e a%le toD
discuss te meanin" and sources of family law.
analyAe te rationale %eind $rotection and re"ulation of family.
understand te different sources of family relationsi$.
discuss te effects of family relationsi$.
1
!laniol. 37'
1.1 Definition and Sources of Family Law
1ere is no "enerally acce$ted definition of family law. FFamily law is usually seen as te
law "o*ernin" te relationsi$ %etween cildren and $arents. and %etween adults in close
emotional relationsi$s?
2
. )any areas of law can a*e an im$act on family lifeD ta@ laws.
immi"ration laws as well as insurance laws a*e "reat connection wit family law. &s
Dewar notedD
Most legal disciplines would claim to possess at least one of two forms of
coherence. The first stems from the organizing legal concept from which the
discipline in question derives its name: contract, negligence, trust. The
second relates to the set of real world problems with which the discipline is
concerned: labor relations, housing, land use, commerce, government and
administration. At first glance, it would seem that the area of stud
designated as famil law possesses a coherence of the second sort. After all,
the term famil has in itself no legal significance !although attempts are
often made to define the famil for legal purposes"# and the sub$ect usuall
comprises a mi%ed bag of legal rules and concepts, such as those concerned
with marriage, divorce, parents and children and propert, each possessing
a different historical origin and pattern of development. The onl
$ustification for studing them together is that the all in some wa concern
the famil, a social phenomenon constituted outside the categories of the law.
&or this reason, famil law has grown over the ears to include parts of
other legal disciplines of relevance to the famil, such as propert, criminal
and housing law, ta%ation, social securit, evidence and procedure# as well
as incorporating legal aspects of phenomena thought to have a famil
connection, such as domestic violence, child abuse, marital rape, surrogac,
homelessness and pensions !to name a few".
'n spite of this, can it still be said that famil law is a coherent area of stud(
't has alread been suggested that it cannot satisf the first criterion of
coherence mentioned above# and if it were to satisf the second, the sub$ect
would be a good deal broader than it is now, probabl unmanageable so.
2
Jonathan Herring, 9
&or if we were reall to ta)e the famil as the starting point, and were to
consider all areas of law relevant to the famil, we would want to include
much that is not currentl considered part of the sub$ect. &or e%ample, we
might wish to consider the welfare state, the fiscal sstem and the labor
mar)et in more detail than is customar# and we ma also want to consider
the areas of education and health services. These are all areas of relevance
to families and in which the famil is encountered as a necessar rela in the
implementation of programs of social action. *ut famil law has not been
interpreted as broadl as this. 'nstead, it focuses primaril on the more
traditional question of status and is thus primaril concerned with the means
b which status is conferred, such as marriage, parenthood and cohabitation,
and on the means b which status ma alter, such as divorce or state action
to remove children from parents. More recentl, it has become concerned
with the problem of individuals abused b members of their own famil.
+,%cerpts from: -ohn .ewar, /aw and the &amil, 0
nd
ed, *utterworths,
/ondon, 1220, p.1304
1.2 Rationale Behind Protection and Regulation of the Family
1ere are *arious reasons for re"ulatin" and $rotectin" te family trou" te ado$tion of
le"islati*e inter*entions. Before loo;in" at tese reasons it is necessary to define a
family. 1e le"al definition of family is not a unitary conce$t. Gowe*er. we can find
some su""ested definitions.
!laniol defines a family as a "rou$ of $ersons wo are united %y marria"e. %y filiation or
e*en. %ut e@ce$tionally. %y ado$tion.
3
&noter more or less similar definition is "i*en %y
)urdo;. In tat definition. family is considered as H a social "rou$ caracteriAed %y
common residence. economic coo$eration. and re$roduction. It includes adults of %ot
se@es. at least two of wom maintain a socially a$$ro*ed se@ual relationsi$. and one and
more cildren. own or ado$ted. of te se@ually coa%itin" adults.H
#

3
Planiol, Vol. 1 part 1, 384
#
Murdok, Social Structure, (proble! o" the #ail$, 1%&
From te definitions "i*en a%o*e. one can cate"oriAe te family into nuclear and
e@tended family. 1e first and %asic ty$e of family or"aniAation is te nuclear family.
The nuclear famil basicall consists of a married man and woman with their
offspring.
5
The nuclear famil is a universal human social grouping. ,ither as
the sole prevailing form of the famil or as the basic unit from which more
comple% familial forms are compounded, it e%isted as a distinct and strongl
functional group in ever )nown societ.
,

An e%tended famil, on the other hand, consists of two or more nuclear families
affiliated through an e%tension of the parent3child relationship rather than of
the husband3wife relationship, i.e, b $oining the nuclear famil of a married
adult to that of his parents.
6

1is way of definin" te family as %een criticiAed recently %y many. es$ecially %y
autors in te western society. for its lac; of accommodatin" te can"es in te
circumstances and societal *alues. &s will %e seen sortly. esta%lisin" a family
relationsi$ will a*e its own effects. li;e for instances on issues of cild custody.
maintenance and oter ri"ts and o%li"ations. Definin" family in te a%o*e manner
restricts $ersons en"a"ed in nontraditional relationsi$s from a*in" tose ri"ts and
o%li"ations. BGar*ard Law Re*iew. *ol 19#. $ 1,#2=1,'8C
.o ou believe that formation of the famil needs to be regulated b the law( 6h( 6h
not(
1e family is a *ery im$ortant constituti*e $art of a society. It as natural. economic as
well as social im$ortance. F1e state of te wea;ness and of destitution in wic te cild
is %orn. te amount and len"t of care e needs. im$ose u$on is $arents duties wic are
'
proble! o" the #ail$, 1%&
,
Murdok, 1%3
6
Murdok 1%&'%3.
not fulfilled in one day and wic create te solid foundation of all of te family
relation.?
7

1e family is te nucleus of te society. and ence muc de$ends on its safety and
security. &s !laniol correctly notes. Fte small family "rou$ is te most essential element
of all tose wic com$ose te "reat a""lomerations of men wic are called nations.
1e family is te irreduci%le nucleus. &nd te wole is wort wat it itself is wort.
3en it is im$aired or dissol*ed. all te rest crum%les.?
8
1ou" te family may contain
only few $eo$le. te im$act tat tis unit as on te wole society is "reat. Factors
affectin" a sin"le family will later on a*e te effect of affectin" te wole society.
Due to te fact tat te marital status as well as te family entails community ri"ts and
o%li"ations far %eyond tose im$licit in te ordinary ci*il contract. it is conceded tat te
states may $rescri%e te conditions on wic te status may %e assumed.
19
&s a result.
marria"e laws are su%0ect to te control of te state "o*ernmentE and te interest of te
state in te marria"e of its citiAens as lon" %een reco"niAed. H1e state. it is said. is a
$arty to e*ery marria"e. 1is means sim$ly tat te state is interested in te well ordered
re"ulation of te family or"aniAation of te $ersons witin its %orders.H
11

1e state uses different means to re"ulate and control te formation as well as te effects
of formin" a family. +ne %asic means of doin" so is trou" le"islations. Laws a*e
*arious functions witin a state.
7/aws do more than distribute rights, responsibilities, and punishments. /aws
help to shape the public meanings of important institutions, including marriage
and famil. The best interdisciplinar studies of institutions conclude that social
institutions are shaped and constituted b their shared public meanings.
According to 8obel 9rize winner .ouglass 8orth, institutions perform three
unique tas)s. The establish public norms or rules of the game that frame a
particular domain of human life. The broadcast these shared meanings to
7
(planiol, 38()
8
(planiol, 38%
19
(urdok, *%)
11
(Marriage la+!, 4 ,lbert Jackob!)
societ. &inall, the shape social conduct and relationships through these
authoritative norms.
12

Gence. te state $rotects and re"ulates te family %y usin" its le"islati*e $ower.
1.4 Sources of Family Relationships
6hat do ou thin) are the different sources of famil relationship(
1ere are tree sources of family relationsi$s namely. marria"e. filiation and ado$tion.
1e status of te $ersons as well as te ri"ts and o%li"ations of te $ersons differs wit
te difference in te source of te relationsi$. 1is section deals wit te different
sources of family relationsi$s and te effects of te relationsi$s.
1.4.1 Relationship by consanguinity
Relationsi$ %y consan"uinity results from te %irt. It is Fte tie wic e@ists %etween
two $ersons. suc as te son and te fater. te "randson and te "randfaterE or tose
wo descend from a common ancestor. suc as two %roters. or two cousins.?
13

Gence. relationsi$ %y consan"uinity is a natural fact wic is deri*ed from %irt.
(@cer$ts from !laniol $a"es 376=378
The series of relatives who descend from each other form what is called a line. 't is a
direct relationship: it is represented b a straight line going from one relative to the
other, no matter how man intermediaries there ma be. As to the relationship which
unites two relatives descending from a common ancestor, it is called collateral
relationship: its graphic relationship is formed b an angle. The two relatives occup the
inferior e%tremit of the two sides and the common author is at the top. Two collateral
relatives are thus not in the same line# the form part of two different lines which started
from the common author, who represents the point where the $unction is made# the two
lines travel side b side, which fact e%plains the word 7collateral7# each of the two
relatives is, in regard to the other, in a line parallel to his own, collateralis. :
12
(#uture o" "ail$, 1-)
13
!laniol. 376
'n each line relationship is counted b degrees, i.e. b generation. ;o the son and the
father are related in the first degree# the grandson and the grandfather in the second
degree, and so on.
Method of calculation of relatives in the direct line is eas.: there are as man degrees as
there are generations going from one relative to the other.
6hen it comes to collateral relationship there are two was of computation. The one
used b the civil law count the number of generations in the two lines b departing from
the common ancestors and b adding the two series of degrees. Thus, two brothers are
related in the second degree !one generation in each branch"# an uncle and his nephew
are related in the third degree:.in the <anon law another wa is used to compute the
degrees: the generations are counted onl on one side. 6hen the two lines are equal,
either ma be ta)en. 6hen the are not equal, the longest one of the two is chosen and no
attention is paid to the other. The result of this <anonical computation is that two first
cousins are related in the second degree, while according to the civilian computation
the are related in the fourth degree:..
1e followin" dia"rams illustrate ow te com$utation is to %e underta;en
Grandfather
Father
Child
Grandchild
1o reac to te de"ree of relationsi$ %etween $ersons related in te direct line. we
sim$ly count te num%er of lines %etween tem. Gere. te "randfater and te "randcild
are related in te tird de"ree in te direct line.
In calculatin" te de"ree of relationsi$ in te collateral line. tere are two way. wic
will lead to different results. Let us a*e a loo; at te followin" dia"ram to a*e a clear
understandin" of te two systems

1e cildren of & are related in te collateral line. If we are usin" te Ci*il law system to
calculate te de"ree of relationsi$ %etween B and C. wo are %roters. we will add te
two lines wic are de$artin" from te common ancestor &. Gence. B and C are related
in te second de"ree. B. wo is te uncle of (. is related to ( in te tird de"ree. &nd B is
related to F in te fourt de"ree.
+n te oter and. if we use te Canon law. te result will %e different. &s mentioned
earlier. te cannon law tells us to count only on one side. 3en te two lines are e/ual.
we will sim$ly ta;e one line. &ccordin"ly. te de"ree of relationsi$ %etween B and C is
one. Con*ersely. if te lines are not e/ual. te lon"est line is to %e ta;en. Gence. in te
a%o*e dia"ram. B is related to F in te tird de"ree.
A
B
D
C
E
F
3en we loo; into te (tio$ian Ci*il Code of 18,9. it does not "o*ern ow te
relationsi$ in te direct line is to %e com$uted. &rticle ''1 tries to "i*e some i"li"t
on ow te com$utation of relationsi$ in te direct line is to %e conducted. 1e &maric
*ersion of te Code states as follows
IJKLMNOPQRSTIKUVWXYIZ[N\]^ILMNO_`abMcZUOdefgYhYiNjJjTkJVlmhhYiNN`JXYnn
Gowe*er. tis article only tells us tat calculation of de"ree of relationsi$ in consan"uial
line is to %e done %y ta;in" te common ancestor as a %enc mar;.

.oes the =evised &ederal &amil <ode regulate the manner of computation of degree of
relationship( 6h do ou thin) is the reason(

1.4.2 Relationship by Affinity
Relationsi$ %y affinity is created as a result of marria"e. HRelati*es trou" marria"e
are $ersons wo are not relati*es. %ut wic 0oin te family %y means of a marria"e.H
1#
3en a marria"e is concluded. te relationsi$ is formed %etween one of te s$ouses
wit te %lood relati*es of te oter s$ouse. 1e woman wo marries %ecomes te
dau"ter in law B%y marria"eC of te fater and moter of te us%and and te us%and
%ecomes te son in law of te moter and fater of te wife. H1e two s$ouses are
considered as %ein" only one. so tat all te relationsi$s of te one %ecome. %y te
effects of marria"e. common to te oter.H
1'
+ne tin" wic needs to %e noted ere is
te fact tat te relationsi$ created does not "o %eyond tis. 1at means. a relationsi$
does not e@ist %etween te relati*es of one s$ouse wit te relati*es of te oter s$ouse.
1.4.3 Relationship by Adoption
Relationsi$ %y ado$tion is created as a result of a s$ecial contract %etween te ado$ter
and te ori"inal families of te ado$ted cild. 2nli;e %lood relationsi$. it is a fictitious
relationsi$ wic resulted from te a"reement of te $arties to te ado$tion contract.
Gowe*er. it is also an imitation of te real relationsi$. Ca$ter ei"t deals in detail
a%out ado$tion. and ence. it is not necessary to "o to te details under tis section.
1#
!laniol. 381
1'
Planiol, 39&
1.5 Effect of Family Relationship
6hat do ou thin) are some of the effects of famil relationship(
1ere are *arious effects wic resulted from te relationsi$. Relationsi$s "i*e ri"tsE
tey also create o%li"ations. and also carry inca$acities. Gence. we can tal; a%out tree
effects of a relationsi$D creation of ri"ts. creation of o%li"ations and ma;in" te related
$ersons inca$a%le of $erformin" some 0uridical acts.
Rights emanating from a relationshipD= relationsi$ results in te ri"t of te relati*es
to ta;e te estate of te deceased relati*e. 1at is to say. a ri"t of succession is one of
te effects of a family relationsi$. Secondly. tere is also te ri"t of destitute relati*es
to "et maintenance from te oter relati*es. !arents will also a*e a ri"t o*er te $erson
and te estate of teir cildren. For instance. article 187 of te RFC $ro*ides tat te
o%li"ation to su$$ly maintenance e@ists %etween ascendants and descendants and also
%etween $ersons wo are related %y affinity in te direct line.
Obligations emanating from relationshipD tere are also *arious o%li"ations wic will
su%sist amon" te relati*es. 1e first o%li"ation is tat of alimony. Relati*es a*e te
o%li"ation to $ro*ide alimony for te destitute relati*es wo cannot a*e teir own means
of income. )oreo*er. tere is also te duty on te $arents to ta;e custody and raise teir
cildren. In tis re"ard. article 218 of te RFC $uts an o%li"ation on te fater and
moter of te minor cild to %e te 0oint "uardian and tutors durin" te life time of teir
marria"e. 1a;in" custody of cildren also in*ol*es ma;in" decisions in res$ect of te
ealt. education as well as social contacts of te cild. &rticles 2'' and te followin"
articles of te RFC $ro*ide %y way of o%li"ation on te $arents to ta;e care of te ealt.
residence. education as well as social contact of te minor cild. +n to$ of tis. tere may
%e $ro$erty inerited %y te cild. 1e $arents or in teir a%sence. te ascendants will
a*e te o%li"ation to administer te $ro$erty on %ealf of te cild.
&$art from te a%o*e mentioned duties and ri"ts. relationsi$s may also result in
inca$acities of te $ersons in*ol*ed. 1e law $roi%its marria"e %etween close relati*es.
1e inca$acity to marry is one ty$e of inca$acity resultin" from relationsi$. 2nder 32 of
te RFC as well as te re"ional family codes relationsi$ is $ro*ided as one essential
condition for te conclusion of marria"e.

Activity 1. Form a "rou$ of fi*e and discuss amon"st yoursel*es wat family is in te
(tio$ian law and te sources of family relationsi$. )a;e sure to consult family laws of
at least two re"ions.
Activity 2. Discuss in "rou$s te teories of com$utin" family relationsi$s. By drawin"
a dia"ram. try to calculate te de"ree of relationsi$ %etween you and your "rand$arents
on te one and and %etween you and your ne$ewsonieces on te oter and. 2se %ot
te canonical and ci*il law modes of com$utation.
Chapter Two: Marriage
Introduction
1e $re*ious ca$ter. $resented te meanin" of family as well as te sources of
relationsi$ of family. &s you a*e correctly o%ser*ed. one and te ma0or source of
family relationsi$ is marria"e. 3at is marria"e4 3at are some of te conditions
wic need to %e fulfilled to conclude marria"e4 Considerin" te difference in te custom
and reli"ion of te society. te FDR( Constitution as well as te Re*ised Family law
reco"niAes marria"es as cele%rated in accordance wit te custom and reli"ion of te
s$ouses. +ne *ery im$ortant /uestion wic needs to %e considered ere is p&re s$ouses
wo are concludin" teir marria"e accordin" to teir custom or reli"ion re/uired to
o%ser*e te essential conditions of marria"e4p wat will a$$en if two $ersons $roceed to
conclude teir marria"e des$ite te non=fulfillment of one or more of te essential
conditions4 1ese and oter related issues are te su%0ect of discussion in tis ca$ter.
Objectives
&fter com$letin" tis ca$ter. students will %e a%le to
define marria"e
identify te difference %etween %etrotal and marria"e
identify te different modes of conclusion of marria"e
analyAe te essential conditions for te conclusion of marria"e as incor$orated
under te Family law
identify te $ur$ose of o$$osin" conclusion of marria"e and te $ersons entitled
under te law to ma;e suc o$$ositions
identify and discuss te effect of *iolation of te essential conditions of marria"e
2.1 Betrothal
In earlier times. %efore two $ersons conclude marria"e. tey would "o trou" te
$rocess of %etrotal. )ainly te %etrotal was concluded %etween te $arents of te
future s$ouses. Betrotal is defined under article ',9 of te ci*il code as a contract
%etween te mem%ers of two families tat a marria"e sall ta;e $lace %etween two
$ersons. te fiancq and te fiancqe. %elon"in" to tese two families. Gence. under te
Ci*il Code. te %etrotal contract is to %e concluded %etween family mem%ers of te
future s$ouses and more em$asis is "i*en to te coice. consent and interest of tese
family mem%ers rater tan te future s$ouses. )oreo*er. in many circumstances te
$ractice sows tat %etrotal was concluded wen te future s$ouses are undera"e and
sometimes not yet %orn.
1,
1is means. te interest and coice of te future s$ouses was
not considered at all.
1,

5
+n te oter and. te Constitution of 188' reco"niAes te ri"t of indi*iduals to form a
family wit teir own free and full consent. &s result. te $ro*isions of te Ci*il Code
dealin" wit %etrotal were found to %e contrary to tis fundamental ri"t of indi*iduals.
Gence. te RFC as e@cluded te conce$t of %etrotal as a wole.
Gowe*er. some re"ional family codes maintain te conce$t of %etrotal wit
modification. 1e ma0or modification made relates to te definition "i*en to %etrotal.
&ll te re"ional laws wic incor$orated te conce$t of %etrotal defined it as a $act
%etween te fiancq and fiancqe to conclude marria"e sometime in te future.
16
1is is
unli;e te definition "i*en %y te Ci*il Code wic in*ol*es only te $arents or
"uardians of te future s$ouses.
1e Family Code of te &mara re"ion re/uires te contract of %etrotal to %e made in a
written form si"ned %y four family witnesses. two from eac side.
17
+n te oter and.
te family code of te Benisan"ul GumuA re"ion allows %etrotal to %e concluded
$ursuant to te custom of te area. 1is may %e eiter in writin" or orally. wice*er is
customarily $racticed in te re"ion. 3en we loo; into article # of te S55! re"ional
family code. %ot o$tions are included.
1e family codes a*e also $ro*ided a time framewor; for te duration of te %etrotal.
&rticle , of te S55! family code lea*es it o$en for te $arties to determine te duration
of %etrotal. Gowe*er. if te $arties fail to mention te time for te conclusion of
marria"e. it re/uires tem to tie te $act witin a year after te conclusion of te %etrotal
contract. 1e family code of te Benisan"ul GumuA. on te oter and. "i*es only si@
monts after te conclusion of te %etrotal contract. 1e time framewor; "i*en under
article , of te &mara re"ional family code is two years. Gence. te marria"e as to %e
concluded witin two years followin" te %etrotal contract.
1e family codes a*e also en*isa"ed a situation for te in*alidation of te %etrotal
contract. If one of te $arties to te %etrotal contract communicate teir intention to
in*alidate te %etrotal. or refuse to conclude marria"e witin te intended $eriod or
16
See article 1 of te Family Code of &mra and S55! Re"ions. as well as article 7 of te Benisan"ul
GumuA re"ion.
17
See article ' of te &mara re"ional family code
en"a"ed in any act to im$ede te conclusion of marria"e. te %etrotal contract will %e
in*alidated.
18
1e conse/uences of %reac of te contract are also illustrated in te
su%se/uent articles.
2.2 Definition of Marriage
1e family in te (tio$ian Constitution is reco"niAed as te natural and fundamental
unit of a society and an im$ortant le"al and social institution. &s a result. it is "i*en le"al
$rotection. +ne tin" tat sould %e noted ere is tat a marria"e may %e re"arded as
eiter a status or a contract. &s <onatan Gerrin" noted
29

Marriage could be regarded as either a status or a contract. 'n law a status
is regarded as a relationship which has a set of legal consequences which
flow automaticall from that relationship, regardless of the intention of the
parties. A status has been defined as the condition of belonging to a class in
societ to which the law ascribes peculiar rights and duties, capacities and
incapacities. ;o the status view of marriage would suggest that, if a couple
marr, then the are sub$ect to the law governing marriage, regardless of
their intentions. The alternative approach would be to regard contract as
governing marriage. The legal consequences of marriage would then flow
from the intentions of the parties as set out in an agreement rather than an
given rules set down b the law.
Marriage is perhaps best regarded as a mi%ture of the two. There are some
legal consequences which flow automaticall from marriage and other
consequences which depend on the agreement of the parties. The law sets
out: who can marr, when the relationship can be ended and what are the
consequences for the parties of being married.
In (tio$ia. marria"e is re"arded in %ot te Ci*il Code. 1e Re*ised Family Code and
te re"ional family codes as an institution. rater tan a contract.
21
Gowe*er. wen it
18
see article 6of te &mara re"ional family code. article 16 of te Benisan"ul GumuA family code and
article 6 of te S55! re"ion family code
29
Jonathan Herring, #ail$ .a+, (&--1), 33
21
/ilahun /e!hoe, 0nternational !ur1e$ o" "ail$, 1(*
comes to definin" tis institution. neiter laws are el$ful. Gence. to a*e a common
understandin" of te institution. it is necessary to resort to te definitions "i*en %y oter
forei"n laws.
In te (n"lis le"al system. marria"e. as defined %y Sir <ames 3ilde in te land mar;
case of Gyde -s Gyde. is te *oluntary union for life of one man and one woman to te
e@clusion of all oters.
22
1is same definition is also u$eld under te &ustralian
)arria"e &ct of 18,1. 1e definitional $art as well as Section #, of te &ustralian
)arria"e act defines marria"e as te *oluntary union of one man and one woman for life
to te e@clusion of oters. 1is definition as %een ta;en from te (n"lis definition of
marria"e. Bot definitions contain tree common elements. First. te marria"e as to %e
concluded %etween a man and a woman. tere is no le"al marria"e %etween same se@
$ersons. Secondly. te institution of marria"e is to %e entered into wit te a%solute
consent of te $arties i.e.. *oluntarily. In addition. te marria"e is e@$ected to last for a
life time. deat %ein" te only cause for dissolution.
1e !ili$$ines Family Code of 1876. on te oter and. defines marria"e as a s$ecial
contract of $ermanent union %etween a man and a woman entered into in accordance wit
law for te esta%lisment of con0u"al and family life.
23
In addition to te elements tat are
$resent in te (n"lis and &ustralian definition of marria"e. te !ili$$ines family code
considers te esta%lisment of con0u"al and family life as essential elements for marria"e.
1e definitions "i*en %y te different le"al systems a*e teir own sortcomin"s. &ll te
documents tend to %e ideal in te sense tey e@$ect te union to last for life. wile in
reality marria"es %rea;down for different reasons oter tan deat. )oreo*er. te central
aim of concludin" marria"e seems to %e esta%lisment of a family. wile in reality. some
cou$les conclude marria"e ;nowin" tat tey cannot a*e teir own cildren.
2#

1a;in" into account te insufficiency of te definitions "i*en %y many forei"n laws. te
(tio$ian le"islature o$ted not to "i*e any definition at all.
22
de"inition o" arriage in 23, 1).
23
article 1, #ail$ 4ode o" Phillipine!
2#
Mehari p. 1&
/oo) into <hapter >ne section two of the =&< and tr to infer a definition which ma
incorporate various aspects of famil.
2.3 Modes of Conclusion of Marriage
1e Re*ised Federal Family Code as well as te Re"ional Family Codes reco"niAed tree
modes of conclusion of marria"e. 1ese areD Ci*il )arria"e. Reli"ious )arria"e and
Customary )arria"e.
2.3.1 Civil Marriae !Marriae C"#cl$ded be%"re a# &%%icer "% Civil Stat$'(
For a marria"e to %e considered as %ein" concluded %efore an officer of ci*il status. a
man and a woman need to a$$ear %efore te officer for te $ur$ose of concludin"
marria"e and "i*e teir res$ecti*e consent to enter into marria"e.
2'
Gence. te $rase
ci*il marria"e %asically refers to te fact tat te marria"e as %een solemniAed in front
of an officer wo is em$owered to acce$t te consent of $arties wisin" to enter into
marria"e.
1e 18,9 (tio$ian Ci*il Code $ro*ides for te esta%lisment and te duties of te office
of ci*il status. Gowe*er. im$lementations of te $ro*isions wic deal wit tis office
a*e %een made to wait for te issuance of an +rder to %e $u%lised in te 5e"arit
GaAeta. wic as ne*er come into life.
2,
&s a result. currently tere is no esta%lised
office of ci*il status. In munici$al areas. te functions of te officer of ci*il status are
assumed and $erformed %y te munici$alities. For instance in &ddis &%a%a te offices of
te ?ifle )etemas are te ones wo o*ersee te $erformance of ci*il marria"es.
In order to conclude ci*il marria"e. tere are certain formalities and re/uirements wic
are sti$ulated %y te RFC. 1e first formality is tat of a residence. !ursuant to article 22
of te code. ci*il marria"e is concluded %efore te officer of ci*il status of te $lace
were one of te future s$ouses or one of te ascendants or close relati*es of one of tem
2'
article & o" the 5#4
2,
,rticle 33%1 o" the 4i1il 4ode
as esta%lised a residence %y continuously li*in" tere for not less tan si@ monts
%efore te conclusion of te marria"e. Gence. te solemniAation of a ci*il marria"e is to
%e conducted in te $lace in wic one of te aforementioned as esta%lised a residence
for a minimum of si@ monts. Residence. on te oter and is defined %y te Ci*il Code
as te $lace were a $erson normally resides.
26
1e code also tries to distin"uis %etween
residin" in a $lace and a mere so0ourn in a $articular $lace. In determinin" e@istence of a
residence. te notion of normality and intention of te $erson concerned are *ital. In
addition to tis. article 16'o2 re/uires stayin" in a $articular $lace for a minimum of tree
monts to constitute residence. F&ltou" te code does not settle te $oint. it seems tat
te $eriod of tree monts must %e uninterru$ted.?
27
Gowe*er. wen it is for te $ur$ose
of conclusion of marria"e. tis article of te Ci*il Code is /ualified %y *irtue of article 22
of te RFC. &s a result. tose $ersons enumerated under article 22 of te RFC a*e to
reside in te $lace for a continuous $eriod of si@ monts. 1is article also answers te
/uestion as to weter te $eriod sould %e interru$ted or uninterru$ted one.
1e oter formality is tat of "i*in" notice. 1e RFC re/uires te future s$ouses to
inform te officer of Ci*il Status of teir intention to conclude marria"e not less tan a
mont %efore te cele%ration of te marria"e.
28
1e $ur$ose of notifyin" te officer is to
ma;e sure tat tere are no im$ediments to te conclusion of marria"e and to allow
anyone wo want to o$$ose to te marria"e to do so in accordance wit te law. 1is can
%e understood from te re/uirement on te $art of te officer to $u%liciAe te notification
sti$ulated under te same article as well as te su%se/uent articles of te Code.
1e $rocess of notification and waitin" $eriod Bor te formal re/uirements for conclusion
of marria"e %efore an officer of ci*il statusC are a*aila%le in oter countries? laws as well.
For instance. all states in &merica $rescri%e some formalities for conclusion of marria"e.
&nd te re"ulations are cate"oriAed into two classesD licensure and solemniAation.
39
&s (llman et al $ut itD
26
article 1*4 ci1il code
27
Vanderlinden, .a+ o" Per!on!, 34
28
article &3 o" the 5#4
39
0ra ark 6llan, #ail$ .a+7 ca!e!, te8t, Proble!, (%
All states have marriage license laws. Applicants provide certain
information to a governmental office concerning age, prior relationship b
blood or marriage, previous marriage etc. This information helps in
compiling vital statistics and could facilitate enforcement of substantive
marriage regulations b permitting the cler) to screen out ineligible
applicants. &or e%ample, if the application revealed the bride and groom
were siblings, the license would be denied under laws prohibiting incestuous
marriages. 'n 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.
@1
+n te issue of waitin" $eriod. te autors a*e noted tatD
Most states impose a waiting period !of either @ or 5 das", either between
the application and issuance of the license or between issuance and
performance of the ceremon. :the waiting period requirement as well as
the entire licensing procedure is e%plained as impressing upon the parties the
seriousness of the entr into marriage.
@0
1e 18#8 )arria"e &ct of te 2r also sti$ulates some formalities for conclusion of
marria"e. 2nder tis law. te $arties are re/uired to "i*e notice in $rescri%ed form to
teir local su$erintendent re"istrar Bin wose area tey must a*e %een resident for se*en
days $recedin" te "i*in" of noticeC of teir intention to marry.
33
Gere one sould note
te difference in te re/uirement to constitute a residence under te )arria"e &ct of te
2r wit tat of te (tio$ian Re*ised Family Code. 2nder te 18#8 Family &ct of te
2r. te re/uirement is only se*en days wile in te (tio$ian conte@t. te $arties a*e to
reside in tat $articular area for a $eriod not less tan si@ monts. In addition to te notice
re/uirement. te $arties are also e@$ected to $ro*ide a declaration tat tere are %elie*ed
to %e no lawful im$ediments to te marria"e.
3#
31
0ra Mrk 6llan, "ail$ la+ ca!e!9, (%'(*
32
0ra ark 6llan, (*
33
John :e+ar, .a+ and the #ail$, (199&), 34
3#
Section &8 o" the arriage ,ct o" 1949.
+nce tese $reliminary formalities are fulfilled and te wor; of $u%liciAin" te intention
of te $arties to marry as %een made %y te ci*il status officer. te ne@t ste$ is te
cele%ration BsolemniAationC of marria"e. Cele%ration of marria"e is to %e made $u%licly
in te $resence of te future s$ouses and two witnesses for eac of te future s$ouses.
3'
+ne re/uirement sti$ulated under article 2' of te RFC is tat te future s$ouses a*e to
$ersonally a$$ear for te solemniAation $rocess. In connection to tis re/uirement. te
issue of $ro@y marria"es can %e raised.
.o ou thin) that the future spouses need to be present before the officer of <ivil status
to celebrate their marriage( 's it alwas mandator for the future spouses to be present
or is it possible to conclude marriage through representation(
1e /uestion of weter marria"e can %e concluded %y $ro@y is of little $ractical
im$ortance in modern times. Gowe*er. tere may %e circumstances wic would
necessitate te use of re$resentation for marria"e. Gistorically. te late Roman law and
te Canon law allowed in a clear manner cele%ration of marria"e %y $ro@y. In te words
of !om$oniusD
3,
A man who was awa from home might marr a woman b letter or
messenger, but marriage could not be contracted in this manner b a woman
who was absent from the man7s place of residence. The reason for this
difference between the man and the woman resulted from the requirement of
the =oman law that the wife be led to the husband7s home.
1e Code 5a$oleon. on te oter. does not $roi%it $ro@y marria"e in e@$ress terms. It
sim$ly $uts an o%li"ation on te officer of ci*il status to read te $arties te re/uirement
of te law wit res$ect to marria"e and te mutual ri"t and duties of te $arties wic
emanates from te marria"e.
36
In order to acie*e tis $ur$ose. it seems tat te $arties
need to $ersonally %e $resent at te ceremony. Gowe*er. some Frenc writers eld te
3'
,rticle &(;1 o" 5#4
3,
:ige!t <<000 a! cited b$ 6rne!t =. .oren>en, (1919), Marriage b$ pro8$ and the 4on"lict o"
.a+!, Har1ard la+ 5e1ie+, Vol 3&, no.(, 4*3'4*4
36
6rne!t =. .oren>en, (1919), Marriage b$ pro8$ and the 4on"lict o" .a+!, Har1ard la+ 5e1ie+,
Vol 3&, no.(, 4** !ee al!o article *( o" the 4ode ?apoleon
*iew tat in te a%sence of e@$ress $ro*ision wic made marria"e concluded %y $ro@y
*oid. it sould %e considered as *alid.
37
)arria"e %y re$resentation is necessary wen one of te $arties cannot %e $resent for te
ceremony. F3ile its most $rominent use as %een in wartime wit one $arty on duty
o*erseas. sometimes it is used %y $risoners.?
38
1e First 3orld 3ar was te main reason
for many (uro$ean countries to allow in teir laws for te conclusion of marria"e
trou" re$resentation.
The &rench /aw of April A, 1215 authorized soldiers and sailors with the
colors to marr for grave reasons b pro% with the permission of the
minister of $ustice and of the minister of war or the minister of the nav:.
;oldiers and sailors, emploees of the Arm and 8av, and persons in the
service of the Arm and 8av, were authorized in 'tal to marr b pro% b
a decree of -une 0A, 1215.
AB
Considerin" te need to conclude marria"e %y re$resentation. te Ci*il Code of 18,9 as
well as te RFC allowed %y way of e@ce$tion for te conclusion of marria"e trou"
re$resentation. +ne sould note ere tat in $rinci$le eac of te future s$ouses are
re/uired to a$$ear $ersonally and "i*e teir consent to te marria"e at te time and $lace
of cele%ration.
#1
Gowe*er. if one of te $arties. for serious cause. could not %e $ersonally
$resent. marria"e %y re$resentation may %e allowed %y re$resentation. Gere one /uestion
tat needs to %e addressed is. wat does it mean %y Fserious cause?4
1e RFC does not "o %eyond re/uirin" te e@istence of a serious cause and te e@istence
of consent of te re$resented $erson and define wat a serious cause could %e. 3e can
attem$t to identify wat a serious cause is %y loo;in" into te laws of oter countries and
te reason for tese countries to allow marria"e %y $ro@y. &s discussed a%o*e. many
countries allow marria"e %y $ro@y wen one of te s$ouses are away on military wor; or
37
6rne!t =. .oren>en, (1919), Marriage b$ pro8$ and the 4on"lict o" .a+!, Har1ard la+ 5e1ie+,
Vol 3&, no.(,4**
38
0ra Mark 6llan, (8
#9
.oren>en, 4*9
#1
,rticle 1&;1 cu article &(;1 5#4
in te na*y and sometimes also for $risoners. amon" oters. Gence. one can conclude
tat Fserious cause? in te (tio$ian Family Code will also %e inter$reted in li"t of tese
"rounds.
<ompare article 10C1 cum article 05C1 of the =&< with article 5DE of the <ivil <ode. Tr
to loo) into similar provisions of one or two regional famil codes.
1e oter formality incor$orated under article 2' of te RFC is te o%li"ation on te
witnesses to declare. under oat. tat te essential conditions for marria"e are fulfilled.
#2
&s mentioned earlier. one $ur$ose of im$osin" tese formality re/uirements is to ma;e
sure tat te su%stanti*e re/uirements for conclusion of marria"e are fulfilled. +ne way
of acie*in" tis $ur$ose is %y re/uestin" te witnesses to confirm under oat te
fulfillment of tese conditions. &s can %e "ras$ed from te ne@t su%=article. te ta;in" of
te oat as its own conse/uences. and te conse/uences sould %e e@$lained to te
witnesses %y te +fficer.
1e tird formality re/uirement for cele%ration of ci*il marria"es is tat te future
s$ouses need to declare o$enly tat tey a*e consented to enter into te marria"e.
)arria"e is an institution wic is to %e entered into %y te $arties of teir free will. 1e
e@istence of teir free will as to %e o$enly communicated to te officer of ci*il status.
&$art from te o$en communication of teir will. te future s$ouses as well as te
witnesses are re/uired to si"n in te re"ister of te Ci*il Status.
#3

&fter te fulfillment of all te a%o*e mentioned formalities. wat is left is for te +fficer
of ci*il status to $ronounce tem united in marria"e and issue a certificate of marria"e.
##
2.3.2 Relii"$' Marriae
1e second ty$e of marria"e wic is "i*en reco"nition %y te RFC is reli"ious marria"e.
!ursuant to article 3 of te RFC. a reli"ious marria"e ta;es $lace wen a man and a
#2
,rticle &(;3. /he e!!ential condition! o" arriage are di!cu!!ed in detail in !ection9.
#3
,rticle &(;( o" the 5#4
##
,rticle &(;% o" the 5#4
woman a*e $erformed suc acts or rites as deemed to constitute a *alid marria"e %y
teir reli"ion or %y te reli"ion of one of tem. &s a result. te formal re/uirements for
te conclusion of reli"ious marria"e are dictated %y te reli"ion itself. 1is is furter
corro%orated %y article 2,o1. Gence. te conclusion of te reli"ious marria"e as well as
te formalities to %e followed are as $rescri%ed %y te concerned reli"ion. Gowe*er. one
sould note ere tat te essential conditions tat are sti$ulated %y te RFC need to %e
o%ser*ed wate*er te manner of cele%ration of marria"e is.
#'

2.3.3 C$'t")ary Marriae
(tio$ia is a nation wic is %elie*ed to %e ome for more tan ei"ty nationalitites.
1ese different nationalitites a*e teir own $eculiar customs. 1e di*ersity in te
customs of te $eo$le as %een reco"niAed %y te 188' FDR( Constitution. !articularly.
&rticle 3#o# of te Constitution sti$ulates for te enactment of a s$ecific law wic "i*es
reco"nition to marria"e concluded under systems of reli"ious or customary laws. In li"t
of tis o%li"ation. te RFC "i*es te future s$ouses te o$tion to conclude teir marria"e
in accordance wit customary $ractices.
!ursuant to &rticle # of te RFC marria"e accordin" to custom ta;es $lace wen a man
and a woman a*e $erformed suc rites as deemed to constitute *alid marria"e %y te
custom of te community in wic tey li*e or %y te custom of te community to wic
tey %elon" or to wic one of tem %elon". +ne im$ortant tin" wic needs to %e
noted ere is tat for a marria"e to %e concluded accordin" to custom. te custom referred
to is of treeD te custom of te community in wic tey li*e. or te custom of te
community to wic %ot future s$ouses %elon" or alternati*ely to wic one of tem
%elon". 1is is in contradistinction to te Ci*il Code of 18,9. &rticle '79 of te Ci*il
Code considers a marria"e to %e customary marria"e wen it is concluded under te rules
of te community to wic te future s$ouses %elon" or to wic one of tem %elon"s.
Definin" customary marria"e in suc manner as te effect of e@cludin" marria"es
concluded %y two $ersons %elon"in" to a certain tri%e %ut te marria"e was concluded
usin" te rites of a different tri%e. For instance if a man from te +romo tri%e concludes
#'
See article &%;& o" the 5#4
marria"e wit a woman from te 1i"ray tri%e and te marria"e was concluded in &mara
re"ion %y fulfillin" te rites of te &mara tri%e. suc marria"e will not %e considered as
a customary marria"e concluded %y fulfillin" te re/uirements of te &mara tri%e.
%ecause neiter of te s$ouses %elon" to tat tri%e. Considerin" te sortcomin" of article
'79 of te Ci*il Code. te RFC included te custom of te community in wic te
$arties are li*in" at te time of conclusion of marria"e.
1e conclusion of te marria"e as well as te formalities. ence. is to %e $rescri%ed %y
te concerned community. Gere also note sould %e made to te effect tat te customary
marria"es also need to o%ser*e te essential conditions of marria"e sti$ulated %y te
RFC.
6hat does celebration of marriage mean( 6hen do we sa a marriage is celebrated(
2.3.* Marriae Celebrated Abr"ad
1e oter new introduction in te RFC is te reco"nition of marria"es tat are cele%rated
a%road. 1is is necessitated %y te increase in te mo*ement of $eo$le from one $lace to
anoter. 5ot reco"niAin" a marria"e wic is concluded %y fulfillin" te le"al
re/uirements of te $lace of cele%ration would result in unfair and undesira%le
conse/uences. &s a result. article ' of RFC $ro*ides for te reco"nition of marria"es
wic are cele%rated a%road as *alid in (tio$ia. Gere. two tin"s are wort mentionin".
1e marria"e wose reco"nition is sou"t in (tio$ia as to %e concluded %y fulfillin"
te le"al re/uirements of te $lace of cele%ration. 1is can %e "atered from te $rase
Fin accordance wit te law of te $lace of cele%ration?. Gence. wen reco"nition of
te marria"e is sou"t. it as to first %e identified weter te le"al re/uirements of te
$lace of cele%ration were fulfilled. )oreo*er. te law $uts $u%lic morality of te
(tio$ian $eo$le as a limitation on te reco"nition of marria"es cele%rated a%road. 1at
is to say. te forei"n marria"e will %e reco"niAed in (tio$ia only in res$ect of its
formality and not as to its su%stance.
#,
& "ood e@am$le ere is te case of same=se@
marria"e. Some western countries and one &frican country
#6
a*e made same=se@
marria"e lawful. Gence same=se@ marria"es could %e concluded lawfully in tese
countries. Gowe*er. tese ty$es of marria"es cannot %e reco"niAed in (tio$ia for
different "rounds. First. te law. tou" indirectly. considers marria"e to %e a union
%etween a man and a woman. not %etween te same se@es. Gence. same=se@ marria"e
does not fulfill te definitional re/uirement of marria"e under (tio$ian law. Secondly.
article ,28 of te new criminal Code made se@ual acti*ity and any indecent act wit
$ersons of te same se@ a crime. For stron"er reason. marria"e %etween same se@es will
%e $roi%ited. In addition to tis. article ' of te RFC $ro*ides for te reco"nition of
marria"es cele%rated a%road as far as doin" so will not %e contrary to $u%lic morality.
1e "round for criminaliAin" se@ual acti*ity %etween same se@es is tat it is re$u"nant to
te morality of te (tio$ian $eo$le. For te "rounds discussed a%o*e. marria"e %etween
same se@es will not %e reco"niAed in (tio$ia.
<an we appl article 5 of the =&< to marriages concluded in the regions b wa of
analog(
2.4 Essential Conditions of Marriage
(ssential conditions for *alidity of marria"e $ertainto %iolo"ical. $sycolo"ical and
sociolo"ical factors.
#7
1e %iolo"ical factors relate to a"e. se@ and state of ealt of te
future s$ouses. wereas te $sycolo"ical factor relates to te freedom of will of te
$arties. +n te oter and. te sociolo"ical as$ect $ertains to issues li;e marria"e
#,
Mehari 5edae, 1*
4*
5epublic o" South ,"rica i! the onl$ countr$ in ,"rica and the "i"th in the +orld to ake !ae'
!e8 arriage la+"ul. 0n a landark ruling, the Johanne!burg'ba!ed 4on!titutional 4ourt ordered
that the de"inition o" arriage be changed "ro a @union bet+een a an and a +oanA to a
@union bet+een t+o per!on!A.
#7
/ilahun /e!hoe, 0nternational Sur1e$ o" "ail$ la+, 1(9
%etween $ersons related %y consan"uinity and affinity as well as %y ado$tion and it also
incor$orates %i"amy. 3en we come to te sources of suc restriction. +?Dono*an ad
te followin" to say
#8
D
;uch impediments were )nown to the &eteha 8egest and covered obstacles to
the union arising from prior relationships, from previous marriage, or from age.
Also included were defects arising from the ceremon itself. ;uch marriages
were prohibited and in some cases gave rise to penal sanctions. Man of the
impediments found in the &eteha 8egest have been retained in the <ivil <ode.
*ut those related onl to the rules of religion have been dropped.
1e essential conditions tat are found in te RFC are deri*ed from te Ci*il Code.
wic in turn is deri*ed from te Fetea 5e"est. So we can say tat most of te
conditions are deri*ed from te Fetea 5e"est.
In te followin" su% to$ics. discussion will %e made on tese essential conditions for te
conclusion of a *alid marria"e.
2.4.1 Consent
)arria"e is an institution wic is to %e entered into %y te $arties wit teir free and full
consent. 1e 25 Con*ention on Consent to )arria"e. )inimum a"e of )arria"e and
Re"istration of marria"e as well as te Recommendation of te 25 General &ssem%ly
wic was ado$ted in 18,' $ro*ide consent as a $rere/uisite for te conclusion of
marria"e.
!ursuant to article 1 of te 25 Con*ention. no marria"e sall %e le"ally entered into
witout te full and free consent of %ot $arties. 1is re/uirement is furter stren"tened
%y te Recommendation. 1e Con*ention as well as te Recommendation $ut an
o%li"ation on mem%er states to ma;e sure tat future s$ouses a*e decided. of teir free
will and consent. to enter into marria"e. +ne way of com$liance wit tis o%li"ation is
te armoniAation of domestic laws in line wit te international commitments of te
countries. (tio$ia is one of te countries wo a*e acceded to tis Con*ention. &s a
result. te Constitution as well as te RFC and te re"ional family codes incor$orate
consent as a *alidity re/uirement of marria"e.
#8
BC:ono1an, 44&
In some $arts of (tio$ia. te culture does not re/uire te consent of te future s$ouses
for conclusion of marria"eE rater wat really matters is te willin"ness of teir $arents to
tie teir cildren in %ond of marria"e.
'9
In effect many marria"es a*e %een concluded
not on te %asis of te willin"ness of te s$ouses %ut of teir $arents. 1is as %een
considered as a "round for many dis$utes in families. Considerin" tis dee$ rooted
culture. many efforts a*e %een made to %rin" can"e. $articularly trou" te use of
le"islations. In tis res$ect wat comes in te fore front is te 188' Constitution. &rticle
3#o2 of te Constitution reiterates te re/uirement tat marria"es sould %e entered into
u$on te free and full consent of te $arties. In addition to tis te RFC considers te free
and full consent of te $arties as a *alidity re/uirement for conclusion of marria"e.
3en te international as well as domestic le"al instruments re/uire e@istence of consent
as a re/uirement for marria"e. it im$lies tat Ftere must %e no duress or force inducin"
te marria"e or any misunderstandin" as to te effect of te marria"e ceremony.?
'1
Gence. te RFC reco"niAes some "rounds wic would *itiate te consent of te s$ouses.
o Fundamental Error
1e first "round wic is considered as a %ase for *itiatin" consent of te $arties is error.
Gowe*er. it is not all ty$es of errors wic would *itiate te consent. rater. as $er article
13o2 of te RFCE te error as to %e a fundamental one. 3at te law considers to %e
fundamental errors are illustrated under su% article 3 of article 13. 1ese includeD
1. (rror on te identity of te s$ouse were it is not te $erson wit wom a
$erson intended to conclude marria"eD = ere te mista;e as to %e as to
identity rater tan as to attri%ute. Cases of im$ersonation can %e
considered as fundamental error fallin" under tis cate"ory. Gowe*er. if
te error $ertains to te attri%ute of te $erson li;e for instance if one $arty
mista;enly tou"t tat te oter was ric. it can not %e considered as a
fundamental error as $er te re/uirement of te article and ence. will not
%e a "round to in*alidate te marria"e.
'9
Mehari redae, 18'19
'1
Malcol 4. 3ronb$, 4anadian "ail$ .a+, *
th
ed. 199*, Stoddart Publi!hing c., (
2. (rror on te state of ealt of te s$ouse wo is affected %y a disease tat
does not eal or can %e "enetically transmitted to descendantsD=
3. (rror on te %odily confirmation of te s$ouse wo does not a*e te
re/uisite se@ual or"an for te consummation of te marria"e
#. (rror on te %ea*ior of te s$ouse wo as te a%it of $erformin"
se@ual acts wit $erson of te same se@.
o Violence (Duress)
1e oter "round wic would *itiate te consent of s$ouses to enter into marria"e is
*iolence. If te consent to marry was e@tracted %y *iolence. it cannot %e said tat te
$arty as freely consented to te marria"e. &s a result. article 1# of te RFC considers a
marria"e concluded wen consent is e@torted %y *iolence as an in*alid marria"e.
)oreo*er. te article furter illustrates situations wic mi"t lead te court to determine
weter te consent was e@torted %y *iolence or not. Gence. if te consent was "i*en to
$rotect imselfoerself or one of isoer ascendants or descendants or any oter close
relati*e from a serious and imminent dan"er or tereat of dan"er. it can %e said tat te
consent was e@torted %y *iolence.
Some of te issues wic need furter clarification on consent e@torted %y *iolence
include te followin"
'2
.
i. 6hat must the threat or fear be of( At one time it was thought that it was
onl possible for duress to render a marriage voidable if there was a threat to life,
limb or propert. =ecentl the court of appeal in Firani vs Firani suggested that
the test for duress should focus on the effect of the threat rather that the nature of
the threat. 'n other words, the threat can be of an )ind, but it must be shown that
the threats, pressure or whatever it is, is such as to destro the realit of the
consent and overbear the will of the individual. 'n the case of Firani vs. Firani the
court accepted that social pressure could overbear the consent. The woman was
threatened with ostracisation b her communit and her famil if she did not go
through with the marriage and the fear of complete social isolation was such that
there was no true consent. The effect of the Firani decision is that those who have
undergone an arranged marriage in the face of a serious threat have the choice of
'2
Jonathan herring, "ail$ la+, &--1, pear!on education liited, 49'(1
either accepting their culture and the validit of their marriage or accepting
dominant cultures 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 peoples right to choose whom to marr.
ii. Must the fear be reasonabl held( 6hat if threat was made, but a
reasonable person would not have ta)en it seriousl( 'n ;zcher it was
suggested that duress could not be relied upon unless the fear was
reasonabl held. Against this is ;cott v ;elbright in which it was
suggested that as long as the beliefs of threats were honestl held, duress
could be relied upon. The second view is preferable because it would be
undesirable to punish a person for their careless mista)e b dening them
an annulment.
iii. * whom must the threat be made( The thereat can emanate from a
third part# it need not emanate from the spouse.
o 1udicial Interdiction
<udicial interdiction e@ists in te cases were a $erson is insane accordin" to article 338
of te Ci*il Code and were e as %ee n interdicted %y te court. 1e court orders
interdiction of te $erson %ecause is ealt and is interest so re/uires or %ecause is
eirs? interest so re/uire.
'3
1ese two conditions a*e to simultaneously %e $resent for
te court to "i*e order of interdiction. 1e order of interdictions means te interdicted
$erson will a*e lessened ca$acity and ence need to %e $rotected. F1e %asic idea
underlyin" tese $rotecti*e measures is to ensure tat te $ysical $erson wo olds
ri"ts and duties %ut cannot e@ercise tem is $ro*ided wit te assistance of some oter
$erson wo sall act on is %ealf in most acts of 0uridical life.?
'#
&s a result of te
lessened ca$acity. an interdicted $erson may conclude marria"e only wit te
autoriAation of te court.
''

2.4.2 Age
'3
,rticle 3(1;1 and & o" the 4i1il 4ode
'#
4atherine BC :ono1an, /he la+ o" Ph$!ical Per!on!, %9
''
,rticle 1( 5#4
&s discussed a%o*e. under (tio$ian law. marria"e is an institution to %e entered into %y
te full and free consent of te $arties. In order to freely consent to te marria"e.
te $arties sould understand te conse/uences of teir acts. and ence need to
attain a certain a"e. 1e Con*ention on Consent to )arria"e. )inimum a"e of
)arria"e and Re"istration of )arria"e under te $ream%le. %y ma;in" cross
reference to te 2ni*ersal Declaration of Guman Ri"ts $ro*ides tat it is only
tose men and women wo attained full a"e wo can enter into marria"e. 1is
%ein" te re/uirement. te ne@t /uestion would %e as to wo could %e considered
as %ein" of full a"e. S$ecifyin" te minimum a"e for marria"e is left for te
indi*idual countries to "o*ern trou" le"islation.
56
Gowe*er. tis $ower of te
state is not witout any limitations. &s can %e seen from te Recommendation on
Consent to )arria"e. )inimum &"e for )arria"e and Re"istration of )arria"es.
General &ssem%ly resolution 2917 BssC. $rinci$le II. )em%er States sall ta;e
le"islati*e action to s$ecify a minimum a"e for marria"e. wic in any case sall
not %e less tan fifteen years of a"e. Gence. te minimum marria"ea%le a"e in any
country will %e 1' years. tou" it can %e set at i"er a"e tan tis.
1ere are different reasons wic can %e raised as a "round for limitin" te minimum
marria"ea%le a"e of s$ouses.
The standard $ustification for age restrictions has been the claim that
G+m4arriage involving teenagers are more unstable than other marriages
and are more li)el to end in divorce than other marriages.H 't is not clear,
however, that the outh of the participants is what causes their marital
failure. A number of studies point to non3age related factors as important
predictors of marital failure.
5I
3en we come to te RFC. te minimum marria"ea%le a"e is 17 years for %ot se@es.
Gence. any $erson wo as not attained te full a"e of 17 years may not conclude
a *alid marria"e. Gowe*er. tere are circumstances in wic a *alid marria"e
could %e concluded witout te fulfillment of tis re/uirement. 1is is $ro*ided
',
,rticle & o" the 4on1ention
'6
0ra ark ellan, "ail$ la+, 1-9'11-
as an e@ce$tion under su% article two. If te )inister of <ustice. for serious cause.
"rants for dis$ensation. on a$$lication of te future s$ouses. or te $arents or
"uardian of one of tem. marria"e could %e *alidly concluded. 1e dis$ensation.
owe*er. may not %e more tan two years. 1is means. te ma@imum year tat
can %e dis$ensed %y te )inister is 2 years. and ence. te lowest a"e of marria"e
can %e 1, years.
1is e@ce$tion $ro*ided under te RFC is in line wit te $ower "i*en to states %y te
Con*ention as well as te Recommendation. Bot documents reco"niAe te $ower
of te a$$ro$riate autority to "rant dis$ensation for serious reason in te interest
of te future s$ouses. 1e *ery %asic /uestion ere is as to ow te serious cause
can %e identified.

2.4.3 Relationship
1e oter essential condition for te conclusion of marria"e is relationsi$. or rater te
e@istence of $roi%ited de"rees.
Although it would be true to sa that restrictions on certain tpes of se%ual
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 universall tabooed. Thus a wide variet of restrictions are
possible, ranging from elementar sstems in which prohibitions on certain
relations are accompanied b a requirement that individuals marr onl from
within a certain group, to comple% sstems in which onl certain relations
are e%cluded and the choice of partner is left to the individual.
5D

In many societies across te world tere are laws wic $roi%it marria"e %etween
$eo$le wo are related. 1e same is true in (tio$ia. 1e restrictions under te RFC are
%ased on two "rou$s of relationsD tose %ased on %lood relationsi$s i.e. consan"uinity
'7
John :e+ar, 4(
and tose %ased on marria"e. i.e. affinity. 1ese restrictions were also maintained under
te 18,9 Ci*il Code. tou" wit a different de"ree of restriction.
1e $roi%ited consan"uinity restrictions in*ol*e marria"e %etween $ersons related in te
direct line %etween ascendants and descendants.
'8
Gence. marria"e %etween $arent and
cild. "rand$arent and "randcild is $roi%ited. +n te collateral line. article 7o2
$roi%its marria"e %etween a man and is sister or aunt and also a woman and er %roter
or uncle.
1ere are different reasons "i*en for $roi%itin" marria"e %etween related $ersons. 1e
first ar"ument is te fear of "enetic dan"er in*ol*ed in $ermittin" $rocreation %etween
close %lood relati*es.
,9
In tecnolo"ically ad*anced countries. owe*er. it is ar"ued tat
te a*aila%ility of "enetic screenin" could a*ert te dan"er. and ence te restriction
cannot %e su$$orted.
,1
1e oter ar"uments raised for te restriction include
,2
:permitting marriage between close relations ma undermine the securit of
the famil. The argument is that children should be brought up without the
possibilit of approved se%ual relations latter in life with the members of their
famil. The third argument can be based on the widespread instinctive moral
reaction against such relationships.?
&t te time of de%atin" on te draft RFC. te reason for restriction as well as u$ to wat
de"ree te restriction sould %e was discussed torou"ly. 2nder te 18,9 Ci*il Code.
marria"e %etween ascendants and descendants as well as collaterals u$ to te 6
t
de"ree
was $roi%ited. Some su""ested tat te "round for tis restriction is Cristianity and te
culture of te 5ortern $arts of te country. and ence is not re$resentati*e of te wole
society.
,3
Gowe*er. as discussed a%o*e. te restriction is also a*aila%le in oter countries
of te world and is also su$$orted %y medical e*idence. Gence. in order to reconcile te
'8
,rticle 8;1 o" the 5#4
,9
John :e+ar, 4%
,1
Herring, 38
,2
Herring, 38
,3
Mehaari, &3
different reli"ions and culture in te country wit te science a limited restriction as far
as collaterals is concerned. is ado$ted %y te RFC.
)arria"e %etween $ersons wo are related %y affinity in te direct line is also $roi%ited
under te RFC article 8. +n te collateral line. marria"e %etween a man and te sister of
is wife. and a woman and te %roter of er us%and is also $roi%ited. 3en we
analyAe te restriction in li"t of te "rounds for restriction. not all te ar"uments old
water. 1ou" tere are "enetic dan"ers in*ol*ed in $ermittin" $rocreation %etween close
%lood relati*es. tese dan"ers do not e@ist at all %etween affinies.
,#
Gence. it can %e
ar"ued tat te reason for suc $roi%ition in te affiny is one of moral. rater tan
scientific.
2.4.4 Bigamy
1e oter essential condition for te conclusion of a *alid marria"e is te a%sence of $rior
marria"e. &s sti$ulated under article 11 of te RFC. a $erson is not allowed to conclude
marria"e wen e is %ound %y te %onds of a $recedin" marria"e. )any countries a*e
laws wic $roi%it %i"amous marria"es. For instance. if we loo; at article 3'o#
cumulati*e article #1 of te Family Code of te !ili$$ines of 1876 contraction of
marria"e %y a $erson durin" su%sistence of a $re*ious marria"e ma;es te su%se/uent
marria"e null and *oid.
+n te issue of %i"amy Gerrin" as te followin" to say in relation to te (n"lis law
'f at the time of the ceremon either part is alread married to someone
else, the marriage will be void. The marriage will remain void even if the
first spouse dies during the second marriage. ;o if a person is married and
wishes to marr someone else, he or she must obtain a decree of divorce or
wait until the death of his or her spouse. 'f the first marriage is void it is
technicall not necessar to obtain a court order to that effect before
marring again, but that is normall sought to avoid an uncertaint. 'n case
,#
:e+ar, 4%
of bigam, as well as the purported marriage being void, the parties ma
have committed the crime of bigam.
Man cultures do permit polgamous marriages, although in *ritish societ
monogamous marriages are the accepted norm. There are concrete
ob$ections to polgamous marriages. ;ome argue that polgam ma create
divisions within the famil, with one husband or wife ving for dominance
over the other, and particularl that divisions ma arise between the children
of different parents. ;upporters of polgamous marriage argue that
polgam lead to less divorce and provide a wider famil support networ) in
which to raise children. 9olgam could also be regarded as a form of se%
discrimination unless both men and women were permitted to ta)e more than
one spouse. There have also been suggestions that permitting polgamous
marriages involves an insult to the religious sensitivities of the ma$orit.
1ese ar"uments in fa*or and a"ainst $oly"amous marria"es were also reflected at te
time of de%atin" on te draft RFC. (tio$ia is a multi reli"ious and multi cultural
country. Some consider condemnation of $oly"amous marria"e a"ainst teir culture and
reli"ious %eliefs. Some followers of Islam reli"ion were ar"uin" at te time of te de%ate
tat it would %e a"ainst te ri"t tat tey o%tain %y *irtue of teir reli"ion. and ence
$oly"amous marria"es sould not %e $roi%ited. Gowe*er. tere was also di*ision of
o$inion on te $art of te followers of Islam on tis.
,'
+n te oter and. female ri"t
ad*ocates were ar"uin" tat it is a"ainst te Constitutional ri"t of female to allow
$oly"amous marria"e.
,,
1a;in" into account te di*erse *iews on te issue. te law o$ted
for te first *iew. Gence. for a $erson to conclude a *alid marria"e tere sould not %e a
$recedin" marria"e.
2.4.5 Period of Widowhood
1e conce$t introduced ere %y te le"islature relates to te fact tat a woman is under
$roi%ition to remarry witin te ne@t one undred and ei"ty days followin" te
dissolution of er former marria"e.
,6
1is condition was also included in te Ci*il Code
,'
Mehari, &%
,,
0bid (ehari, &%)
,6
,rticle 1% o" the 5#4
of 18,9 and was su%0ect to criticisms from different $arties. $articularly from female
ri"t ad*ocates. 1ey construe tis $ro*ision as limitin" te ri"t of female to conclude
marria"e at any time se wants. mainly %ecause te limitation does not a$$ly for males.
Gowe*er. wen one loo;s into te rationale for tis restriction. it will %e clear tat te
limitation is nit desi"ned to discriminate %etween te two se@es.
1e rationale for te limitation under article 1, is to res$ect te ri"t of cildren
ensrined in te Constitution and oter international uman ri"t instruments to wic
(tio$ia is a $arty. &rticle 3,o1oc of te 188' FDR( Constitution $ro*ides tat eac cild
as te ri"t to ;now and %e cared for %y isoer $arent or le"al "uardian. 1is $rinci$le
is also ensrined under article==== of te 25 Con*ention on te Ri"t of te Cild BCRCC
to wic (tio$ia is a $arty. In addition to tis ri"t. article 127 of te RFC $ro*ides a
$resum$tion as to te duration of $re"nancy. In order to res$ect te ri"t of cildren and
also to com$ly wit te $resum$tion. it is necessary to a*oid any circumstances wic
would create a dou%t as to wo te fater of tat cild is.
,7
Gence. %y re/uirin" te female
to wait for a $eriod of 179 days followin" te dissolution of a $re*ious marria"e. te law
tries to a*id any conflict of $aternity.
1a;in" into account te modern ad*ances of medical science in wic te e@istence of
$re"nancy can easily %e identified. it may %e ar"ued tat te condition is unnecessary.
Gowe*er. we a*e to also loo; into te fact tat many women in te country do not a*e
access to facilities $ro*idin" te ser*ice. In addition to tis. te article also $ro*ides for
some e@ce$tional circumstances in wic te 179 days restriction need not %e o%ser*ed.
1e first of suc e@ce$tions is if te woman "i*es %irt after te dissolution of marria"e
and %efore te la$se of te 179 days.
,8
In suc a situation. it is $resumed tat te cild is
%orn from te $re*ious marria"e and ence tere will not %e any conflict on $aternity.
Gence. se may remarry e*en %efore te 179 days la$sed. Remarryin" te former
us%and will also a*oid te conflict on $aternity and ence if te woman is marryin" er
$re*ious us%and. se may do so witout waitin" for te 179 days. In addition to tis. if
se can $ro*e %y medical e*idence tat se is not $re"nant. se need not wait for te
,7
Mehari, 3-
,8
,rticle 1%;&;a o" the 5#4
la$se of te s$ecified time %efore concludin" anoter marria"e.
69
1a;in" into account te
fact tat it is im$ossi%le to list all te "rounds wic may dis$ense a woman from
o%ser*in" te $eriod of widowood. te law "i*es discretion for te court to dis$ense er
from o%ser*in" te tis re/uirement for any oter *alid reason.
2.5 Opposition to Marriage
&s discussed earlier. marria"e is an institution to %e entered into wit te full and free
consent of te $arties. 1is assertion su""ests tat it is $rimarily te $arties temsel*es
wo will a*e a say on weter tey sould %e 0oined %y matrimony or not. Gowe*er.
from our discussion on ca$ter one. wat we can also infer is tat te society and te
state also a*e interest in te marria"e of te two indi*iduals. 1e society and te state
re"ulate and $ro*ide $rotection for te institution of marria"e. 1e law. %y way of
re"ulatin" te relationsi$. as $ro*ided certain conditions wic are essential for te
*alidity of a marria"e. 1e society as well as te e@ecuti*e or"an of te "o*ernment. on
te oter and. as te o%li"ation to o*ersee te o%ser*ance of tese essential conditions
$rior to te conclusion of te marria"e.
In te followin" section te discussion will focus on as to wo may %rin" an o$$osition
for te conclusion of marria"e. to wom tis o$$osition may %e made. wen tis
o$$osition sould %e made and te form of te o$$osition.
3o may o$$ose4
De$endin" on te essential condition wic is *iolated. te $ersons wo may o$$ose to
te conclusion of te marria"e differ. 3en te condition *iolated is a"e. tere are
$otentially tree "rou$s of $ersons wo are "i*en te ri"t to o$$ose. 1e first one is te
$arents of te minor. If one of te future s$ouses a*e not attained te minimum
marria"ea%le a"e sti$ulated %y te law i.e. 17 years. ten te $arents of tat minor may
o$$ose to te marria"e. In many instances undera"e marria"es are arran"ed %y te
$arents of te minor temsel*es. In suc situations o%*iously oter $ersons sould %e
"i*en te ri"t to o$$ose for te marria"e. 1is is were te $u%lic $rosecutor comes into
$icture. &$art from te fact te $arents of te minor are in*ol*ed in te $lannin" of te
69
,rticle 1%;&;c
marria"e and ence not o$$osin" to its conclusionE undera"e marria"e is considered as a
criminal act. )oreo*er. te state as also te o%li"ation to see te res$ect for te essential
conditions of marria"e. 1erefore. te law "i*es te $u%lic $rosecutor te ri"t to o$$ose
te undera"e marria"e. Last %ut *ery im$ortantly. te law "i*es Fany oter interested
$erson? a ri"t to o$$ose te undera"e marria"e. Gere. one *ery im$ortant /uestion is as
to wo can tis Fany interested $erson? %e. Does it refer to any $asser%y or it as
/ualifications4
In ci*il suits $ersons wo may %y $laintiffs are /ualified under article 33o2 of te Ci*il
!rocedure Code. 1is article re/uires a $erson to a*e a *ested interest in te su%0ect
matter of te suit. to %e /ualified as a $laintiff. 1at is to say. te outcome of te suit as
to affect te $erson eiter $ositi*ely or ne"ati*ely so tat e can %e te real $arty in te
suit. &rticle 17oa of te RFC sould also %e construed in tis manner e*en if we are not
tal;in" a%out court $roceedin"s. &s a result. wen te law refers to Fany oter interested
$erson? it refers to tose $arties wo may %e directly or indirectly affected %y te
conclusion of te undera"e marria"e. 2nder tis "rou$ are included tose 5G+s wic
are wor;in" on te $re*ention of undera"e marria"es.
61
If tey o$$ose te conclusion of
an undera"e marria"e. it means tey are acie*in" one of te "oals of teir esta%lisment.
and ence ma;in" tem an interested $arty.
3en te essential condition *iolated is relationsi$ %y consan"uinity or affinity. te
ri"t to o$$ose te marria"e is "i*en to te ascendants of %ot or one of te future
s$ouses as well as teir %roters and sisters wo a*e attained te full a"e of 17 years.
&$art from tese $ersons. te $u%lic $rosecutor. as te or"an a*in" te o%li"ation to
safe"uard te interest of te society and te state. is "i*en te ri"t to o$$ose tis
marria"e.
In cases of %i"amous marria"es. tere are two $ersons wo may o$$ose. 1e first one is
te $re*ious wife or us%and of te %i"amous s$ouse.
62
Bi"amy is considered under te
criminal code of 299# as a crime. unless it is 0ustified %y te reli"ion or custom of te
$erson. Gence. te $u%lic $rosecutor as some interest in te $re*ention of conclusion of
61
Mehari, 34
62
,rticle 18;c o" 5#4
tis ;ind of marria"e. &s a result. article 17 also $ro*ides te $u%lic $rosecutor a ri"t to
o$$ose suc marria"es.
In te case of 0udicial interdiction. it is te "uardian of te interdicted $erson and te
$u%lic $rosecutor wo may o$$ose to te marria"e.
63
&s we can see from te a%o*e discussions. te $ersons wo a*e te ri"t to o$$ose
conclusion of marria"e is different wit te difference in te ty$e of condition *iolated.
wit te e@ce$tion of te $u%lic $rosecutor. +ne of te functions of te $u%lic $rosecutor
is to see tat te $eace. security and interest of te "eneral $u%lic are fulfilled Bres$ectedC.
1e $u%lic. on te oter and. as an interest in te marria"es of indi*iduals. Gence. te
$u%lic $rosecutor will a*e te duty to ta;e action B%y way of o$$ositionC wene*er
essential conditions of marria"e are to %e *iolated.
1e ne@t /uestion to %e raised in relation to o$$osition is Fto wom sould it %e made4?
tis is answered %y referrin" article 18 of te RFC. 1e &maric *ersion of tis article
$ro*ides tat o$$osition is to %e made to te marria"e cele%ratin" officer wile te
(n"lis *ersion limits it to te officer of ci*il status. Followin" te (n"lis *ersion will
a*e its own dan"ers. First. it ma;es reference only to ci*il marria"es %ecause it ma;es
only te officer of ci*il status te com$etent or"an to recei*e com$laints Bo$$ositionsC.
1is means. if te marria"e is eiter reli"ious or customary marria"e. tere is no or"an
em$owered to entertain te o$$osition. as te officer of ci*il status is not em$owered to
cele%rate tese marria"es. Secondly. one of te rules of inter$retation of laws as
ensrined under article 2o# of $roclamation 3o8' BFederal 5e"arit GaAeta esta%lisment
!roclamationC states tat in cases of discre$ancy %etween te &maric and (n"lis
*ersion of te ne"arit "aAeta. te &maric *ersion $re*ails. Gence. for tese two reasons
we a*e to follow te &maric *ersion of te code.
&ccordin"ly. o$$osition is to %e made to te or"an wic as te $ower to cele%rate te
marria"e. If te marria"e to %e cele%rated is a ci*il marria"e. o$$osition will %e made t
te officer of ci*il status. +n te oter and if it is a reli"ious or customary marria"e. te
63
,rticle 18 o" 5#4
o$$osition as to %e made to eiter to reli"ious faters or to te elderly $eo$le cele%ratin"
te marria"e. de$endin" on te situation.
6#

In order to sow te seriousness of te case. te o$$osition is re/uired to %e made in a
written form. Gence. tere is no oral o$$osition to marria"e. 1ere is also a time limit
attaced. 1e o$$osition as to %e made 1' days %efore te cele%ration of marria"e. In
ci*il marria"es. tere may not %e tat muc of a $ro%lem in te time limit at least as far as
te law is concerned. &rticle 23 of te RFC re/uires te future s$ouses to notify te
officer of ci*il status of teir intention to conclude marria"e. a mont %efore its
cele%ration. and te latter as te o%li"ation to $u%liciAe te same. 1e idea ere is
e*eryone will a*e access to te notification $u%liciAed %y te officer of ci*il status and
ence witin two wee;s tose interested $ersons will ma;e o$$osition. Btere will %e 2
wee;s left $rior to te conclusion of te marria"eC. Gowe*er. wen it comes to te oter
modes of conclusion of marria"e. tis ;ind of sti$ulation is not $ro*ided. ma;in"
o%ser*ance of article 18 someow im$ractical. 1e law $ro*ided te ma@imum time
witin wic te o$$osition as to %e made. 1is limitation ta;es into account *arious
societal *alues and te %urden on te future s$ouses. Gence. te o%ser*ance as to %e
strictly followed.
1e oter *ery im$ortant issue in relation to o$$osition is issue of a$$eal from te
decision on o$$osition. 1e $erson to wom o$$osition is made as to ma;e its decision
witin fi*e days.
6'
If te cele%ratin" officer re0ects te o$$osition and decides to continue
te cele%ration of te marria"e. te decision will %e final one. Gowe*er. if te decision is
to acce$t te o$$osition and sus$ended te cele%ration of te marria"e. te future s$ouses
or one of tem may a$$eal to te court a"ainst te decision.
6,
1is article sows te
wei"t "i*en to te ri"t of te future s$ouses to form family.
2.6 Effects of Violation of Essential Conditions of Marriage
1e law as $ro*ided for certain conditions wic need to %e fulfilled for te conclusion
of a *alid marria"e. In addition to sti$ulatin" conditions. it also $ro*ides te cance for
6#
Mehari, 3(
6'
,rticle &-;1 5#4
6,
,rticle &1;1 5#4
certain "rou$ of $ersons to o$$ose and terefore $re*ent te conclusion of marria"e
wic does not fulfill te necessary conditions. Gowe*er. wat would a$$en to a
marria"e wic was cele%rated wen one of te conditions is a%sent4 In te for"oin"
discussions an attem$t will %e made to answer tis /uestion.
Before loo;in" into te conse/uences of *iolation of eac and e*ery conditions. we a*e
to first identify te difference %etween *oid and *oida%le marria"es and if suc a
distinction e@ists under (tio$ian law.
raterine +?Dono*an ad to say te followin" on tis issue
66
D=
The term void and voidable are found in the common law sstem. The have
their counterparts in the laws of continental ,uropean countries. 'n both legal
sstems he terms used lac) a clearl defined meaning and the transposition of a
term from one sstem to another is virtuall impossible, in the Amharic version
of the civil code there is no e%act term to conve the concept void or
voidable. 8evertheless these terms will be used since the are the most apt
terms available for elucidating the law.
A void act is an empt act. 't does not achieve what it sets out to do so. 't does
not achieve its intended legal consequences. Gquod nullum est, nullum producit
effectum.H An act is void due to a defect therein which is so fundamental as to
deprive the act of its ver e%istence. A defect ma ma)e a $uristic act either void
or voidable. 'f the defect is such that the act is devoid of the legal results
contemplated, then the act is said to be void.H The conventional wisdom
concerning the void act is that it has no legal effect, but this is not strictl so as
the act ma have effects unforeseen b the actor, such as those of criminal
prosecution, because of the illegalit of the act. The point about the void act is
that it achieves no part of its intended legal consequences and in so far as these
are concerned it has no effect and can be ignored.
66
3atherine BC:ono1an, 19*&, Void and 1oidable arriage in 6thiopian la+, J6. 1ol. V00, ?o. &,
439'441. 0t !hould be noted here that though the coent! ade b$ the author o" the article
ake! re"erence to the 4i1il 4ode o" 19%-, the$ !till hold +ater.
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.
GAn act that is incapable of ta)ing effect according to its apparent
purport is said to be void. >ne which ma ta)e effect but is liable to be
deprived of effect at the option of some or one of the parties is said to be
voidable.H
The defect contained in the voidable act is sufficientl serious to enable the act
to be subsequentl attac)ed b one of the parties and declared void b the
courts. 'f, however, it is not avoided the act will ta)e effect as a valid $uristic
act. >ne learned writer has suggested that the correct wa to view the voidable
act is as Gan act which gives rise to the intend3ed legal consequences, but at the
same time gives rise to a counteractive right which ma neutralize those
consequences in so far as one of the parties is concerned.H
A void marriage, if such e%ists in ,thiopian law, is one to which there is such a
serious ob$ection in law because of a grave defect that, should its e%istence be in
question, it will be regarded as never having ta)en place and can be so treated
b all affected or interested parties. An court declaration made would merel
have the purpose of affirming that the marriage never e%isted and of clarifing
the status of of the parties as never having been married. An person having an
interest therein could petition for a declaration of non e%istence of the marriage
at an time, even after the death of the parties. ;ince 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 attac)ed. As to
the effects of a voidable marriage, a distinction must be drawn between a
marriage which, although voidable, is never attac)ed and therefore never
avoided, and a marriage which is avoided. 'n the former case the marriage will
be valid and all the normal legal consequences of marriage will follow. 'n the
latter case, a further distinction must be made between those marriages which
are given effect up to the da of avoidance. 't is here that the use of the word
GvoidableH ma be criticized. 't fails to distinguish between the act which is not
void ab initio but is declared void retroactivel b a court, and the act which is
deprived of all future effect b 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 an effect# the marriage which is void
retroactivel, !e% 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 e% nunc, that is which is deprived of effect for the future but which
holds good for the past. The onl categor into which the ,thiopian marriage
law clearl falls is that of void e% nunc.
6hat is the difference between void and voidable marriage( .oes this distinction e%ist in
the =&<( 6hat about the regional famil codes(
&s we can see from te a%o*e discussion. unli;e oter le"al systems te (tio$ian law
reco"niAes only *oida%le marria"es. & marria"e wic as %een concluded wen one or
more of te essential conditions are lac;in" will %e in*alidated.
67
1at is to say. from te
date of in*alidation. te marria"e will cease to e@ist. and te conse/uences of dissolution
of marria"e will follow. Gowe*er. for te time %ein" tat te marria"e was intact. it will
%e considered as a *alid marria"e.
1e oter *ery im$ortant tin" tat needs to %e noted ere is te can"e made %y te
RFC in res$ect of $ro*isions dealin" wit $unisment for *iolation of essential
conditions. 1e Ci*il code. a$art from $ro*idin" for te ci*il conse/uences of *iolatin"
essential conditions. also ma;es reference to te !enal Code for criminal $unisment.
67
Ho+e1er, +e !hould keep in ind that thi! a!!ertion doe! not +ork "or all condition!. #or
in!tance, in the ca!e o" 1iolation o" period o" +ido+hood, the arriage +ill not be in1alidated.
,rticle 3* o" 5#4
Gowe*er. te ci*il code did not sow te e@act $unisments accom$anyin". &s a result
maintainin" tese $ro*isions was not necessary. 1e RFC $ro*ide only te ci*il
conse/uences and if one wants to ;now te criminal conse/uences. reference as to %e
made to te Criminal code.
In our su%se/uent discussion. we will loo; into te ci*il as well as criminal conse/uences
of *iolatin" eac essential condition.
&s far as te conse/uence of *iolation of essential conditions is concerned. we may
classify te conditions into tree cate"ories. 1e first one is te im$ediment to te
cele%ration of te marria"e wic does not affect its su%se/uent *alidity. its $ur$ose
%ein" only $roi%itory.
68
1e first condition wic falls under tis cate"ory is $eriod of
widowood. &s discussed earlier. te $ur$ose of tis condition is to a*oid conflict of
$aternity and to ensure te ri"t of cildren to ;now teir $arents. If. owe*er. marria"e
is concluded witout te la$se of te 179 days sti$ulated %y te law. te marria"e will not
%e dissol*ed.
79

Ci*il marria"es are to %e concluded %efore an officer of ci*il status. wo is com$etent
enou" to cele%rate marria"es. and %y fulfillin" certain formalities. Gowe*er. te fact tat
te officer does not a*e com$etence to cele%rate marria"e will not %e a "round to
dissol*e te marria"e.
71
)oreo*er. article 2'o3 re/uires te officer to tell te future
s$ouses and te witnesses te conse/uence of teir declaration %efore ta;in" an oat. 1e
failure of te officer to inform tis fact to te future s$ouses and te witnesses will not %e
a "round to dissol*e te marria"e. &noter formality related to cele%ration of marria"e.
as incor$orated under article 2'o, is. te re/uirement on te $art of te officer to
$ronounce te $arties united in marria"e after tey a*e fulfilled all te re/uirements and
issue certificate of marria"e. 1e failure to fulfill tis re/uirement is also not considered
as a "round for dissolution of marria"e.
72
1e oter "rou$ of im$ediments relates to tose wic will $re*ent te marria"e from
ta;in" $lace and ma;e te marria"e *oida%le if it ta;es $lace. %ut for reasons occurrin"
68
BC:ono1an, 443
79
,rticle 3* o" 5#4
71
,rticle 38 5#4
72
,rticle 395#4
after te marria"e. te im$ediments cease to e@ist and te marria"e %ecomes *alid. F1e
distin"uisin" as$ect of tis "rou$ is tat te marria"e. altou" *oida%le after
cele%ration and tus o$en to dissolution. can %e su%se/uently *alidated. 1is means tat
te marria"e wic is *oida%le after its cele%ration due to a defect terein can
su%se/uently %ecome *alid trou" te e% facto remo*al of te im$ediment or %y te
$assa"e of time. 1is $rocess is ;nown as *alidation?
73
1ose marria"es wic are *oida%le. %ut may %e *alidated include undera"e marria"es.
%i"amous marria"es. marria"es concluded %y 0udicially interdicted $ersons. marria"es
concluded under te influence of *iolence. marria"es concluded in te e@istence of
fundamental error.
2ndera"e marria"esD = te RFC under article 31 states tat marria"es wic are
concluded %y a man and a woman wo a*e not attained te full a"e 17 years can %e
dissol*ed. 1e dissolution o%*iously is to %e made %y te court %y a$$lication. &s to wo
may a$$ly for te dissolution of tis marria"e. article 31 states tat any interested $erson
and te $u%lic $rosecutor may do so. 1e term Fany interested $erson? for $ur$oses of
a$$lication for dissolution sould %e construed in a similar manner as it is construed in
article 17.
3at ma;es tis condition a relati*e condition is tat te dissolution of te marria"e may
not %e sou"t once te s$ouses a*e attained te minimum marria"ea%le a"e.
7#
Gence.
e*en if te marria"e is *oida%le for non fulfillment of te re/uired a"e. it may latter %e
*alidated as a result of attainin" te re/uired a"e.
1e Criminal Code. on te oter and. attaced criminal sanction on tis *oida%le %ut
*alidata%le marria"e. & $erson wo concluded marria"e wit an undera"e. ;nowin" tat
se as not attained te minimum marria"ea%le a"e sti$ulated under te family law. will
%e su%0ect to ri"orous im$risonment for not more tan tree years. 1is is so if te *ictim
is 13 years and a%o*e. Gowe*er. if te *ictim is %elow 13 years. te $unisment will %e a
ri"orous im$risonment not more tan se*en years
7'
.
73
BC:ono1an, 443
7#
,rticle 31;& 5#4
7'
,rticle %48 o" the 4riinal 4ode.
Bi"amous )arria"esD = te %i"amous marria"e also falls into te cate"ory of marria"es
wic are *oida%le %ut *alidata%le. (iter s$ouses of te %i"amous marria"e and te
$u%lic $rosecutor are "i*en te ri"t to a$$ly for te dissolution of te %i"amous
marria"e.
7,
1e a$$lication for dissolution may %e made only as lon" as te former
s$ouse of te %i"amous marria"e is ali*e. If owe*er. te former wife dies. it can %e
*alidated. & $resum$tion of *alidity is attaced to %i"amous marria"es until a*oided %y
dissolution. F5e*erteless te %i"amous marria"e is uni/ue in tat its *alidation does not
come a%out automatically after a la$se of timeE its *alidation occurs u$on te deat of te
first s$ouse.?
76
&rticle ,'9 of te Criminal Code. on te oter and. sti$ulates te criminal conse/uence
of concludin" a %i"amous marria"e. 1e $arty wo concluded a %i"amous marria"e will
%e sentenced to a sim$le im$risonment. %ut if eose concluded te second marria"e %y
concealin" te trut and decei*in" te new s$ouse. te $unisment will %e fi*e years
ri"orous im$risonment. +n te oter and. if te new s$ouse was aware of te $re*ious
marria"e of te %i"amous s$ouse. eose will %e sentenced to sim$le im$risonment. +ne
tin" tat needs to %e noted ere is tat %i"amy is not always a $unisa%le act. Bi"amous
marria"es may %e allowed in some reli"ions and cultures. If te family law of a certain
re"ion allows te conclusion of a %i"amous marria"e. tere is no reason for te criminal
code to $enaliAe tose wo concluded a %i"amous marria"e.
77
Defecti*e ConsentD = consent constitutes te %asic element for te conclusion of marria"e.
1ere are *arious "rounds wic may *itiate te consent of a $erson. &rticles 3#=3, of
te RFC deal wit te fate a marria"e wic as %een concluded in te a%sence of te
consent of one or %ot of te $arties. 3ate*er "round causes te defecti*e consent. te
marria"e concluded in suc manner will %e dissol*ed. Gowe*er. tere is a difference in
te time limit witin wic te a$$lication for dissolution may %e made to te court.
In case of a 0udicially interdicted $erson. it is te 0udicially interdicted $erson and te
"uardian wo are "i*en te ri"t to re/uest te dissolution of te marria"e. 1e <I! may
not a$$ly for dissolution si@ mots after te date of termination of isoer disa%ility. &nd
7,
,rticle 33 o" 5#4
76
BC:ono1an, 44%
77
,rticle %(- o" the 4riinal code.
as for te "uardian. te a$$lication as to %e made witin si@ mont after te day on
wic te "uardian %ecomes aware of te e@istence of marria"e. and in any case after te
disa%ility as ceased. Gere we arae dealin" wit two ty$es of limitations. 1e first one is
a relati*e limitation in tat it de$ends on wen te "uardian %ecomes aware of te
e@istence of te marria"e. 1e second is an a%solute limitation. In all te circumstance.
unless an a$$lication is made witin te s$ecified time te marria"e will %e *alidated.
3en te consent is *itiated as a result of an act of *iolence. te $arty wo concluded te
marria"e under te influence may a$$ly to te dissolution of marria"e. Gowe*er. te
a$$lication cannot %e made si@ monts after te cessation of te *iolence. So. te $arty
see;in" for te dissolution of te marria"e as to ma;e a$$lication at te time wen te
*iolence is still intact or alternati*ely witin si@ monts after te cessation of te *iolence
78
. 1ere is also a two year a%solute limitation wic will %e counted %e"innin" from te
date of conclusion of marria"e. +nce tese time limitations a*e $assed. te marria"e
%ecomes a *alid one.
In case were te consent was *itiated %y error. wosoe*er as concluded marria"e due
to fundamental error may a$$ly for te dissolution of te marria"e. 1e a$$lication as to
%e made witin si@ monts after te disco*ery of te error
89
. +terwise. te marria"e will
%e *alid. It also as a two year a%solute $eriod of limitation.
&$art from dissolution of marria"e wic suffers from a defect in consent. tere is also a
criminal sanction attaced. 1e $arty wo as concealed te e@istence of one or more
conditions wic will cause te dissolution of marria"e will %e $unised %y sim$le
im$risonment not e@ceedin" two years and a fine not e@ceedin" fi*e tousand %irr.
81
+ne *ery im$ortant tin" wic needs to %e noted ere is it is not only tose $ersons wo
concluded te *oida%le marria"e wo will %e lia%le to criminal $unisment. Rater te
law also includes tose $ersons wo cele%rated suc marria"es.
82
78
,rticle 3( 5#4
89
,rticle 3% 5#4
81
,rticle %4% o" the 4riinal 4ode
82
,rticle %4* o" the 4riinal code. /he code "urther cla!!i"ie! tho!e per!on! +ho celebrated !uch
arriage! +ith intention and negligentl$. Bb1iou!l$ the di""erence lie! on the accopan$ing
puni!hent.
1e tird cate"ory of im$ediments is a%solute im$ediments. 2nder tis falls relationsi$
%y consan"uinity and affinity. F1ese o%stacles are so "ra*e tat tey can ne*er %e cured
and terefore te marria"e can ne*er %e *alidated.if a cou$le are married des$ite tis
im$ediment teir marria"e remains *oida%le.?
83
1at means it may %e dissol*ed at any
time. 1e $u%lic $rosecutor and any oter interested $erson are "i*en te ri"t to a$$ly
for te dissolution of suc marria"e.
Review Questions
1. Does te Federal Re*ised Family Code consider family as an institution or a contract4
Is tere any difference in te re"ional family code4 Consult at least two family codes
from te re"ions.
2. Is tere any difference on te effects of marria"es wic is concluded %efore an officer
of ci*il status and reli"ious or customary marria"es4 3at do you tin; Is te $ur$ose of
includin" reli"ious and customary marria"es in te RFC4
3. 3at do you tin; is te rationale of te law to allow for an o$$osition to %e made4
3en do you tin; is te $ro$er time to ma;e an o$$osition4
#. Discuss te criminal as well as te ci*il effects of *iolatin" te different essential
conditions.
'. 3ic ;inds of errors are considered as fundamental. warrantin" te dissolution of
marrria"e4
,. Do you tin; te ri"t of indi*iduals will %e *iolated %y maintainin" te definition
"i*en to %etrotal u%der te Ci*il Code4 3yo wy not4
83
BC:ono1an, 44(
Chapter Three: Effects of Marriage
Introduction
!eo$le conclude marria"e for different reasons. But in many circumstances. it is te need
to a*e te su$$ort and assistance of oters wic is considered as te dri*in" force for
te conclusion of marria"e. 1e effects of marria"e are mainly deri*ed from te $ur$oses
its conclusion. Generally we can classify te effects into twoD $ersonal and $ecuniary.
1e $ersonal effect relates to te o%li"ation of te s$ouses to su$$ort. res$ect and assist
eac oter as well as to coa%it amon" oters. +n te oter and. te s$ouses may
ac/uire $ro$erty eiter %efore te conclusion or durin" te lifetime of te marria"e. +ne
im$ortant issue wic arises as a result is te ownersi$ of suc $ro$erty. In connection
wit te ownersi$ of $ro$erty. it is also essential to see te ri"t of tird $arties wo are
creditors of te s$ouses. In tis ca$ter you will learn te effect of concludin" marria"e
on te s$ousesH $ersonal life as well as its effect on te $ro$erty.
Objectives
&fter com$letin" tis ca$ter. students sould %e a%le to
Discuss te $ersonal effects of marria"e
Distin"uis te difference %etween contract of marria"e and certificate of
marria"e
&nalyAe te $ecuniary effects of marria"e
3.1 General overview
)arria"e is te or"aniAin" le"al conce$t for te $ur$oses of definin" and attacin"
si"nificance to a certain set of le"itimate eterose@ual familial relations.
8#
1e definitions
"i*en and te conditions attaced to te conclusion of marria"e ser*e a $ur$ose only to
te e@tent tat marria"e ma;es a difference to te le"al ri"ts and remedies of tose wo
marry. 1at is to say. marria"e confers a status on married cou$les. &s a result. marria"e
as a si"nificant effect on te le"al $osition of s$ouses. In te followin" su% section. a
discussion will %e made on te different effects a marria"e may entail %etween te
cou$les.
In discussin" a%out te effects of marria"e. one tin" tat needs to %e always ta;en into
account is te fact tat all marria"es $roduce te same le"al effect. witout considerin"
te mode of teir cele%ration.
8'
&s far as te marria"e is concluded in com$liance wit
te essential conditions of marria"e. wic are *alid for all modes of conclusion of
marria"e. te effects of all marria"es are identical. 1is is similar wit te Frenc law. &s
!laniol clearly stated
8,
The effects of marriage are alwas identical. There is but one &rench marriage.
This was not alwas the case everwhere. Among the =omans there was the
matrimonium in$ustum for foreigners and /atins, and the contubernium for
slaves. The latter did not produce the effects of $ustae nuptiae. <ertain
legislations !9russia, old =ussia" recognized morganatic marriages, a tpe of
legitimate union, inferior to marriage. The did not give to the wife or to the
children the rights the would have had as a result of a veritible marriage,
particularl as regards equalit of ran) with her husband or their father.
8#
:e+ar, (1
8'
,rticle 4- o" 5#4
8,
Macel Planiol, (13
In addition to considerin" all marria"es as a*in" te same le"al effect. te law also
a*oided te re/uirement of consummation as a condition for te marria"e to a*e le"al
effect.
86
Gence. a marria"e. once cele%rated will a*e an effect witout a*in" re"ard to
te fact of consummation of te marria"e.
6hat do ou understand b the phrase contract of marriage(
&s mentioned earlier. marria"e en"enders s$ecial o%li"ations %etween us%and and wife
wic are te result of teir status as s$ouses. Gowe*er. in many le"al systems te $arties
temsel*es were "i*en some de"ree of freedom to determine te effect teir marria"e
will $roduce trou" te conclusion of a $remarital a"reement.
& $remarital a"reement. also referred to as an ante=nu$tial or $re=nu$tial a"reement. is a
contract entered into %y a man and woman %efore tey marry. 1e a"reement usually
descri%es wat eac $arty?s ri"ts will %e if tey di*orce or if one of tem dies.
87
1ere
are different reasons for drawin" a $re=nu$tial a"reement. F!remarital a"reements el$
clarify te $arties? e@$ectations and ri"ts for te future. 1e a"reements may a*oid
uncertainties and fears a%out ow a di*orce court mi"t di*ide $ro$erty if te marria"e
fails.?
88
& $renu$tial a"reement will %e enforcea%le %y te court as far as it as fulfilled te
re/uirements sti$ulated %y te law. In some de*elo$ed countries some *oiced teir
concern on te effect of enforcin" te $remarital a"reement on te rate of di*orce. 1e
assum$tion %ein". te enforcement of $renu$tial a"reements will lead to more di*orce.
Gowe*er. recent de*elo$ments sow oterwise.
The increasingl routine enforcement of premarital agreements is another clear
representation of a changed attitude toward private ordering of the terms of
marriage and divorce. At one time, courts declined to enforce premarital
agreements on the grounds that such arrangements encouraged parties to
divorce. ,ven toda, man courts intervene when premarital contracts that are
86
,rticle 41 o" the 5#4
87
http7;;+++.abanet.org Dacce!!ed on March 1-, &--8E
88
ibid
fairl e%ecuted e% ante lead to what seems to be inequitable results e% post.77 'n
general, however, the formerl hostile $udicial response has been replaced b a
presumption of enforceabilit:. The move toward private ordering of marital
relationships represents a ma$or shift in the law7s stance toward intimate
relations, a shift that has been correlated empiricall with an increased
incidence of divorce.
1BB

2nder (tio$ian law as well te freedom of te $arties as %een reco"niAed %y allowin"
tem to si"n contract of marria"e %efore or on te date of teir marria"e. Gere we a*e to
distin"uis %etween a contract of marria"e and certificate of marria"e. Certificate of
marria"e refers to te document to %e drawn %y te officer of ci*il status wic sows te
conclusion of marria"e of te $arties. +n te oter and. as $er article #2o1 of te RFC. a
contract of marria"e is a contract wic is si"ned %y te s$ouses %efore or on te date of
teir marria"e for te $ur$ose of re"ulatin" teir $ersonal relations and te $ecuniary
effect of teir marria"e.
1ou" te s$ouses are "i*en te freedom to re"ulate te $ersonal and $ecuniary effect
of teir marria"e. tis freedom is not witout limitation. &s $er article #2o3 of te RFC.
te $arties are not allowed to dero"ate from te mandatory $ro*isions of te law.
)oreo*er. te $arties may not also im$ose an o%li"ation on tird $arties.
191
1e contract
of marria"e is si"ned %y te $arties to re"ulate teir relationsi$. and not te relationsi$
%etween te s$ouses wit tird $arties. Gence. tis limitation was im$osed in te law.
1e Ci*il Code on +%li"ations $ro*ides four elements for te formation of a contract.
192
1e first re/uirement is tat of ca$acity. 1e contractin" $arties a*e to %e ca$a%le of
"i*in" teir consent wic is sustaina%le at law. &s a rule. a $erson as to %e ca$a%le to
enter into marria"e. Gowe*er. wen it comes to 0udicially interdicted $ersons. article 1'
of te RFC allows a <I! to conclude marria"e after securin" autoriAation from te court.
1en te ne@t $oint will %e wat will %e te effect if te <I! wants to si"n a contract of
marria"e as well4
199
Virginia .a+ 5e1ie+ DVol. 8471&&(E
191
,rticle 4%;1
192
.ook in to article 1%*8 o" the 4i1il 4ode "or "urther in"oration.
&rticle #3 of te RFC $ro*ides an answer for tis. 1e contract of marria"e as to %e
entered into %y te <I! imself or erself and tat it also as to "et te a$$ro*al of te
court. 2nless it fulfills tis condition. te contract will not %e *alid.
+ne oter re/uirement $ro*ided %y te Ci*il Code under article 1,67 is tat of form. In
$rinci$le. $arties are free to coose any form at te time of contractin". Gowe*er. if te
law $ro*ides for a s$ecial form. tat s$ecial form as to %e o%ser*ed %y te contractin"
$arties. 3en we come to contract of marria"e. article ## of te RFC sti$ulates a s$ecial
form to %e o%ser*ed %y te $arties. 1e contract of marria"e as to %e made in a written
form and needs to %e attested %y four witnesses. two from eac side. & contract of
marria"e is someow $eculiar tan te oter contracts owin" to te nature of relationsi$
e@istin" %etween te contractin" $arties. &s a result of te s$ecial nature of te
relationsi$ wic e@ists %etween te s$ouses. it is ard to acce$t tat tere will %e te
free consent and willin"ness of te $arties to si"n te marria"e contract. 1at is wy te
law re/uires te attestation of four witnesses wo are also re/uired to re$resent te
us%and and te wife. &$art from te re/uirement of attestation. te contract also as to
%e de$osited wit te court or te office of ci*il status.
193
+ne /uestion wic can %e
raised in relation to tis last re/uirement is wat will %e te effect of not de$ositin" te
contract4 Does it mean te contract will lose its *alidity4
1ere are two *iews reflected in res$ect of tis issue. 1e first one tends to fa*or te
assertion tat te contract of marria"e. unless de$osited wit te office of ci*il status or
te court. will lose its *alidity. 3ile te second $osition is tat te contract will a*e
%indin" effect as %etween te $arties. %ut not as re"ards tird $arties.
19#
1e second line
of ar"ument is %ased on te rationale for te re/uirement of de$osit. 1e reason for
re/uirin" te de$osit of te contract is to ma;e it a*aila%le for tird $arties so tat tey
will ta;e $recautions. Gence. te failure to de$osit te document sould not ma;e te
document to lose its *alidityE rater it will not a*e effect on tird $arties.
&fter loo;in" into te rationale for de$ositin" te contract and te fact tat article #' does
not attac any conse/uence for te failure. one tends to fa*or te second line of
193
,rticle 4( o" 5#4
19#
Mehari, (1'(&
ar"ument. es$ecially wen we com$are article #' wit tat of article ##. If te form
re/uirement is not fulfilled. te law $ro*ides tat te contract will not %e *alid. wereas
tis ;ind of sti$ulation is not $resent for article #'. If. te le"islature $lanned to re/uire
de$osit of te contract at te $ain of losin" its *alidity. it would state tat. in te same
manner as it did under article ##.
19'
1e contract of marria"e. if *alid under te law. will "o*ern te $ecuniary effects as well
as te $ersonal relationsi$ of te s$ouses. Gowe*er. if te $arties did not conclude a
contract of marria"e. or if te contract is not *alid. te law inter*enes and re"ulates teir
relationsi$. In te ne@t section. te discussion will %e on te $ersonal and $ecuniary
effects of marria"e as re"ulated %y te law.
3.2 Personal effects of Marriage
)arria"e $roduces s$ecial o%li"ations %etween te us%and and te wife as a result of
teir status as s$ouses. 2nder te 18,9 Ci*il Code. some of te o%li"ations were common
to %ot s$ouses wile some were $eculiar to te us%and Bte duty to "i*e $rotection to
te wife=article ,##C and some s$ecial to te wife Bte duty of o%edience=article ,3'o2C.
1e 188' FDR( Constitution "uaranteed te e/uality of %ot s$ouses at te time of
enterin" into and durin" marria"e. 1ese $ro*isions of te Ci*il Code are contrary to te
Constitution. &s a result. tese conditions are a%andoned under te new RFC. 3at we
a*e under te RFC is o%li"ations wic are common to %ot s$ouses.
3.2.1 Respect, Support and Assistance
Bot s$ouses owe res$ect. su$$ort and assistance to eac oter
19,
. It is te first of all
duties and it acts as te foundation as te o%0ect of marria"e is te esta%lisment of
family wic re/uires te assistance and res$ect of eac oter. &rticle ,7 of te Family
Code of te !ili$$ines also incor$orates more or less te same ty$e of o%li"ation. 2nder
tat article te us%and and wife are o%li"ed to o%ser*e mutual lo*e. res$ect. and render
mutual el$ and su$$ort. In some countries. te s$ouses are e*en re/uired to ta;e an oat
19'
Mehari, (&
19,
,rticle 49 5#4
%efore witness Bte audienceC sayin" tat tey will res$ect. onor. lo*e. su$$ort and assist
te oter $artner until deat.
196
1e duty to res$ect. su$$ort and assist eac oter is a
fundamental duty on %ot s$ouses wic ser*es as te foundation of te family. 1e duty
is always to %e o%ser*ed irres$ecti*e of te ealt of te s$ouse.
3.2.2 Family Management
1e oter $ersonal effect of marria"e is related to te mana"ement of family and care of
te cildren. 1e Constitution under article 3#o1 reco"niAes te e/ual ri"t of te s$ouses
at te time of enterin" into. durin" marria"e and at te time of di*orce. By *irtue of tis
article %ot s$ouses will a*e e/ual ri"t in all as$ects. includin" te mana"ement of te
family. In line wit tis assertion of te Constitution. article '9 of te RFC reflects te
e/ual ri"t of %ot s$ouses in te mana"ement of te family. )oreo*er. te s$ouses are
re/uired to coo$erate in $rotectin" te security and interest of te family.
Guidin" cildren to %e res$onsi%le citiAens of te society is one of te o%li"ations of te
$arents towards teir cildren. In tis res$ect. article '9o2 of te RFC re/uires %ot
s$ouses to coo$erate in te %rin"in" u$ and ensurin" te "ood %ea*ior and education of
te cildren. Since te $arents are te 0oint custodians of teir cildren. te res$onsi%ility
in relation to te education. ealt and %ea*ior o te cildren is to %e sared 0ointly.
Gowe*er. if one of te s$ouses is under disa%ility. a%sent or a%andons te family. or is
away. te res$onsi%ility to mana"e te family rests u$on te oter s$ouse. Gence. if. for
instance. one of te s$ouses is away from ome for education or wor;. te res$onsi%ility
of mana"in" te family and %rin"in" u$ te cildren rests u$on te s$ouse wo stayed at
ome.
+ne tin" wic will %e $oint of discussion in relation to family mana"ement is te case
of cildren from $re*ious marria"e. In tis re"ard. article '2 RFC $ro*ides te e@clusi*e
ri"t of eac $arent to ma;e decision in matters concernin" te u$%rin"in" of cildren
wom tat $arent ad %efore te marria"e.
3.2.3 Cohabitation
196
Mehari, ((
1e oter fundamental o%li"ation of te s$ouses is te duty to coa%it.
197
+ne of te
$ur$oses of formation of marria"e is to esta%lis life in common. If te duty of
coa%itation is not fulfilled. te union of te s$ouses is destroyed.
198
1e o%li"ation of
li*in" to"eter includes te con0u"al duty. F1e 0uris$rudence olds tat te un0ustifia%le
refusal to a*e se@ual relations wit te s$ouse constitutes a *iolation of te o%li"ations
of marria"e.?
119
1e RFC also re/uires te s$ouses to a*e se@ual relations normal in
marria"e unless tese relations in*ol*e a ris; of seriously $re0udicin" teir ealt. &s a
result of tis o%li"ation. one cannot tal; of marital ra$e under te (tio$ian law.
+ne im$ortant outcome of tis o%li"ation is te determination of residence of te
s$ouses. 3o will determine te common residence of te s$ouses4
In earlier times. te Ci*il Code "i*es te ri"t of determinin" te common residence to
te us%and.
111
It is only wen te residence is esta%lised in a manner manifestly a%usi*e
or contrary to te contract of marria"e tat te wife may *oice er concern to te family
ar%itrators. 1is $ro*ision o%*iously is a"ainst te constitutional ri"t of te wife wic
"uarantees te e/uality of %ot s$ouses at te time of enterin" marria"e. durin" marria"e
and at te time of di*orce. &s a result. te RFC under article '# "a*e %ot s$ouses e/ual
say on determinin" te common residence. Gence. currently %ot te us%and and wife
a*e e/ual ri"t on determinin" teir common a%ode. 3at if te s$ouses could not
reac to a"reement4
1e Family Code of te !ili$$ines also entails te same o%li"ation on te s$ouses.
&rticle ,8 of te code "a*e %ot s$ouses te ri"t to fi@ te family domicile. If. owe*er.
tere is disa"reement. te court may inter*ene and ma;e te decision for tem. 3en we
come to te RFC. it does not $articularly address tis issue. Gowe*er. if te s$ouses a*e
differences on tis matter. it can %e referred to family ar%itrators as it can %e considered
as dis$ute arisin" out of marria"e.
112
Gowe*er. if te $arties re/uest to dissol*e te
197
,rticle (3 5#4
198
Planiol, (14
119
Planiol, (14'(1(
111
,rticle %41 o" the 4i1il 4ode
112
,rticle 118 5#4
marria"e on te "round of teir disa"reement. te $etition is to %e "i*en to te court. and
not to te ar%itrators.
1e duty of coa%itation is a conditional duty. FIt is conditional in te sense tat it is
su%ordinated to te accom$lisment of all te o%li"ations flowin" from marria"e.?
113
If
one of te $artners fails to $erform isoer $art of te duty. te oter $artner may re/uire
te cessation of te o%li"ation to coa%it. In addition. one of te $artners may a*e to
lea*e for study or on te 0o%. In suc circumstances. te duty of coa%itation cannot %e
fulfilled. In *iew of tese circumstances. article '' of te RFC allows te $arties to ma;e
a"reement to li*e se$arately for a definite or indefinite $eriod of time.
3.2.4 Duty of fidelity
From te moral $oint of *iew. te $rinci$al duty created %y marria"e is te duty of
fidelity. In tis res$ect article ', of te RFC sti$ulates tat %ot te us%and and wife
owe fidelity to eac oter. F1e duty of fidelity is not a duty of mere moralityE rater it is
sanctioned %y $ositi*e law.?
11#
&rticle ,'2 of te Criminal Code ma;es adultery a crime
$unisa%le u$on com$laint. In earlier times in some forei"n countries se*eral differences
were noted in te re$ression of adultery. de$endin" on weter it is committed %y te
us%and or te wife. In many instances te wife will %e su%0ected to a stricter and
ri"orous $unisment as com$ared to te us%and. 1e reason "i*en for suc
discrimination is tatD
The adulter of a wife can have much more dangerous moral and phsical
consequences than that of the husband. 6hen a husband has a mistress the
children born of her do not enter the famil. The remain strangers to his
famil. 6hen the wife has a lover, if she has children, the will be the legitimate
children of her husband. Fe ma bring a suit in disavowal, but the proof
necessar to drive out of the famil the children who are not his, ma often fail
him:.
115

113
Planiol, (1*
11#
Planiol, (18
11'
Planiol, (19
3.3 Pecuniary Effects of Marriage
)arria"e also affects te $ecuniary relationsi$ of te s$ouses. In discussin" te
$ecuniary relationsi$ of s$ouses. one ma0or /uestion wic needs to %e answered is
Fwo owns te family $ro$erty4? 1ere are se*eral reasons as to wy it is im$ortant to
;now wo owns a $articular $iece of $ro$erty in te marria"e. some of wic
includes
11,
D=
i. 'f someone becomes ban)rupt then all of their propert falls into the
hands of the trustee in ban)ruptc. The propert of the ban)rupts
spouse or partner does not. 't is therefore, necessar to )now whether
certain propert belongs to the ban)rupt person or their partner.
ii. 'f a third part wishes to purchase propert it ma be important to
)now who the owner is. 9articularl when a house is to be sold, it is
necessar to )now who the owner of the house is so that he or she can
sign the appropriate paperwor). There have been cases where husbands
have sold the famil home behind their wives bac)s. 'n such cases it is
important to )now whether the wife had an interest in the propert and,
if so, whether the purchase is bound b her interest.
iii. >n the death of a famil member it is important to )now who owns
what. ;o, if a wife left all her boo)s to her brother in her will, it would
be important to )now which boo)s were hers and which boo)s belonged
to her husband.
i*. >wnership of famil propert has important smbolic power. At one
time the husband owned all of his wifes propert. This reflected the fact
that he was regarded as in control of all the famils affairs. 't is
arguable that if the law were to state that famil propert is $ointl
owned, this would reflect a principle of equalit between spouses in
marriage.
11,
Jonathan Herring, 118
For te a%o*e listed and oter reasons. it is necessary to determine as to wo te owner of
a $articular $ro$erty is. &s mentioned earlier. contract of marria"es $lay a "reat role in
determinin" suc issues. Gowe*er. te s$ouses may not draw a contract or te contract
drawn may not %e *alid for different reasons. In suc situations. te law will inter*ene. In
tis res$ect. te law sould see; to trac; tree aims. FFirst. te law sould $roduce as
i" a de"ree of certainty as $ossi%le. Secondly. te law sould reflect te wises and
e@$ectations of most cou$les. 1irdly. te law sould %e $ractical and easy to a$$ly.?
116
In te followin" su%section. a discussion will %e made as to ow te RFC "o*erns te
$ecuniary relations of s$ouses.
3.3.1 Personal property
)arria"e results in te unification of te s$ouses and not teir $ro$erty. &s a result. te
law reco"niAes te e@istence of $ersonal $ro$erty in marria"e. Gence. te $ro$erty wic
te s$ouses $ossess on te day of teir marria"e. or wic tey ac/uire after marria"e %y
succession of donation. will remain teir $ersonal $ro$erty.
117
In addition. if te s$ouses
"et $ro$erty trou" eiter succession or donation. ten tat $ro$erty will remainto %e te
$ersonal $ro$erty of te successor or donee.
In teory marria"e is an institution wic te s$ouses enter into for life lon". 1e
assum$tion is tat te $arties will remain married for se*eral years to come. In suc
situations. tere will %e a $ro%a%ility of mi@ture of $ersonal wit common $ro$erty. For
instance. te us%and may need to sell te car wic e succeeded from is late fater
and %uy a new one. 3ould te new car remainto %e is $ersonal $ro$erty or would it
can"e to common $ro$erty4
In $rinci$le $ro$erties ac/uired %y onerous title after marria"e trou" te e@can"e of
$ersonal $ro$erty will remainto %e $ersonal $ro$erty of te s$ouses.
118
Gowe*er. for tis
$rinci$le to wor;. te $arty claimin" to retain te $ersonal $ro$erty as to a$$ly for te
declaration of te court of suc facts. Failure to "et te declaration as te effect of
116
Jonathan Herring, 118
117
,rticle (* 5#4
118
,rticle (8 5#4
ma;in" te $ro$erty common $ro$erty. In te y$otetical case mentioned a%o*e. unless
te us%and see;s te a$$ro*al of te court. te newly ac/uired car will %e common
$ro$erty of te s$ouses.
+ne im$ortant tin" tat can %e understood from te a%o*e discussions is tat te mere
fact of conclusion of marria"e will not create common $ro$erty re"ime. 1ere is te
$ossi%ility of retainin" and a*in" $ersonal $ro$erty. 1en wic $ro$erty will %e
considered as te common $ro$erty of te s$ouses4 In te ne@t section. tis /uestion will
%e answered.
3.3.2 Common Property of Spouses
The notion of communit of propert interest between the husband and wife has
had a long and interesting histor. Traces of this idea are found in *ablonian
legislation over A,BBB ears ago, as well as in ancient ,gpt and more modern
Jreece. There is no evidence, however, of an connection between these ancient
vestiges and the sstem as we )now it. 8either shall we find its beginnings in the
=oman law. The origin of the sstem seems rather to lie in the customs of
certain Jermanic tribes. The migration of these tribes throughput 6estern
,urope were ver e%tensive and resulted in widespread diffusion of the
communit idea. Thus, the &ran)s introduced it into northern &rance and the
Joths into ;pain where distinct evidences of the communit appear in the
second Kisigothic code in the I
th
centur.
10B
1e conce$t of common $ro$erty of s$ouses is also incor$orated under te 188,9 Ci*il
Code well as te RFC. 1e first cate"ory of $ro$erty wic is considered as common
$ro$erty is te income of te s$ouses. 1e sources of te income can %e treeD $ersonal
efforts of te s$ouses. meanin" te income ac/uired trou" em$loyment. income
deri*ed from te common $ro$erty. or tirdly. income deri*ed from $ersonal $ro$erty.
129
M.5. 3irk+ood, (19(-), Hi!torical background and obFecti1e! o" the la+ o" counit$ propert$
in the Paci"ic 4oa!t State!, !elected e!!a$! in #ail$ la+ the "oundation pre!!, Grookl$n, pp (14'
(1(
Irres$ecti*e of its source. income is te common $ro$erty of %ot s$ouses. Income of te
s$ouses is made common $ro$erty %ecause it is te means of li*in" of te s$ouses
temsel*es as well as te cildren.
121
In relation to income deri*ed from te $ro$erty of
te s$ouses B$ersonal and commonC te ar"ument raised is te ris; of not %ein" a%le to
co*er te cost of familyE moreo*er. it is also related wit te o%li"ation of te s$ouses to
coo$erate for $rotectin" te security and interest of te family. In addition to tis. as far
as te income from $ersonal $ro$erty is concerned. tere is a %elief tat te oter s$ouse
as contri%uted to te u$ ;ee$in" of te $ro$erty and ence te "eneration of income. &s
a result. te income is made common $ro$erty.
'n light of the above discussion, do ou thin) pension benefit is a common propert(
1e ma0or $ractical $ro%lem concernin" income of s$ouses is te $ension. 3ould
$ension %e considered as common $ro$erty of s$ouses4 In an attem$t to "i*e an answer
to tis. 3ondewossen ad tried to see te $ractice of te courts in li"t of te $ension law
of te country. 1e rele*ant $art of te article is re$roduced ere
122
D=
There is a split between $udges as to whether the retirement pension is a
common marital propert or not. The federal first instance court, in <ivil &ile
no @@E1 ruled that a retirement pension is the personal right of the one who is
emploed in the public service and re$ected the claim of a wife to be awarded
part of the pension, in file no IEIC2@, the same court reached the same
conclusion, arguing that the source of the pension was the respondents
emploment in the public service. The emploment e%isted before the petitioner
and the respondent concluded marriage. As such, the court re$ected the
petitioners claim to part of the retirement pension attributable to the
contributions made b the e%3spouse during the 1A ears of their marriage:.
=etirement plans differ depending on who pas for the plan and how benefits
are determined. >ne is a pension plan sstem where both the emploee and the
emploer contribute to the pension fund. The other is a sstem where onl the
121
:r. 3i"le, 91
122
Hond+e!!en :ei!!ie, 0pleentation Proble! o" the 5e1i!ed #ail$ 4ode, Gerchi i!!ue
no. *
emploer deposits to the pension fund. ,thiopia does not have the latter )ind of
pension plan. The public servant7s proclamation 8o. @A5C0BB@ requires both the
public servant and the emploer to contribute to the <ivil ;ervice &und.
'n some $urisdictions that have contributor plans, the emploee is entitled to
receive what he has contributed even if he quits participating in the plan b
terminating his relation with the emploer. ;o, what the emploee contributes in
such pension plans vests immediatel.
Fowever, the emploee7s interest in the amount attributable to the emploer7s
contributions ma not vest until the emploee has wor)ed for a definite period of
time.
>ne has to note the difference between vested pension rights and matured
pension rights. 6hen a pension benefit is vested but not matures, an emploee is
absolutel entitled to benefits, though he is not entitled to actual paments until
future date. According to ,thiopian pension law, neither the emploee7s not the
emploer7s contribution is vested before the emploee has provided service for
certain period of time in the public office.
Lnder article 01C@ of the 9ublic ;ervant7s 9ension proclamation, a public
servant who leaves his wor) before completing ten ears is not entitled to what
he contributed. Fis contribution is vested and hence can be collected if he
resigns after wor)ing for 1B ears or more. As regards the contribution made b
the emploer, contributions are said to be vested if the emploee is entitled to a
retirement pension for life:.
Jenerall the amount to be deposited to the <ivil ;ervice &und, from which
retirement pensions are paid, is ten percent of the salar of he public servant.
The public servant contributes four percent, and the remaining si% percent is
contributed b the emploer.
'n so far as the emploee contribution is made during the marriage, there is no
doubt that the four percent contributed each month is a marital propert. This is
because the contributed mone is part of the salar, which is common propert
of spouses. The emploer7s contribution is also a marital propert to the e%tent
it was made during the marriage and that such contributions made because the
emploee spouse was providing service to the public. Though not salar, the
contribution made b the emploer is an emploment3related benefit that should
be treated as common propert lie salar, which is perhaps the primar
emploment3related benefit. Therefore, as ling as the are made during the
marriage, it is the contribution made b both the public servant and the
emploer which should be treated as marital propert.
1e second cate"ory of $ro$erty wic is considered as common $ro$erty of te s$ouses
is $ro$erty ac/uired durin" marria"e %y an onerous title.
123
Gence. all $ro$erty wic as
%een $urcased %y te s$ouses ore eiter of tem durin" teir marria"e will %e considered
as common $ro$erty. 1is article sould %e read con0ointly wit article '7o2 of te RFC.
&s a result. it as to %e fist cec;ed weter tat $articular $ro$erty as %een declared as
$ersonal $ro$erty of one of te s$ouses %y te court. In addition to tis cate"ory of
$ro$erty. $ro$erty donated or %e/ueated con0ointly to te s$ouses will also %e
considered as common $ro$erty.
+ne im$ortant tin" wic needs to %e considered in relation to community $ro$erty is
te le"al $resum$tion $ro*ided %y te law. &rticle ,3 of te RFC %asically $ro*ides a
$resum$tion in fa*or of community $ro$erty. )eanin". all $ro$erty in te marria"e will
%e considered as te common $ro$erty. unless te oter s$ouse $ro*es oterwise. &s Dr.
rifle succinctly ela%orates itD
12#
=
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[t`hImiOxJhIKU[t`hk[_WXIZZMhinnMZMhxIxWXYK[t`}Y[yjgV
Yi ]_` \M Y yZ IwO VWX tu XYn N[K d_M i
VjgVYOJgKIZithVxOz`YIiKTIxKP_gM\4 IxiX|]innyjl`
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[t`IZjW[ywJ`hyIjl`Y[ZMhk[JmtiNginnVj_yYIwJ`aZPdU`t
123
,rticle %&;& 5#4
12#
/ 95-96
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Ik[_WXy\U-]XYnnKY\M\U-IxJ`vhMP[NMyjl`h[t`VKtuyhIkjW[PgygMIZi[t`[
yz{Yz[tPVUfY[[t`hIzjW[[[Mgo P|YQ [t` IZ jW
I`KzSghjW[yj`M[t`yYTJ\MyJgZIlSYjW[wJ`ayw`tXYnn
+ne %asic /uestion wic could %e raised in relation to tis le"al $resum$tion is weter
te $resum$tion olds water in a situation were te $ro$erty is re"istered in te name of
one of te s$ouses only. !ro*in" ownersi$ of some ty$es of $ro$erty li;e *eicles and
ouse need license. &nd in many circumstances a license is issued in te name of only
one of te s$ouses. e*en if te $ro$erty is o%tained durin" te marria"e. 1is will a*e a
ne"ati*e im$act on te ri"t of te oter s$ouse. -arious dis$utes resulted from tis
durin" te time wen te 18,9 Ci*il Code was a$$lica%le. and te *iews of te courts
were di*erse. In order to rectify tis. te RFC $ro*ides a /ualification for te
$resum$tion. Gence. te le"al $resum$tion would still %e a$$lica%le e*en if te $ro$erty
is re"istered in te name of only one s$ouse.
In tis connection a /uestion may %e as;ed as to te fate of a ouse wose construction
was finaliAed after te conclusion of marria"e. %ut te land on wic to construct te
ouse was o%tained $rior to marria"e %y one of te s$ouses. 3ould tis %e considered a
$ersonal or common $ro$erty4
In te case %etween eirs of woro &melewor; Gelete *s. &to Bisaw &same et al
12'
.. te
Federal first instance court after esta%lisin" te fact tat te ouse in dis$ute was
common $ro$erty. $roceeded in statin" tat te land on wic te ouse was %uilt %elon"
to te deceased. 1en te court "a*e an order for te se$arate estimation of te $rice of
te land and te ouse and decided tat only te $roceeds from te sale of te ouse is
su%0ect to $artition. &s suc. te claimant Bnow res$ondentsC would %e re/uired to $ay
only alf of te estimated $rice of te ouse witout considerin" te $rice of te land on
wic te ouse was %uilt. 1e case was %rou"t to te Cassation di*ision of te Federal
Su$reme court. 1e court in its reasonin" stated tat $ri*ate ownersi$ of ur%an land as
%een a%olised %y *irtue of !roclamation #6o,6. and land is te $ro$erty of te state.
12'
4a!!ation #ile no 194*9
Gence. tere cannot %e se$arate estimation of te $rice of te ouse and te land. 3it
tis reasonin" te court re$ealed te decisions of te lower courts.
In anoter case. %etween &to )e;onen %elacew *s. woro &lemitu &dem.
12,
te
construction of te ouse in dis$ute %e"an few monts %efore te conclusion of te
marria"e. 1e res$ondent o%tained te land as a result of %ein" a mem%er of a
coo$erati*e society and se also too; loan for construction. Gowe*er. te loan was $aid
after te marria"e and trou" te claimant. 1e FFIC as well as te FGC eld tat since
te construction of te ouse %e"an $rior to te conclusion of marria"e. te ouse is te
$ersonal $ro$erty of te wife and ence te claimant sould %e refunded te amount
wic e ad s$ent on te ouse. 1e Cassation court on te oter and eld tat since
te ouse "ot its current structure as a ouse. and since te loan was $aid from te
income of te s$ouses. wic itself is a common $ro$erty. after te conclusion of te
marria"e. te ouse is te common $ro$erty of te s$ouses. Gence. as $er te decision.
wat matters is not te time in wic te land was ac/uired. rater weter tere was
sarin" of %urden in te construction of te ouse.
3.3.3 Management of Personal and Common Property of Spouses
1e oter im$ortant issue wic needs to %e discussed in relation to $ersonal and
common $ro$erty is te mana"ement of suc $ro$erty. 3o as te $ower to administer
and mana"e te $ersonal $ro$erty of te s$ouse4 3at a%out te common $ro$erty4 1is
section addresses tese /uestions.
&s te law clearly sti$ulates under article '8. eac s$ouse is to administer is res$ecti*e
$ersonal $ro$erty. Gowe*er. trou" te contract of marria"e. administration of te
$ro$erty may %e entrusted on te oter s$ouse. )oreo*er. tere is also te $ossi%ility of
assi"nin" te oter s$ouse trou" te contract of a"ency.
126
+ne /uestion wic needs to
%e raised ere is weter te contract of a"ency concluded %etween te s$ouses re/uire
te a$$ro*al of te court as $er te re/uirement under article 63 of te code. 1is article
re/uires contracts entered into %etween s$ouses durin" marria"e to %e a$$ro*ed %y te
12,
4a!!ation "ile no &(--(
126
,rticle %1 5#4
court on $ain of in*alidation. 1e assum$tion under article 63 is tat considerin" te
s$ecial nature of te relationsi$ e@istin" %etween te two s$ouses. tey may not freely
consent to te contract. 1en. sould we e@tend tis reasonin" also to contracts of a"ency
entered %etween te s$ouses for te administration of te $ersonal $ro$erty of one of te
s$ouses4 In tis res$ect &to )eari as te followin" to sayD
127
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IxlUW[]XhMIxJVhiNThMVYiOJiRkJf]gN`J\fIxSIyhWOinnyjWM[IYiOYiimTZMh
YJ ywJzmh P[_i Ioh [ |JizY yK JMMXh tu
IxVO\[WOinn
Gence. te contract of a"ency entered in %etween te s$ouses for te administration of
$ersonal $ro$erty of one of tem will not re/uire. unli;e oter contracts. te a$$ro*al of
te court.
&s far as te mana"ement of income of te s$ouses is concerned. eac s$ouse is "i*en
te mandate to recei*e is earnin"s.
128
1is $ower of te s$ouses to recei*e teir
res$ecti*e income can %e transferred for te oter s$ouse. Gowe*er. in suc situations te
recei*in" s$ouse as te o%li"ation to "i*e account. 1e law also reco"niAes te
$ossi%ility of a*in" 0oint %an; account in wic te s$ouses may de$osit te income.
In res$ect of oter common $ro$erty. article 3'o6 of te constitution reco"niAes te fact
tat women a*e e/ual ri"ts wit men wit res$ect to te administration of $ro$erty.
1is includes te ri"t to administer te marital $ro$erty. In line wit tis $ro*ision of
te constitution. te RFC sti$ulates tat te common $ro$erty is to %e administered
0ointly %y te s$ouses. Gowe*er. in cases were one of te s$ouses is declared inca$a%le
or for any of te oter reasons stated under article ,,o2. te oter s$ouse alone will
administer te common $ro$erty. 1e s$ouse wo administers te common $ro$erty
alone is duty %ound to inform te oter s$ouse a%out te administration.
127
Mehari, %%'%*
128
,rticle %4;1 5#4
+ne issue wic can %e raised in res$ect of common $roe$rty is te freedom of te
s$ouses to dis$ose of te common $ro$erty. Can te us%and or te wife dis$ose of a
common $ro$erty witout te ;nowled"e of te oter s$ouse4
-arious cases a*e arisen in relation to tis issue at different times. In one of te cases
139
.
te us%and sold a car wic is common $ro$erty. Gowe*er. due to is refusal to $erform
te contract. te %uyer %rou"t an action in te court. 1e wife also 0oined te case as an
o$$osition claimant. sayin" tat te sale contract was entered into witout er ;nowled"e
and re/uested for te in*alidation of te contract. 1e Gi" Court re0ected te ar"uments
of te wife sayin" tat since te car is re"istered in te name of only te us%and. te
%uyer is not e@$ected to ;now te e@istence of marria"e. 1e Su$reme Court. after as;in"
te wife as to er "rounds for o$$osin" te $erformance of te contract. eld. %y
ma0ority. tat in*alidatin" te contract will treaten te security of transaction. Gence.
te claim of te wife was not acce$ted.
In tis res$ect. te RFC as tried to ta;e into account two interestsD te need to ensure
tat common $ro$erty is transferred to tird $arties wit te ;nowled"e and decision of
te s$ouses. on te one and and te need to a*e security of transaction. on te oter
and.
131
Ga*in" tis consideration in mind. te le"islature as restricted te freedom of
te s$ouses to transact wit tird $arties. %y re/uirin" te e@istence of consent of %ot
s$ouses for alienatin" any common $ro$erty in any manner. %e it %y sale. donation.
e@can"e or oter.
132
1e ne@t /uestion wic can %e raised ere is Hwat will %e te fate
of a contract wic is concluded in *iolation of suc sti$ulation4H
&rticle 1797 of te Ci*il Code $ro*ides for te "rounds of in*alidation of a contract and
as to wo may re/uest for te in*alidation of te contract. &s suc. it is only a $arty to a
$articular contract wo may re/uest in*alidation. 1e case of contracts entered into in
139
4i1il ,ppeal ?o. 3%*;*4
131
Mehari, *8
132
0" the propert$ in Iue!tion i! an io1able propert$, there i! an outright prohibition o" !uch
coon propert$ +ithout the kno+ledge o" the other !pou!e, irre!pecti1e o" the 1alue o" the
propert$. 0n ca!e! o" o1able propert$ or !ecuritie! regi!tered in the nae o" both !pou!e!, the
prohibition applie! onl$ i" the 1alue o" the good concerned i! abo1e "i1e hundred 6thiopian birr.
Bn the other hand, i" the ode o" tran!"er i! donation, the 1alue o" the good !hould not e8ceed
one 6thiopian hundred birr. Moreo1er, borro+ing or lending one$ e8ceeding "i1e hundred
6thiopian birr or !tanding !uret$ "or !uch aount al!o reIuire! the peri!!ion o" the other
!pou!e. #or "urther in"oration, !ee article %8 o" the 5#4
*iolation of te a%o*e mentioned sti$ulations of te RFC are someow $eculiar in te
sense te in*alidation is %ein" re/uested %y a s$ouse wo was not $arty of te contract.
1is o%*iously is not wat is en*isa"ed in article 1797 of te Ci*il Code. &rticle ,8 of
te RFC %y way of e@ce$tion. allows te s$ouse witout wose consent te contract was
entered to re/uest for te re*ocation Bin*alidationC of te contract. Gence. it can %e
concluded tat tis $ro*ision of te RFC $ro*ides for an additional "round for
in*alidation of a contract.
133
Gowe*er. it sould also %e noted tat te ri"t of te s$ouse
to re/uest for in*alidation as a $eriod of limitation. 1e a$$lication as to %e made
witin si@ monts in wic te oter s$ouse came to ;now te e@istence of te contract
or in oter cases witin two years after te o%li"ation as %een entered.
13#
By $ro*idin"
te o$$ortunity to a$$ly for in*alidation on te one and and limitin" te time framewor;
in wic te a$$lication may %e made. on te oter. te law as tried to stri;e a
com$romise on te two com$etin" interests of te s$ouse and te security of transaction.
3.3.4 Debts of Spouses
In teir day to day life. te s$ouses may incur different de%ts eiter $ersonally or for te
%enefit of te family. 1e ri"t of tird $arties on te $ro$erty of te s$ouses as a means
of $ayment for te de%t *aries wit te ty$e of de%t incurred. Generally. de%ts of s$ouses
may %e classified eiter as $ersonal de%t or de%t incurred in te interest of te ouseold.
If te de%t is a $ersonal de%t incurred %y one of te s$ouses. tird $arties will first
$roceed on te $ersonal $ro$erty of te inde%ted s$ouse. Gowe*er. if te inde%ted s$ouse
does not a*e $ersonal $ro$erty. te de%t will %e reco*ered from te common $ro$erty of
te s$ouses.
13'
1e reason for allowin" reco*ery of $ersonal de%t from common $ro$erty
seems to %e te need to "i*e creditors wider ri"t.
13,
Gowe*er. in tis circumstance te
ri"t of te oter s$ouse sould also %e considered. In tis res$ect. &to )eari ad te
followin" to say
ykTZIZikVKUthVVgy]KtuYyV`ly[t`h[[ZMhYJ
ywJzmhVK`tgkYIVgY[jS[I]Y[\z[NT VmgkYNT yf|jik[VgY
133
)eari. 67
13#
&rticle ,8o2 RFC
13'
&rticle 69o1 RFC
13,
)eari. 71
IjSIjthwju}hzmWOinnMy gYZP[d76 yjgVYJT\NWOiIxikMXh
Pgnn
+n te oter and. de%ts incurred in te interest of te ouseold are considered as 0oint
and se*eral de%ts and will $rimarily %e reco*ered from te common $ro$erty of te
s$ouses.
136
Gere. if te common $ro$erty is not enou" to co*er te de%t. te creditor
may $roceed to te $ersonal $ro$erty of eiter of te s$ouses. Since te s$ouses a*e te
o%li"ation to su$$ort eac oter and contri%ute to te ouseold durin" teir marria"e.
de%ts incurred for te ouseold are made reco*era%le e*en from te $ersonal $ro$erty of
eiter of te s$ouses.
Review Questions
1. 3at do you tin; is te difference %etween contract of marria"e and certificate of
marria"e4 Com$are article ,9#o3 of te Ci*il Code and article 27o2 as well as article #2
RFC and ,2' of te Ci*il Code
2. Discuss te $ersonal effects of marria"e.
3. 3at is te difference %etween $ersonal and common $ro$erty4 Can a s$ouse o%tain
$ersonal $ro$erty wile in te marital union4
Chapter Four: Proof of Marriage
Introduction
136
:ebt! incurred in the intere!t o" the hou!ehold include debt! incurred to "ul"ill the li1elihood o"
the !pou!e! and their children, debt! incurred in order to "ul"ill an obligation o" aintenance to
+hich both he !pou!e! or one o" the i! bound and other debt! +hich are ackno+ledged to be
!uch b$ the court at the reIue!t o" either o" the !pou!e! o the creditor. See article *1 o" the 5#4
Family is te %asic com$onent of any society. )arria"e is one of te means in wic tis
%asic element of te society may %e esta%lised. 1rou" te institution of marria"e. te
family wic is te fundamental unit of te society is founded. &s a result. marria"e
entails its own conse/uences and te s$ouses wo are 0oined %y marital %ond assume
different o%li"ations towards eac oter. &s a result. any $erson wo can sow te
e@istence of marital %ond may re/uest te fulfillment of tese o%li"ations. +ne im$ortant
/uestion tat can %e raised in tis relation is ow does one $ro*e te e@istence of
marria"e4 &s !laniol clearly sti$ulated. if a $erson desires to draw a 0uridical
conse/uence from te e@istence of a marria"e. e must %e"in %y $ro*in" its cele%ration.
137
Gowe*er. tere may also %e oter $ossi%le ways of $ro*in" te e@istence of marria"e.
In tis ca$ter you will learn te different a*aila%le means on te %asis of wic one can
$ro*e te e@istence of tis institution.
Objectives
&fter com$letin" tis ca$ter. students are e@$ected toD
analyAe international le"al instruments to wic (tio$ia is a $arty and domestic
le"al instrument re/uirin" te re"istration of marria"e.
discuss te need to re"ister marria"e.
identify te modes of $roof of conclusion of marria"e.
distin"uis te difference %etween $ro*in" marria"e %y certificate of marria"e and
$ossession of status.
4.1 Registration of Marriage
1e Re*ised Family Code declares mandatorily tat marria"e sall %e re"istered %y a
com$etent officer of ci*il status. Suc re"istration is to %e conducted irres$ecti*e of te
137
Planiol, 49*
form of cele%ration of marria"e.
138
1e officer of ci*il status wo as cele%rated te
marria"e as also te o%li"ation to issue a certificate of marria"e to te s$ouses. 1is
re/uirement of te RFC is in line wit te country?s international commitment. &rticle 3
of te Con*ention on Consent to )arria"e. )inimum &"e for )arria"e and Re"istration
of )arria"es. to wic (tio$ia is a $arty. mandates te re"istration of marria"e in an
a$$ro$riate official re"ister %y te com$etent autority. In addition to tis. one of te
$rinci$les wic need to %e "i*en effect to %y ta;in" necessary le"islati*e or oter
measures %y *irtue of article 1 of te Recommendation on consent to marria"e. minimum
a"e of marria"e and re"istration of marria"e is re"istration of marria"es.
1#9
3en we come to te $articulars of te record of marria"e. article 39 of te RFC re/uires
te record to sow te full names. dates and $laces of %irt. of eac of te s$ouses and
teir witnesses includin" teir addresses. 1is indicates tat some of te $ur$oses of
issuin" te certificate are to control te fulfillment of essential conditions of marria"e. to
$rotect te family institution and for e*identiary $ur$ose. +ne tin" tat sould %e noted
ere is te fact tat te effects of marria"e %e"ins at te time of conclusion of marria"e
and not at te time of issuance of marria"e certificate. 1e law accommodates a situation
in wic te certificate mi"t %e issued at a latter time. In suc circumstances. te effect
of marria"e dates %ac; to te conclusion of marria"e and not to te date of issuance of te
certificate.
In relation to te re/uirement of re"istration of marria"e. article 321 sti$ulates for te
esta%lisment of necessary institutions in areas were te code as a$$lication. witin si@
monts from te comin" into force of te code. Gowe*er. tis institution is not yet
esta%lised.
1#1
Gowe*er. until te esta%lisment of te +ffice of Ci*il Status. article 321o2
"i*es te mandate for a$$ro$riate autorities of te administration to issue certificate of
marria"e.
4.2 Proof of Marriage by Certificate of Marriage
138
,rticle &9;1 5#4
1#9
See article 1 o" the 2? 5ecoendation on 4on!ent to Marriage, Miniu age o" Marriage
and 5egi!tration o" arriage!, =eneral ,!!ebl$ re!olution &-18 (<<)
1#1
B1886 .C 3
1. 3,
1e law considers certificate of marria"e as te $rimary means of $ro*in" marria"e. &s
indicated in te $recedin" section. te officer of ci*il status as to re"ister all marria"es
eiter at te time of cele%ration or e*en after te cele%ration. 1e o%li"ation of te officer
"oes to te e@tent to re"ister marria"e of is own motion wene*er e %ecomes aware of
te marria"e.
1#2
+ne way or anoter. te certificate issued %y te officer ser*es as a
$rimary means of $ro*in" te cele%ration of marria"e.
1e documentary e*idence can %e relied on %y $arties wo wis to %enefit from te
effects of marria"e. 1at is to say. te a*aila%ility of te e*idence is not limited to te
s$ouses only. &s !laniol $uts it
The rule is general, in the sense that it is applicable to all persons. 't is not
restricted to the spouses. 't applies to third parties and particularl to the
children of the marriage:.The law ma)er imposes the burden of producing an
act of civil status upon an person who sets up in his own behalf a civil effect of
marriage:. The law is also general in that it e%cludes all means of proof other
than the act of civil status. 8o )ind of written instrument can ta)e its place. As a
matter of fact there is no other )ind of written instrument whose purport id to
attest the fact of celebration of marriage. 8either the publication nor the
contract of marriage proves that the intended marriage has ta)en place. A
fortiori, oral proof is not admissible.
1A@
Gence. te certificate of marria"e can %e relied u$on %y tose $ersons wo see; to "et
some %enefit from te conclusion of marria"e. 1is includes te s$ouses temsel*es as
well as te cildren. 1e certificate of marria"e $ro*es te fact of cele%ration of
marria"e. 1at is wy oter documents li;e te contract of marria"e are e@cluded.
Gowe*er. tis is treated someow differently under te Re*ised +romiya Family Code.
2nder tis code. marria"e certificate ser*es as $rimary means of $ro*in" marria"e.
Gowe*er. article 83o1 of te code allows $ro*in" conclusion of marria"e %y adducin" any
credi%le e*idence.
1#2
,rticle &9 5#4
1#3
Planiol, 498
&s discussed a%o*e. ci*il marria"es will %e re"istered at te time of cele%ration wereas
te re"istration or reli"ious and customary marria"es is to %e $erformed after teir
cele%ration eiter u$on te a$$lication of te s$ouses or u$on te officer?s own motion.
FGowe*er. due to te fact tat tere is no s$ecific law on re"istration cou$led wit lac; of
awareness amon" te society. it is ard to say tat te re"istration of reli"ious and
customary marria"es as %een underta;en.?
1##
1is will a*e a ne"ati*e im$act on te
0udicial system as far as $roof of e@istence of marria"e is concerned.
4.3 Proof of Marriage by Possession of Status
6hat does possession of status mean(
In many circumstances. marria"es may not %e re"istered wit te a$$ro$riate or"an for
*arious reasons. 1ere are also some e@ce$tional circumstances in wic te marria"e
certificate duly drawn may %e lost or destroyed. In suc circumstances. te law. %y way
of e@ce$tion. allows $ro*in" marria"e %y $ossession of status.
!laniol defines $ossession of status as te fact tat a man and a woman wo li*e to"eter
are deemed to %e married %y tose wo ;now tem.
1#'
)ore or less te same definition is
"i*en under article 8, of te RFC. 1is article states F& man and a woman are deemed to
a*e te $ossession of status of s$ouses wen tey mutually consider temsel*es and li*e
as s$ouses and wen tey are considered and treated as suc %y teir family and te
community.? So. in $ro*in" te e@istence of marria"e trou" te $ossession of status.
te o$inions of te s$ouses temsel*es. teir family and te community is $ertinent. 1e
ma0or /uestion wic needs to %e considered ere is as to wat is to %e $ro*ed. Sould
tere %e a strict inter$retation of article 8, and not %oter a%out te cele%ration of
marria"e4 +r sould te $ossession of status $ro*e tat te alle"ed marria"e was
cele%rated in one of te tree forms $ro*ided under te RFC4
In relation to tis. we may find two *iews.
1##
B1886 .C 3
1. , 4-
1#'
Planiol,
F1e first *iew ad*ocates for a strict inter$retation of te definition $ro*ision of article
8, and ar"ues a"ainst te re/uirement of $ro*in" te cele%ration of marria"e. &ccordin"
to tis *iew. if one wo alle"es te e@istence of marria"e is allowed to $ro*e it %y
$ossession of statusE e or se needs to $ro*e two facts. 1e first fact is concerned wit
ow a man and a woman treat eac oter. 1e two sould consider temsel*es and li*e as
s$ouses. 1e second $oint of concern is ow te e@ternal community and te families of
te alle"ed s$ouses *iew te relationsi$. Bot te community and te family sould
consider te relationsi$ to %e a marria"e and treat te two as us%and and wife.?
1#,

1e *iew of families and community is to a "reater e@tent influenced %y te reli"ion and
culture followed. +n tis $oint. &to !ili$os as te followin" to say
1#6
D
&amil treatment ma var with variation in culture and religion. According to
the famil law, famil relation refers to both consanguinit and affinit
relations, and famil acceptance is one requirement for proof of marriage b
possession of status. The law never admits an individual as competent and
relevant witness other than the famil and communit members. The fact to be
proved b the famil has also limitation. The limitation is the famil shall testif
not the possession of status or their living together as spouses, but the must
testif their acceptance as spouses. /ogicall, it is believed that the famil will
commonl accept the parties as spouses because of their participation in
marriage ceremon, seeing observable evidences about conclusion of marriage,
and etc. +translated4
1e second *iew ad*ocates for te need to sow Cele%ration of marria"e. 1e
re/uirement under tis *iew is tat a $erson wo would li;e to $ro*e te e@istence of
marria"e as to $ro*e tat te marria"e was cele%rated in one of te tree forms of
marria"e $ro*ided under te RFC. 1e main $oint ere is. if te fact of cele%ration of
marria"e is not re/uired for $ro*in" marria"e %y $ossession of status. it will a*e te
effect of confusin" marria"e wit irre"ular union. )oreo*er. as can %e clearly inferred
1#,
Hond+o!!en :ei!!ie, (&--*), 0pleentation Proble! o" the 5e1i!ed "ail$ 4ode, Gerchi
i!!ue no. %, page 3
1#6
B1886 .C 3
1. , 4(
from te title of te ca$ter for $roof of marria"e and its article 8' te fact to %e $ro*ed
%y $ossession of status is conclusion of marria"e. 1e %asic issue tat needs to %e $ro*ed
in courts is weter tere is conclusion of marria"e or notE ence. te %asic issue sould
not %e a%out e@istence or non=e@istence of $ossession of status of s$ouses.
1#7
1is second
*iew is also reflected %y &to )eari. &ccordin" to im. to $ro*e e@istence of marria"e
%y $ossession of status. te $arties a*e to sow tat te marria"e was concluded
followin" one of te tree modes of cele%ration of marria"e.
1#8
1is second *iew is also reflected in te 1i"ray Family Code as well as te Re*ised
+romiya Family Code. &rticle 123o2 of te 1i"ray Family Code. in res$ect of wo may
%e witnesses to $ro*e $ossession of status. re/uires te witnesses to %e tose $ersons wo
were $resent at te time of cele%ration of marria"e. 1is re/uirement of te law sows
tat te witnesses are su$$osed to $ro*e te fact of cele%ration of marria"e.
1e Re*ised +romiya Family Code. on te oter and. under article 83o2 states tat if a
$erson can $ro*e tat marria"e is concluded. te court will ta;e $resum$tion of
conclusion of marria"e. 3at is re/uired %y te law is $ro*in" te conclusion of
marria"e. 1e law also $ro*ides for tree ways %y wic marria"e is concluded. So.
$ro*in" marria"e under article 83o2 means $ro*in" tat te marria"e was cele%rated %y
one of te tree modes of conclusion of marria"e.
1e directi*e wic was issued %y te Su$reme Court in 1871 (C also reflects te same
$osition. &rticle 3o1 of te directi*e sti$ulates tat $roof %y $ossession of status is used to
$ro*e te cele%ration of marria"e in one of te tree modes of cele%ration of marria"e.
Gence. wat is e@$ected of te witnesses is to sow to te court tat te $arties treat
temsel*es as s$ouses. tat te family and oter $ersons treat tem as married and tat
tey ;now of te cele%ration of te marria"e at some $oint in time.
1'9

3en we loo; at te $ractices of courts. tese two different *iews are reflected in te
decisions. In te case %etween woro &%reet &;ele *s. Social Security &utority BSS&C.
1#7
0d., 4&
1#8
Mehari, 119
1'9
Higina "ithe (1981 64), 1ol. 1 no.&, 34
te $etitioner 3oro &%reet $rayed te court to rule as to te e@istence of marria"e
%etween er and te deceased so tat se would %e lawfully entitled to claim a widow?s
$ension allowance from te res$ondent SS&. &s te certificate of marria"e was not
a*aila%le. se also re/uested te court to $ro*e te e@istence of marria"e trou"
$ossession of status. &fter earin" te witnesses. te court ruled in er fa*or. 1e
res$ondent a$$ealed from tis decision to te i" court sayin" tat since te witnesses
did not testify as to te time. $lace etc of cele%ration of marria"e. it cannot %e concluded
tat tere was marria"e %etween te deceased and te claimant. Gowe*er. tis ar"ument
of te a$$ellant was not acce$ted %y te Gi" Court. 1e Gi" Court in its reasonin"
stated tat in order to esta%lis $ossession of status of s$ouses. article 8, of te RFC
re/uires tat a man and a woman treat eac oter as us%and and wife. and tat tey are
treated as suc %y teir families and te community. Gence. te witnesses are not
e@$ected to testify as to te cele%ration of marria"e
In te case %etween 3ro 3a"aye *s. 3rt (tsu%
1'1
te claimant %rou"t an action to te
FFIC as;in" te court to $ronounce er as te wife of te late Sale;a Gailemic;ael. Se
re/uested documents to %e $roduced from te wor; $lace of te deceased and te ;e%ele
administration. wic will sow tat se was re"istered as te wife. 1e FFIC after
loo;in" into te e*idence $roduced eld tat te claimant as not sown te conclusion
of marria"e. so te relationsi$ is one of irre"ular union. 1e Gi" Court. on te oter
and. eld tat te witnesses testified to te e@istence of $ossession of status of s$ouses
as $er te re/uirement of article 8, of te RFC. it can %e said tat te claimant Bnow
a$$ellantC is te wife of te deceased. 1is decision of te Gi" Court was re*ersed %y
te Federal Su$reme Court. 1e Su$reme Court in its oldin" stated tat te witnesses
testified as to te e@istence of $ossession of status of s$ouses. and not to te conclusion
of marria"e %etween te two. +ne cannot reac to a conclusion as to te e@istence of
marria"e witout ascertainin" te cele%ration of marria"e. %ecause doin" so would
confuse marria"e wit irre"ular union.
Review Questions
1'1
Hrt 6t!ub Haileichael 1!. Hro Haga$e :ei!!e, 4i1il #ile no. 88*&
1. 3y do you tin; is tere is a need to $ro*e e@istence of marria"e4
2. Gow is e@istence of marria"e to %e $ro*ed4
3. 3at is a claimant su$$osed to $ro*e %y $ossession of statusE Ga*in" te status of
married $erson or cele%ration of marria"e4
Chapter Five: Dissolution of Marriage
Introduction
)arria"e ideally is a life matesi$ of a man and a woman %ased u$on mutual and
continued coice and affection. Gowe*er. te ideal is not always realiAed in $ractice. and
marria"es dissol*e and disinte"rate for different reasons. F1e dissolution of marria"e is
te %rea;in" of te con0u"al %ond and te cessation of te effect te union of te s$ouses
$roduce eiter as re"ards tem or as re"ards tird $arties.?
1'2
1ere are *arious reasons
for te dissolution of marria"e. 1ese causes can %e classified into twoD o$eration of te
law and act of te $arties i.e.. di*orce. In te ne@t sections. you will learn a%out te
*arious "rounds for te dissolution of marital union as well as te conse/uences of
dissolution.
Objectives
&fter Com$letin" tis ca$ter. students sould %e a%le toD
distin"uis te different "rounds of dissolution of marria"e
understand te de*elo$ment of di*orce in selected le"al systems
identify te reasons for ado$tin" a no fault di*orce system
discuss te effect of dissolution of marria"e
5.1. Grounds of Dissolution
&s mentioned a%o*e. most of te time marria"es are concluded to last fore*er.
Gowe*er. te reality sows us oterwise and many reasons can %e enumerated for
te dissolution of marria"es. Generally. we may classify te reasons into o$eration
of te law and acts of te $arties.
5.1.1 Dissolution by Operation of the Law
6hat grounds are considered as causes of dissolution of marriage b operation of the
1'2
Planiol, %&(
law(
1e first "round for te dissolution of marria"e as $ro*ided under article 6'oa of te RFC
is te deat of one of te s$ouses. wic %rin"s te marital con0u"al to an end. &$art
from actual deat of one of te s$ouses. te law also reco"niAes declaration of a%sence as
anoter "round for dissolution. F&%sence. as a le"al institution. is 0ustified %y te
necessity of dealin" wit situations were a $erson cannot %e considered as %ein" dead.
%ut were it is li;ely tat suc is te case.?
1'3
1e manner and condition in wic a%sence
of a $erson will %e declared is dealt under te Ci*il Code. +ne of te effects of
declaration of a%sence. as sti$ulated under article 1,3 of te Code is te dissolution of
marria"e of te a%sentee. So. te readin" of articles 6' RFC cou$led wit article 1,3 of
te Ci*il Code will lead us to conclude tat declaration of a%sence is a cause for
dissolution of marria"e.
1e oter "round for dissolution of marria"e is te non fulfillment of te essential
conditions of marria"e. &s discussed in ca$ter two. te law as $ut in $lace *arious
conditions wic need to %e fulfilled for te conclusion of a *alid marria"e. If. owe*er.
te marria"e is concluded witout te o%ser*ance of one or more of tese essential
conditions. te marria"e will %e dissol*ed %y te order of te court.
1'#
&$art from tese tree causes for dissolution of marria"e %y o$eration of te law. te
actions of te $arties could also %e a reason for dissolution. In te ne@t section te
de*elo$ment of di*orce laws in different countries as well as (tio$ia and te different
ty$es of di*orce as well as te conse/uences will %e discussed.
5.1.2 Divorce
6hat do ou understand b the term divorce( .iscuss the development of divorce laws in
1'3
4atherine BC:ono1an, (19%9), the .a+ o" ph$!ical per!on!, 1&(
1'#
,rticle *(;b 5#4
few selected countries.
Di*orce as %een defined %y !laniol as te ru$ture of a *alid marria"e durin" te life of
te two s$ouses.
1''
Currently. di*orce is an e@tremely common le"al acE. owe*er. tis is
not always so. )any of te early laws of countries were influenced %y te Catolic
Curc and in many instances di*orce was not allowed. For instance. $rior to 17'6.
di*orce was not allowed in (n"land for any "round. &s Friedman notedD
1',
,ngland was a Gdivorceless societ,H:until 1D5I. There was no :$udicial
divorce. The ver wealth might squeeze a bill of divorce out of parliament.
*etween 1DBB and 1D@E there were, on average, three of these a ear. &or the
rest, unhapp husbands and wives had to be satisfied with annulment !no eas
matter", or divorce from bed and board !a mensa et thoro", a form of legal
separation which did not entitle either spouse to marr again:
<onatan Gerrin" furter ela%orated te situation in (n"land %ac; ten in te followin"
mannerD
1'6
9rior to 1D5I the ecclesiastical !church" courts determined the law on divorce.
This meant that although nullit decrees could be made, divorce was not
available through the courts. The onl form of divorce was b an Act of
9arliament. This was a hugel e%pensive procedure that was onl open for a few
people. The Matrimonial <auses Act 1D5I was the first Act to create an
alternative to divorce b Act of the 9arliament. The Act created a divorce
procedure through the courts. Fowever, there was a difference between the
grounds available to a husband and to a wife. &or e%ample, a husband could
rel on his wifes adulter, but a wife could onl rel on a husbands adulter if
there were aggravating circumstances !e.g. the adulter was incestuous or there
was some unnatural offence". The Matrimonial causes Act 120@ put the
husband and wife in the same position3simple adulter was a ground for divorce
1''
Planiol, %3-
1',
#riedan, ..M., , Hi!tor$ o" ,erican .a+, a! cited b$ 0ra Mark 6llan, #ail$ .a+ ca!e!,
te8t, proble!, 18*
1'6
Herring, 8-'81
for both. The grounds were e%tended further in the Matrimonial <auses Act
12@I to include cruelt, desertion or incurable insanit. The last ground was of
particular significance because for the first time it recognized that a part could
be divorced even though the have not behaved in a blameworth wa.
1e situation tat e@isted in (n"land was also reflected in oter countries. 1e laws of
many countries at tat time were *ery restricti*e in te sense di*orce was a*aila%le for
*ery few $ersons. Gowe*er. te 18
t
century as witnessed an increase in te demand for
a sim$ler way of di*orce. Conse/uently. easy di*orce laws "rew out of te needs of te
middle=class mass.
1'7
Gowe*er. one sould note ere tat tou" di*orce was relati*ely
easier wen com$ared to earlier times. di*orce was not fully li%eraliAed. In tis
connection. Friedman o%ser*ed te followin"D
1'8
+.ivorce4 statutes were never simple, facilitative laws. To begin with, the law
recognized no such thing as consensual divorce. 't was in form an adversar
lawsuit: plaintiff had to allege and prove GgroundsH for divorce against
defendant. 'n some states, onl innocent plaintiffs were allowed to marr again.
Juilt parties were left to stew in their $uices:..
The moral goals of divorce law were reflected in the statutor lists of
Ggrounds.H Adulter was alwas on the list. : .esertion was commonl
included. >ther grounds included fraud, impotence, conviction of a felon, or
habitual drun)enness.
The dramatic changes in divorce law in the earl nineteenth centur lend
themselves to a standard )ind of economic e%planation based on propert
interests, the demands of a broad3based, active land mar)et, the need for clear
titles, and for devolution and disposition of propert along rational lines.
3it can"e in time. te num%er of di*orce in many countries as increased
si"nificantly. 1ere were also $ressures to ado$t laws wic will ma;e di*orce an easy
1'7
0ra 6llan, 189
1'8
.a+rence M. #riedan, (1984), 5ight! o" Pa!!age7 :i1orce .a+ in Hi!torical Per!pecti1e,
Oregon Law review, Vol. %3, %(3'%((
tas;. In te twentiet century. te discussion can"ed from consensual di*orce to no=fault
di*orce. F5o=fault "oes %eyond consensual di*orce. (iter $artner can end a marria"e
sim$ly %y assertin" tat te marria"e as %ro;en down. 1e older laws did not reco"niAe
consensual di*orce. let alone no=fault di*orce. 5o=fault made di*orce cea$er a%olised
te dou%le standard and closed te "a$ %etween reality and a$$earance.?
1,9
Currently.
many laws a*e ado$ted a no=fault di*orce. F1e no fault di*orce as as its ma0or "oal a
reform in te "rounds for di*orce. su$$lemented %y accom$anyin" can"es in te
financial awards tou"t necessary to $re*ent considerations of marital misconduct from
rea$$earin" in anoter "uise.?
1,1
In many le"al systems. tere as %een muc de%ate o*er
weter tere sould %e fault %ased or no=fault %ased di*orce system. In tat $rocess
many ar"uments were forwarded to defend te no=fault di*orce. 1ese ar"uments
includeD
1,2
a" ,mpt ;hell:3 it has been maintained that if onl spouse wishes to
divorce there is little value in forcing the couple to sta married. There is no
point in )eeping empt shell marriages alive. Ma)ing divorce available
onl on proof of fault does not lead to happier marriages, but to parties
separating, although legall married, or to cantan)erous divorce.
b" The right to divorce:3 some argue that it is now a human right to
divorce. &orcing someone to remain married against their wishes is an
infringement of their right to marr or right to famil life.
c" *itterness: 3 a common complaint is that a fault3based sstem
promotes bitterness. * focusing on the spouses minds on the past and the
unhappiness of the marriage and ma)ing these public it is argued that fault3
based sstems e%acerbate the anger and frustration the feel towards each
other.
1,9
.a+rence M. #riedan, (1984), 5ight! o" Pa!!age7 :i1orce .a+ in Hi!torical Per!pecti1e,
Oregon Law Review, Vol. %3, %%4
1,1
Heran Hill 3a$, (198*), 6Iualit$ and :i""erence7 , Per!pecti1e on ?o'"ault :i1orce and it!
,"terath, Cincinnati Law Revie+, 1ol.(% no. 1, 14
1,2
Jonathan Herring, 1-1
d" The impossibilit of allocating blame: 3 the law cannot reall
determine who was trul to blame for the brea)3up. There are practical
difficulties in discovering the facts of the case, particularl as the husband
and the wife are often the onl two witnesses. *ut even if all the facts were
)nown, the court ma still not be in a position to allocate blame.
3en we come to te de*elo$ment of di*orce law in (tio$ia. &to !illi$os as
succinctly drawn te ma$ in te followin" mannerD
1,3
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1,3
(January 2008) ( ) Mizan Law review, 1olue & no. 1,
&&8'1&1
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&s can %e understood from te a%o*e discussion. te Ci*il Code as classified te
"rounds for di*orce into "ra*e and sim$le. It as introduced di*orce indrance de*ices
wic would discoura"e $arties from see;in" di*orce.
1,#
1e aim of te law in
introducin" tese di*orce indrance de*ices was to $rotect te family from disinte"ration.
Gowe*er. weter family unity can %e ;e$t %y ma;in" di*orce ard to "et was a de%ated
issue.
Studies conducted at te time of draftin" te RFC sow tat te fault %ased di*orce
system as its own draw%ac;s.
1,'
Since te $arty wo is found to %e at fault will %e
$enaliAed %y deduction from is sare of te common $ro$erty. te s$ouses would
en"a"e in fierce and stron" de%ate in te courts. 1is as ne"ati*e im$act on te future
relation of te s$ouses and will also affect te cildren. It is also $ro*ed to %e te cause
1,#
John H. Geck!tro, (19%9), :i1orce in 2rban 6thiopia /en Jear! ,"ter the 4i1il 4ode, J6., 1ol.
% no. &, &83
1,'
See
. 11=12
for te delay of di*orce cases in te courts. )oreo*er. te fact tat drun;ard ness. %eatin"
and oter actions wic affect te marria"e were not considered as serious "rounds for
re/uestin" di*orce as a ne"ati*e conse/uence in tat te *ictims. mainly females. are
forced to %e in te marria"e des$ite tose actions.
&t te time of draftin" te RFC. di*erse *iews were reflected on te issue of di*orce.
Some su""ested tat te law sould "i*e $rotection to te institution of marria"e and to
te familyE owe*er. tis $rotection sould not %e manifested %y $roi%itin" te $arties to
di*orce or $unisin" te defaultin" $arty on te sare of common $ro$erty. Doin" so will
a*e a ne"ati*e im$act on te future relationsi$ of s$ouses. wic will affect te
cildren.
1,,
+n te oter and. oters were ar"uin" tat te law sould $ro*ide for sim$le
and "ra*e "rounds for di*orce.
1,6

1a;in" into account te di*erse *iews wic were reflected at tat time. te law
classified di*orce into di*orce %y mutual consent and %y $etition. +ne tin" tat needs to
%e noted ere is tat in %ot ty$es of di*orce. an a$$lication as to %e made to te court.
1at is to say. te $ower of declarin" di*orce is "i*en only to te court.
1,7

5.1.2.1 Divorce by Mutual Consent
1e RFC allows $arties to see; for di*orce %y mutual consent. Considerin" te freedom
of te $arties. te law allows te s$ouses to $etition for di*orce %y a"reement. Gowe*er.
it cannot %e said tat di*orce e*en in cases of mutual consent is automatic. Since te state
as te o%li"ation of safe"uardin" te family. te courts are re/uired to ma;e some
inter*entions. 1e inter*ention of te court in mutual consent di*orce is limited to
counselin" te s$ouses se$arately to renounce teir di*orce.
1,8
If on te oter and. te
$arties are not willin" to renounce te di*orce. te court may order a coolin" $eriod.
1e di*orce %y mutual consent is not necessarily a di*orce witout a cause. 1e s$ouses
may a*e. and in many situations. do a*e causes for se$aration. Gowe*er. under te
mutual consent di*orce. tey are not re/uired to di*ul"e teir reasons to te court. 1e
1,,
Mehari, 8%
1,6
Mehari, 8*
1,7
,rticle 11* o" the 5#4 ake! the court to be the onl$ copetent organ to decide on di1orce.
1,8
,rticle *8;1 5#4
s$ouses are sa*ed te necessity of re*ealin" teir reason and of reci$rocally co*erin"
temsel*es wit atred and ridicule.
169
1is is reflected under te RFC. &rticle 66o3 of
te code reli*es te $arties from statin" teir reason in cases of di*orce %y mutual
consent.
Di*orce %y mutual $etition is not a*aila%le for e*eryone. 1ose newly weds. wose
marria"e as not lasted for si@ monts may not see; di*orce %y mutual consent. It sould
%e noted ere tat te fact tat newly weds are $roi%ited from see;in" di*orce %y mutual
consent does not mean tat tey will not di*orce at all. rater. tey may see; te oter
alternati*e wic is di*orce %y $etition.
1e $ower of te court in cases of di*orce %y mutual consents is limited to counselin"
te s$ouses eiter 0ointly or se$arately to renounce teir wis to di*orce. If tey are not
willin" to renounce teir intention. te court will "i*e tem a ma@imum $eriod of tree
monts as a coolin" time to reconsider teir decisions.
161
If tey still wis to $roceed wit
te di*orce after te end of te coolin" $eriod. tey may rea$$ly to te court to a$$ro*e
teir a"reement. 1e court. at te time of a$$ro*in" teir re/uest. as to ma;e sure tat
te a"reement to di*orce is te true e@$ression of te intention and free consent of te
s$ouses as well as tat te a"reement is not contrary to law or morality.
162

5.1.2.2 Divorce by Petition
1e oter way of endin" te con0u"al union %y di*orce is wen on of te $arties re/uests
te court to end te marria"e. In te case of mutual consent di*orce. %ot $arties a*e
a"reed as to te se$aration as well as te conse/uences of teir se$aration. In di*orce %y
$etition. it may %e only one of te s$ouses wo re/uests for te endin" of te unionE or
alternati*ely. %ot te s$ouses my re/uest te di*orce. Gere also. te s$ouses are "i*en
te discretion eiter to state teir reason or not.
163
In cases of di*orce %y $etition. te
court as an o%li"ation to s$ea; to te s$ouses eiter se$arately or 0ointly. wit a *iew of
con*incin" tem to renounce teir $etition.
169
Planiol, %43
161
,rticle *8 5#4
162
See article! *9 and 8- o" the 5#4
163
,rticle 81 5#4
1e code also en*isa"es a $ossi%ility of referrin" te case to family ar%itrators.
&r%itration of family cases under te Ci*il Code. unli;e te RFC. was com$ulsory.
Different 0ustifications were su""ested %y te drafter of te Ci*il Code for $reser*in" te
institution of family ar%itration under te Code.
1e followin" e@cer$t from &;liul 3olde &manuel?s article will sow one as to te
nature and reason of te family ar%itration institution
16#
.
*etrothal, marriage, divorce and concubinage are susceptible of raising
numerous legal difficulties. <hapter 'M, which comprises of article +I00 to I@I4
refer to and deal with the manner of solving these difficulties. 6e have tried, on
this sub$ect, to ta)e account of the customs and to preserve e the institution of
arbitration which is so much diffused in ,thiopia:.The provisions of chapter 'M
aim at maintaining a well3established, and which appears to be an eminentl
respectable, tradition. >n the other hand, the are inspired b the idea that the
$udges who are appointed b the state are not perhaps the best placed and the
best qualified to resolve disputes of a famil nature: this consideration has led
different countries, such as *razil, to create special $urisdiction for famil
litigation. This trend can correspond to that which has led man countries to
establish special $urisdiction for the ad$udication of cases, civil or criminal,
concerning oung persons. Moreover, there are at the moment few qualified
lawers in ,thiopia# and for this reason, there is ground to dread the crowding
of courts, which is the present evil all over the countr# this consideration has
strengthened, our opinion, which is materialized b the provision of Arts. +I003
I@I4
To be more precise and concise, the drafter incorporated the institution of
famil arbitration in the <ivil <ode for the following three reasons
1. 't is a well established and respectable tradition worth preserving for
purposes of solving famil conflicts
16#
,klilu Holde ,anuel, (19*3), /he #allacie! o" #ail$ ,rbitration 2nder the 19%- 6thiopian
4i1il 4ode, Journal o" 6thiopian .a+, Vol. 9 no. 1, 1*%'1*9
0. 't is a means of settling famil disputes through arbitrators who are more
qualified for this purpose than the $udges of the regular courts# and
@. &amil arbitration reduces the congestion of courts b providing a special
forum for the settlement of famil disputes:.
The general features of the famil arbitration under the <ivil <ode were
1. 't is compulsor: the code compels resort to arbitrators whenever there is a
famil dispute b ma)ing famil conflicts out of the $urisdiction of the regular
courts e%cept when the come b wa of appeal. : The law forces the parties to
consent to the arbitration of their dispute b persons selected b them. Thus
there is no such thing as arbitral submission or an agreement to arbitrate a
dispute and to be bound b its result. 'n famil disputes there is no choice but
arbitration, there is no wa to go to the courts but through appeal and that onl
in cases of Gcorruption of the arbitrators or fraud in regard to third personsH or
in cases of illegalit or G manifestH unreasonableness of the award.
0. 't is not before fulltime arbitrators: generall the arbitrators are those
persons who have been witnesses to the marriage or betrothal though the
parties or the court or the arbitrators ma appoint other persons to act as
arbitrators
@. 't is seemingl speed under certain circumstances: the arbitrators are
required b #as to pronounce divorce within one month counting from the date
of the petition in case pf serious cause of divorce and within one ear in other
cases which period ma be e%tended to five ears in the latter case, b
agreement of the parties. 'n all cases the are bound to deliver the
supplementar $udgment within si% months from the date of the $udgment of
divorce.
A. 't depends to a large e%tent on the substantive provisions of the law and to a
much lesser e%tent on the agreement of the parties: the parties ma regulate
their pecuniar relations b the contract of marriage which, to be valid must be
in writing and attested b four witnesses to or other contracts concluded during
marriage which must be approved b the famil arbitrators for purposes of
validit. To this e%tent the arbitrators ma refer to agreements made between
spouses. *ut in all other cases the are bound to refer to the provisions of the
law.
5. =econciliation is part and parcel of famil arbitration: it is one of the legal
duties of the arbitrators to be performed where there is no serious cause of
divorce.
2nli;e te Ci*il Code. te RFC $ro*ides for o$tional ar%itration of family dis$utes. 1at
is to say. te court is "i*en te discretion to refer te case for ar%itrators. Gowe*er. if te
s$ouses do not a"ree to settle teir dis$utes trou" ar%itration. te court will dismiss te
case %y "i*in" tem a coolin" $eriod of u$ to tree monts.
16'
Gence. as far as ar%itration
is concerned. te role of te court will %e to ad*ise te $arties to sol*e trou"
ar%itration. 3ere te reconciliation $rocess eiter trou" te ar%itrators or te coolin"
$eriod fails. te court is duty %ound to $ronounce di*orce witin a mont from te recei$t
of te ar%itration re$ort or end of te coolin" $eriod.
1e oter im$ortant tin" wic needs to %e accom$lised %y te court $rior to te
$ronouncement of di*orce is to "i*e a tem$orary order on maintenance of te s$ouses.
custody and maintenance of cildren and also of te mana"ement of te common
$ro$erty. 1e tem$orary order on tese matters needs to %e entered %y te court
immediately after $etition for di*orce as %een filed. 1e order also needs to consider as
to manner of li*in" of te s$ouses. 1e %i""est /uestion to %e answered ere is FIs it
$ossi%le for te s$ouses to li*e in te same ouse4 If not. wo sould lea*e te common
a%ode4? In tis re"ard. wat te law re/uires is for te court to ta;e into consideration te
interest of cildren and te condition of te s$ouse wo may %e affected more %y lea*in"
te common a%ode.
16,

16'
,rticle 8&;& and 3
16,
,rticle 8&;% 5#4
+ne corres$ondin" issue wic may %e raised in relation to dissolution of marria"e is te
status of cou$les wo were married %ut a*e ceased to li*e to"eter for a lon" $eriod of
time. %ut witout securin" di*orce from te court. Can we consider te marria"e to %e
still intact4
1is issue as %een raised at different times to te courts. &s discussed a%o*e. one of te
causes for dissolution of marria"e. di*orce. is to %e $ronounced only %y te court. 1is
means. wen te law allows *arious ways of enterin" marria"e wic ta;es into account
te custom and reli"ion of te $arties concerned. suc o$tion is not o$en for di*orce.
3at if one or %ot of te s$ouses a*e concluded anoter marria"e. tin;in" tat te
$re*ious marria"e is dissol*ed. e*en if tere is no formal $ronouncement of di*orce %y
te court4 Can we consider te first marria"e as e@istin"4
1ere are di*erse *iews on tis issue e*en amon" lawyers on tis issue. Some ad*ocate
for te strict inter$retation of te law to te e@tent tat te marria"e will %e considered to
%e still intact e*en if te s$ouses were actually se$arated for a lon" time. and ence.
$ro$erty ac/uired after te se$aration will still constitute common $ro$erty.
166
+n te
oter and. oters old te *iew tat wen te s$ouses a*e li*ed se$arately for a lon"
$eriod of time tere will not %e common $ro$erty ac/uired after te se$aration. In tis
res$ect &to meari as said
167
D
yjl`KtuyIxTlYoh I Y| l tu XYnn [O miO xJ y]Xh
ygyhj[yIZ]}YhzothmgjtuIKUWOiwghPuiMnnIMP]w[ZtP_gMnn
Ktuy[t`hyiIx`YYhyZ]Z[Xh]fgYYhKTPtcjIhPgyhnn
1is issue was raised in te Federal Su$reme Court Cassation Di*ision in te case
%etween woro Sewaye 1esema *s. woro Sara Len"ane.
168
In tat case. te a$$licant
$rayed te First instance court to declare er as te wife of te deceased $erson. 1e
res$ondent. on te oter and. o$$osed to tis re/uest sayin" tat se is te wife. 1e
res$ondent stated tat se concluded marria"e in 18,,. %ut tey ceased li*in" to"eter
166
Philipo!, de "acto di1orce, 11%
167
( ) 115
168
4a!!ation "ile nuber &-938
since 187'. %ut since te marria"e is not dissol*ed %y di*orce. se claims to %e te wife
of te deceased. 1e Cassation court in its decision statedD
KtuIxTlYmJdjR}YY[M[hjW[Mohdygiy]yigKtuj`J
M[h IW Xzc jT PgjU}Y[ Ix`KzSY k[h XY IxgY O Xt
ygMKVXy`YMTj`hIxuiXYnnKtuIxTJyh[M[hj`[VwJ`hjgIhM
JiKinnP[yd`yi[IjiJljVUVj[PjifP]J`MIxiXYnnXzTZ[IjiJlO
IZ[Xhw[M]wJ`aJ`VxgYVxziYy]yjfV]}YIXy`YIKtuZ[Xhj`gM]\hzM`YIP[[
PjifwZm}Y[I[[MKtuIP[jiJlYk[_XyTJ`innjWy`KzSyh[[
jiJ l d_M i jY[ Ktu jl`h ywN`Z tu xJh Oh t j\l
hgIZP`MP_gMnn
3at can %e understood from tis oldin" is tat te fact tat s$ouses a*e li*ed
se$arately for lon" time will %e a "round to $resume tat te marria"e as %een dissol*ed.
e*en if te di*orce is not $ronounced %y te court.
1e oter im$ortant tin" wic needs to %e raised in connection wit di*orce is te issue
of re$resentation. Can one of te s$ouses re/uest di*orce trou" teir re$resentati*es
BlawyersC4 1e RFC does not directly "i*e res$onse to tis /uestion. Gowe*er. as can %e
seen from te di*orce $rocedure itself. one of te o%li"ations of te court is to s$ea; to
te s$ouses eiter se$arately or 0ointly. &llowin" di*orce trou" re$resentation will
ma;e tis re/uirement of te law meanin"less. 1e court is e@$ected to s$ea; to te
s$ouses directly. and not wit te re$resentati*es or lawyers. )oreo*er. marria"e in its
*ery nature is *ery $ersonal. &s a result. te law re/uires te $ersonal a$$earance of te
$arties at te time of cele%ration of te marria"e. 1is ar"ument sould also %e e@tended
to di*orce cases. Gence. 0ust li;e marria"e. in case of di*orce also te $arties a*e
a$$eared %efore te court $ersonally unless for e@ce$tional reasons tey are e@em$ted to
do so. For instance. in te case %etween &to )oammud *s. woro (0i"ayeu te
a$$lication for di*orce was made trou" re$resentation and tis fact was contested %y
te res$ondent. 1e res$ondent claimed tat since marria"e and di*orce are $ersonal
matters. it is te claimant imself wo sould a$$ear %efore te court. 1e court in tat
case affirmed tat di*orce is *ery $ersonal and ence in $rinci$le te $arties a*e to
a$$ear %efore te court for di*orce cases. +n te oter and. te court also too; into
consideration te e@ce$tional circumstance in wic re$resentation may %e allowed in
di*orce cases. In tat case. te claimant as sent also a letter tou" te )inistry of
Forei"n &ffairs wic sows is clear intention of dissol*in" te marria"e. &s a result of
tis letter and oter e*idences. te court "ranted te di*orce. allowin" di*orce %y
re$resentation only in e@ce$tional circumstances.
1e oter tin" wic needs to %e considered in relation to te dissolution of marria"e is
te issue of com$ensation. &s discussed a%o*e. %ot s$ouses will %e treated e/ually in
terms of te $artition of common $ro$erty. Gowe*er. te law reco"niAes under article 7#
of te RFC te $ower of te court to award com$ensation to eiter of te $arties.
&s discussed a%o*e. te Federal Family Code as well as te re"ional codes follow te no=
fault di*orce a$$roac. In tis re"ard. te first /uestion wic arises from te readin" of
article 7# is weter or not fault as to %e committed %y one of te $arties for te $ur$ose
of te a$$lication. &s $er te o$inions of &to )eari. fault is not witout any rele*ance
in di*orce cases. Ge saidD
179
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1e oter im$ortant element in relation to tis article is te re/uirement tat te oter
s$ouse as to sustain some dama"e or in0ury. &s te last sentence of article 7# states. te
$ur$ose of awardin" com$ensation is to ma;e "ood te dama"e sustained %y te oter
s$ouse. +ne /uestion wic may %e raised ere is Hare we "oin" to consider te dama"e
caused %y te termination of te relationsi$ or te dama"e caused %y te fault tat leads
to te termination of te relationsi$4H In res$onse to is /uestion. 3ondwessen ad
made te followin" findin"sD
171
179
Mehari, 98'99
171
Hond+e!!en, 4('4%
'n contrast with the damage caused b the termination of the relationship,
courts have struggled to asses the damage caused b the fault that is found. 'n
the case of wCro Alem vs Ato /a)ew the plaintiff alleged the adulterous behavior
of the respondent with her daughter was the ground for divorce. The first
'nstance court accepted her allegation and awarded 1B,BBB birr b wa of
compensation for the damage caused b the fault committed b her husband. 't
did not assess the damage caused b the divorce:. +>n the other hand, other
$udges from the &ederal ;upreme court4 reflect a different view. The opinion is
that the damages to be compensated are those for termination of the
marriage:.
1e oter im$ortant issue in connection wit tis article is determinin" te nature of te
com$ensation. Is article 7# referrin" to moral dama"e or material dama"e4 Determination
of tis issue is *ery $ertinent as te amount due in res$ect of eac ty$e of com$ensation
*aries "reatly. 1e *iew reflected %y &to )eari is tat te ty$e of com$ensation referred
to under article 7# is %ot material and moral.
172
3en te law "enerally refers to
Hdama"eH instead of s$ecifically $ro*idin" te nature. it im$lies tat %ot ty$es of dama"e
are en*isa"ed.
1e corres$ondin" issue raised under article 7# is te amount of com$ensation $aya%le.
1ere is di*erse *iew on te amount of te dama"e to %e $aid.
'n the case of wCro ;ofia vs. Ato )etsela, the &ederal ;upreme court held that
because the damage envisaged under article DA was moral damage, the
compensation to be awarded should not e%ceed one thousand birr. 'n support of
its conclusion, the court resorted to tile M''' of the <ivil <ode and cited article
011EC@..
173
1e oter *iew in tis res$ect is %ased on te assertion tat article 7# refers %ot to te
moral as well as material dama"e. For instance. &to )eari olds te $osition tat te
$arty wo claims to a*e sustained dama"e sould $ro*e te amount of dama"e
172
Mehari, 99
173
Hond+e!!en, (-
sustainedE in a situation were assessin" te dama"e is difficult. te court will decide %y
loo;in" into te circumstances.
17#
5.2 Effects of Dissolution of Marriage
&s you a*e seen in te $recedin" su%section. s$ouses may reac a $oint were tey find
teir life to"eter im$ossi%le and ence may resort to te dissolution of te marital
con0u"al. +n te oter and. one of te s$ouses may $ass away or is declared a%sent
wile te marital union is still intact. causin" its disinte"ration. Con*ersely. te
disinte"ration of te family will a*e its own conse/uences on cildren %orn from te
marria"e and te $ro$erty ac/uired durin" te lifetime of te marria"e. 1e ne@t sections
discuss tese conse/uences.
5.2.1 Child Custody
3at does te %est interest of te cild mean4 Gow is tis $rinci$le reflected in (tio$ian
le"al system4
!ersons wo a*e lessened ca$acity cannot en"a"e in any 0uridical act. and ence need to
%e re$resented. )oreo*er. tere is a $resum$tion to te effect tat $ersons wit lessened
ca$acity do not distin"uis wat is "ood from wat is %ad. ma;in" te need for
re$resentation more $ertinent. +ne of suc "rou$s wo a*e lessened ca$acity and need
te $rotection of oters are minor cildren. 3en a marria"e is dissol*ed trou"
di*orce. one of te /uestions wic need to %e answered %y te court is as to wo sould
a*e custody of tose minor cildren.
Custody of a minor cild encom$asses *arious set of ri"ts and o%li"ations under it. li;e
te ri"t to li*e wit te cild in a sared residence. autority o*er te disci$line of te
cild and education as well as medical treatment. 1e *isitation ri"t of te non custodial
$arent is also an issue to %e determined at te time of decidin" on te custody of te
minor. In earlier times. te *iews reflected %y many le"al systems sows tat te fater is
$referred and trusted to ta;e care of te minor cildren tan te moter. &s a result. tere
was no de%ate as to te custody. 1is. owe*er. as can"ed trou" time.
17#
Mehari, 1--
=oman law vested absolute power in custodial matters in the father. 'n fact, in
ancient =ome a father could sell his children or even put them to death. *
contrast, a mother was not considered the childs natural guardian, even where
the father died intestate. These rules eliminated custod disputes between
parents in =oman courts, because the fathers will was practicall absolute, and
no amount of cruelt, neglect of dut or immoralit on his part affected in the
slightest degree his claim to the custod of his children.
,nglish law adopted the =oman view of absolute paternal power and right to
custod. ..a mother as such is entitled to no power, but onl to reverence and
respect. The father has no right, however, to )ill or sell a child. +>n the other
hand4, the broadl3stated paternal preference rule of ,ngland and =oman law
never gained a significant foothold in the Lnited ;tates# the American rule
quic)l became the Gbest3interest of the childH:.
The Gtender earsH ear doctrine, under which the mother was deemed to be the
more suitable custodian for oung children, was developed in the mid 12
th
centur. 'n 1D1@, one L; court reasoned G considering the childrens tender
age, the stand in need of that )ind of assistance, which can be afforded b none
so well as a mother.H The presumption favoring the mother was $ustified both b
the assumed biological superiorit of mothers as parents and b social custom,
which assigned responsibilit for parenting to mothers:..
The tender ears presumption was the predominant rule for resolving custod
disputes through much of the twentieth centur. 't eroded in the 12IBs and has
been abolished latter. The decline of the presumption can be attributed in part
to a general cultural re$ection of the traditional ideal of clear gender roles. :
<ourts in the 12DBs described the tender ears presumption as based on
Goutdated stereotpesH
Currently. wat is en*isa"ed under many laws is te $rinci$le of %est interest of te
cild in determinin" custody issues. 1e $rinci$le of te %est interest is incor$orated in
different international uman ri"t instruments. +ne of suc international uman ri"t
instruments is te 2nited 5ations Con*ention on te Ri"t of te Cild. &rticle 3 of te
CRC statesD FIn all actions concernin" cildren. weter underta;en %y $u%lic or $ri*ate
social welfare institutions. courts of law. administrati*e autorities or le"islati*e %odies.
te %est interests of te cild sall %e a $rimary consideration.?
!ro*idin" an autoritati*e definition of wat tis $rinci$le entails. owe*er. as %een one
of te ma0or $ro%lematic tas;s.
The concept of the Gbest interestsH of children has been the sub$ect of more
academic analsis than an other concept included in the <onvention on the
=ights of the <hild. 'n man cases, its inclusion in national legislation pre3dates
ratification of the <onvention, and the concept is b no means new to
international human rights instruments. The 1252 .eclaration of the =ights of
the <hild uses it in 9rinciple 0: GThe child shall en$o special protection, and
shall be given opportunities and facilities, b law and b other means, to enable
him to develop phsicall, mentall, morall, spirituall and sociall in a
health and normal manner and in conditions of freedom and dignit. 'n the
enactment of laws for this purpose, the best interests of the child shall be the
paramount consideration.H
The principle is included in two articles of the 12I2 <onvention on the
,limination of All &orms of .iscrimination against 6omen: article 5!b"
requires ;tates 9arties to that <onvention to Gensure that famil education
includes a proper understanding of maternit as a social function and the
recognition of the common responsibilit of men and women in the upbringing
and development of their children, it being understood that the interest of
children is the primordial consideration in all cases.H ;imilarl, article 1E!1"!d"
provides that in all matters relating to marriage and famil relations Gthe
interests of the children shall be paramountH.
The 6or)ing Jroup drafting the <onvention did not discuss an further
definition of Gbest interestsH, and the <ommittee on the =ights of the <hild has
not as et attempted to propose criteria b which the best interests of the child
should be $udged in general or in relation to particular circumstances, aside
from emphasizing that the general values and principles of the <onvention
should be applied to the conte%t in question.
1D5

+n te oter and. te committee on te im$lementation of te CRC as re$eatedly
stressed tat te Con*ention sould %e considered as a wole and tat em$asis sould %e
"i*en to tose $rinci$les wic it ad ele*ated to te status of "eneral $rinci$le.
17,
Gence.
at te time of inter$retin" te $rinci$le of %est interest of te cild. resort sould %e made
to tese tree $rinci$les. i.e. te $rinci$les of non=discrimination. ri"t to life and
ma@imum sur*i*al and de*elo$ment. and res$ect for te *iews of te cild. 1e domestic
laws o countries sould also %e in line wit tese re/uirements of te Con*ention.
And consideration of best interests must embrace both short and long3term
considerations for the child. An interpretation of best interests must be
consistent with the spirit of the entire <onvention N and in particular with its
emphasis on the child as an individual with views and feelings of his or her own
and the child as the sub$ect of civil and political rights as well as special
protections. ;tates cannot interpret best interests in an overl culturall
relativist wa and cannot use their interpretation of Gbest interestsH to den
rights now guaranteed to children b the <onvention, for e%ample to protection
against traditional practices and violent punishment.
1DI

Gowe*er. one also needs to %e careful in tat te %est interest of te cild will not %e te
only consideration in any decision. 3at is re/uired %y te Con*ention is tat te interest
of te cild %ein" a $rimary consideration. not te sole consideration. 1is can %e
"atered from te last $rase of article 3o1 of te con*ention wic saysD ~...shall be a
primary consideration. Gence. oter com$etin" interests li;e te interest of oter
cildren and of adults needs to %e considered as wellE and te re/uirement under te
17'
0pleentation handbook "or the 4on1ention on the 5ight! o" the 4hild, &--&, 2?046#, page!
41'43
17,
Principle! +hich ha1e been ele1ated to the !tatu! o" general principle are article! & on the
eliination o" an$ "or o" di!criination aong children, article 3 be!t intere!t o" the child, article
% on the right o" the child to li"e and a8iu !ur1i1al and de1elopent a! +ell a! article 1& on
re!pect "or the 1ie+! o" the child
176
0pleentation handbook "or the 4on1ention on the 5ight! o" the 4hild, &--&, 2?046#, 4&
Con*ention is tat cildren?s interests a*e %een e@$lored and ta;en into account as a
$rimary consideration.
1e domestic laws of *arious countries a*e incor$orated te tree "eneral $rinci$les in
different manners wen tey $ro*ide a "uideline on te inter$retation and a$$lication of
te $rinci$le of %est interest of te cild. For instance. te State of )innesota statute of
1886 came u$ wit a list of *arious $arameters to determine te %est interest. 1e statute
statesD
177

1e %est interest of te cild means all rele*ant factors are to considered and e*aluated
%y te court includin"
i. 1e wises of te cild?s $arent or $arents as to custody
ii. 1e reasona%le $reference of te cild. if te court deems te cild to %e of
sufficient a"e to e@$ress $reference
iii. 1e cild?s $rimary careta;er
i1. 1e intimacy of te relationsi$ %etween eac $arent and te cild
1. 1e interaction and interrelationsi$ of te cild wit a $arent or $arents. si%lin"s.
1i. 1e cild?s ad0ustment to is ome. scool. and community
1ii. 1e mental and $ysical ealt of all indi*iduals in*ol*ed
1iii.1e cild?s cultural %ac;"round
1ese are some of te lists enumerated in te le"islation. &s can %e o%ser*ed. em$asis is
"i*en to te sur*i*al and manner of u$%rin"in" of te cild as well as te *iews of te
cild.
3en we loo; into te (tio$ian family law on te issue of cild custody. te Ci*il
Code under article ,71 re/uires te court to determine issues of cild custody a*in"
re"ard solely to te interest of te cildren. 1e %est interest of te cild $rinci$le ad
acce$tance e*en under te Ci*il Code. Gence. te courts a*e to in*esti"ate wat would
%e %est for te cild at te time of decidin" as to were te cild will %e $laced after te
dissolution of te marria"e. 1e tender years $rinci$le is also reflected under te same
article. Cildren under fi*e years of a"e will %e $laced wit teir moter unless tere is a
177
0ra ark 6llan, #ail$ .a+7 ca!e!, te8t, Proble!. ,21
reason for not doin" so. It seems tat te law "i*es $riority for te moter %ecause
cildren under fi*e years re/uire te care and $rotection of teir moter tan teir fater.
178
Gowe*er. if tere is any reason in wic te moter sould not %e "ranted custody. te
cildren may %e $laced wit teir fater e*en if tey are not fi*e years of a"e. 1is can %e
seen from te first sentence of su% article 2 wic /ualifies te a$$lication of te tender
years doctrine on some "rounds. Causes for suc dis/ualification of te moter could
%e. if te moter suffers from a disease as a result of se cannot ta;e care of te cild.
189

1e 188' FDR( Constitution under article 3, reco"niAes te different ri"ts of cildren.
1e %est interest $ro*ision of te Con*ention on te Ri"t of te Cild is also
incor$orated under su% article 2. Gence. on two "rounds courts and any oter %odies are
re/uired to loo; into te %est interest of te cild in determinin" any issue wic affects
te cild. First. %y *irtue of article 8o# as well as 13o2 of te Constitution. international
treaties ratified %y (tio$ia are te inte"ral $arts of te law. 1e CRC. wic is ratified
%y (tio$ia. is made te inte"ral law of te land. and ence reference must %e made to it
%y te concerned or"ans at rele*ant times. Secondly. te Constitution itself mandates te
o%ser*ance of te %est interest of te cild in all matters concernin" cildren. &s a result.
te actions of $u%lic or"ans. courts as well as le"islatures sould ta;e into account tis
$rinci$le.
&rticle 113 of te RFC deals wit te role of te court in determinin" custody of cildren
after te $ronouncement of di*orce. By *irtue of tis article. tere are tree /uestions to
%e addressed %y te court at te time of determinin" custody case. 1e first is wo sould
a*e custody of te cild4 1e second /uestion is in relation to te maintenance of te
cild. ow muc sould te non custodial $arent "i*e for te maintenance of te cild4
1e tird im$ortant /uestion is te ri"t of te non custodial $arent to *isit te cild.
Gow often sould tis *isitation %e4 For ow lon" can te non custodial $arent stay wit
te cild and oter related /uestions are to %e "i*en a res$onse %y te court.
178
:r. 3i"le, 1&&
189
:r 3i"le, 1&&
In relation to te /uestion of custody. te RFC $ro*ides "uidelines wic need to %e
o%ser*ed %y te court. First of all. if te di*orce is made %y mutual consent. te $arties
are also e@$ected to determine te conse/uences of teir di*orce. includin" custody of
teir cildren. %y teir a"reement.
181
Gowe*er. in te case of any oter di*orce. article
221o2 "i*es te mandate to te court to determine as to wo sould %e te "uardian or
tutor of te cild. In doin" so. te court is e@$ected to o%ser*e te "uidelines enumerated
under article 113o2. 1ese "uidelines include consideration of income. a"e. ealt and
condition of li*in" of s$ouses on te one and and te a"e and interest of te cild on te
oter and. 1e re/uirements under tis su% article are deri*ed %y te $rinci$le of te
%est interest of te cild. &s mentioned earlier. te %est interest $rinci$le ta;es into
consideration te $rinci$les of non discrimination. ri"t of te cild to life. sur*i*al as
well as res$ect for te *iews of te cild. So. te decision to %e made is Fwic one of te
two $arents can %est $ro*ide te tin"s necessary for te cild to acie*e is ri"t to life.
sur*i*al. de*elo$ment and res$ect of is *iews4? +%*iously. te answer to tis /uestion
de$ends on te a"e. ealt and income as well as li*in" condition of te s$ouses.
Gowe*er. care sould %e made not to assume tat te financially well to do $arent is
always in a $osition to $ro*ide te necessities of te cild. Brin"in" u$ a cild in*ol*es
nurturin" te %ea*ior of te cild as a result of wit te li*in" condition and also of te
%ea*iors of te $arent need to %e considered. +n to$ of tis. inter$retation of te %est
interest of te cild re/uires one to consider te *iew of te cild. Gence. if te cild is in
a $osition to manifest is wises. te court sould see; to find out. Gowe*er. care needs
to %e made at tis time. FThe court should ascertain that the childs choice was not a
result of undue influence from the chosen parent, as there is a strong possibilit of the
parent withinterim custod to counsel the child to his or her choice. This influence ma
assume different forms# that which tends to convince the child that one of his parents is
better than the other, that which manipulates the childs immature desire for less
discipline or restraint# or simple attempts b one parent to turn the child against the
other parent.
120

181
,rticle &&1;1 5#4
182
Hond+e!!on, 31
In te case %etween woro )arta Gailemariam *s. &to Berane Derso
183
. te fater ad
interim custody of te cild wo was fi*e years old. 1e court. at te time of decidin" on
custody. re/uested te o$inion of te cild. 1e cild res$onded tat e wants to %e wit
is fater %ecause is fater could ta;e im to "ood scool. %uy im tin"s tat e needs
and also %ecause is moter is a %ad $erson. Considerin" te a"e of te cild. wic was
only ' years. te court stated tat te cild cannot %y imself. witout te influence of te
fater say suc tin"s a%out is moter. and %y considerin" oter factors. it awarded
custody to te moter.
3en see;in" te o$inion of te cild. two factors need to %e considered. 1e first one is
a"e of te cild. 1e court as to %e sure tat te cild as reaced te a"e "rou$ in
wic e can ma;e a reasona%le $reference. For instance te Statute of Geor"ia $ro*ides
tat a cild of 1# years a*e te ri"t to select te $arent wit wom e desires to li*e.
18#
Gence. under tat law. te court will listen to te o$inion of te cild if tat cild as
attained 1# years of a"e. +n te oter and. oter statutes instead of limitin" te a"e.
$ro*ide for te cild?s $reference to %e considered and "i*en wei"t if it reflects a le*el
of mature 0ud"ment.
18'
Gence. in te second situation. te court is re/uired to ma;e its
own assessment of te $reference of te cild.
1e $reference of te cild is also to some de"ree influenced %y te circumstances in
wic e is inter*iewed. So. te second essential tin" wic needs to %e considered is
te en*ironment in wic te cild?s $reference is to %e o%tained. 1e $resence of te
$arents may intimidate te cild. and ence it is %etter if te court inter*iews te cild
witout te $resence of te $arents.
&ll in all. one can conclude tat cild custody determinations under te %est interest
standard differ si"nificantly from oter forms of ad0udication. 1eir difference $ertains to
te followin"
18,
&irst, child custod determinations are person3oriented disputes. Most legal
rules require a determination of the fact relating to some event and are thus
183
#ile nuber 4*%;93
18#
6llan, %(&
18'
6llan, %(3
18,
6llan, %&-
act3oriented. <hild custod determinations under the best interest standard, in
contrast, are person3oriented ma)ing relevant Gthe attitudes, dispositions,
capacities and shortcomings of each parentH
;econdl, child custod determinations require predictions about the future.
Most ad$udications require determinations of past acts and facts. <hild custod
determination under best interest standard, on the other hand, requires
individualized predictions# with whom will this child be better off in the ears to
come(
1e re"ional laws a*e also incor$orated te %est interest standard wit sli"t difference
in some re"ions. 1e family laws of &mara. +romiya and 1i"ray Re"ional States a*e
made reference to te Ftender years? $rinci$le
186
1e %est interest standard is also "i*en more em$asis in te recent decision of te
Cassation Di*ision of te Federal Su$reme Court in cassation file no. 23,32. In tat case.
te $arents of te cild were se$arated at early a"e of te cild. and te cild was li*in"
wit is aunt Bsister of is moterC. &fter 12 years. te moter $assed away lea*in" some
$ro$erty to te cild. 1e fater. wo ad contri%uted notin" in te last 12 years for te
u$%rin"in" of te cild. %rou"t an action claimin" custody of te cild to te woreda
court. wic te court "ranted. 1e case was %rou"t to te cassation court %y te aunt.
1e cassation court. in determinin" wo sould a*e custody of te cild reasoned tat
te %est interest of te cild sould %e always a $riority as is re/uired %y te Constitution
as well as CRC. wic is te inte"ral $art of te law of land. &nd all laws concernin"
cildren sould %e inter$reted in li"t of tis $rinci$le. 3it tis ma0or reasonin". te
court awarded custody to te aunt. rater tan te fater. 1wo im$ortant $oints emer"ed
out of tis decision. First. international treaties ratified %y (tio$ia are confirmed to %e
$art and $arcel of te law of te land and ence te courts a*e to resort to tese
international instruments %y te mere fact of ratification. i.e. witout re/uirin" teir
inter$retation in te wor;in" lan"ua"e of te court. Secondly. te %est interest of te cild
186
See article 111;& o" /igra$ #ail$ code, article 1&4;3 o" ,hara "ail$ code and article 1&*;3
o" the Broi$a "ail$ code
standard is always to %e o%ser*ed and te courts a*e to ma;e sure te com$ati%ility of
te $ro*isions of te law to tis standard on a case %y case %asis.
+ne oter tin" wic needs to %e considered a%out custody decisions is te $ossi%ility of
re*ision of te decision wit can"e in circumstances. &s sti$ulated under article 113o3.
te court is "i*en te $ower to re*ise decision of custody and maintenance wit can"e in
circumstances.
5.2.2 Liquidation of Pecuniary Relations
1e matrimonial $ro$erty is indi*isi%le for te time %ein" te marria"e stayed intact. +ne
of te issues wic need to %e addressed %y te court at te time of $ronouncin" di*orce
is te $artition of te matrimonial $ro$erty. 1e law as "i*en discretion for te s$ouses
to a"ree u$on te mana"ement of teir $ro$erty. 1is discretion is also e@tended in
res$ect of te $artition of $ro$erty. If te $arties a*e addressed te issue of $ro$erty in
teir contract of marria"e as $er article 73o3. ten te contract will %e effected %y te
court.
Gowe*er. if tere is no contract of marria"e or if te contract of marria"e concluded is
not *alid. ten te court as to decide on te ri"t of te $arties in res$ect of te
$ro$erties. &s discussed in ca$ter tree. tere is a $resum$tion tat all $ro$erty in
marria"e is common $ro$erty of te s$ouses. 1e s$ouse wo claims to %e te $ersonal
owner of te $articular $ro$erty in /uestion as to $ro*e te fact. +nce te $ro$erty is
determined to %e te $ersonal $ro$erty. te owner of tat $ro$erty may reta;e it in ;ind.
187
If te $ersonal $ro$erty as %een mi@ed wit te common $ro$erty. te s$ouse will %e
"i*en an e/ui*alent sum of money or a tin" of *alue corres$ondin" to suc $rice from
te common $ro$erty.
188
1e ne@t tin" would %e te $ayment of de%ts. &s discussed in ca$ter tree. de%ts
incurred in te interest of te ouseold are considered to %e common de%ts and ence
need to %e reco*ered from te common $ro$erty. In tis res$ect. article 78 of te RFC
187
,rticle 8% 5#4
188
,rticle 8% 5#4
re/uires te $ayment of common de%ts $rior to te $artition of common $ro$erty %etween
te s$ouses.
5.2.3 Partition of Common Property
+nce wat constitutes common $ro$erty as %een ascertained. te ne@t tin" to do is to
decide on te manner of $artitionin" tis common $ro$erty %etween te s$ouses. 1e rule
in $artition. as is reflected under article 89 RFC is tat common $ro$erty sall %e di*ided
e/ually %etween s$ouses. 1is is a reflection of te Constitutional $ro*ision wic "i*es
%ot s$ouses e/ual ri"t in res$ect of $ro$erty at te time of enterin". durin" and at te
end of marria"e.
&s far as te manner of $artitionin" is concerned. te rule is tat $artition will %e made in
;ind in suc a way tat eac s$ouse recei*es some $ro$erty from te common $ro$ertyE
any ine/uality will %e set off %y te $ayment of sums of money.
299
If te $ro$erty is
difficult or im$ossi%le to di*ide. or alternati*ely if te s$ouses do not a"ree as to wo
sould a*e te $ro$erty. it will %e sold and te $roceeds will %e di*ided %etween tem.
Review Questions
1. Discuss te "rounds for dissolution of marria"e.
2. 3at is te difference %etween fault %ased and no fault di*orce4 3ic one of te two
is ado$ted %y te RFC4 3at are some of te reasons for doin" so4
3. Discuss te conse/uences of di*orce.
#. 3en a court is faced wit a case relatin" to custody dis$ute. wat tin"s does it need
to consider4
'. 3at is te difference %etween te Ftender years? a$$roac and F%est interest of te
cild?4
299
,rticle 91 5#4
,. Can any cou$le re/uest to "et di*orce %y mutual consent under te RFC4 3yowy
not4
CHAPTER SIX
IRREGULAR UNION
6.1. Introduction
&s you may understand. tere are *arious intimate relationsi$s %etween men and
women. &mon" tese relationsi$s. marria"e formally concluded as remained
trou"out te world a fundamental relationsi$. 1at is wy society and te law "i*e
reco"nition and $rotection to te institution of marria"e. Des$ite tis. on account of
*arious reasons. men and women li*e to"eter as a us%and and a wife witout
concludin" formal marria"e. It is tis as$ect of non=marital relationsi$ tat you will
study under tis ca$ter. 1erefore. tis ca$ter will concentrate on te meanin" of suc
non=marital coa%itation. Birre"ular union to use te $arlance of te lawC. te need to
$rotect suc relationsi$. te le"al effects of suc union. $roof and termination of
irre"ular union. Gere. one tin" tat you need to %ear in mind is tat %ecause te
$ro*isions of re"ional family laws on irre"ular union a*e made no de$arture from te
Re*ised Family Code of te Federal Go*ernment. no mention of re"ional family codes
will %e made in order to a*oid an unnecessary du$lication of le"al $ro*isions.
6.2. Objectives
&fter com$letin" tis ca$ter. students will %e a%le toD
= discus te essence of irre"ular union.
= differentiate irre"ular union from marria"e.
= analyAe te need to $rotect irre"ular union.
= analyAe te effects of irre"ular union.
= discuss modes of $roof of irre"ular union
= discuss termination of irre"ular union.
= a$$ly te rules on irre"ular union to actual life situations.
6.3. The Concept of Irregular Union
&ltou" te li*in" to"eter of a man a and woman in marria"e as %een considered te
most socially desira%le relationsi$. different ;inds of close relationsi$s %etween men
and women a*e e@isted in different societies. 1ose relationsi$s $erform $artly te
function of marria"e $roducin" similar effects as marria"e. 1e e@istence of irre"ular
union and its si"nificance trou"out te world is not de%ata%le and *arious terms a*e
%een used to denote tis relationsi$ de$endin" u$on te $re*ailin" reli"ious. cultural
and $olitical situations.
In (tio$ia. irre"ular union as %een reco"niAed %y te 18,9 Ci*il Code altou" suc
union is not a recent $enomenon. &s it as e@isted since lon" a"o. Currently. tere are a
num%er of cou$les li*in" in suc relationsi$ for *arious reasons. Besides. te (tio$ian
society. as a multi=cultural society. as under"one fundamental transformation in matters
of se@ual com$anionsi$. marria"e and family formation. BRead 1ilaun 1esome.
Say"a%u 5uro Duro 5a endro. (tio$ian Bar Re*iew. -ol. 2 5o 1. &u"ust 2996. $$=
,1=113C. In tis re"ard. anoter autor writesD
G&undamental shifts in attitudes within a societ are ver often
accompanied b rapid swings in the usage of particular
language. The choice of legal terminolog should thus follow the
changes of attitudes about non3marital cohabitation for
otherwise the law appears to be even more archaic than is in
fact the case because it is couched in terminolog redolent of
another age. A choice of language which brands this
relationship with moral disapprobation is out of touch with the
views of substantial segment of the communit. 'n fact, modern
usage has not clearl evolved to provide an everda word that
is certain in its meaning and correct in its moral toneH !9eter
;par)s, GThe /anguage of <ohabitation,H &amil /aw
Ouarterl Kol.12, p.@0D".
In (tio$ia. te 18,9 Ci*il te Code te Re*ised Family Code of te Federal Go*ernment
and te new re"ional family laws use te term irre"ular union. BSee &rts. 677=621 of te
ci*il code. &rt 17 of te Re*ised family code BRFCC and te rele*ant $ro*isions of te
re"ional Family lawsC.
If you were one of the drafters of the Ethiopian family laws, would you employ the
term ~irregular union? Why? Why not?
&ltou" tere are *arious terms to te relationsi$ under consideration. we
con*entionally use te term irre"ular union as used in te laws and try to define it as
suc.
In le"al teory. te term is defined as te union of a man and woman esta%lised solely
%y te consent of %ot $arties. Li;e te institution of marria"e. it is intended to %e
$otentially indefinite in duration and te $arties coa%it in te same ouseold as a man
and wife. &ctual domestic coa%itation is essential. In oter words. coa%itation does not
mean mere se@ual "ratitification. Rater it means to li*e to"eter. to a*e te same
a%itation. BRead !.. Sarce*ic. Coa%itation witout )arria"eD 1e u"osla*ian
(@$erience. &merican <ournal of Com$arati*e Law. -ol.28 5o 2. 1871. $. 31'.
What do you understand by cohabitation? What constitutes cohabitation?
Because coa%itation is te essential element of irre"ular union. it is necessary to a*e a
clear $icture as to wat is meant %y tis word4
Blac;?s Law Dictionary defines te term asD
GTo live together as husband and wife# the mutual assumption of
those marital rights, durations and obligations which are usuall
manifested b married people, including but not necessaril
dependent on se%ual relationsH. BG.C. Blac;. Blac;?s Law
Dictionary B,
t
ed. 1889. $.2,9C.
3at do you understand from tis definition4 From te a%o*e definition. it is $ossi%le to
"ater tat te $arties Bnecessarily a man and a woman in (tio$iaC to an irre"ular union
li*e as us%and and wife. assume mutually and *oluntarily tose ri"ts. duties and
o%li"ations wic are also assumed in te institution of marria"e. Des$ite te fact tat te
a%o*e definition demonstrates te outward similarity %etween marria"e and irre"ular
union. it a$$ears to %e confusin" as re"ards wat ri"ts. duties and o%li"ations are
assumed %y te $arties wen e*aluated in te li"t of te limited reco"nition "i*en to tis
relationsi$ in te laws of many countries.
In (tio$ia. te first le"al instrument wic tried to define irre"ular union is &rt.697 of
te Ci*il Code wic $ro*ides tat an irre"ular union is te state of fact wic is created
wen a man and a woman li*e to"eter as us%and and wife witout a*in" contracted
marria"e. &rt.698 of te code "i*es furter e@$lanation %y statin" tatD
B1C It is necessary and sufficient in order to a*e an irre"ular union tat te %ea*iors
of te man and of te woman %e analo"ous to tat of married $eo$le.
B2C 1ey need not re$resent temsel*es to tird $arties as %ein" married.
B3C 1e mere fact tat a man and a women ;ee$ u$ se@ual relations %etween tem.
e*en if re$eatedly and notoriously. is not sufficient %y itself to constitute an
irre"ular union %etween suc man and woman.
3at as %een $ro*ided under &rt.698 of te Ci*il Code as %een reiterated %y &rt.88 of
te Re*ised Family Code and te re"ional family laws.
By a*in" a close readin" of tese articles. it is $ossi%le to understand tat irre"ular
union is esta%lised were te relationsi$ is analo"ous to marria"e. It is tis analo"y
wic is te distin"uisin" feature of irre"ular union as com$ared to oter male=female
relationsi$s. It is %ecause of tis feature tat irre"ular union is /uite different from wat
is ;nown in (tio$ia as ;e$t woman or ;imit were%y te man ;ee$s te woman
mainly for se@ual "ratification and as a si"n of social $osition and $resti"e to wom te
women also "i*es em$asis to te financial $osition and social standin" of te man wo
ser*es as er $atron and %enefactor.
It as %een said a%o*e tat irre"ular union is analo"ous to marria"e. Gow do you e@$lain
te analo"y %etween marria"e and irre"ular union4 In wat res$ects irre"ular union
analo"ous to marria"e4 1ry to com$are and contrast te institution of marria"e and
irre"ular union.
Generally. accordin" to a certain autor. two im$ortant elements may %e drawn as
re"ards te similarity %etween marria"e and irre"ular unionD
GThe first element is composed of intimate life as between husband and
wife and is founded on the relationship of affection and love, devotion and
loalt, that is indicative of their having pledged themselves to common
fate. This actual domestic cohabitation is essential. The second element is
the running of a common household, not simpl out of personal need,
convenience, narrow financial considerations, or as a self3 standing
arrangement, but as a natural function of the $oint famil life, as is
customar and usual between husband and wife attached to each other b
the bond of common destin. A household of this )ind is different from, for
instance, the situation of emploing a housemaid or a nursemaid, even
though it happens that the emploer engages in se%ual relations with
her.H !.. &riedman, The GLnmarried 6ife in 'srael,H Israel ear%oo; on
Guman Ri"ts. -ol.2B1862C $.289C.
6.4. Why Do People Live in an Irregular Union?
Why do you think do a man and a woman live together without concluding formal
marriage?
1raditionally. te relationsi$ of unmarried coa%itees was considered to %e meretricious
and usually criminal as well. !eo$le formin" suc union were tou"t to %e scoundrels.
In contradistinction to tis. te family %ased on marria"e was and is fa*ored %y
le"islatures and courts as te desira%le and $roducti*e unit of society. 1e descri$tions
connotin" se*ere moral disa$$ro%ation suc as meretrials or li*in"=in=sin could not.
owe*er. deter $eo$le from formin" suc unions.
&ccordin" to one writer. te le"al and muc of te social sti"ma of ille"itimacy is "one.
3ate*er im$lications it may a*e to te institution of marria"e. irre"ular unions is %ot
increasin"ly $re*alent and increasin"ly %ein" reco"niAed as a teoretically defensi%le
lifestyle and contrary to te widely eld $u%lic o$inion. some of tese unions outlast te
$resent day ceremonial marria"es. BC.S. Bruc. !ro$erty Ri"ts of Defacto S$ouses
Includin" 1ou"t or te -alue of Gome )a;er?s Ser*ices. Family Law :uarterly.
-ol.19. 5o.2 186, $$.191=192C.
1ere are actual and $ossi%le reasons tat necessitate li*in" in an irre"ular union in te
world in "eneral and in (tio$ia in $articular. Generally. te reasons encom$ass roots in
cultures of societies tat a*e acce$ted or tolerated informal families. socio=economic
can"es and es$ecially in (tio$ia a%sence of ;nowled"e of te le"al conse/uences of
one?s relationsi$ wit anoter. &ltou" tere is no an em$irical researc conducted on
te area. it is "enerally %elie*ed tat in (tio$ia tere are a num%er of $eo$le li*in" in an
irre"ular union in wic one or %ot $arties %elie*e tat teir relationsi$ is marria"e
wile it is not from te *iew $oint of te law.
&s an alternati*e to marria"e concluded in accordance wit te re/uirements of te law.
irre"ular union is not a result of te se@ual re*olution e@$erienced %y te modern world.
3it no dou%t. a man and woman a*e li*ed to"eter since time immemorial witout
concludin" marria"e. BRead 1ilaun 1esome. wor; cited $re*iously and &. S;olnic;.
Social conte@t of coa%itation. &merican <ournal of Com$arati*e Law. -ol.28. 5o. 2
1871 $.3'9C &ccordin" to +. Dono*an. irre"ular union as a lon" istory %ut as only
recently mo*ed %ac; from te sinful cate"ory into te acce$ta%le %ea*ior cate"ory. 1e
re*i*al as. of course. %een aided %y te "radual social and $sycolo"ical can"es in
matters of se@ual conduct. marria"e and family formation to wic te laws of different
countries a*e %een res$ondin". B+? Dono*an. Le"al )arria"e=3o 5eeds It4 1e
)odern Law Re*iew. -ol.#6. 5. 1 187# $.11#. Besides. read 1ilaun 1esom?s wor;
cited $re*iouslyC.
Gistorically. in almost all earliest societies. marria"es and irre"ular union e@isted side %y
side altou" eac ad teir own effects in te e@istin" system. &ltou" after te s$read
of Cristianity in (uro$e. Cristianity *eemently condemned all se@ relations unless
concecrated %y indissolu%le marria"e and e@alted celi%acy o*er te latter. it continued
durin" te early centuries to sanction in $ractice te esta%lised Roman and Bar%arian
usa"es of a*in" a concu%ine. 1e tacit toleration of concu%ina"e did not "i*e $lace to
"eneral re$ro%ation in catolic and $rotestant countries until after te $rotestant
reformation. 1en te le"al disa%ilities attacin" to te relationsi$ to te relation
%ecome added te rutless $enalties of social condemnation and ostracism. Finally.
altou" it was ori"inally a le"itimate form of union Bas marria"eC. later it %ecame
ille"itimate and ten illicit and immoral. BRead te discussions made in tis re"ard %y
Ro%ert Briffault in (ncyclo$edia of te Social sciences. -ol.# 1831. $$.161=163C.
It is o%*ious tat (tio$ia is one of te earliest countries wic acce$ted Cristianity.
Des$ite tis. muc of te matters relatin" to marria"e a*e %een "o*erned %y customs
e*en in te Cristian community. Strict aderence to te rules of Cristianity in matters
of marria"e suc as recei*in" te Goly Communion on marria"es is still considered as
sometin" to %e o%ser*ed %y deacons and $riests alone. &s re"ards te law. concu%ine
was $roi%ited %y te Feta 5e"ast wic $ro*idesD
Ga*in" a concu%ine is for%idden in our saintly law since it is contrary to lawful
marria"e.= BitC is continuous fornication. If tere is one wo as a concu%ine and if se is
is sla*e. e must a%stain and marry accordin" to te law5o man sall %e $ermitted to
li*e wit a concu%ine in is ouseIf e li;es to li*e wit er. e must marry er
accordin" to re/uirements of lawful marria"ewo as a wife and illicit relations wit
is woman sla*e sall %e $unised. B1e Feta 5a"ast. ca$ter 2'. translated from GeeA
%y &%%a !aulos 1sadua. Faculty of Law. Gaileselassie I 2ni*ersity. 18,7. $.268C.
&ltou" concu%ina"e was cate"orically $roi%ited %y te Feta 5a"ast. te traditional
$ractice continued as tere was no effecti*e way of communication %etween state
officials and te $eo$le wic would ena%le te "eneral $u%lic to %e aware of te law.
Let alone in te $ast. e*en today suc relationsi$ is $reser*ed in te countryside.
In addition. e*ery society as under"one $rofound transformation in te 29
t
century
resultin" in. inter alia. new attitudes a%out marria"e. se@ual com$anionsi$ and family
formation. 1oday Bin te 21
st
centuryC marria"e is not always *iewed as eiter a
sacrament or a status necessarily e@ta%lised for life. Rater. tere is a sift from
institutional to com$anionsi$ marria"e. &ccordin" to te su""estion of one study. many
marria"es. if not all. are utilitarian relationsi$s %ased on con*enience. economic %enefits
and mutual affection. te systematic understandin" and te comradesi$ of te s$ouses.
So. te rise of non=marital coa%itation may re$resent a wor;in" out te lo"ic of
com$anionsi$ witout te institution of le"al marria"e at all. B3.D. 3yrauc.
)etamor$oses of )arria"e. Family Law :uarterly. -ol.13. 5o# B1879C $.#29C.
In addition to te istorical %ac;"round of non=marital coa%itation Birre"ular unionC and
te cultural transformations. $eo$le may coose irre"ular union o*er marria"e due to
different moti*ations.
Some cou$les feel tat te commitments and %urdens of marria"e outwei" its
ad*anta"es and ence en"a"e in irre"ular union. 1e oter reason is tat no costly le"al
$rocedures are re/uired to esta%lis and terminate te relationsi$. Besides. irre"ular
union. as a de facto relationsi$. "i*es te o$$ortunity to define and s$ecify te terms of
teir relationsi$ indi*idually. 1ey can define te terms of teir $ersonal $ro$erty
relations freely irres$ecti*e of te essential ri"ts and duties wic are inerently and
com$ulsorily attaced to a formal marria"e.
It is %elie*ed tat for some women. an irre"ular union confers u$on tem freedom from
te old=a"e and world=wide "endered=%iased o$$ression trou" traditional male
dominance to concludin" a formal marria"e. BG.D. rrause. Family Law in a 5utsell 3
rd
ed.. 188'. $$.61=62C. Do you agree with this assertion? Why/why not?
1ere are also some additional reasons wic ma;e cou$les enter into an irre"ular union.
)oti*ations of economic nature are te first. It may also a$$en tat te $arties decline to
"o trou" a marria"e ceremony. &s a result. tey sim$ly a"ree to li*e to"eter witout
any ceremony or formality. Financial constraints in affordin" te e@$enses of a weddin".
te $resence of le"al im$ediments Bfor instance te ina%ility of o%tainin" di*orce for
tose wo a*e already concluded an indissolu%le marria"eC militate a"ainst formal
marria"eC. BC. Foote. R.<. Leuy and F.(.& Sander. Cases and )aterials on Family Law
2
nd
ed.. 186, $$.697C.
&s re"ards wy $eo$le li*e to"eter in an irre"ular union. a writer summariAesD
G'n m opinion, the main reason for wh people live in irregular
union is the unawareness of the parties, usuall women, about
what constitutes customar marriage in the ees of the law from
the man cases brought b women to our courts +,thiopian
courts4 based on an alleged marriage or to establish ones
status as a surviving spouse of the deceased, it is eas to guess
that the parties lived +together4 believing that the were married
while the were not so. ;ome ma also live in an irregular union
)nowing that the are not married but one part, usuall the
women, ma fear that raising the issue of marriage will end the
relationship, perhaps because of her economic dependence or
she ma hope that the will get married in the futureH.
BBirru Ge%eyeu. !ro%lems &risin" +ut of 5on=marital Coa%itationD (tio$ian
(@$erience. &ddis &%a%a 2ni*ersity. Faculty of Law. Senior 1esis. un$u%lised 2999.
$.7C.
Comment te assertions made %y te autor. If you a"ree wit is assertion. e@$lain your
reasons.
6.5. The Need for Legal Protection
Why do various jurisdictions accord legal protection to irregular union?
&s you may a*e undress and from te $re*ious units. in all societies. te family as
%een te $rime mecanism wic ser*es as a %rid"e for lin;in" indi*iduals to te lar"er
society for $ro*idin" tem wit te moti*ation to $artici$ate in te economic and
occu$ational structure of te society. and for $rotectin" tem from te arnesses of tat
$artici$ation %y $ro*idin" effecti*e emotional su$$ort and a sense of indi*idual di"nity
and security.
If te traditional le"al re"ulation of marria"e. an old le"al institution as a union of man
and women uni/uely in*ol*in" te $rocreation and rearin" of cildren witin a family. is
to $rotect and $reser*e te family. some ar"ue tat tere is no reason tat irre"ular union
is not $rotected %y law since te li*in" situation in an irre"ular union is as muc as
familiars as marria"e BL.<. 3eitAman. Le"al Re"ulation of )arria"eD 1radition and
can"eE California Law Re*iew. -ol.,2. 5o # B186#C $.12 #2C. Generally. le"al
re"ulation of marria"e ser*es four state interestsD $romotin" $u%lic morality. ensurin"
family sta%ility. assurin" su$$ort o%li"ations and assi"nin" res$onsi%ility for te care of
cildren BI%idC. 1e states traditional interest in $romotin" $u%lic morality was tou"t to
%e sa*ed %y re/uirin" and re"ulatin" le"al marria"e. Some ar"ue tat allowin" $ersons to
en"a"e in se@ual relationsi$s witout first "oin" trou" marria"e ceremony results in
decline in $u%lic morality. 1e law of marria"e $rotects society a"ainst %ein" confounded
%y la@ity of morals. $romiscuity. free lo*e and "enerally $rofli"acy. 3ile tis *iew
mi"t %e accurate in te $ast. $resent standards of $u%lic morality are suc tat it is not
unusual for $eo$le to a*e intimate relations or to li*e to"eter witout marryin".
Furter. one may seriously /uestion te le"itimacy of te state?s interest in re"ulatin"
intimate $ersonal relations under te %anner of $romotin" $u%lic morality. BI%idC.
(*aluate tis a%o*e assertion in te li"t of te current (tio$ian situation.
In relation to $reser*in" $u%lic morality. reli"ious autorities raise stron" o$$osition to
te entire $enomena of irre"ular union. 1eir attitude is tat te reli"ions mono$oly in
matters of men=women relationsi$s sould remain unim$aired. Des$ite tis. it sould %e
ta;en into account tat. reli"ious law cannot always "i*e answers to many $ro%lems in
te domain of $ersonal laws as far as te secular $u%lic is concerned. )oreo*er. in areas
were tere are cultural and reli"ious di*ersities and were tere is se$aration of state
and reli"ion as is te case in (tio$ia today. it cannot %e a$$ro$riate for te le"islature of
a secular "o*ernment to ta;e an o*erly restricted ideolo"ical attitude concernin" $eo$le?s
$ri*ate coices of life. Some writers a*e made it clear tat irre"ular union was as old or
e*en older tan te institution of marria"e Bsee for instance te discussions made %y
1ilaun 1esome. wor; cited $re*iously. $$.,'=61C.
Des$ite tis. its le"al $rotection and re"ulation is of a recent $enomena com$ared to te
institution of marria"e. In s$ite of its lon" istory. te unmarried o$$osite=se@ con0u"al
relationsi$ as not %een a su%0ect of le"al $rotection and re"ulation for te reasons
mentioned a%o*e. Gowe*er. as time went %y. te de facto relationsi$ of a man and
woman was can"ed from te sinful cate"ory into te cate"ory of acce$ta%le %ea*ior.
!eo$le wo wouldn?t a*e considered suc a relationsi$ many years a"o %e"an to
o$enly coa%it witout concludin" a formal marria"e. 1e social disa$$ro*al and sti"ma
of a de facto union faded into te %ac;"round. In sort. irre"ular union as %ecome more
acce$ta%le and a fre/uent social %ea*ior %ecomin" relati*ely sta%le and sometimes
outlastin" ceremonial marria"es. 1is "a*e an im$etus to te "rowin" need of te le"al
re"ulation of irre"ular unions in many 0urisdictions BC.S. Bruc. $ro$erty Ri"ts of De
facto S$ouses includin" 1ou"ts on te -alue of Gomema;er?s ser*ices. Family Law
:uarterly. -ol.19. 5o 1=# B1867C $.191.C.
&s te o%0ecti*e reality on te "round sows. a "reat num%er of $eo$le do li*e to"eter as
us%and and wife witout a*in" under"one a formal marria"e. &ltou" irre"ular union
does not com$ly wit te formality re/uired %y laws. an irre"ular union creates a family.
cildren are %orn to suc union. a man and a woman li;e marria"e. Seen from economic.
social and $sycolo"ical $ers$ecti*es. irre"ular unions are functionally identical to
marria"e. 3at a$$ens in te family created %y marria"e a$$ens in te family created
%y an irre"ular union. 1is is te *isi%le social reality. Gence. failin" to "i*e le"al
reco"nition and $rotection to suc relationsi$ is unfair. Gardsi$s and in0ustice would
result unless te law inter*enes and re"ulates suc relationsi$s to te e@tent necessary.
Reasons of e/uality li;e te $rotection of cildren %orn in a de facto union or te
$rotection of te wea;er $arty in te union 0ustify te reco"nition of a de facto
relationsi$. Failin" to reco"niAe suc relationsi$s may. for instance. im$ose unfair
%urdens on tose wo are most *ulnera%le or wo a*e contri%uted more to te
relationsi$. +ne can ima"ine te in0ustice tat would occur in te a%sence of le"al
reco"nition and $rotection of irre"ular unions BRefer to te followin" materialsD 5. Bala
and R. <arem;o. 5on=marital 2nions. Finality of Se$aration &"reements and Cildren
Issues. 1e International Sur*ey of Family Law. 2992E S. o. !ais. Defacto
Relationsi$s and Same Se@ Relationsi$s in !ortu"al. 1e International Sur*ey of
Family Law. B2992C.
Comin" to te (tio$ian situation. it was te 18,9 Ci*il Code of te (m$ire of (tio$ia
wic "a*e reco"nition and $rotection to irre"ular union altou" te $rotection was
muc less tan te $rotection "i*en to suc relationsi$ %y te current family laws of te
country and oter 0urisdictions.
&s you can see from te discussions made under te $re*ious ca$ters of tis course
material. te need to re*ise te 18,9 Ci*il Code on matters of family was felt and te first
mo*e was made in te middle of 1879s B1ilaun 1esome. Reflections on te Re*ised
Family Code of 2999E 1e International Sur*ey of Family Law B2992C $.1,'C. &
committee was esta%lised wit a *iew to reformin" te family law. 1e committee came
u$ wit a draft family law for consideration %y te $ertinent %odies. Gowe*er. te wor;
did not continue for reasons tat were not made ;nown. BI%idC.
&fter te can"e of "o*ernment in 1881. te mo*e towards family law reform was %e"un
anew. 1e need for family law reform was stron"ly felt followin" te ado$tion of te
188' Constitution of te Federal Democratic Re$u%lic of (tio$ia since te constitution
ensured e/uality of se@ in all res$ects wile tat was not te case under te 18,9 Ci*il
Code. Besides. te FDR( Constitution as $ro*ided tat family is te fundamental unit of
society and it needs $rotection %y te state and te society. Gence. %ecause family law
"i*es reco"nition and $rotection to irre"ular union is in line wit te constitution. In
addition to te FDR( Constitution. &rt.1,B3C of te 2DGR. wic as %een made $art
and $arcel of te (tio$ian law since te ado$tion of te 1881 1ransitional carter of te
country. te family is te natural and fundamental "rou$ unit of society and is entitled to
$rotection %y society and te state. 1is is also reiterated under &rt.23B1C of te
con*ention n ci*il and $olitical ri"ts to wic (tio$ian is a $arty.
Durin" te draftin" $rocess of te Re*ised Family Code te FDR(. irre"ular union was
one of te areas wic $ro*o;ed eated de%ates in te *arious $u%lic discussions eld in
different forums. Generally. two o$$osin" *iews were reflected in te discussions. 1e
first *iew o%0ected to te reco"nition and $rotection of irre"ular union wile te oter
*iew was in fa*or of reco"nition of irre"ular union. 1ose wo o$$osed te reco"nition
of irre"ular union ar"ued tat te only constitutionally reco"niAed relationsi$ %etween a
man and a woman is marria"e. 1e FDR( Constitution is not concerned wit irre"ular
union nor does it reco"niAe it s$ecifically as it did so wit marria"e. Gence. it was
ar"ued. it sould %e for te $rotection of te institution of marria"e tat te "o*ernment
as to enact laws. (nactin" laws for te $rotection and re"ulation of irre"ular union is not
0ustified wic was not en*isa"ed %y te constitution. )oreo*er. it was maintained tat
irre"ular union is unacce$ta%le %y *arious reli"ions. 1e "rou$ contended tat "i*in"
reco"nition to irre"ular union would undermine te institution of marria"e and endan"er
te sanctity of marria"e. )em%ers of tis "rou$ furter stren"tened teir $osition %y
maintainin" tat since irre"ular can easily %e terminated at any time at te wis of te
$artners. it is detrimental to te interests of cildren and women in $articular and te
society in "eneral.
1e $ro$onents of te second *iew. te *iew tat ad*ocates te reco"nition and
$rotection of irre"ular union. owe*er. stron"ly ar"ued tat te *iew tat irre"ular union
is not reco"niAed %y te FDR( Constitution is not acce$ta%le. 1e silence of te
constitution a%out irre"ular union does not amount to non=reco"nition. Since te
constitution does not s$ecifically deny reco"nition to it. $rotectin" and re"ulatin"
irre"ular union %y enactin" s$ecific law is not contrary to te ideals of te constitution.
Furtermore. tis "rou$ ar"ued tat. te $enomenon of te li*in" to"eter of a man and
a woman as us%and and wife witout concludin" marria"e is a fact tat as %een
commonly $racticed %y te (tio$ian community for many years. It is also a $ractice
$re*alent in te ur%an areas of (tio$ia B)eari Redae. etesasalawn ye Betese% Gi"
Leme"enAe% yemiredu &ndand 5eti%oc -ol.1 188' (.C $$.129=126C.
1e reality on te "round as to irre"ular union is tat a num%er of $eo$le are $resently
in*ol*ed in tis relationsi$ and it is more li;ely tat a num%er of $eo$le wo will
in*ol*e in suc union will increase in te future for *arious reasons BI%idC. &s as %een
mentioned $re*iously. many $eo$le enter into tis ;ind of relationsi$ due to economic
$ro%lems. ina%ility to "et te assent of teir $arents for marria"e or failure to fulfill
customary o%li"ations. ina%ility to co*er e@$enses for weddin" ceremonies and te li;e.
Gence. denial of suc reality is im$ossi%le since to do so would %e tantamount to closin"
one?s eyes not to see te *isi%le social reality.
1e oter ar"ument of te second "rou$ was %ased on te $rotection of te ri"ts of
women. 1e a%sence of le"al reco"nition to irre"ular union is detrimental to women
$articularly from te *iew $oint of common $ro$erty. Would this argument be tenable
if women were economically strong?
Des$ite te a%o*e ar"uments a"ainst te reco"nition of irre"ular union. it was te second
*iew tat was acce$ted %y te le"islature and te Re*ised Family Code of FDR( and
Re"ional Family Laws a*e accorded %etter $rotection to irre"ular union as com$ared to
te $rotection "i*en to it in te 18,9 Ci*il Code of (tio$ia. What departures have the
current family laws of Ethiopia made from the 1960 Civil Code as far is irregular
union is concerned?
6.6. Legal Effects of Irregular Union
6.6.1. Introductory Remarks
2nder te $re*ious units. you a*e understood tat marria"e $roduces le"al effects=
$ersonal as well as $ecuniary effects were it is esta%lised in accordance wit te
re/uirements set fort %y te law. 5ow te /uestion tat may cross your mind ere is
weter or not te re/uirements tat must %e fulfilled in case of marria"e Bessential
conditions of marria"e witout wic no *alid marria"e is esta%lisedC are also to %e
fulfilled in irre"ular union.
1e 18,9 Ci*il Code as well as te current family laws of (tio$ia do not say any tin"
as to te re/uirements for te formation of a *alid irre"ular union. BRead for instance.
&rt. 697=621 of te Ci*il Code. &rts. 129=139 of te family law of 1i"ray. &rts. 127=138
of te family law of +romia &rts. 198=117 of &mara Family CodeC.
Does tis mean tat irre"ular union can %e formed %etween two minor cou$les4 Can it %e
formed a"ainst te will of one of te $artners4 Gow a%out oter im$ediments to
marria"e4
&ltou" te laws are silent. it is not $ossi%le to maintain tat any one under any
condition watsoe*er can form irre"ular union. as eose $leases. wit anoter o$$osite
se@. 1e condition tat need to %e satisfied in marria"e must %e satisfied in irre"ular
union too. Do you agree? Why/Why not?
(A) Consent
Coa%itation witout marria"e Birre"ular unionC is defined as te union of a man and a
woman esta%lised solely %y te consent of %ot $arties B!. Sarce*ic. Coa%itation
witout )arria"eD 1e u"osla*ian (@$erience. &merican <ournal of Com$arati*e Law.
-ol.28. 5o B1871C !.31'C. By te same to;en. under te draft $ro*isions of te Ci*il
Code $re$ared %y Rene Da*id. tem$orary union or concu%ina"e was included resultin"
from a le"al a"reement oter tan marria"e %etween a man and a woman to coa%it
durin" a limited or indefinite $eriod. 1is was re$laced %y te codification commission?s
definition of irre"ular union in &rt.697 of te Ci*il Code as a mere state of fact. 1is
can"e did not. owe*er. mean te irre"ular union does not re/uire te consent of te
$arties. 5o one can %e forced to do anytin" witout is consent. BRead Birru Ge%eyeu.
wor; cited $re*iouslyC
(B) Capacity
In te Ci*il Code. te RFC and Re"ional Family Laws. one of te essential conditions of
marria"e is ca$acity altou" tis not $ro*ided in irre"ular union. Des$ite tis. %ased on
te nature and re/uirements of a *alid 0uridical act. inca$a%les do not a*e te re/uisite
a%ility to com$reend te nature and conse/uences of 0uridical acts. Ca$acity in marria"e
refers to te attaina%ility of marria"ea%le a"e as defined %y law and mental ca$acity.
Re"ardin" a"e. te FDR( Constitution under &rt.3#B1C $ro*ides tat marria"e is
concluded wen te s$ouses attain te marria"ea%le a"e. 1e marria"ea%le a"e is
determined %y te (tio$ian family laws to %e ei"teen years of a"e for %ot s$ouses.
1e family laws do not. owe*er. a*e com$ara%le $ro*isions wic e@$ressly or
im$liedly $roi%it te formation of irre"ular union %y minors. In s$ite of te a%sence of
suc $ro*isions. it is tena%le to maintain tat te minimum a"e limit $rescri%ed for
marria"e sould %e a$$lica%le to irre"ular union %y ta;in" into account te $olicy
consideration for te re/uirement of a"e and from te *iew $oint of $rotectin" cildren.
Do you agree with conclusion? Why/Why not?
(C) Prohibited Degrees
In (tio$ia. %ot under customary law and codified laws. marria"e %etween $ersons
related witin certain de"rees Beiter %y consan"uinity or affinityC was $roi%ited and te
social ta%oos a"ainst incest a*e %een reinforced %y te criminal law. From 18,9 to te
esta%lisment of te Federal system in (tio$ia. te 18,9 Ci*il Code was meant to %e
uniformly a$$lied trou"out (tio$ia since (tio$ia %efore 1881 was a unitary state.
Gence marria"e %etween %lood relati*es u$ to te se*ent de"ree was $roi%ited B&rt.''1
and &rt.'72 of te Ci*il CodeC. Comin" to te current situations. de"rees of consan"uinal
relationsi$s differ from re"ion to re"ion since eac re"ion is constitutionally em$owered
to come u$ wit its own family law reflectin" its social and cultural realities. &ny ways.
altou" te de"ree *aries. eac re"ional family law $roi%its marria"e %etween %lood
relati*es. BRead &rt.7 of te Re*ised family code. &rt.3 of te family code of &mara
and &rt.26 of te Family Code of +romia. and &rts.18 and 17 of te S55! Family Code.
for instance.
Gowe*er. te same $roi%ition is not noticea%le under te (tio$ian family laws as
re"ards irre"ular union. But %y ta;in" into account te rationale %eind $roi%ition of
marria"e %etween $ersons wo are relati*es %y consan"uinity. it is $ossi%le to conclude
tat it is not acce$ta%le to form an irre"ular union %y *iolatin" te $roi%itions $ro*ided
%y law.
&noter $roi%ition %ot under te Ci*il Code and te current family laws is marria"e
%etween affines. Gowe*er. te de"ree of $roi%ition *aries from re"ion to re"ion as you
can understand %y a*in" a loo; at te rele*ant $ro*isions of te law.
(D) Other Impediments
From te a%o*e discussions. it is $ossi%le to conclude tat consent. ca$acity and
fulfillment of conditions wit re"ard to consan"uinal and affinal relationsi$s are
elements of formation of a *alid irre"ular union. Gow a%out $eriod of widowood and
te e@istence of anoter irre"ular union4
1e $ur$ose of ma;in" a woman to o%ser*e $eriod of widowood B179 days in (tio$iaC
is to a*oid te conflict of $aternity. If tat is te case. can?t we ma;e a woman to o%ser*e
tis $roi%ition since one of te main effects of irre"ular union. as we will see later. is
$resum$tion of $aternity for cildren %orn of an irre"ular union4 In marria"e. te
0ustification for $roi%itin" remarria"e %efore te la$se of a $eriod of widowood is tat
conflict of $aternity will arise since marria"e as clear %e"innin". Gowe*er. altou"
many irre"ular unions may a*e %e"innin"s wic te $u%lic cannot in any way
ascertain. it is desira%le. to ma;e our $olicy consistent. to $ro*ide a $eriod of widowood
durin" wic an irre"ular union cannot %e formed were suc irre"ular union can a*e
ascertaina%le and definite %e"innin". +terwise. te same $ro%lem feared in case of
remarria"e will occur.
&noter $oint wort raisin" at tis 0uncture is weter an e@istin" irre"ular union
constitutes a %ar to form anoter irre"ular union. 1e law does not a*e clear $ro*isions
in tis re"ard. Gow would you "o a%out tis issue4
6.6.2. Legal Effects of Irregular Union
(A) General Considerations
&s as %een discussed in our $re*ious discussions. irre"ular union e@isted in (tio$ia
lon" %efore te ado$tion of te 18,9 Ci*il Code. 1e 18,9 Ci*il Code also "a*e
reco"nition to suc union and re"ulated te effects of suc a union in relation to certain
matters. Gowe*er. te new family laws of te country a*e made de$artures from te
18,9 Ci*il Code. 1e ma0or de$arture is te creation of community $ro$erty. +n te
followin" $a"es. discuss te most im$ortant effects of irre"ular union as incor$orated
under te (tio$ian Family Codes B5ote tat since te $ro*isions of re"ional family laws
are *er%atim co$ies of te Re*ised Family Code. we may not re$roduce te $ro*isions of
eac re"ional family law. Gence. citin" te rele*ant $ro*ision of te Re*ised Family
Code suffices to a*oid unnecessary re$etitionsC.
(B) Absence of Bond of Affinity
-alid marria"e creates a %ond of affinity %etween te man and te relati*es of te woman
and *ice *ersa. Conse/uently. marria"e %etween $erson related %y affinity in te direct
line and marria"e %etween a woman and te %roter of er us%and or marria"e %etween
a man and te sister of is wife is for%idden. &s you will note under ca$ter 5ine. as a
conse/uence of te creation of %ond of affinity in marria"e. te o%li"ation to su$$ly
maintenance %etween $ersons related %y affinity in te direct line is im$osed %y te law
B&rt.187 of RFCC.
In contradistinction to marria"e. as $ro*ided in &rt.199 of te RFC in irre"ular union. a
%ond of affinity is created neiter %etween te man and te relati*es of te woman nor
%etween te woman and te relati*es of te man. Gowe*er. su%=article 2 of te a%o*e
article $ro*ides tat te le"al im$ediments to a lawful marria"e in te case of affinity are
a$$lica%le to it. &ccordin"ly. %y *irtue of &rt.8 of te RFC marria"e %etween $ersons
related %y irre"ular union in te direct line is $roi%ited. In te collateral line. marria"e
%etween a man and te sister of is $artner in an irre"ular union and te %roter of er
$artner is $roi%ited. Because &rt.18 of te &mara Family Law is te *er%atim co$y of
te RFC. wat as %een said in relation to te latter e@$lains te former.
Gowe*er. since de"rees of im$ediment to marria"e in +romiya and 1i"ray. for instance.
are different from te RFC. irre"ular union as an im$ediment to marria"e sould %e seen
accordin"ly. BRead &rt.27 of te +romiya family law and &rts.3=' of 1i"ray Family
CodeC. 3en it is %roadly inter$reted. it may also %e said tat te woman cannot en"a"e
in an irre"ular union wit a man wo is te relati*e of te man wit wom se ad %een
$re*iously en"a"ed in suc union. But is it not contradictory. as far as te law is
concerned. to say tat tere is no %ond of affinity in irre"ular union on te one and and
$roi%it marria"e %etween te man and te relati*e of te woman or marria"e %etween
te woman and te relati*es of te man on te oter and4 +%*iously. tere is a clear
contradiction. Gowe*er. des$ite tis contradiction te $roi%ition is 0ustified on te
"round of $olicy considerations. 1e $roi%ition is 0ustified so lon" as it is done in te
interest of $rotectin" and maintainin" te "ood relations %etween relati*es and also
maintainin" $eace and order in society. +ne can ima"ine te attendant caos if a man is
allowed %y te law to marry te sister of te woman wit wom e ad %een $re*iously
en"a"ed in irre"ular union lea*in" er aside. 1e same crisis arises if te woman does so.
Gence. in te li"t of suc com$licated $ro%lems. te $roi%ition is 0ustified.
(C) Duty to Contribute to the Common Expenses
It as %een discussed under effects of marria"e tat cou$les in a marria"e are duty %ound
to contri%ute to te ouseold e@$enses in $ro$ortion to teir a%ility and res$ecti*e
means. Similarly. te man and te woman in irre"ular union are o%li"ed to contri%ute to
te common e@$enses tey may incur durin" teir union in $ro$ortion to teir res$ecti*e
means B&rt.191 of RFCC. If %ot te man and te woman a*e similar means. te
common e@$ense is souldered e/ually %y %ot $arties. If. owe*er. one of te $arties is
unem$loyed and witout means. eose is not re/uired to contri%ute any tin". In tis
case. te duty is to %e assumed only %y te oter. (@$enses incurred for te %enefit of
eiter of te $arties are not considered as common e@$enses e*en if it is done durin" te
union. Common e@$ense is one wic is done for te interest of te $artners in te union.
What are such as expenses?
(D) Community Property
Because te 18,9 Ci*il Code did not create community $ro$erty in irre"ular union.
$artners irre"ular of union did not istorically en0oy te same $ro$erty ri"ts as s$ouses
of lawful marria"e. 1e law. %y its refusal to reco"niAe te creation of community
$ro$erty in suc union. seriously andica$$ed 0ud"es in teir a%ility to relie*e te
ine/uity and ardsi$s to one of te $arties and $re*ent un0ust enricment of eiter of te
$arties.
& woman may en"a"e in irre"ular union assumin" tat some le"al $rotections are
a*aila%le to er relationsi$ wit te man or witout any ideas as to te le"al
conse/uences of er relationsi$. or may %e wit te assum$tion tat no le"al distinction
is made %etween er relationsi$ and tat of marria"e. BSee C.C Bruc !ro$erty Ri"ts
of De facto S$ouses Includin" 1ou"ts on te -alue of Gome )a;er?s ser*icesE Family
Law :uarterly. -ol.19. 5o 1=# B1867C $.13'C. Durin" suc union. common $ro$erty may
%e created trou" te effort of te man and te woman. Gowe*er. after a certain $eriod.
tis relationsi$ may %e terminated for one reason or anoter. In tis case. woman was
e*icted from te ouse %y te man witout any sare of $ro$erty. In suc situations. te
man could ac/uire wealt %y unduly e@$loitin" te woman.
In order to understand te in0ustices caused to $arties in an irre"ular union. te followin"
two (tio$ian court cases are $resented.
In one case. a certain Beletu &came %rou"t suit a"ainst a man named &to Ge%resadi;
3or;ne in te former &ddis &%a%a &wra0a Court alle"in" tat se and te defendant
were married since 18,# (.C and ad fi*e cildren from teir relationsi$. Des$ite tat
e forced er out of te con0u"al ome. Se re/uested te court to ma;e an order of
maintenance for er and refer te case to family ar%itrators. Gowe*er. te defendant
denied te e@istence of marria"e. Se $ro*ed tat se was re"istered as te defendant?s
wife in (dir. ;e%ele family form and $ension forms. Besides. four witnesses testified
tat te two $arties li*ed in te defendant?s ouse as us%and and wife %ut did not ;now
weter marria"e was concluded or not. Based on tis e*idence. te &wara0a court
decided tat tere was marria"e. Because of tis. te defendant a$$ealed to te ten Gi"
Court statin" tat te decision of te &wra0a court was not a$$ro$riate. 1e Gi" Court
re*ersed te decision of te &wra0a court %y reasonin" tat te fact tat tere was a *alid
marria"e was not $ro*ed. 1e Su$reme Court affirmed te decision of te Gi" Court.
Gence. te woman could not sare from te community $ro$erty
&noter case in*ol*in" a su%stantial amount of $ro$erty was te case of &to &rusi
retema and 3oro ewde i"letu. &to &rusi retema a$$lied to te )el;a Belo &wra0a
Court Bin GararC statin" tat e and 3oro ewdie were married since 18#, (.C and ad
cildren from te marria"e. Ge added tat durin" te marria"e. se too; some money
from te common $ro$erty and o$ened a te0 %et in )el;a <e%du BGararCE tey ad a %ar.
a $ension and te0 %et in )el;a Belo Gareteca 1own. Ge re/uested te court so tat
order would %e "i*en for te comin" %ac; of te woman to te con0u"al ome wit te
$ro$erty se too;. Se was summoned %ut did not a$$ear. 1en %ased on te testimony
of witnesses. wo testified tat te two $ersons li*ed to"eter as us%and and wife. te
court anded down an ex parte 0ud"ment tat tere was marria"e and referred te case to
family ar%itrators. 1e defendant a$$ealed to te Gi" Court of (astern Garar"e
&dministrati*e Re"ion statin" tat tere was no marria"e %ut irre"ular union and tat se
terminated te union %ecause of ealt reasons. Se also said tat tere was no common
$ro$erty. 1e Gi" Court re*ersed te decision of te court of rendition and reasoned tat
te testimony of te witness demonstrated tat te relationsi$ was an irre"ular union and
te $ro$erty ac/uired in an irre"ular union %elon"ed to te one wo ac/uired it. B&to
&rusi retema -s. 3oro ewde i"letu. BSu$. Ct. 187,. Ci*. &$$. 5o #6o7,.
un$u%lisedC. 1is means tat no $ro$erty was "i*en to te man.
Bear in mind tat te $arties li*ed to"eter for a%out tirty=si@ years. %ut all $ro$erty was
re"istered in er name and te man finally found imself witout any sare from te
$ro$erty ac/uired durin" teir relationsi$.
From te a%o*e two cases. you can understand tat altou" te woman li*ed for many
years wit te man. $ro$erty sould not %e sared since under te 18,9 Ci*il Code
irre"ular union could not create community $ro$erty.
It was u$on termination of te union tat te man mi"t %e ordered to $ay to te woman
an indemnity corres$ondin" to not more tan tree monts allowance %y *irtue of
&rts.61, cum 616 of te Ci*il Code. 1is was done if and only if te 0ud"e felt tat
e/uity re/uires so. If te 0ud"e felt oterwise. te woman was not entitled to any
indemnity and ad to lea*e er ouse surrenderin" te common $o$ery to te man. 1is
was wat was a$$enin" $rior to te comin" into effect of te RFC and Re"ional Family
Laws. 2nder te current family laws. irre"ular union as %een made to "i*e rise to
community $ro$erty %etween te coa%itees $ro*ided te relationsi$ lasts for tree
years or more. &ll $ro$erties tat te man and te woman a*e ac/uired durin" teir
union are considered to a*e %een ac/uired witin te union and. terefore. are $resumed
to %e common $ro$erty of te man and woman altou" te $resum$tion is a re$uta%le
one. BSee &rt 192 of te RFC and rele*ant $ro*isions of te re"ional family lawsC.
Coa%itants in irre"ular union cannot a"ree tat no community $ro$erty is created durin"
teir union. 1is is a"ainst $u%lic $olicy. 1e law as its own $olicy reasons %eind te
creation of community $ro$erty. 1e man and te woman. owe*er. are at li%erty to
a"ree as to te administration of te common $ro$erty.
&s e@$lained a%o*e. community $ro$erty is created wen te union of te man and te
woman lasts for not less tan tree years. & union lastin" less tan tree yeas. terefore.
does not create common $ro$erty and te $arties can terminate te union witout any
dis$ute relatin" to common $ro$erty. If. owe*er. te one wo terminated te union
commits a fault. eose is lia%le to $ay dama"es. 1is can %e assessed in accordance wit
te rele*ant $ro*isions of te (tio$ian e@tra=contractual lia%ility law Bsee &rt.2989=2123
of te Ci*il CodeC.
3en we come to effects of community $ro$erty. community $ro$erty "i*es rise to
issues suc as administration and li/uidation of te common $ro$erty. In tis re"ard. te
RFC. under &rticle 193. as sti$ulated tat matters relatin" to te administration and
li/uidation as well as $ayment of de%ts in case of irre"ular union are to %e "o*erned in
accordance wit te $ro*isions of te code tat deal wit community $ro$erty and
li/uidation of $ecuniary relations of s$ouses in marria"e. BGence it is im$ortant to relate
tis discussion wit te discussions $re*iously made under te fore"oin" ca$terC.
&s matter of $rinci$le. te common $ro$erty of te man and te woman in an irre"ular
union is administered 0ointly wit a *iew to ensurin" e/uality of se@ wic is
une/ui*ocally "uaranteed under te FDR( Constitution. 5oneteless. te a%o*e rule will
not %e a$$lica%le were it is a"reed %y te $artners tat one of tem administer te wole
0ointly owned $ro$erty or 0ust a $art of it. 5or is it a$$lica%le were one of te $artners is
declared inca$a%le. de$ri*ed of isoer ri"t of $ro$erty mana"ement or inca$a%le of
administerin" te common $ro$erty for any oter *alid reasons. In suc cases. it is te
oter $artner wo is em$owered to administer %y a"reement or not declared inca$a%le or
not de$ri*ed of tis ri"t of $ro$erty mana"ement tat ta;es te res$onsi%ility of
administerin" te common $ro$erty. Gowe*er. in doin" so. eose as to account to te
oter wen re/uested B&rts.,,. ,6. ,7 and 193 of RFCC.
&ll actions for sale. e@can"e. rent out. $led"e. mort"a"e or alienation in any oter way
of te common $ro$erty need te consent of %ot te man and te woman in te union.
1e same consent is also re/uired for similar actions in relation to a common mo*a%le
$ro$erty and securities re"istered in te name of %ot $artners te *alue of wic e@ceeds
'99 Birr. 5eiter te $artners are allowed to %orrow or lend money e@ceedin" te a%o*e
amount of money or stand surety for a de%t of '99 BirrE nor is it $ossi%le for tem to
transfer a common $ro$erty te *alue of wic is "reater tan 199 Birr or money "reater
tan suc sum %y way of donation lac;in" common consent. BRead &rt.193 and &rts.7'=
83 RFCC.
5on=o%ser*ance of te a%o*e rules %y one of te $artners "i*es te oter $artner te ri"t
to %rin" an action for te cancellation of te o%li"ations entered witin si@ monts after
eose %ecame aware of te creation of suc o%li"ations or in any case witin two years
after suc o%li"ations a*e %een entered. BRead &rts.,7. ,8 and 193 of te RFC and
$ertinent $ro*isions of Re"ional Family LawsC.
1e oter issue $ertainin" to community $ro$erty of $artners in an irre"ular union is
wen te union of te man and woman ends. it is mandatory tat te common $ro$erty
as to %e di*ided if tere is any. In tis re"ard. it as %een $ro*ided tat te di*ision of
te common $ro$erty in irre"ular union will %e effected in accordance wit te
a"reement entered into for tis $ur$ose %y te $arties. In default of suc a"reement wic
is usually te case %etween $artners in suc union. it is te $ro*isions of te law on
li/uidation of $ecuniary relation of s$ouses in marria"e tat a$$ly to te di*ision of te
0ointly owned $ro$erty of coa%itants BRead &rt.193 of te RFC wit &rts 7'=83 of te
same code and te res$ecti*e $ro*isions of re"ional family lawsC.
Before esta%lisin" te sare of te man and te woman in te common $ro$erty. tere
are certain $rocedures tat a*e to %e com$lied wit. In te first $lace. te coa%itees
ta;e %ac; teir $ersonal $ro$erty %y $ro*in" tat it %elon"s to tem B&rt.193 can 7,B1C of
RFCC. 1ey a*e to $ro*e tis fact %ecause. unless $ro*ed. it will %e ta;en as common
$ro$erty as $er article 192B2C and ence no ri"t of reta;in". &ccordin" to tis article.
any $ro$erty wic e@ists durin" te union is deemed to a*e %een ac/uired witin te
union and ence constitutes common $ro$erty unless it is $ro*ed to te contrary. Gence.
a coa%itee can ta;e %ac; is $ro$erty %y $ro*in" tat suc $ro$erty %elon"ed to imoer.
Secondly. were te $ersonal $ro$erty of a coa%itee as %een alienated and its $rice as
fallen into te common $ro$erty. eose is entitled to reco*er it from te common
$ro$erty B&rt.193 can &rt.7,B2CC. & coa%itee is also entitled to indemnify if it is found
out tat te $ersonal $ro$erty of te oter or te common $ro$erty as %een enriced to
te $re0udice of is $ro$erty B&rt.193 can &rt.7,C. Dama"es may also %e demanded
%efore te $ysical di*ision of te common $ro$erty ta;es $lace %y eiter of te
coa%itants were te oter $artner. a*in" %een em$owered to administer te 0ointly
owned $ro$erty. $erforms acts wic ad*ersely affect isoer $artner or suc acts are
done witout mandate. or constitute acts of %ad administration or a*e %een $erformed in
fraud of te ri"t of te $artner ma;in" te claim BId. &rt.193 cum &rt.76C. In suc cases.
te a""rie*ed $artner can not re/uest te court to "rant im dama"e if te a%o*e acts
occur fi*e years %efore te termination of te union. De%ts of te coa%itants a*e to %e
also $aid %efore te $artition of te common $ro$erty BId. &rt.193 cum &rt.78C wic is
meant to $rotect creditors wo may %e in a disad*anta"eous $osition if $artition is made
%efore teir claims are settled.
&s mentioned %efore. $artition as to %e done only after all te $rocedures discussed
a%o*e Bi.e.. reta;in". witdrawal. indemnity. and $ayment of de%tsC a*e %een com$leted.
+nce tis as %een done. te common $ro$erty will %e di*ided e/ually %etween te
coa%itees. (/ual $artition is realiAed. owe*er. only on condition tat no contrary
a"reement e@ists %etween te coa%itants. It is true tat te manner of di*ision can %e
determined %y te coa%itants temsel*es were tey conclude a di*ision contract. &s a
rule. $artition ta;es $lace in ;ind in suc a way tat eac coa%itee ta;es some $ro$erty
from te common $ro$erty. 3ere it is im$ossi%le to di*ide te 0ointly owned $ro$erty
e/ually. te ine/uality in ;ind sould %e com$ensated %y $ayment of money. It sould %e
noted tat tin"s wic are most useful to a coa%itant sould as far as $ossi%le %e
assi"ned to isoer sare. For instance. if a certain $ro$erty is rele*ant to te %usiness or
occu$ation of a coa%itant. it sould %e "i*e to imoer. It may a$$en tat a certain
$ro$erty is difficult or im$ossi%le to %e di*ided %ecause. for instance. te $ro$erty in
/uestion cannot %e ta;en a$art %y its nature or ta;in" it a$art would $re*ent its
functionin" or de*alue it and te $artners may not %e in accord as to wo will a*e tis
$ro$erty. In tis case. te $ro$erty is sold and te money recei*ed is sared %y te
$artners. In default of a"reement on te condition of sale. te $ro$erty will %e sold %y
auction BRead &rts. 193 can &rts.7'=83 of te RFCC.
(E) Debts of the Man and the Woman in Irregular Union
Durin" te union. te man and te woman may transact wit tird $arties and incur de%ts.
Suc de%ts may %e incurred eiter for te interest of %ot $arties or for $ersonal $ur$oses.
If a de%t is incurred eiter %y te man or te woman for teir maintenance and teir
cildren. it %ecomes a common de%t and creditors will a*e a recourse a"ainst one or
%ot BRead &rt.192B3C of te RFCC. In oter words. suc de%ts may %e reco*ered from te
$ersonal $ro$erty of eac coa%itee andoor from te common $ro$erty. 2nder &rt. 61# of
te Ci*il Code. it was $ro*ided tat if a de%t was contracted %y te man for te
maintenance of te cildren and of te woman and te man. te woman would not %e
eld 0ointly and se*erally lia%le wit te man. If. owe*er. it is te woman wo
contracted te de%t. te man would %e eld 0ointly and se*erally lia%le wit te woman.
+%*iously. te RFC and re"ional family laws a*e not drawn suc distinctions. What do
you think is the retainable behind this? Would it undermine equality of sex if the
article were retained under the new family laws?
If a common de%t of te man and te woman is due after te termination of te union and
te di*ision of te common $ro$erty. eac of tem is lia%le to $ay te de%t in $ro$ortion
to is or er sare BRFC. &&.193 cum &rt.83C.
De%ts due %y one of te $artners for $ersonal $ur$oses to a tird $arty are reco*ered on
is $ersonal $ro$erty and wen te $ersonal $ro$erty is not sufficient to co*er te de%t.
te creditor will a*e recourse a"ainst te common $ro$erty BRFC. &rt.193 cum
&rt.69B1C. 2nder te Ci*il Code since no community $ro$erty e@ists %etween unmarried
coa%itants. suc ri"t of recourse %y te creditors a"ainst te common $ro$erty was
a%sent.
(F) Filiation
1e oter issue tat is intertwined wit irre"ular union is te issue of filiation. Because
filiation is to %e "i*en a wide co*era"e in ca$ter se*en of tis course material. it suffices
to say tat a cild concei*ed or %orn of an irre"ular union as as is fater te man
en"a"ed in suc union. 1is was te case under te Ci*il Code since &rt.61' $ro*ides
tat filiations of te cildren %orn of an irre"ular union sall %e esta%lised in accordance
wit te rele*ant $ro*isions of te code and &rt.6#' of te same code sti$ulates tat a
cild concei*ed or %orn durin" an irre"ular union as a fater te man en"a"ed in suc
union. 1e same tin" as %een reiterated in te RFC and te re"ional family laws. &s to
te details. we refer you to te discussions made under te ne@t ca$ter.
6.7. Proof of Irregular Union
From te discussion under ca$ter four. you a*e seen tat tere is no $resum$tion tat
$ersons are married and ence a $arty assertin" te e@istence of marria"e is re/uired to
adduce $roof to it. Similarly. a $arty desirin" to %enefit from te le"al conse/uences of an
irre"ular union is also re/uired to $ro*e te e@istence of irre"ular union. wen suc union
is $ro*ide in accordance wit te re/uirements of te law. te le"al effects of suc union
%ecome o$erati*e.
&s tis 0uncture. you can understand tat marria"e may %e $ro*ed %y *arious modes of
$roof ty$ical amon" wic $articularly in (tio$ia are certificates of marria"e and
$ossession of status.
3en it comes to $roof of irre"ular union. te $rimary and fre/uent mode of $oof is
$ossession of status as o$$osed to documentary e*idence. 1is ty$e of mode of $roof is
$referred %ecause of its $ractical si"nificance. )ost fre/uently. a man and woman en"a"e
in an irre"ular union witout a written a"reement tat e*idences te fact of teir union. It
is a sim$le union in wic it is ard to find a relia%le documentary e*idence to $ro*e te
fact of te union.
But te issue wort raisin" is as to wat is meant %y $ossession of status4 !ossession of
status is said to a*e com$rised some tree facts ;nown as GnomenH, GtractusH, and
GfamaH. G8omenH is te fact of a*in" te name wic indicates te statusE GtractusH is
te fact of %ein" "enerally re$uted as a*in" te status %y all $ersons wit wom family
or %usiness relations too; $laceE and GfamaH is te fact of %ein" "enerally reco"niAed and
treated %y te $u%lic as a*in" te status. It is te addition of all tese tree facts tat
"i*e rise to $ossession of status B). !laniol and G. Re$ort. 1reatise on te Ci*il Law.
B12
t
edE 1838. -ol.1. $art 1. 8'8 $.267C.
Gence. %rearin" in mind te aforementioned facts. $ossession of status may %e
understood as te fact of %earin" te name tat desi"nates te status and %ein" treated and
reco"niAed as a*in" suc status %y te community in "eneral and %y family mem%ers.
friends and oter ac/uaintances in $articular.
Des$ite tis. owe*er. $roof of irre"ular union %y $ossession of status is not an easy tas;.
1e 18,9 Ci*il Code of (tio$ia $ro*ided for two modes of $roof %y wic te e@istence
of irre"ular union may %e esta%lised. 1ese are $roof %y $ossession of status and $roof
%y an act of notoriety BRead &rt.617 of te Ci*il CodeC. Gowe*er. $roof of union usin"
suc modes of $roof was $ro%lematic in te $ast due to lac; of clarity on te $art of te
law.
&s re"ards $roof %y $ossession of status. te $ro%lem wit tis mode of $roof is its
confusion wit $roof of marria"e %y $ossession of status. Some 0ud"es inter$reted
&rt.,88 of te Ci*il Code wic deals wit $roof of marria"e %y $ossession of status in
te same a way as $roof of irre"ular union %y $ossession of status. &ccordin" to tese
0ud"es. if witnesses are a%le to $ro*e te fact tat te man and te woman li*ed as
us%and and wife and as a result of tis. te witnesses temsel*es and oter $ersons in
te community could reco"niAe tem as suc tis %y itself would suffice to $ro*e
marria"e. +ter 0ud"es. owe*er. too; a different $osition in relation to te a%o*e issue.
1ey said tat wen marria"e was to %e $ro*ed %y $ossession of status. te witnesses
sould testify te fact of te cele%ration of te marria"e some time in te $ast in addition
to tose facts clearly $ro*ided under &rt.,88. &ccordin" to tis line of inter$retation. te
witnesses. in addition to testifyin" tat te man and te woman %ea*ed as s$ouses and
as a result of tis. teir families and society consider tem as suc. as to testify tey
a*e witnessed te cele%ration of te marria"e some time in te $ast. 2nless we inter$ret
it tis way. tey said. no distinction will %e made %etween $roof %y $ossession of status
in case of marria"e and irre"ular union BGi" (na Fiti. <ournal of Law of te Federal
Su$reme Courts. 5easie. 1871 (.C. $.22C.
Ga*in" in mind te a%o*e two differin" *iews and in res$onse to te lac; of uniformity
wit re"ard to te $ractice of courts in inter$retin" $ossession of status in marria"e. te
!lenum of te Su$reme Court issued a directi*e tat fa*ored te second line of
inter$retation in accordance wit te $ower "i*en to it %y article 22B2C of $roc.
5o.8o1879. 1e directi*e under &rt. 3 $ro*ided tat $roof of marria"e %y a $ossession of
status sould %e understood as a mode of $roof tat esta%lises te fact of te cele%ration
of te marria"e in any of te tree forms of marria"e Bi.e.. ci*il. reli"ious and customaryC.
It stated tat ta;in" $roof of marria"e %y $ossession of status as identical wit tat of
$roof of irre"ular union %y $ossession of status will a*e te effect of unitin" %y
marria"e tose wo were not married and considerin" as unmarried tose wo were
married. Gence. to a*oid suc un$leasant conse/uences. courts sould ma;e sure tat
witnesses a*e testified $ro*in" te cele%ration of te marria"e as an additional
re/uirement to &rt.,88 of te Ci*il Code.
1e $ro%lem of $roof relatin" to $ossession of status and te lac; of uniformity of
0ud"ments %y courts in tis re"ard was tus sol*ed as discussed a%o*e %y te issuance of
te directi*e.
1e oter $ro%lem relatin" to $roof of irre"ular union under te Ci*il Code is tat wic
$ertains to act of notoriety. 1e Ci*il Code under article 629 states tat te e@istence of
irre"ular union mi"t %e $ro*ed %y an act of notoriety wen $ossession of status is
contested. It furter $ro*ides tat te $ro*isions of te Ci*il Code $ertainin" to $roof of
marria"e %y an act of notoriety B&rt.692=69,C are a$$lica%le to $roof of irre"ular union.
Gowe*er. te $ro%lem wit &rt.629 is tat $roof of irre"ular union %y an act of notoriety
is im$ossi%le and incom$ati%le wit te *ery conce$t of irre"ular union BG.
rrAecAunowicA. !ro%lems in (tio$ian Family Law 1867. $ro%lem 17C. &n act of
notoriety is used as $roof of marria"e only wen te court autoriAes so B&rt=629B1C of
te Ci*il Code. Suc autoriAation is made %y te court wen. for instance. te re"isters
of marria"e a*e not %een re"ularly ;e$t or were it is im$ossi%le to te claimant to
o%tain te co$y of te record in te re"ister of marria"e BId. &rt.693BaC >&rt.1#6B1CC.
Suc $ro*isions of te law $oint to te $rior cele%ration of marria"e in eiter of te tree
forms of marria"e and ence irrele*ant to irre"ular union wic actually does not result
from a $rior cele%ration. 3at is more. $roof %y an act of notoriety is "o*erned %y
&rt.1#,=1'3 of te Ci*il Code and as $er &rt.1#8 of tis code. an act of notoriety is to %e
drawn a*in" te same $articulars as a record of marria"e would. (*idently. a record of
marria"e. amon" oter tin"s. is re/uired to sow te date of cele%ration of te marria"e
BId. &rt.116BcCC. 1is o%*iously is inconsistent wit te state of fact definition of irre"ular
union des$ite te fact tat it is made a$$lica%le on irre"ular union %y *irtue of &rt.629B2C
of te Ci*il Code.
1o sum u$. te $ro*isions of te code Bi.e.. &rts.691=69,C tat deal wit $roof of
marria"e %y an act of notoriety wic were made a$$lica%le to $roof of irre"ular union
%y article 629B2C are totally incom$ati%le wit te conce$t of irre"ular union to wic no
$rior recordin". re"istration and cele%ration is re/uired.
!roof of irre"ular union %y an act of notoriety is also im$ossi%le on anoter "round
different from te a%o*e. It is true tat an act of notoriety is $re$ared %y an officer of
ci*il status or notaries BId. &rt 1#,B1CC. 1e tas; of drawin" u$ an act of notoriety is
"i*en solely to officers of ci*il status or notaries. not to any oter or"ans. Gowe*er. suc
offices a*e not %een esta%lised in (tio$ia and ence $roof %y act of notoriety in case
of irre"ular union was im$ossi%le.
How about the RFC and the regional family laws? Have the new family laws solved
the problem of proof of irregular union?
1e RFC and te re"ional family laws a*e ado$ted a sin"le mode of $roof %y wic an
irre"ular union may %e $ro*ed. 1ey a*e sin"led out $ossession of status as a mode of
$roof of irre"ular union %y i"norin" $roof %y an act of notoriety. 1us. te $ro%lem
relatin" to $roof %y an act of notoriety is no more a $ro%lem of $roof of irre"ular union
under te RFC for tis mode of $roof %y itself was struc; out from te am%it of $roof of
irre"ular union as unnecessary.
&s mentioned in te fore"oin" discussions. $ossession of status is a conce$t tat
encom$asses te fact of %earin" te name tat desi"nated te status and te fact of %ein"
treated and reco"niAed as a*in" te status %y relati*es. friends and ac/uaintances in
$articular and te society in "eneral.
1e RFC under article 19,. $ro*ides tat irre"ular union is to %e $ro*ed %y way of
$ossession of status and defined $ossession of status of $ersons li*in" in an irre"ular
union as te state of affairs in wic te man and te woman. tou" not married. %ea*e
as married $eo$le and as a result of tis. tey are reco"niAed as suc %y teir families and
te community as well.
&s can %e understood from te definition. tree facts a*e to %e $ro*ed to constitute
$ossession of status of $ersons li*in" in an irre"ular union. 1ese are BaC te fact tat te
man and te woman %ea*ed as married $eo$le B%C 1at tey are considered as married
$eo$le %y teir families and BcC 1e fact tat %ot are considered as married $ersons %y
te community.
In te first $lace. te witnesses called u$on to $ro*e te $ossession of status of $ersons
li*in" in an irre"ular union a*e to testify tat te $ersons %ea*ed li;e married $eo$le.
1ey a*e to testify tat te man and te woman conducted temsel*es and li*ed
to"eter li;e married $eo$le sarin" te same ouse and e@can"in" lo*e. loyalty and
res$ect to eac oter. 1ey must sow to te court tat te man and te woman $erform
acts wic are analo"ous to tose acts wic are usually done %y married cou$les.
Secondly. to constitute $ossession of status in case of irre"ular union. te witnesses are
e@$ected to sow tat te man and te woman are reco"niAed and treated as married %y
teir families and relati*es. Bein" reco"niAed as married %y one of te families of te
$artners only is not sufficient to $ro*e te $ossession of status of $ersons li*in" in an
irre"ular union. 1e fact tat %ot te families and relati*es of te man and te woman
reco"niAe te $artners as married sould %e $ro*ed %y te witnesses. 1is may %e
accom$lised. for instance. wen te witnesses testify tey a*e seen te families of te
$artners *isit tem durin" olidays and in times of $ro%lem. BRead Ga%tamu 3uletaw.
1e Le"al (ffects of Irre"ular 2nion 2nder te Re*ised Family Code. Senior 1esis.
2n$u%lised. Faculty of Law. &.&.2. 299#. $$.#9=''C.
Finally. te witnesses sould con*ince te court tat an irre"ular union e@isted %etween
te $artners %y sowin" tat te $arties li*ed to"eter so o$enly li;e us%and and wife
tat te community witin wic tey li*e reco"niAe and treat tem as married. 1ey
a*e to %e a%le to esta%lis te fact tat teir nei"%orood. ac/uaintances and oter
$ersons wo come into contact wit te man and te woman consider tem as married
$eo$le. ou need to %ear in mind tat te witnesses a*e to ma;e it clear tat te o$inion
of te community towards te relationsi$ of te man and te woman is undi*ided and
uniform. If tere is a di*ision of o$inion in te community towards te relationsi$ of te
man and te woman. tey will not %e considered to a*e ac/uired te $ossession of status
of $ersons li*in" in an irre"ular union. BI%idC
2nder te current family laws of (tio$ia. $roof %y certificate of marria"e is te $rimary
mode of $roof. Gowe*er. $roof %y certificate of marria"e is difficult. it may %e $ro*ed %y
$ossession of status. BSee &rt.8' of te RFCC. &ccordin" to &rt.8, of RFC. $ossession of
status of s$ouses is esta%lised wen te man and te woman mutually consider
temsel*es and li*e as married and as a result of tis. tey are considered and treated as
s$ouses %y teir families and te community as a wole.
&s far as te law is concerned. $ossession of status of s$ouses is distin"uised from
$ossession of status of $ersons li*in" in an irre"ular union in two ways. 1e first
distincti*e feature is tat in te case of $ossession of status of $ersons li*in" in an
irre"ular union. it is not a re/uirement tat te man and te woman sould mutually
consider and treat eac oter as us%and and wife. 1erefore. te witnesses called u$on
to $ro*e te state of fact of irre"ular union are not re/uired to $ro*e te fact tat te
$arties a*e li*ed to"eter mutually considerin" temsel*es as married $eo$le. Gowe*er.
tis is a re/uirement wen it comes to $ossession of status of s$ouses. 1e fact tat te
man and te woman mutually consider temsel*es as married sould %e $ro*ed to
esta%lis $ossession of status of s$ouses. 1is distin"uisin" factor. owe*er. is not tat
im$ortant $ractically. 1is distinction is $resent e*en under te Ci*il Code %ut it did not
ser*e its $ur$ose for it as no $ractical si"nificance BGi" (na FitiC. 1is is %ecause.
mostly te circumstances under wic a man and woman introduce temsel*es to tird
$arties tat tey are us%and and wife are rare $articularly in our society. 2nless tey are
as;ed so or oter situations dictate tem. usually a man and woman do not e@$lainto te
community tat tey are married. 1e reality on te "round is tat te $eo$le around
tem consider and reco"niAe tem as married %y sim$le consideration of teir %ea*ior
towards one anoter and in consideration of teir 0oint life. 1e cance of o*erearin" te
$arties tat tey consider temsel*es as us%and and wife is *ery muc rare. 1erefore.
tis distinction is a distinction tat e@ists as far as te law is concerned. It does not ser*e
its $ur$ose to a layman witness wo testifies on te %asis of te o*ert conduct of te
$arties.
1ou" not s$ecifically $ro*ided as in te case of te first distincti*e feature. te second
distincti*e feature is one tat wic is ca$a%le of creatin" a real dicotomy %etween te
two conce$ts Bi.e.. $ossession of status of s$ouses and $ossession of status of $ersons
li*in" in an irre"ular unionC wic. as discussed %efore. were a su%0ect of de%ate $rior to
te comin" into force of te current family laws of (tio$ia. It is to %e recalled tat under
te Ci*il Code %ecause of te lac; of clarity on te $art of te law. it was difficult to
;now te intention of te le"islature re"ardin" te inter$retation of $ossession of status of
s$ouses and as a result of tis. some 0ud"es too; $ossession of status of s$ouses as
identical wit $ossession of status of $ersons li*in" in an irre"ular union wile oters
treated te two conce$ts differently. 2nder te RFC. owe*er. attem$t as %een made to
a*oid te confusion tat was created %y te Ci*il Code Bsee )eari Reader. ytl35
y%tsB 4G lm"5AB yr @55D nC :{ @5D 188' $.11'C. 3it a *iew to
a*oidin" te a%o*e confusion. te RFC as "i*en a clue %y wic te intention of te
le"islature may %e ;nown for inter$retin" $ossession of status of s$ouses BI%idC. (*en
tou"t it is not clear from te (n"lis *ersion of te title of Ca$ter Si@ of te RFC
wic is entitled $roof of marria"e in te same way as te Ci*il Code. te title of te
&maric *ersion of tis ca$ter "i*es a clue a%out te intention of te le"islature in
relation to te meanin" of $ossession of status of s$ouses BI%idC. ca$ter si@ of te
&maric -ersion of te RFC is entitled 2B lmfi Sl/RB Sr. &s can %e
understood from tis title. a $roof of marria"e is a $roof tat wic is adduced to
esta%lis te conclusion of marria"e. 1e &maric *ersion of te Ci*il Code. on te oter
and. "a*e te followin" title y2B Sr. 1is title. unli;e te title of te &maric
*ersion of te RFC. does not con*ey any additional messa"e e@ce$t tat a $roof of
marria"e is one tat wic is adduced to $ro*e marria"e. Gence. as it can %e understood
from te title "i*en to $roof of marria"e %y te &maric *ersion of te RFC wic is te
official *ersion. any mode of $roof Bincludin" $ossession of statusC of marria"e
watsoe*er sould $ro*e. inter alia. te fact tat te marria"e ad %een cele%rated
BconcludedC in eiter of te tree forms of marria"e sometime in te $ast.
&ccordin"ly. $roof of marria"e %y $ossession of status of s$ouses is not limited to
esta%lisin" te fact tat te man and te woman mutually consider temsel*es as
married and as a result of tis. teir families as well as te community consider and treat
tem as s$ouses as sti$ulated %y &rticle 8, of te RFC. 1e fact of te cele%ration of te
marria"e in one of te forms of marria"e Bi.e.. ci*il. reli"ious or customaryC sould also
%e $ro*ed as an additional re/uirement of &rticle 8, of te RFC. 1is additional
re/uirement o%*iously distin"uises $roof of marria"e %y $ossession of status of s$ouses
and $roof of irre"ular union %y $ossession of status of $ersons li*in" in an irre"ular union
for wat as to %e $ro*ed in case of irre"ular union is tat te man and te woman
%ea*ed as married $eo$le and are re"arded as suc %y teir families and te community.
5otin" more is re/uired. 1e $ro%lem wit tis additional re/uirement. owe*er. is tat
it is totally a%sent in te (n"lis *ersion and also tat it is not s$ecifically and clearly
$ro*ided in te &maric *ersion. &s sown a%o*e. it is %y way of inter$retation tat one
can arri*e at te additional re/uirement tat te fact of te cele%ration of marria"e as to
%e $ro*ed to esta%lis $ossession of status of s$ouses. Gence. it is *ery difficult to say
tat te RFC and oter re"ional family codes a*e effecti*ely and successfully a*oided
te confusion wit re"ard to $ossession of status for tey a*e failed to $ro*ide for te
additional re/uirement tat as %een discussed a%o*e.
Because of te a%sence of a clear and s$ecific $ro*isions. courts mi"t not consider te
fact of te cele%ration of te marria"e as an element in esta%lisin" $ossession of status
of s$ouses. For instance. in te case of 3oo &sse%ec 3olde 1sadic - 3oo 1imnit
Ge%rea%. te Re"ion 1# &dministrati*e one Court decided tat 3oo &sse%ec is not te
wife of te late &to Ge%rea% since te witnesses did not testify tat tey ad ;nown and
seen te cele%ration of te marria"e %etween 3oo &sse%ec and &to Ge%rea%. 3oo
&sse%ec a$$ealed to te Su$reme Court a"ainst te decision of te one Court. 1e
Su$reme Court re*ersed te decision of te one Court and ruled tat. e*en tou" te
witnesses did not ;now a%out te cele%ration of te marria"e. te testimony of witnesses
tat tey as well as te families. relati*es and te community ;now and reco"niAe 3oo
&sse%ec and te late &to Ge%rea% li*e as us%and and wife and te re"ister of FIdir
mem%ers and te F;e%ele? residents form $roduced %y te a$$ellant wic confirms te
testimony of te witnesses are sufficient to esta%lis $ossession of status of s$ouses in te
li"t of te re/uirements of &rticle 8' and 8, of te RFC. Assuming that W/o Tminit
Gebreab brought her case to the cassation division of the Federal Supreme Court
alleging that the decision of the Federal Supreme Court contained fundamental erro
of law, how would you go about the case4
In anoter te case. 3oo )una einu - 3oo Se%le Deme;e. te court. owe*er.
considered te fact of te cele%ration of te marria"e as an element in $ro*in" $ossession
of status of s$ouses. In tis case. te witnesses testified tat 3oo )una and te late &to
Samuel )amo ad cele%rated teir marria"e in accordance wit teir custom. )oreo*er.
tey testified tat 3oo )una and &to Samuel li*ed as us%and and wife and tat te late
&to Samuel ad at one time introduced 3oo )una to is families as is wife. 1a;in" into
consideration te afore=mentioned remar;s made %y te witnesses. te court ruled tat te
testimony of te witnesses in te case at and esta%lised te status of s$ouses as $er
&rticles 8' and 8, of te RFC Be;a First Instance Court. 188' Ci*il case 5o 9997,o8'C.
&s you can understand from te a%o*e two cases. tere is still a $ossi%ility for
inconsistency in inter$retin" $ossession of status of s$ouses wic is attri%uta%le to te
a%sence of a clear and s$ecific $ro*ision tat demands te fact of te cele%ration of te
marria"e %e $ro*ed to esta%lis $ossession of status of s$ouses.
Comin" to te effect of $roof of irre"ular union. if te fact tat te man and te woman
a*e o$enly coa%ited as us%and and wife and %ea*ed as married $eo$le and as a result
of tis. teir families and te community reco"niAe and treated tem as suc is $ro*ed to
te satisfaction of te court. tis %y itself "i*es rise to a $resum$tion tat te man and te
woman ad $re*iously en"a"ed in an irre"ular union BB&rt.19,B3C of te RFCC. 2$on
$roof of te a%o*e facts. te law $resumes tat te man and te woman li*ed in an
irre"ular union and te le"al effects tat naturally flow from tis union will %e en0oyed %y
te $arty assertin" its e@istence. 2nder suc circumstances. te %urden of sowin" tat an
irre"ular union did not e@ist lies on tose wo so assertin". 1at is. te $resum$tion is not
conclusi*e and. terefore. can %e re%utted %y a contrary $roof B&rt.19, B#C of te RFC.
Before we conclude tis section. few $oints need to %e raised as re"ards te manner of
esta%lisin" $ossession of status in te case of irre"ular union. It is true tat $roof is te
act of $ersuadin" te mind of te 0ud"e %y sowin" e*idence or te reality of a fact
alle"ed. 1e $arties a*e to %e a%le to esta%lis a re/uisite de"ree of %elief concernin" a
fact in te mind of te tries of a fact or te court %y way of $roof. 1is act of $ersuadin"
te 0ud"e or te court is usually accom$lised trou" te aid of witnesses. documents.
admissions and declarations.
Similarly. $ossession of status is te mode of $roof of irre"ular union. 2sin" te mode of
$roof of $ossession of status. $arties are at li%erty to $ersuade te court tat an irre"ular
union e@ists. But. ow is $ossession of status of esta%lised4 In oter words. wat is te
manner of esta%lisin" $ossession of status of $ersons li*in" in an irre"ular union4 2nder
te Ci*il Code of (tio$ia. te manner of esta%lisin" suc $ossession of status seems to
%e limited to testimony of witness and no oter way of esta%lisin" $ossession of status
since &rt.618 of te Ci*il Code $ro*ides tat $ossession of status sall %e $ro*ed %y
$roducin" relia%le witnesses and it may %e contested %y $roducin" relia%le witnesses.
Suc limitations are not made under te RFC. &rticle 19,B#C of te RFC as $ro*ided
tat te $resum$tion of te e@istence of irre"ular union may %e re%utted %y $roducin"
any ;ind of relia%le $roof. +*ersely. it may %e tat te $ossession of status of $ersons
li*in" in an irre"ular union is esta%lised %y $roducin" any ;ind of relia%le $roof. So lon"
as te $roof is relia%le. $ossession of status may %e esta%lised trou" te aid of
witnesses and documentary e*idence. But. wat is relia%le $roof Be*idenceC4 In te case
3oo )una einu - 3oo Se%el Deme;e te court reasoned tat e*en tou" a contract of
marria"e does not $ro*e te e@istence of marria"e. te testimony of witnesses wo were
mentioned as witness in te contract of marria"e is a relia%le $roof to $ro*e te e@istence
of marria"e %y $ossession of status. 1e fact of te $resence of teir name in te contract
of marria"e ma;es te testimony of te witnesses relia%le. Similarly. te testimony of te
man wo once u$on a time reconciled te man and te woman wile tey were li*in" in
an irre"ular union and wose name ad %een mentioned as ar%itrator in te document
detailin" te ar%itration of te two $arties may %e ta;en as relia%le $roof. It sould %e
noted tat te code uses te same lan"ua"e wic is relia%le $roof Be*idenceC wen te
$resum$tion of te e@istence of irre"ular union and marria"e are to %e contested BRead
&rt.86 B2C cum &rt.19, B#C of te RFCC.
Furtermore. some documents tat create a certain de"ree of %elief li;e ;e%ele
residents re"ister and mem%ers of Idir re"ister tat recorded te man and te woman as
us%and and wife are im$ortant to $ro*e te e@istence of irre"ular union. 1is is %ecause
te ;e%ele residents as well as mem%ers of te Idir will re"ard te man and te woman
as married in consideration of suc re"isters. (*en tou" suc ;inds of documentary
e*idence may not inde$endently $ro*e te $ossession of status of $ersons li*in" in an
irre"ular union. it is ad*isa%le to admit tem in e*idence to corro%orate testimony of
witnesses and oter documentary e*idence.
6.8. Termination of Union
+ne of te distin"uisin" features of irre"ular union is its easy termination. 1e $arties in
te union may unilaterally or %y mutual consent end te union. Irre"ular union is also
terminated on te deat of eiter of te $arties and in some 0urisdictions %y de facto
se$aration of te $arties for o*er a year or wen eiter of tem "et married wit a tird
$arty BG.C. Cantero. 1e Catalan Family Code of 1887 and oter &utonomous Re"ional
Laws on de facto unions. 1e International Sur*ey of Family Law B2999.edC $.#99.
&s we a*e seen a%o*e. te unilateral will of eiter of te $arties in irre"ular union
suffices to end it and tis actually ma;es te le"al force of te union a loose one.
Gowe*er. te termination "i*es rise to certain 0uridical conse/uences. 1e end of te
union does not totally cause te cessation of all effects. Some effects do in fact su%sist
after te cessation of te union. BI%idC
In (tio$ia. te man and te woman are at li%erty to end teir union at any time tey
wis. &ccordin"ly. an irre"ular may %e terminated unilaterally or %y mutual consent in
addition to te clear instance of termination of te union %y deat. 1ou" not clearly
$ro*ided. an irre"ular union may also %e dissol*ed %y a court order wen a man and
woman $re*iously en"a"ed in an irre"ular union %e"into li*e in an irre"ular union wit
te sister or %roter of one anoter u$on te a$$lication of any interested $erson or te
$u%lic $rosecutor BRead for instance &rt.32 cum &rt.199B2C of te RFCC. It is wort
notin" tat a man or woman wo were $re*iously en"a"ed in an irre"ular union cannot
marry or li*e in an irre"ular union wit te %roter or sister of te oter as it is $roi%ited
under &rt.199B2C of te RFC. 1is le"al effect of irre"ular union su%sists e*en after te
%rea; u$ of te $arties.
&s mentioned %efore. under te Ci*il Code wen an irre"ular union is terminated
unilaterally %y te woman. tere is no o%li"ation on te $art of te woman to $ay
indemnity to te man for doin" so. Gowe*er. if it was te man tat terminated te union
unilaterally. e mi"t %e eld lia%le to $ay indemnity to te woman. 2nder te RFC and
oter re"ional Family Codes. owe*er. no suc o%li"ation to $ay indemnity is im$osed
e@clusi*ely on te man. For instance. accordin" to &rt.19' B2C. of te RFC unless te
$arty tat ended te union commits a fault. no o%li"ation to $ay dama"es is im$osed %y
te law.
1e oter effect of termination of irre"ular union is tat of te di*ision of te common
$ro$erty if tere is any. &s as %een said $re*iously. if te union lasts for tree years. te
law $resumes tat $ro$erty ac/uired durin" te union is a common $ro$erty. Gence.
wen te union is ended eiter trou" te initiation of te man or te woman or %y
mutual consent. te fact of te termination results in te di*ision of te 0ointly owned
$ro$erty %etween te $arties.
If te deat of a $arty ends an irre"ular union. te sur*i*in" $artner is not entitled to
inerit te $ro$erty of te deceased unless te deceased $ro*ided for tis ri"t %y way of
a will in accordance wit te rules of testate succession. &ll wat te sur*i*or "ets is
wat is $ro*ided for im or er in te will of te deceased $artner if tere is any. It is to
%e noted tat no ri"t of succession e@ists e*en %etween s$ouses in a lawful marria"e.
Gence. termination of union %y deat results in $artition of te common $ro$erty %etween
te sur*i*in" $artner and a $erson considered as te deceased?s eir %y law.
6.9. Summary
)en and women esta%lis *arious intimate relationsi$s. &mon" suc relationsi$s.
marria"e is te ty$ical one. Gowe*er. men and women li*e to"eter in an irre"ular union
for *arious reasons. 1e causes tat may ma;e man and a woman to li*e to"eter witout
concludin" formal marria"e may %e economic. social and oter reasons.
Because family is esta%lised under suc union. te law sould "i*e reco"nition to suc
union wit a *iew to $rotectin" suc family. $articularly te ri"ts of cildren %orn from
tis union and te ri"ts of women wit res$ect to teir ri"t to e/uality wit men. 1at
is wy. (tio$ian family laws. %ot te federal family law and re"ional family laws.
a*e "i*en reco"nition and $rotection to irre"ular union altou" te $rotection
accorded to $artners in an irre"ular union is not e/ual to $rotections "i*en to s$ouses
in marria"e.
In (tio$ia. irre"ular union $roduces certain le"al effects. 1e first tin" is tat it creates
community $ro$erty so lon" as te $arties a*e li*ed to"eter for not less tan tree
years. Secondly. $artners are duty %ound to contri%ute to te common e@$enses of te
family in accordance wit teir means. 1irdly. if te $arties entered into transactions
and are inde%ted to tird $arties in te interest of te family. tey are duty %ound to
discar"e suc de%t accordin" to te law. 1e oter most im$ortant effect of irre"ular
union is te fact tat a cild concei*ed or %orn in tis union is deemed to %e te cild of
te man wo was wit te women durin" conce$tion or %irt of suc cild.
Irre"ular union in (tio$ia is /uite different from marria"e in many res$ects. +ne
difference is tat irre"ular union is $ro*ed %y $ossession of status wile marria"e is
$ro*ed %y record of marria"e and $ossession of status. (*en in te case of $ossession of
status. $roof of irre"ular union %y $ossession of status is not similar to $roof of marria"e
%y $ossession of status.
Irre"ular union is freely formed %y te $arties witout followin" te ri"orous $rocedures
of marria"e. Similarly. it can %e terminated %y one of te $artners witout any reason
altou" a $artner wo ended te union %y committin" fault is re/uired to $ay
com$ensation to te oter $artner.
6.10. Review Questions
1. Discuss te differences %etween marria"e and irre"ular union focusin" onD
BaC !rocedures of formation and termination.
B%C !ersonal and $ecuniary effects.
2. It is clear tat all te Family Codes of (tio$ia a*e "i*en reco"nition and $rotection
to irre"ular union altou" te effects attaced to irre"ular union are not te same as
marria"e. 3ould it %e necessary to u$"rade irre"ular union to te status of marria"e4
3y4 3y not4
3. Durin" te ado$tion of te Re*ised Family Code of te FDR(. tere were serious
de%ates as re"ards te status of irre"ular union. & "rou$ seriously ar"ued tat
irre"ular union sould %e done away wit. 1e oter "rou$ *eemently counter=
ar"ued tat maintainin" irre"ular union was meant to address social $ro%lems already
on te "round. Des$ite suc ar"uments. te (tio$ian family laws a*e "i*en
reco"nition to irre"ular union. &ssume. owe*er. tat te same de%ate as recurred in
(tio$ia. 1o wic of te a%o*e ar"uments do you su%scri%e4 3y4 3y not4
#. Read closely te $ro*isions of te 18,9 Ci*il Code of (tio$ia B&rts.697=621C and
&rts.87=196 of te Re*ised Family Code of FDR( or te rele*ant articles of any
Re"ional Family Code and identify te de$artures made %y te 5ew Family Codes as
com$ared to te $ro*isions of te Ci*il Code. Discuss te rationale %eind suc
de$artures in *iew of e/uality of men and women incor$orated under te FDR(
Constitution and oter international uman ri"t instruments to wic (tio$ia is a
$arty.
'. If you closely read &rts.87=196 of te RFC. &rts.198=117 of te &mara Family Code.
&rts.127=138 +romiya Family Code and &rts.129=139 of te Family Code of 1i"ray.
you can understand tat all te articles are one and te same. &re tere any common
cultural. reli"ious and social "rounds $articularly in te tree re"ions so as to come
u$ wit te same le"al $ro*isions on irre"ular union4 Gow would you e*aluate tis in
te li"t te fact tat (tio$ia is a multi=cultural society and it as ado$ted an etnic=
%ased federation4
,. &rt.199B1C of te RFC $ro*ides tat an irre"ular union sall not create any %ond of
affinity %etween te man and te relati*es of te woman and %etween te woman and
te relati*es of te man. 3at are te le"al effects of suc a%sence of %ond of
affinity4 3at would te conse/uences BsC %e if %ond of affinity were created %y
irre"ular union4
6. 1e $ersonal and $ecuniary effects of marria"e may %e re"ulated %y a marria"e
contract concluded %etween te s$ouses witout dero"atin" from te mandatory
$ro*isions of te law. Could $ersonal and $ecuniary effects of irre"ular union %e
re"ulated %y contractual a"reements made %y te $artners to suc union4
7. 1e cons$icuous $ersonal effects of marria"e are res$ect. su$$ort and assistance. 0oint
mana"ement of te family. coa%itation and duty of fidelity BRead. for instance.
&rts.#8=', of te RFCC. Does irre"ular union $roduce te a%o*e $ersonal effects as
%etween te $artners4 Discuss critically.
8. 3at is te sco$e of a$$lication of $ossession of status as used in te Family Codes of
(tio$ia4 3at does $roof of irre"ular union %y $ossession of status re/uire4
19. By consultin" rele*ant literatures or we%site. assess te istorical de*elo$ment. status
and effects of irre"ular union in forei"n 0urisdictions and com$are and contrast te
(tio$ian Family Laws on irre"ular union wit suc 0urisdictions.
11. &to &wulacew and 3oro &%erras li*ed to"eter in an irre"ular union as of +cto%er
1881. 1ey ad four cildren %orn in suc union. Because 3oro &%erras was a
ouse wife. er role was confined to treatin" te cildren and mana"in" te family.
1ese res$onsi%ilities were assi"ned to er %y &to &wulacew since e was not a%le
to andle te a%o*e affairs. Gowe*er. e was an accom$lised %usinessman and te
wole e@$enses of te family were co*ered %y is financial e@$enditure. 1o te
dismay of te family. &to &wulacew was ;noc;ed down %y a car di*er wo Bte
latterC was an em$loyee of &BC com$any. Because te $illar of te family colla$sed.
3oro &%erras sued te dri*er and &BC Com$any on er own %ealf for material as
well as moral com$ensation.
&ssumin" tat te case were %rou"t to te %enc were you sit as a 0ud"e. would
you award 3oro &%erras material as well as moral com$ensation. BIn attem$tin" tis
/uestion. $lease try to consult te rele*ant $ro*isions of te (tio$ian (@tra=
contractual Lia%ility Law i.e.. &rts.2926=21,1 of te Ci*il Code of 18,9C
12. &to Gemecu and 3oro Letay a*e li*ed in an irre"ular union for te last 1' years.
&ltou" teir earlier relations were full of 0oys and a$$iness. a serious $ro%lem
cro$$ed u$ as of te %e"innin" of te (tio$ian )illennium since Gemecu suddenly
%ecame im$otent. Because of tis. 3oro Letay terminated te union witout "i*in"
im $rior notice. It is owin" to tis sudden termination tat &to Gemecu as %rou"t
suit a"ainst is $artner claimin" indemnity since se. accordin" to is claim.
committed a fault %y suddenly terminatin" te union.
3ould se %e re/uired to indemnify &to Gemecu4 3y4 3y not4
13. &to Bedassa and 3oro rorse a*e li*ed to"eter for te last 29 years witout
concludin" marria"e since %ot were ard wor;ers. tey were a%le to construct a
s$lendid *illa in &dama B5aAaretC. &ltou" it was a"reed tat te *illa was a
common $ro$erty. &to Bedassa sold te *illa to &to Cala witout consultin" 3oro
rorse. Because of tis. rorse wants to %rin" suit a"ainst &to Bedassa and &to Cala
to "et te contract cancelledore*o;edo. &ssumin" tat you. a*e %een a$$roaced %y
3oro rorse. wat le"al ad*ice would you "i*e er4 3at defenseBsC would you raise.
if any. in fa*or of &to Bedassa and &to Cala assumin" tat you are a lawyer retained
%y &to Bedassa and &to Cala4
1#. In wat res$ects was te 18,9 Ci*il Code unfair to women en"a"ed in an irre"ular
union4 Do you tin; tat te current family codes a*e esta%lised 0ust relationsi$s
%etween a man and a woman in an irre"ular union4
1'. 3at are te ma0or causes for te esta%lisment of irre"ular union in "eneral4 Can
you identify causes of suc union in (tio$ia4 Is it $ossi%le to maintain tat tis or
tat is a cause for irre"ular union in (tio$ia witout conductin" a fulfila"ed
researc4
1,. Some $eo$le Aealously ar"ue tat to "i*e reco"nition to an irre"ular union is
unconstitutional since it is only marria"e tat is em%odied in te constitution. +ters
maintain tat not to reco"niAe and "i*e $rotection to irre"ular union is
unconstitutional since failure to "i*e reco"nition and $rotection to irre"ular union is
failure to "i*e ade/uate $rotection to te family Bte fundamental unit of societyC
wic as %een "i*e $rotection under te FDR( Constitution. 3ic of te
ar"uments a$$eals to you4 State your reasons critically.
16. &to Da"nacaw and 3oro &yantu li*ed to"eter as us%and and wife. altou" no
marria"e was concluded %etween tem. since )e"a%it 1869. +n )iaAAia 19. 1876.
&to Da"nacaw loaned '9.999.99 Birr to 3oro &yantu from is $ersonal $ro$erty. In
te contract. it was sti$ulated tat te loan would %e due on te 19
t
of )es;erem
1877. Des$ite tat. se did not $ay%ac; te money on te a"reed date. Fearin" tat it
would s$oil teir relationsi$. e B&to Da"nacawC did not as; er to $ay %ac; te
money until te relationsi$ Birre"ularC union was terminated unilaterally %y 3oro
&yantu on te 19
t
of 1ir 2999 (.C.
Because te relationsi$ was %rou"t to an end. &to Da"nacew as;ed er to $ay is
money to wic se turned a deaf ear. +n account of tis. e %rou"t suit a"ainst er
so tat decision would %e "i*en in is fa*or. In er $reliminary defense. se amon"
oter tin"s. raised tat. te claim was %arred %y $eriod of limitation %y *irtue of
&rt.17#' of te (tio$ian Ci*il Code. 1e $laintiff B&to Da"nacewC on te oter
and. ar"ued tat te case at and is an e@ce$tion to te rule wic is re"ulated %y
&rt.17'3B1C of te same code wic sti$ulates tat te court may set aside a $lea
%ased on limitation were it is of o$inion tat te creditor failed to e@ercise is ri"ts
in due time on account of o%edience e owed to or fear e felt of te de%tor to wom
e is %ound %y family relationsi$ or su%ordination.
If te case were %rou"t to your %enc. wat would your rulin" %e4
17. &to )oammed and 3oro redi0a a*e %een li*in" to"eter. tou" no formal
marria"e was concluded. for te last 19 years. &to )oammed felt te need to carry
on trade and a$$lied to te com$etent autority to "rant im license. Gowe*er. 3oro
redi0a o%0ected to is curryin" on trade and filed an o$$osition to te autority
alle"in" tat er $artner ad ne*er o%tained er consent.
Before decidin" on te o%0ection. te ead of te autority wants to ear from you
weter er o%0ection is acce$ta%le under te rele*ant $ro*isions of te Commercial
Code of (tio$ia and te family law. Gi*e your well reasoned o$inion to te ead of
te autority. BGintD Read &rts.1,=18 of te Commercial Code of (tio$iaC.
18. &rt.691B2C BaC of te Commercial Code of (tio$ia states tat te followin" $ersons
sall %e deemed to %e s$ecified %eneficiaries not wit standin" tat tey are not
mentioned %y nameD
BaC 1e su%scri%er?s s$ouse. e*en were te marria"e too; $lace after te $olicy was
entered into.
&ssumin" tat you are a mem%er of team of lawyers en"a"ed in amendin" te
Commercial Code of (tio$ia. would you draft te a%o*e $ro*ision so as to include
$artners in an irre"ular union4 3y4 3y not4
CHAPTER SEVEN
FILIATION
7.1. Introduction
1is ca$ter of te course discusses filiation wic is te most sensiti*e $art of te
family law. It is te most sensiti*e %ecause it is under tis $art tat an issue $ertainin" to
cild $arent relationsi$ is determined %y law. +f course. for te time %ein". determinin"
material filiation is not as difficult as $aternal filiation. Determinin" $aternal filiation is
difficult %ecause it is not easy to e@actly ;now wo te %iolo"ical fater of te cild is.
Gence. te law as $ro*ided certain im$ortant modes of esta%lisment of $aternity. It is
tese modes wic will %e discussed under tis ca$ter to te e@tent $ossi%le. Because
tese modes are *ery muc rele*ant $articularly from te *iew $oint of te ri"t of te
cild. due attention as %een "i*en to tem. 1e ca$ter also discusses ow filiation is
$ro*ed and callen"ed.
+ne tin" tat we want to remind you at tis 0uncture is tat %ecause te re"ional family
codes a*e made no de$arture from te $ro*isions of te Re*ised Family Code of
(tio$ia re"ardin" filiation. for $ur$ose of con*enience. and to a*oid unnecessary
du$lication of le"al $ro*isions. te $ro*isions of te Re*ised Family Code B1e RFC
ereinafterC a*e %een used trou"out tis ca$ter.
7.2. Objectives
2$on te com$letion of tis ca$ter. students sould %e a%le toD
= define filiation
= e@$lain ow maternal filiation is esta%lised and suc filiation is contested.
= differentiate and analyAe te modes of esta%lisment of $aternal filiation.
= analyAe rules $ertainin" to disownin".
= discuss te rules a$$lica%le to $roof of filiation.
= "i*e rulin" on actual issues $ertainin" %ot to maternal and $aternal filiation.
7.3. Maternal Filiation
It must %e clear to you tat te maternal filiation is te %asis for te wole consan"uinal
relationsi$ since te relationsi$ of ;insi$ %y %lood emanates from tis *ery
relationsi$. 1e family relationsi$ consists of tree distinct statuses. 1e status of
%ein" %roter and sister. fater and cild is esta%lised only after te esta%lisment of
maternal filiation. 3itout it. a cild can?t a*e te status of %ein" a son or a dau"ter
witin a family for eose will neiter a*e a fater nor a moter. B&le@ander Cairns.
(*ersely on Domestic Relations '
t
ed. 1863. $.383C.
It is tis %asic formula. wic is incor$orated in all te means for te esta%lisment of
$aternity. &ccordin" to &rt 6#9B1C of te 18,9 Ci*il Code of (tio$ia and &rt.12'B1C of
te RFC. te $resum$tion of $aternity flows from maternity. & $erson will %e a fater of
a cild %ecause of te $resum$tion if suc a man ad relationsi$ $ro*ided %y law wit
te moter. Gence. te ascertainment of te moter is a necessary re/uirement to attri%ute
a certain cild to a "i*en $erson in all modes of esta%lisment of $aternity. 1is is
%ecause a us%and of te moter or a man in an irre"ular union cannot %e $resumed to %e
te fater of a cild unless it is esta%lised tat e ad suc relationsi$ wit te moter.
1e same is true in te case of ac;nowled"ment as te efficacy of ac;nowled"ement
$resu$$oses te ac;nowled"ment of te moter to te effect tat te declaration of te
$erson is well=founded. 1e esta%lisment of maternal filation is also crucial in cases of
esta%lisment of $aternity trou" 0udicial declarations. 1e court declares a defendant to
%e a fater of a cild if te court is satisfied tat te re/uirements $ro*ided under &rt.1#3
of te RFC are fulfilled. 5ow. te rele*ant /uery is as to ow maternal filiation is
esta%lised under (tio$ian Family Laws. &ccordin" to &rt.12# of te RFC maternal
filiation results from te sole fact tat te woman as "i*en %irt to a cild. 1is is te
$ro*ision te wole $ro%lem of esta%lisment of maternal filation rests u$on. &s you can
understand from te a%o*e article. te esta%lisment of maternal filiation re/uires no
more tan te ascertainment of te fact tat te cild was %orn %y te said woman. 1us.
a woman wo is not in a $osition of $ro*in" tat se did "i*e %irt to a certain cild will
not %e a%le to do it %y oter means suc as ac;nowled"ment.
Gence. te maternal filiation is esta%lised from te sole fact of %irt irres$ecti*e of te
ty$e of relationsi$ tat resulted in te conce$tion of te cild. Firstly. it is not a
re/uirement tat a definite relationsi$ $ro*ided %y law sould e@ist %etween te moter
and someone at te time of conce$tion or %irt of te cild. 1e fact tat te cild was
%orn in an illicit relationsi$ cannot in any way affect te esta%lisment of maternal
filiation. For instance. adultery and incest are criminal acts in (tio$ia. Des$ite tis.
adulterine and incestuous cildren will a*e teir maternal filiation esta%lised e/ually as
tose concei*ed in a le"itimate relationsi$.
3at elements must %e fulfilled to say tat. tere e@ists te fact of %irt for te
esta%lisment of maternal filiation4 In tis re"ard !laniol says. in relation to Frenc
Law. wic is te most im$ortant source of (tio$ian family law tat maternal filiation
could %e said to a*e %een esta%lised if it is $ro*ed tat B1C te alle"ed moter as "i*en
%irt to a cild wen te cild in /uestion was %orn and B2C it is tis $articular cild
wom te moter deli*ered to at tat time B)arcel !lanioo 1reatise on Ci*il Law. B11
t
ed.-ol.1 $art 1. $.26#C.
1ese are te elements tat e*idence adduced to a court is e@$ected to esta%lis. 1e
esta%lisment of maternity is te creation of te le"al %ond as a result of %irt. 3ereas
$roof of maternal filiation. as te name indicates is a means %y wic a $erson $ur$orts
to $ro*e an already esta%lised filliation. It is a means %y wic a claimant $ro*es te
fact of %irt %y mere e@istence of wic te maternal filiation is already esta%lised. 1e
cild is not. owe*er. re/uired to adduce e*idence wic directly $ro*es te confinement
and te identity tests. Ge may %rin" foreword any e*idence a$t to sow tat e ad an
esta%lised filiation. B)ean%eretseay 1addesse. (sta%lisment and !roof of Filiation
under (tio$ian Law. Senior 1esis. Faculty of Law. &.&.2. 187,. $.#C.
In relation to te esta%lisment of maternity. te issue wort raisin" is te le"al $ro%lems
surroundin" artificial insemination. In our modern world. trou" tis mecanism it as
now %ecome $ossi%le to fertiliAe te o*um and s$erm out side te %ody and trans$lant te
em%ryo into te utrus of a tird $arty or te ostess wo carries te cild for te
duration of $re"nancy and ten "i*e %irt to it. 1e resultin" infant is said to %e
%iolo"ically te offs$rin" of te woman wo contri%uted te o*um and "estationally te
offs$rin" of te ostess wo %ore it. B)arry &na B. Da;ley. 1est 1u%e Ba%iesE
!ro$osals for Le"al Re"ulations of 5ew )etods of Guman Conce$tion and !arental
De*elo$ment. Family Law :uarterly. -ol.7 5o.# B186#C $.381C.
1e issue tat crosses your mind ere is as to wo is te le"al moter of te cild for te
$ur$ose of esta%lisin" maternal filiation. &s it is $ossi%le to "ater from &rt.6#9B1C of
te Ci*il Code and &rt.12' of te RFC. te moter of te cild is te one wo "a*e %irt
to te cild. Gence. in te case of artificial insemination. wic of te two women as
"i*en %irt to a cild. te woman from wom te o*um is ta;en or te one wo actually
deli*ered te cild4
Birt is not defined under (tio$ian law. 1us in te a%sence of any clear definition of
te term you a*e to see as to wat %irt ordinarily means. &ccordin" to Blac;?s Law
Dictionary B7
t
ed. 299#C. %irt means te com$lete e@cursion of a new %orn %a%y from
te moter?s wom%. Le@ically %irt means te emer"ence of a new indi*idual from te
%ody of some $erson. &ccordin" to <ac/ues -anderlinden. it constitutes te e@trusion of
te cild from te moter?s wom% weter in a natural way or %y an o$eration li;e te
caesarian section B<ac/ues -anderlinden. Commentaries u$on te (tio$ian Ci*il Code
on te Law of !ersons 18,8. $.8C. Birt. tus. $resu$$oses te carria"e of te fetus in a
wom% of a woman for a lon"er or sorter $eriod of time. It is an e*ent wic ordinarily
follows $re"nancy. 3e may accordin"ly maintain tat in (tio$ia it is te one wo %ore
te cild tat may %e considered to %e te moter. 3e can. terefore. s$ea; of %irt only
in relation to te ostess. 1e contri%utor of te o*um may not %e considered to a*e
"i*en %irt to a cild. In te a%sence of te fact of %irt. se cannot $ossi%ly %e a moter
of suc cild deli*ered from te ostess e*en if it is er own o*um tat was actually
fertiliAed. 1e a"reement tat may %e made %etween te interested $arties to consider te
contri%utor of te o*um te moter is an a"reement wic does not seem to %e
acce$ta%le. 1e rules on te esta%lisment of filiation cannot %e a*oided %y te
a"reement of te $arties unless tere is an e@$ress $ro*ision autoriAin" suc an
a"reement. &s $ro*ided in &rt.123 of te RFC. tere is no $ro*ision tat $ermits an
a"reement in dero"ation to te $ro*isions on te esta%lisment of maternal filiation as
tere are in cases of $aternal filiation were%y te $resumed faters are allowed to settle
%y a"reement te $ossi%le conflicts of $aternity or a fater is allowed to assi"n is
$aternity to a $erson declarin" to %e te fater. BRead &rts.1#, and 1#8 of RFCC.
1is is a case in $oint were tere is no con"ruence %etween science and te law. Des$ite
te fact tat science as come u$ wit new inno*ations tat $ro*ide solutions for fertility
$ro%lems. te solution of tis $ro%lem in te le"al field re/uires a clear act of te law
ma;er. In tis re"ard. te (tio$ian Family Laws. $ast and $resent. a*e not addressed
tis $ro%lem. Do you think that this is a problem worth considering in Ethiopia? If
so, what solution (s) would you recommend4
BBC Contestation of )aternal Filiation B&rts.1,3=1,, of RFCC
)aternal filiation. te esta%lisment of wic re/uires te sole fact of %irt. can %e
contested at any time %y any interested $erson B&rt.1,3 of RFCC. 1e action of te
contestation of status is intended to dis$ro*e a mere matter of fact. In order to o%tain a
0ud"ment a%olisin" te already e@istin" maternal filiation. te contestant must sow to
te court tat it is not %ased on te fact of %irt. 1e $etitioner must sow tat eiter of
te elements necessary for te esta%lisment of maternal filiation is missin". 1us. e
will a*e to sow to te court eiter B1C tat te woman was not confined at te time
wen te cild was %orn andoor B2C e*en if te woman was confined at te time wen te
cild was %orn. te cild wom se deli*ered is not te one wose status is in /uestion.
In tis connection. te $laintiff may %rin" any e*idence as no restriction is $ut as to te
e*idence tat may %e ad*ised in connection wit te action to contest maternity.
3it a *iew to $rotectin" te already esta%lised status. te law restricts te conditions
under wic te contestation of status may %e admitted. 1e $ermission of te court must
%e o%tained %efore te $etition could %e instituted in court B&rt.1,#B1C of RFCC. 1e court
can "i*e suc a $ermission if tere are $resum$tions or indications resultin" from
concrete facts ena%lin" te court to "rant $ermission. What do you think are such
concrete facts?
It is $ossi%le to infer from te a%o*e $ro*ision tat te court as wide discretion for
"rantin" te action a*in" re"ard to te facts $resented %y te $etitioner. But te court
can %y no means "i*e $ermission for te institution of te action if te cild wose status
is contested as a filiation resultin" from te certificate of %irt and is corro%orated %y a
$ossession of status B&rt.1,' of RFCC.
Comin" to te real $arty in interest to contest material filiation te ri"t to contest te
maternal filiation is not reser*ed to any s$ecified $ersons as is te case in contestation of
$aternal filiation. In tis re"ard. &rt.1,3 of te RFC $ro*ides tat te maternal filiation of
te cild may %e contested at any time %y any interested $erson. Gowe*er. wat could te
yardstic;s %e to determine weter a certain indi*idual is a real $arty interest in an action
%rou"t contestin" te maternal filiation4
3itout $re0udice to te a%o*e issue te only *alid limitation for te action to contest
status lies u$on te conditions necessary for te admissi%ility of te action. &ll sorts of
e*idence are acce$ta%le altou" te law is reluctant to acce$t any sort of e*idence unless
corro%orated %y $resum$tions or concrete facts. 1e rationales %eind suc limitations
are e@$lained %y !laniol in te followin" wordsD
The interests at sta)e are important and the fear of briber is felt.
9urchased per$ur is feared. Therefore, the petitioner could not be
allowed to institute the action until his allegations had been made
probable b a commencement of proof, that is, b something that
supports his petition, but that is not of itself sufficient to efface all doubt
and convince the court. The proof thus commenced ma be completed b
the hearing of witnesses.
& contestation of maternal filiation was %rou"t to te attention of (tio$ian courts in
186' (.C.
1e case was %rou"t %y te a$$ellants in te <imma Gi" Court. 1e a$$ellants $leaded
tat a cild was %orn to tem on 1ir 2o18,, wose werea%outs tey did not ;now since
Gamle 1o18,8. 1ey added tat tis same cild named )estewat. was wit te
res$ondents. 1e a$$ellants re/uested tat te cild %e returned to tem. 1e
res$ondents. on te oter and. contended tat te name of te cild wo te a$$ellants
were claimin" to %e teirs was <orina and was %orn to tem on Gidar 19o18,'. (ac side
$roduced tree witnesses to $ro*e teir alle"ation. 1e witnesses called %y te a$$ellants
testified tat te cild was %orn to te a$$ellants wile te witnesses of te res$ondents
testified tat te cild was %orn to te res$ondents.
1e Gi" Court decided in fa*or of te res$ondents %y sayin" tat enou" e*idence was
not adduced %y te a$$ellants tat would ena%le te court to decide tat te cild under
consideration was not %orn to te res$ondents. 1e case was a$$ealed to te Su$reme
Court of (tio$ia.
1e Su$reme Court confirmed te decision of te Gi" Court. 1is court eld tat te
issue in*ol*ed was a /uestion of fact and not of law. 1e court added tat it was for te
a$$ellants to $ro*e tat te cild was %orn to tem %y suc an e*idence tat could
outwei" te e*idence adduced %y te res$ondents. BCi*il a$$eal. file 5o o9,o6'.
su$reme court of (tio$iaC.
7.4. Paternal Filiation
(sta%lisin" %ot maternal and $aternal filiation is im$ortant. amon" oter tin"s. to
$rotect te ri"t of te cild. &s your $re*ious discussions sow. ascertainin" te moter
of te cild is less difficult tan ascertainin" te fater of te cild. Des$ite suc
difficulty. te law sould do wate*er $ossi%le to ascertain %ot $arents since te cild.
inter alia. as te ri"t to ;now and %e cared for is or er $arents wic is clearly
$ro*ided in &rt.3,B1C of te FDR( Constitution.
Besides. &rt.6 te con*ention on te Ri"ts of Cild Bado$ted in 1878C to wic (tio$ia
is a $arty $ro*ides tatD
B1C 1e cild sall.as far as $ossi%le. a*e te ri"t to ;now and %e cared for %y
is or er $arents.
B2C State $arties sall ensure te im$lementation of tese ri"ts in accordance wit
teir national laws.
Gence. te (tio$ian family laws sould im$lement te $rinci$les ensrined under te
con*ention and te constitution. &ccordin"ly. te family laws a*e $ro*ided modes %y
wic $aternal filation is esta%lised. Generally. te modes of ascertainment of $aternity
are di*ided into tree. 1ese areD
BaC $resum$tion of $aternity
B%C ac;nowled"ement $aternity
BcC 0udicial declaration
Let us discuss eac mode as followsD
7.4.1. Presumption of Paternity
1is is te first mode of ascertainin" $aternity wic $ro*ided under te RFC B&rts.12,=
139C and te rele*ant articles of re"ional Family Laws.
Lo"ically. $aternity ou"t to result from te $ysical %e"ettin" of a cild %y a certain
man. But tere is a $ro%lem in te determination of %iolo"ical $aternity.
Because of tis difficulty. te need to rely on le"al $resum$tion is felt for te
esta%lisment of $aternity. Suc a $ro%lem. in most le"al systems is sol*ed %y an almost
conclusi*e $resum$tion of $aternity. 1e $resum$tion is attaced to a $erson wo may
a$$en to %e te us%and of te moter of te cild or te man in an irre"ular union at
te time of conce$tion or %irt.
1e first element of $resum$tion of $aternity is te e@istence of le"ally $rescri%ed
unions. &ccordin"ly. $aternal filiation is esta%lised if at te time of conce$tion or %irt
of te cild te moter ad relations $ro*ided %y law wit a certain man. +nly cildren
%orn or concei*ed witin suc relationsi$s could %enefit from te $resum$tion of
$aternity. &ccordin" to &rt.12, and &rt.139 of te RFC. te relationsi$s ca$a%le of
creatin" te $resum$tion for te $ur$ose of esta%lisin" $aternal filiation are marria"e
and irre"ular union. 1us. (tio$ia "i*es te $resum$tion of $aternity a wider sco$e. In
(tio$ia. irre"ular union is seen on e/ual footin" wit marria"e in res$ect to te
$resum$tion of $aternity %ot under te 18,9 Ci*il Code and te current Family Laws.
How can presumption of paternity be justified?
&s far as cildren %orn in a wedloc; is concerned. tere are stron" reasons to 0ustify te
$resum$tion. )ost of te time. it is $ossi%le to maintain tat a cild %orn in marria"e is
te cild of te us%and %ecause of te duties of coa%itation and fidelity. But te
$resum$tion in (tio$ia e/ually a$$lies to irre"ular union. 1is in*ites te /uestion
weter or not. te duties in te marria"e %ond also a$$ly to irre"ular union.
&s we tried to discuss under ca$ter si@. irre"ular union is te state of fact. wic is
created wen a man and a woman li*e to"eter as us%and and wife witout a*in"
concluded a *alid marria"e. 1is re/uirement of li*in" to"eter as us%and and wife
seems to sow tat te $ersons en"a"ed in irre"ular union are %ound to o%ser*e duties
wic must %e o%ser*ed %y s$ouses. Do you a"ree4
&s far as coa%itation is concerned. it is difficult to maintain tat tere is irre"ular union
witout coa%itation since li*in" to"eter as us%and and wife is te cru@ of irre"ular
union. But. as re"ards te duty of fidelity. te law no were states tat $artners in an
irre"ular union are duty %ound to o%ser*e te duty of fidelity. 1at fidelity is one of
$ersonal effects of marria"e is clearly $ro*ided %y law. 1e $ro*isions of te law
re"ulatin" te relationsi$ %etween $artners in an irre"ular union. owe*er. do not say
anytin" as to tis duty eiter e@$ressly or %y way of im$lication. Des$ite tis. it may %e
ar"ued tat te duty of fidelity is im$osed u$on $artners in an irre"ular union %y analo"y.
&ccordin" to )en%ertseayD
G;uch analog seems logical when seen in light of the rigor of the
presumption of paternit. 9resuming a man in an irregular union as a
father of a child born or conceived therein seems indeed illogical if the
mother could at the statutor period of conception freel and without
fear of an legal sanction copulate with an one. 't follows from this
that, the law when e%tending the presumption of paternit in wedloc) to
irregular unions is carring with it the duties of cohabitation and
fidelit to the same.H
Do you agree with this position? Why/why not?
Gowe*er. te analo"y as re"ards te duty of fidelity %ecomes senseless wen it is seen in
li"t of te Criminal Code of (tio$ia. For instance. &rt.,'2B1C of te Criminal Code of
te FDR( $ro*ides tat a s$ouse %ound %y a union reco"niAed under te ci*il law wo
commits adultery is $unisa%le. u$on com$laint. %y te in0ured s$ouse. wit sim$le
im$ro*ement or fine. It is clear tat te criminal law as sanctioned te duty of fidelity.
But suc duty e@ists %etween s$ouses. Gence. it is $ossi%le to conclude tat accordin" to
te criminal law $artners in an irre"ular union are not s$ouses since a s$ouse is one?s
us%and or wife %y lawful marria"e. 1erefore. te e@tension of te duty of fidelity to
$artners in an irre"ular union cannot %e $lausi%le. 1o wic of te a%o*e ar"uments do
you su%scri%e4 3yowy not4
1erefore. e*en tou" te $resum$tion of $aternity for cildren %orn or concei*ed in
wedloc; could $redominantly %e 0ustified on te "rounds of te duty of fidelity. its
a$$lication to irre"ular unions must %e traced to oter causes.
In tis re"ard. Geor"e rrAecAunowicA once wrote tatD
G'n order to create irregular union, merel the behavior of the man and
woman must be analogous to that of married people. ;uch fau%menage
creates in fact, in spite of the lac) of fidelit dut, a probabilit of
conception b the man perhaps not less than in marriage. ;uch
probabilit is sanctioned b the legal presumption of paternit,H
-ournal of ,thiopian /aw, Kol.@, 8o !12EE" p.51@"
1e a$$lication of te $resum$tion of $aternity to irre"ular union is %ased on te
$ro%a%ility tat te cild is %orn of te man in suc a union.
In our $re*ious discussions. we a*e said tat te first element of $resum$tion of
$aternity is te e@istence of le"ally $ro*ided union %etween te fater and te moter.
1e second element of $resum$tion is %irt or conce$tion witin te le"ally $ro*ided
union. &rt.12, of te RFC $ro*ides tat a cild concei*ed or %orn in wedloc; as te
us%and as fater. By te same ta;en. a cild concei*ed or %orn durin" an irre"ular
union as as fater te man en"a"ed in suc union. accordin" to &rt.139 of te same
code. From tis. it is $ossi%le to say tat (tio$ia aderes to te Roman Law $rinci$les
ado$ted in many le"al systems tat says $ate rest /uem nu$tiae demonstrate wic in
(n"lis means te fater is wom te marria"e indicates. But a cild in order to %e
$rotected %y tis %asic formula must meet eiter of two re/uirements. Geose must eiter
%e %orn or concei*ed in wedloc;. %ut it is enou" tat eose eiter %e concei*ed or %orn
in wedloc;. But te /uestion tat we you raise ere is as to ow we can ;now tat a cild
is concei*ed in a marria"e or re"ular union4
For a %etter understandin" of tis to$ic. read te followin" article ta;en from (tio$ian
Law Re*iew -ol.1 5o1. 2992. wic as %een sli"tly ada$ted for te $ur$ose of tis
course and certain articles of te Ci*il Code a*e %een re$laced %y te rele*ant
$ro*isions of te RFC.
.uration of pregnanc is strictl limited under the ,thiopian famil law and can be used
as a test for paternit. A child shall be deemed to have been conceived in wedloc) if it is
born more than 1DB das after the celebration of the marriage and less than @BB das
after its dissolution and no proof shall be admitted against this presumption !Art.10D
=&<".
A child is presumed to have been conceived in wedloc) if it is born on or after the 1D1
st
date following celebration of the marriage or on or before the 022
th
date after dissolution
of the marriage. !&or instance, if the marriage is dissolved on Ti)imt 1
st
, the child will
have to be born at the ma%imum on Famle 02
th
to avail itself of the presumption of
conception in marriage." This is because a child shall be deemed to have been conceived
on the @BB
th
da, which precedes its birth. 'n this, case on @B
th
of Mes)erem. >r if the
marriage is celebrated on Ti)imt 1
st
, a child has to be born at least on Miazia 1
st
that is
on the 1D1
st
da.
Faving the above in mind, let us emphasize on Art.10D !0". 't provides: G8o proof to the
contrar shall be admitted.H 6hat does this mean( 't ma mean that a child born within
the legall fi%ed period shall en$o the presumption of conception in marriage, and if it is
born within this period, no contrar evidence shall be admitted to rebut the presumption.
't is unquestionable that such child is conceived in marriage. *ut a close reading of
Art.10D !0" ma reveal another meaning. That is, there is no possibilit for a child to be
born within 1DB das from the date of the first intercourse of its mother with a man and a
child can never be born on @BB
th
da or more from its mothers last intercourse with a
man. Fence, nobod can introduce evidence which proves the birth of a child outside this
legall determined period. This means, if a child is born outside this period, there is no
chance of presumption of its conception in marriage.
6h does the law come up with such a strict duration of pregnanc( ;eemingl the
legislature has not chosen such period arbitraril. 'f it is not an arbitrar period, it must
have been based on observation of the period of gestation of human beings. According to
the legislatures understanding, a child is carried in its mothers womb for a ma%imum
period of @BB das and the minimum period of 1DB das after conception.
's this idea well supported b biological or medical science( 's there reall no possibilit
of birth in less than 1DB das after celebration of the marriage and more than @BB das
after its dissolution(
The average duration of pregnanc calculated from the first da of the last menstrual
period of a large number of health women has been identified to be ver close to 0DB
das, or AB wee)s. A pregnanc more or less corresponding to this period is called term
and the child of such pregnanc is said to have full matured at birth.
Lsuall the e%pected date of deliver is estimated b adding I das to the date of the first
da of the last menstrual period and counting bac) @ months !8aegeles rule". &or
e%ample, if the womans last menstrual period began on ;eptember 1B, we would add I
das to ;eptember 1B to ma)e it ;eptember 1I. Then we count @ months bac) and we find
-une 1I which is the e%pected date of deliver. This calculation ma not sometimes
e%actl conform to the ,thiopian calendar because of the 1@
th
month. 't is apparent that
pregnanc is erroneousl considered to have begun about 0 wee)s before ovulation if the
duration of pregnanc is so calculated from the first da of the last menstrual period.
8onetheless, clinicians persist in using gestational age or menstrual period to identif
duration of pregnanc# embrologists and other reproductive biologists more often
emplo ovulator age, or fertilization age, both of which are tpicall 0 wee)s shorter.
The =&<s approach is closer to this latter method of calculation since it uses
intercourse as a basis for determination of the duration of pregnanc. *ut this does not
mean that the date of coitus and that of fertilization is one and the same.
There are two fundamental difficulties in determining the duration of pregnanc# one is
its commencement is of profound obscurit. Another difficult is that gestation period of
pregnanc is not the same for all women# hence, there are pre3term, term and post term
pregnancies. That is to mean duration of pregnancies varies considerabl. Fence, how
can we establish the duration of certain phenomenon unless we can establish the time of
its beginning as well as its ending(
9regnanc begins when a sperm cell unites with an egg cell in the fallopian tube !the
place where fertilization of an egg ta)es place". Fere, the difficult of determining the
date of fertilization is that although we can be reasonabl sure that spermatozoa are in
the genital tract, we never )now when the egg cell will be there to meet them. There are
no outward signs with which the occurrence of ovulation in a woman can be recognized.
This difficult, accompanied b the e%tremel elongated viabilit of spermatozoa in
genital tract of the female has made the possible estimation of the date of fertilization
more improbable. /iving spermatozoa had been found in the uterus from seven to eight
das after intercourse, although the generall accepted life span of sperm cells while
active and effective is from I0 to 1BBhrs. Fence, an intercourse made almost a wee) ago
ma cause fertilization of egg toda. <linical observations suggest that ovulation occurs
two wee)s before the onset of the ne%t menstruation. This means, it occurs midwa
between two menstrual ccles in women who regularl menstruate ever 0D das. ,ven if
this is the most li)el period of ovulation, it ma occur at an point in the ccle. &rom
these facts, it has to be admitted that fertilization ma occur as long as three wee)s after
the last menstruation. ;uch a phenomenon would ma)e it appear that pregnanc has
lasted three wee)s longer than it is actuall the case.
>ther complications related to pregnanc are a small proportion of woman menstruate
irregularl at prolonged intervals# in others menstruation ma be suspended temporaril
due to illness or nervous shoc), or when the are suc)ling. 9regnanc ma, nevertheless,
occur under an of these conditions, and it is obvious that calculation with reference to
menstruation would be a serious fault. >ccasionall, the converse difficult is met with,
for there are women who continue to menstruate for two to three months after conception
has ta)en place. This occurrence is e%tremel rare# man alleged instances turned out on
careful inquir to be in realit bleeding attac)s due to minor pathological conditions,
and not because of menstruation. ;uch occurrence wrongl leads us to believe that
pregnanc has lasted a shorter time than is actuall the case. >ur law has avoided such
problems that ma be caused b these complications b ta)ing intercourse rather than
menstruation for calculating duration of pregnanc.
&rom the above discussions, we can understand that it is ver difficult to determine
e%actl when pregnanc begins and this in turn has an effect on the determination of
possible period of its end. That is wh we lac) a general consensus among biologists and
medical scientists on the e%act period of commencement of pregnanc.
Another fundamental difficult in the determination of duration of pregnanc is the
e%istence of pre3term, term and post term pregnancies. 't has been said that the average
duration of pregnanc is 0DB das or AB wee)s when counted from the first date of the
last menstruation, that is, 0EE das from the most li)el date of ovulation. <hildren of
such births show full development at birth and gnecologists and obstetricians are well
aware of these characteristics of children of term deliveries. This means, the can )now
without much difficult whether a child is a pre term, term or post term child at birth.
S-"rt Peri"d "% Ge'tati"#
6e ma regard all births before @D wee)s as premature, and all those which occur after
the A0
nd
wee) as protracted. A medical e%pert witness ma have to determine whether the
development of a child is proper to the alleged period of gestation. 6hen birth is
premature, this sort of corroborative evidence is important.
The fact that a child has survived for a certain period after its birth furnishes no
significant evidence of maturit for it is well )nown that though infants born before the
I
th
month are less li)el to survive, the do so. <ases of survival of children born in the
5
th
and E
th
months of gestation are not rare. <hildren born at the I
th
month of gestation
are almost alwas capable of survival although the are more delicate and in general
require greater care and attention than more mature children. The critical period of
maturation appears to be somewhere between the 5
th
and E
th
month. As a result, the
survival of the infant born before this critical time is e%tremel rare. *ut some
obstetricians have reported the survival of infants born even before this critical time. The
most important characteristic of pre term children is having considerabl small weight.
*ut weight alone cannot be conclusive evidence of a premature birth. *ecause in few
instances, the rate of growth of the fetus during its pregnanc ma be ver high and at
the time of deliver it ma have the normal average weight even if its birth is a premature
one. The converse is also true, that is, due to some irregularities the rate of development
of a fetus ma be ver slow in the uterus and its weight ma fall far below the average at
birth although the birth is a term one.
The ,thiopian law does not presume conception in marriage if birth occurs within the
period of 1DB das after celebration of the marriage. Fowever, for two reasons we ma
accept this idea of lac) of presumption of conception in marriage for such births,
although it could happen in realit. The first reason is that, rearing children born before
1DB das is e%tremel difficult since the require special treatment and consequentl
their moralit rate is ver high. Fence, those who do not en$o the presumption are
negligible. The second reason stems from the presumption under Art.10E of the =&<.
According to this article, a child conceived or born in wedloc) has the husband of its
mother as father. Although a child born within 1DB das after celebration of the
marriage cannot avail itself of presumption of conception in marriage, it can avail itself
of the presumption of paternit of its mothers husband because of its birth in marriage.
;ince the main purpose of including duration of pregnanc in the law is to establish
paternit and since a child born within 1DB das after celebration of the marriage has
the husband of its mother as father, it would be pointless to discuss on births which occur
less than 1DB das father celebration of the marriage, as far as the legitimac of the child
is concerned.
To sa a few points on Art.10E, the law here seems to have envisaged a premarital se%ual
relation as a child born $ust the ne%t da after celebration of the marriage is considered
to have been born in wedloc). 6e could also thin) that the law simpl presumes paternit
of the husband irrespective of the e%istence of premarital se%ual relation as long as the
child is born in wedloc). ;o the legislature seems to have chosen presuming the
fatherhood of the husband who ma not be a father in fact. *ut the husband can disown
such child if he succeeds to prove the non3e%istence of a premarital relation.
Pr"l"#ati"# "% Ge'tati"#
9ost term pregnancies are of great medico3legal significance than pre3term pregnancies.
A post term pregnanc is one that persists for A0 wee)s or more from the onset of a
menstrual period that is followed b ovulation about 0 wee)s later. Although such a
definition would include perhaps 1BP or even more pregnancies, some ma not be actual
post term pregnancies but the result of an error in the estimation of gestation age.
GThe post term child ma continue to gain weight in the uterus and thus be an unusuall
large infant at birth. At the other e%treme, the intrauterine environment ma be hostile to
the fetus so that further growth in the uterus is arrested. 't ma appear at birth to have
lost considerable weight especiall from loss of subcutaneous fat and muscle mass. 'n the
e%treme case, limbs appear long and ver thin: The nails and the amnion are commonl
bile stained.H
Another ver important smptom of a post term child is it will have ver long nails on
both fingers and toes.
9ost term pregnancies are more important than pre3term ones for medico3legal purposes
because the comprise relativel greater proportion from the total births and the greater
tendenc of survival of post term children. There are a number of reports made b
gnecologists and obstructions which show post term deliveries. Although some of these
figures indicate highl elongated delas and appear to be unbelievable, one thing we
must alwas remember is that post term deliveries are not uncommon.
Although well3recorded reports are difficult to find in ,thiopia on such births, foreign
reports are available. 'n one stud of 15E52 births delivered in *irmingham within a
ear there were 0AI births after the end of the AA
th
wee), of which seven were born later
than AD wee)s. The two longest periods were @5E das. 't is, of course, ver difficult to
accept these estimates as reliable without consideration of certain sources of error. 6e
have to consider two factors in relation to this particular point. The first is then, in
certain occasions the menstrual ccle ma become longer, sometimes even longer than
two months. 'n these cases, if calculations are made with reference to the first da of the
last menstrual ccle, the consequence will be an elongated duration of pregnanc.
;imilar problem ma be observed in suc)ling mothers. Another important point which
must be considered is misleading information from the mother as to the commencement
of pregnanc. ;ometimes the information obtained from mothers ma not be precise and
even confusing# some mothers even forget in which month the had their last
menstruation. This second problem can be resolved b ta)ing pregnanc tests at the
earliest possible time and a regular follow3up till the termination of pregnanc.
;enior obstetricians of *irmingham Maternit Fospital have conducted two deliveries
which were under their close inspection since the beginning of the pregnancies, and the
indicated in their reports that the pregnancies were of @@2 and @52 das.
Another writer sas that sufficient medical data have been accumulated to show that
human pregnanc ma be prolonged to a period of @@E calculated das, and that there is
nothing in the meantime to show that even this figure is the ma%imum limit beond which
prolongation of pregnanc is impossible.
Lnli)e the case in ,thiopia, foreign courts accept post3term births if the are
corroborated b e%pert witnesses. The following reports shall confirm this idea.
= 9regnancies of @@1 das and @AE das were ruled legitimate b ,nglish courts.
= The 8ew Qor) ;upreme <ourt accepted a pregnanc of @@5 das to be legitimate.
= 'n the famous 9reston -ones K. 9reston -ones case of ,ngland, 12A2, the husband
petitioned divorce on the grounds of adulter. ;ince the date of last coitus with
the defendant required an e%tension of the total length of gestation to @EB das.
The divorce commissioner dismissed the husbands petition. The husband
appealed, the <ourt of Appeal directed the rehearing of the case.
At this $uncture, it is clear that duration of pregnanc can var considerabl and as a
result it is ver difficult to fi% the minimum and the ma%imum period. 'n particular the
establishment of an upper limit for the duration of pregnanc is more difficult. The
establishment of an upper limit for the duration of pregnanc is as difficult as
discovering the ma%imum intelligence of a human being. Therefore, from these
observations, it can be seen duration of pregnanc is a poor test of paternit.
't is common )nowledge that the great ma$orit of duration of pregnanc fall under the
period fi%ed b the ,thiopian law. *ut what the writer wants to clarif here is that, there
are births outside this period fi%ed b the law. ,speciall those births after @BB das
should not be neglected, as the constitute a relativel larger proportion. 6hat is the fate
of children of such births( The answer is clear. The could be made illegitimate. &or
e%ample, if the marriage is dissolved toda and if a child is born $ust after the @BB
th
da,
this child is neither conceived nor born in wedloc). Fence it cannot have the e%3husband
of its mother as its father.
7.4.2. Acknowledgment of Paternity
1is is te second mode of esta%lisment of $aternal filiation reco"niAed under %ot te
18,9 Ci*il Code of (tio$ia and te current family laws of te country. 2nder tis su%=
section. we will discuss te sco$e of a$$lication of ac;nowled"ement. formality
re/uirements. te role of te moter and te cild to %e ac;nowled"ed and $roof of
ac;nowled"ement %y focusin" on te rele*ant $ro*isions of te law.
!A( Sc"pe "% Ac.#"/lede)e#t
3e can say tat tis metod of esta%lisin" $aternity. as more $ractical im$ortance for
cildren %orn or concei*ed out of a le"ally $ro*ided union in (tio$ia. were access to
te courts is not as suc easy to esta%lis $aternity. Because of tis. *oluntary $aternal
ac;nowled"ment is an im$ortant metod %y wic te cildren concei*ed or %orn out of
a le"ally $ro*ided union may "ain status *is==*is teir faters. 1is *oluntary
declaration of $aternity can %e used to esta%lis $aternal filiation if $aternity is not
$ossi%le to esta%lis usin" te $resum$tions of $aternity. 1is is clearly $ro*ided under
&rt.131 of te RFC wic sti$ulates tat wen te fater of te cild is not determined %y
a$$lyin" te $ro*isions of te $recedin" articles. te $aternal filiation of a cild may %e
esta%lised %y ac;nowled"ement of $aternity. 1is seems to "i*e ac;nowled"ement a
rater narrow sco$e. Literally. tis refers to cildren concei*ed and %orn out of a le"ally
$ro*ided union and e@cludes cildren tat were concei*ed or %orn in wedloc; or an
irre"ular union. &$$arently. disowned cildren seem to a*e %een e@cluded from te
*oluntary declaration of $aternity.
How about incestuous children?
&c;nowled"ement of adulterine and incestuous cildren is not $ossi%le in some le"al
systems. 1e rationale %eind suc $roi%ition is said to %e te $rotection and sta%ility of
te le"itimate family relationsi$. 1e ac;nowled"ement of adulterine and incestuous
cildren is considered as an assault to te le"itimate family. Its $roi%ition is %ased on
moral reasons. 1e law is reluctant. it is said. to unco*er te facts of adultery and incest
so tat scandal could %e a*oided. BSee !laniol. $.713C.
1e modern trend is. owe*er. towards te a%olition of suc discrimination. 1e fact tat
adultery and incest are acts wic society does not condone is ta;en as an untena%le
ar"ument to deny adulterine and incestuous cildren te ri"t of %ein" ac;nowled"ed.
1e social condemnation of certain se@ual relationsi$s sould not %e ta;en as $rete@t to
discriminate a"ainst tose wo do not sare any res$onsi%ility for suc relationsi$s BSee
Fran; Bates. 1e Cild and te Law. -ol.2.186,. $.'9'C. 1e ar"uments raised %y te
a%o*e writer seems to a*e %een incor$orated under te (tio$ian le"al system as of te
ado$tion of te 18,9 Ci*il Code since tere is no clear $ro*ision of law wic $re*ents
cildren %orn of adulterous or incestuous relationsi$s from %ein" ac;nowled"ed. 1at.
too. does not seem to %e te $olicy of (tio$ia since (tio$ia is committed to insure te
ri"t of cildren to ;now teir $arents as $ro*ided %y te FDR( Constitution and te
Cild Con*ention to wic our country is a $arty.
3e can conclude tat &rt.131 is only meant to a*oid interference of ac;nowled"ement if
te cild as an already esta%lised filiation %y $resum$tion of $aternity and not to
e@clude disowned and incestuous cildren from te %enefit of te *oluntary
ac;nowled"ement of $aternity.
1us. any cild wo is merely concei*ed or %orn may %e ac;nowled"ed in so far as suc
an ac;nowled"ment does not interfere wit an already esta%lised filiation as cild
cannot %e ac;nowled"ed if e as a fater %y o$eration of law. 5eiter can
ac;nowled"ment *alidly esta%lis $aternal filiation if te cild as already %een
ac;nowled"ed unless suc an ac;nowled"ment is in*alidated BSee &rt.182 of te RFCC.
Gow a%out a cild wo as an already esta%lised filiation %y 0udicial declaration of
$aternity4 Sould 0udicial declaration %e a %ar to a su%se/uent ac;nowled"ment4
(B) Form of Acknowledgment
1is re/uirement of writin" was introduced wit te $romul"ation of te Ci*il Code.
Before tat. ac;nowled"ment was effected witout any re/uirement of writin". 2nder te
$re=code customary $ractices. a man was considered to a*e ac;nowled"ed te cild. if
e orally said tat te cild was is. &nd if te man later on denies tat te cild is is.
testimony of witnesses or te moter?s statement under an oat tat te cild is an issue
of se@ual relationsi$ wit te man sufficed to $ro*e it.
Ci*il Code ado$ted stricter and more strin"ent re/uirements for ac;nowled"ment tis is
%ecause &rt.6#7 of te (tio$ian Ci*il Code states tat an ac;nowled"ment of $aternity
sall %e of no effect unless it is made in writin". Su% article two of te same article
$ro*ides tat e@ce$t in cases mentioned in &rt.1#, of tis Code te ci*il code te
ac;nowled"ement may not %e $ro*ed %y witnesses. 1e reason for tis could %e te fact
tat certain moters may "i*e teir cildren to a man wo could not %e te natural fater.
2nder te old customary rule. moters were tem$ted to alle"e tat te fater of a "i*en
cild was te one wit a i"er social or $ro$erty status. 1ere were occasions were
cildren were made to a*e 0uridical %ond to $erson wo could not %e teir fater.
Comin" to te RFC and oter re"ional family laws. it as %een $ro*ided tat an
ac;nowled"ement of $aternity results from te declaration made %y a man %efore an
officer of ci*il status or %y a will e made in writin" or %y a document attested %y a
com$etent autority tat e is te fater of te cild. BRead &rt.133 of te RFC. &rt.1##
of &mara Family Code. &rt.1'9 of +romiya Family Code and &rt.1,3 of 1i"ray Family
Code. for instance.C
From te a%o*e $ro*isions of te law. it is $ossi%le to understand tat te new family
laws a*e made a si"nificant de$arture from te 18,9 Ci*il Code of (tio$ia as re"ards
form of ac;nowled"ment. 2nli;e &rt.6#7 of te Ci*il Code. wic re/uires tat
ac;nowled"ement must %e made in writin". te RFC and te re"ional family laws a*e
widened te modes %y wic ac;nowled"ement is to %e made. &ccordin"ly. a man may
ma;e ac;nowled"ement of $aternity %yD
BaC & declaration made %efore an officer of ci*il statusE or
B%C & will made in writin"E or
BcC & document attested %y a com$etent autority.
3at is meant %y a declaration in tis conte@t4 Can te declaration %e made in writin"4
1o a*e a clear understandin" of te im$ort of declaration a*e a loo; at te &maric
*ersion of &rt.133 of te RFC wic readsD
@5D s3 yrBR m"B 1 %m:rB @1 mn#5 %mGl{ %s=3 L w) %{o#F
%dR"3 n#A w) %l %c3) |L5 %ts=3 l|L5 %tr2"= snD @n1 @1
mn#5 %mGl{ L<n15 lm/%L CL
1e close readin" of te &maric *ersion of te $ro*ision under consideration seems to
su""est tat te declaration to %e made %efore an officer of ci*il status is an oral
declaration. But. one can say tat te oral declaration made %y te man may %e reduced
into writin" %y te officer of ci*il status. si"ned %y te one wo made te
ac;nowled"ement and documented %y te office of ci*il status for e*identiary $ur$oses.
Gowe*er. te /uestion tat must %e raised is as to wat would a$$en if te oral
declaration is not reduced into a written form4 3ould it affect te *alidity of
ac;nowled"ment4
1e second form of ma;in" ac;nowled"ement is will made in writin". 1is metod must
%e seen in te li"t of te rele*ant $ro*isions of te (tio$ian law of succession. 1is
means tat te will wic is made for te ac;nowled"ement of a cild is eiter a
olo"ra$ will or $u%lic will since %ot ;inds of will must %e made in writin" as $ro*ided
under &rts.771 and 77# of te Ci*il Code res$ecti*ely. In addition to te re/uirement of
writin". strin"ent re/uirements $ro*ided %y te law must %e satisfied so tat te will
%ecomes acce$ta%le and ence te ac;nowled"ement $roduces fruit in te eyes of te
law. BRead closely &rts.771=781 of te Ci*il CodeC.
1irdly. ac;nowled"ement is acce$ta%le if it is made %y a document attested %y a
com$etent autority. From tis. you can infer tat ac;nowled"ement is made in writin"
altou" te written document sall not $roduce any le"al effect unless attested %y a
com$etent autority. 3ic "o*ernment or"an is a com$etent autority4 1e answer to
tis /uestion *aries from re"ion to re"ion.
(C) Acknowledgement to be made by whom
Because ac;nowled"ement is a 0uridical act "reatly attaced to te man wo ma;es te
ac;nowled"ement. te law. as a matter of $rinci$le. $ro*ides tat ac;nowled"ement is to
%e made $ersonally %y te alle"ed fater of te cild. 1is must %e done %y te fater
e*en if te fater as not attained te a"e of ma0ority. Gowe*er. ac;nowled"ment may %e
made %y an a"ent wen suc a"ent is s$ecially a$$ointed for tis $ur$ose %y s$ecial
$ower of attorney wic must %e a$$ro*ed %y te court. &s a matter of rule. 0udicially
interdicted $ersons are inca$a%le to $erform 0uridical acts. Gowe*er. for te $ur$ose of
ac;nowled"ement. te law $ro*ides tat tey a*e te ca$acity to ma;e
ac;nowled"ement $ersonally. Des$ite tis. ac;nowled"ement %y re$resentation is
$ossi%le $ro*ided tat te re$resentati*e as o%tained $ermission from te court to tis
effect. BRead &rt.13# of te RFCC. 1e oter situation were%y ac;nowled"ement may %e
made %y a $erson oter tan te alle"ed fater is were te fater of te cild is dead or
is not in a $osition of manifestin" is will. In tis case. te law $ermits tat
ac;nowled"ment may %e made in te name of te deceased %y one of is $arents. In tis
re"ard. te new family laws a*e de$arted from wat is $ro*ided under &rt.6'9B2C of te
18,9 Ci*il Code %ecause te latter as $ro*ided tat were ac;nowled"ement is not
$ossi%le to %e made %y te $arents of te deceased. it could %e made %y anoter $aternal
ascendant. From tis it is $ossi%le to maintain tat. te "reat "rand $arents of te cild
could ma;e te ac;nowled"ement of te cild. Do you tin; tat te de$arture made %y
te new family laws im$ortant4
(D) Acceptance of Acknowledgement to be made by whom?
&ltou" ac;nowled"ement. as defined under &rt.132 of te RFC. is deemed to %e made
wen a certain man ma;es a declaration tat e considers imself te fater of a certain
cild merely concei*ed or %orn. it is not a unilateral act of te fater. 1is is %ecause
ac;nowled"ement cannot $roduce effect and cannot esta%lis $aternity unless te consent
of te moter or in certain e@ce$tional circumstances te consent of te maternal "rand
$arents or te cild to %e ac;nowled"ed is o%tained.
&ccordin" to &rt.13, of te RFC. ac;nowled"ement $resu$$oses te admission %y te
moter of te cild or %y te maternal "randfater or "randmoter of te cild if te
moter is dead or not in $osition to manifest er will. &nd in default of tese. te
ac;nowled"ement may %e acce$ted %y anoter maternal ascendant or %y te "uardian of
te interdicted $erson. &c;nowled"ement cannot %e effecti*e unless it is acce$ted %y te
cild to %e ac;nowled"ed were suc cild is of a"e.
If te moter is ali*e and in $osition of manifestin" er will an ac;nowled"ment could %e
effecti*e only if se acce$ts it as well=founded. 3ell founded means %ased on facts.
a*in" a foundation in fact. In effect te moter is re/uired to attest tat suc a man
could $ossi%ly %e te fater of a cild.
If te moter is dead or not in a $osition to manifest er will. te $ersons allowed to act
in er stead may acce$t te declaration. &cce$tin" declarations is /uite different from
ac;nowled"in" te same as well=founded. 1e latter rules out te willin"ness of te
moter as re/uisite element for te effecti*eness of ac;nowled"ment. Gere. it is not te
consent of te moter tat is re/uired. If se admits te declaration of te $erson as well
founded se does not a*e any discretion of o%structin" te esta%lisment of te 0uridical
%ond %etween er cild and te declarin" $erson on te "round of er unwillin"ness.
+n te oter and. if it is only acce$tance tat is re/uired to effect ac;nowled"ment. it is
in effect te consent of te concerned $ersons tat is re/uired. It is tey wo will a*e te
final say weter a cild sould a*e a fater %y ac;nowled"ment or not. 1ey can at
teir free will re0ect te declaration of a $erson wit wom te moter ad te only
meanin"ful relationsi$. +n te oter and. tey can "i*e teir consent to te declaration
of a man wom te moter ad ne*er seen. 1is "i*es te wole o$$ortunity for
esta%lisin" te $aternal filiation of one?s cild wit anyone wo may wis to
ac;nowled"e im irres$ecti*e of te /uestion of %iolo"ical descent %etween te cild and
te $erson. It is immaterial weter te declaration of te $erson is well=foundedE wat
matters is te attitude of te $erson re/uired to acce$t towards te declarin" $erson.
1e a%o*e $ro%lem may %e attri%uta%le to te difference in wordin" %etween su%=article 1
and su%=article on one and 2 and 3 of &rt.13, of te RFC on te oter. Gowe*er. it is
su""ested tat su%=2 and su%=3 must %e seen in li"t of su%=article 1 of te same article. If
an unfounded acce$tance is re/uired of tese $ersons. te $ur$ose of ac;nowled"ment
may %e defeated since te a%o*e $ersons may acce$t ac;nowled"ement wic is not
well=founded %ein" tem$ted %y te wealt and te social status of te indi*idual wo as
made te declaration of ac;nowled"ement of $aternity.
In any case. ac;nowled"ment will %e effecti*e unless te $erson re/uired acce$tin" it
raises a $rotest witin a mont after e as come to ;now of te declaration B&rt.137
RFCC. 1is is te time "i*en for te concerned $ersons to $rotest te declaration. If tey
$rotest witin suc time. te ac;nowled"ment will not %e effecti*e. 1e /uestion one
may raise at tis $oint is weter ac;nowled"ment will %e effecti*e a mont after te
concerned $erson comes to ;now of it e*en if te declaration was made lon" a"o. say 19
years. 5o clear answer is $ro*ided to re"ulate suc $ro%lem. It may %e ar"ued tat te
len"t of time tat causes $ro%lem %etween te date of declaration and te date wen te
$erson re/uired to admit it %ecomes aware of it sould not %e restricted.
1e oter $erson in*ol*ed in acce$tance of ac;nowled"ment is te cild to %e
ac;nowled"ed. &s $er &rt.136 of te RFC. an ac;nowled"ement of $aternity sall %e of
no effect unless it as %een acce$ted %y te cild imself wen it is made after te latter
as attained ma0ority. Gowe*er. te ac;nowled"ement is deemed to a*e %een acce$ted
were suc $erson Bte cildC as not raised any $rotest a"ainst suc ac;nowled"ement
witin one mont after e come to ;now of it. B&rt.137 RFCC.
&ltou" ac;nowled"ement is effecti*e wen te moter of te cild admitted as well=
founded. ac;nowled"ement of $aternity may not %e made after te deat of te cild.
B&rt.138 RFCC. 1e $rime $ur$ose of ac;nowled"ement is to insure te ri"t of cildren
to ;now teir fater and to %e cared of suc fater. In oter words. ac;nowled"ement is
an im$ortant instrument of a*oidin" faterlessness. Gence. since te $ur$ose of
ac;nowled"ment of $aternity is not to %enefit te man wo declares to %e te fater. no
$ur$ose would %e ser*ed if a man is allowed to ac;nowled"e a cild after te deat of te
cild. 1is is %ecause if ac;nowled"ement after te deat of te cild is allowed. some
indi*iduals may ma;e ac;nowled"ement for te sole $ur$ose of ineritin" te deceased
cild witout discar"in" teir $arental o%li"ations durin" te life time of te cild.
Gowe*er. ac;nowled"ement after te deat of te cild is $ossi%le were te deceased
as left descendants.
F. Non-revocability of Acknowledgement (Art.140 of RFC)- 5ormally. an indi*idual
does not ma;e ac;nowled"ement unless e as 0ustifia%le "rounds to do so. Gence. e
ma;es ac;nowled"ement wen e is. as far as is understandin" "oes. sure tat e is te
true fater of te cild. +nce e as made an ac;nowled"ement of is own free Bwitout
any e@ternal influence or $ressureC. e is not allowed to re*o;e te ac;nowled"ement of
$aternity for allowin" re*ocation of ac;nowled"ement will result in distur%in" te status
wic as already %een maintained. Gere te $rinci$le Pacta Sunt Servanda
B"entleman?s word is is %ondC wor;s. Gowe*er. re*ocation of ac;nowled"ement may %e
allowed wen te fater wo made te ac;nowled"ment is a minor. &rt.1#9B2C of te
RFC $ro*ides tat a minor wo as ac;nowled"ed a cild may re*o;e suc
ac;nowled"ement for so lon" as e is inca$a%le and witin one year followin" te
cessation of is inca$acity. unless is "uardian consented to te ac;nowled"ement. (*en
in tis case. re*ocation of ac;nowled"ement is strictly $ersonal to te minor since te law
$ro*ides tat re*ocation may not %e made %y is le"al re$resentati*es nor %y is eirs.
Can the minor revoke the acknowledgement unilaterally or by the order of the
court?
G. Annulment of Acknowledgement
It is o%*ious tat ac;nowled"ment is a 0uridical act. &s suc. te consent of te $erson
wo ma;es ac;nowled"ement must not %e *itiated. If te consent of te ac;nowled"er is
*itiated %y a *ice of consent. ac;nowled"ement may %e annulled Bin*alidatedC. Gowe*er.
unli;e te (tio$ian Law of contract werein *iolence. mista;e and fraud are *ices of
consent resultin" in in*alidation of a contract. te family law as a rule as confined te
"round of annulment of ac;nowled"ement only to *iolence as clearly sti$ulated under
&rt.1#1B1C of te RFC. Su%=2 of tis article. in %lac; and wite. $ro*ides tat
ac;nowled"ement may not %e annulled on te "round of error or fraud unless it is
decisi*ely $ro*ed tat te cild could not a*e %een concei*ed of te $erson wo made
te ac;nowled"ement.
H. Several Acknowledgements Prohibited (Art.142 RFC)- 5aturally. a cild cannot %e
attri%uted to two or more $ersons for a cild as only one %iolo"ical fater. It is %ecause
of tis tat &rt.1#2 of te RFC $roi%its se*eral ac;nowled"ements. &ccordin" to tis
article. were an ac;nowled"ement of $aternity as %een made in re"ard to a cild. no
oter ac;nowled"ement of cild %y anoter man sall %e $ermitted unless te first
ac;nowled"ement as %een annulled. 1erefore. were te first ac;nowled"ement is
annulled on account of "rounds of annulment $ro*ided under &rt.1#1 of te RFC.
anoter ac;nowled"ement may %e *alidly made. But. cannot anoter ac;nowled"ement
%e $ossi%le were te first ac;nowled"ement is re*o;ed as $er &rt.1#9 of te RFC4 Is
tere any difference %etween re*ocation and annulment as used in tis conte@t4
7.4.3. 1udicial Declaration of Paternity (Arts.143-145 of the RFC)
1is is te tird mode of esta%lisin" $aternity %ot under te Ci*il Code of (tio$ia and
te new family laws of te country altou" te new laws a*e made remar;a%le
de$artures from te Ci*il Code %y widenin" te "rounds for ma;in" 0udicial declaration
%y te court BRead &rt.6'7=6,1 of te Ci*il Code and &rts.1#3=1#' of te RFCC.
2nder tis mode of esta%lisment of $aternity. a cild wo does not a*e a fater eiter
trou" te o$eration of te $resum$tion of $aternity or %y ac;nowled"ement can a*e a
fater only if te court declares a certain man to %e is fater. 1e court ma;es suc
declaration were it is satisfied tat one of te "rounds wic 0ustify 0udicial declaration
of $aternity is found. &ccordin" to &rt.6'7 of te Ci*il Code te "rounds wic
declaration of $aternity %y te court was a%duction and ra$e. Gowe*er. te RFC and
re"ional family laws a*e added oter "rounds of 0udicial declaration. &rt.1#3 of te
RFC. for instance. $ro*ides tatD
6here, after appling the preceding articles the father of the child is not ascertained, a
$udicial declaration of paternit ma be obtained under the following conditions:
!a" 'n the case where the mother has been the victim of abduction or rape at the time
of the conception of the child.
!b" 'n the case where at the time of the conception of the child, the mother has been
the victim of seduction accompanied b abuse of authorit, promise of marriage,
or an other similar act of intentional deception.
!c" 'n the case where there e%ists letters or other documents written b the claimed
father which unequivocall proves paternit.
!d" 'n the case where the claimed father and mother of the child have lived together
in continuous se%ual relation, without having a legall recognized union in the
period regarded b law as the period of pregnanc.
!e" 'n the case where the person claimed to be the father of the child participated in
the maintenance, care and education of the child in the capacit of a father.
Let us discuss te a%o*e "rounds one %y one %riefly as follows.
BaC 3en some one ra$es or a%ducts te moter of te cild. te court sall declare te
ra$ist or te a%ductor as te fater of te cild. 1e court sall $ass tis declaration.
only if te cild is %orn witin te le"ally $resumed $eriod of $re"nancy. 1e cild
sould %e %orn witin 171
st
day to 288
t
days from te ra$e or a%duction of te
moter. Gowe*er. te /uestion to %e raised ere is weter or not te ra$ist or
a%ductor sould %e con*icted %y a criminal %enc in order to $ass 0udicial declaration
of $aternity.
It may %e *alidly ar"ued tat te moter sould sow to te satisfaction of te court
tat tere e@ist facts wic are %y temsel*es sufficient to meet te definitional
re/uirements of ra$e or a%duction. But it must %e %orn in mind tat all se is re/uired
to $ro*e is only te facts and not any more. If se $ro*es te facts te court must
declare te $aternity unless te defendant can a*ail imself of te defense a*aila%le to
im. If te facts are $ro*ed it does not seem tat. te $laintiff will %e re/uired to
adduce more e*idence to sow tat te defendant did te acts in suc a situation as to
%e criminally con*icted. 1us. te court must declare te $aternity after $roof of te
facts e*en if te defendant was ac/uitted %y a criminal court.
1is line of ar"ument may %e 0ustified %y difference in $ur$ose of te criminal and
te ci*il $roceedin"s. 1e $aternity action as as its $ur$ose te ascertainment of
$aternity. 1e *ery aim 0ustifies te e@clusion of te defenses or te res$onsi%ility
re/uirements $rescri%ed in te Criminal Code.
B%C & man %y a%use of autority. or $romise of marria"e. or %y oter intentional
dece$tion seduces te moter of te cild. suc man may also %e declared te fater
of te cild. 1is su%=article of 1#3 of te RFC and te res$ecti*e articles of te
re"ional family laws are meant to alli*iate a social $ro%lem faced %y moters and
cildren in (tio$ia. Some men. usin" te economic wea;ness of woman. a*e se@
%y $romisin" marria"e. Gowe*er. wen te woman concei*es. te man declines to
acce$t tat tey are faters of te cild. 1is creates $ro%lem on te moter and te
cild. 1e moter is com$elled to soulder te duty of u$%rin"in" te cild alone.
1e cild. in suc circumstances. does not "et te treatment tat e can "et from a
fater unless suc man is 0udicially declared to %e te fater of te cild. )eari
Redae as neatly e@$lained te rationale %eind te inclusion of tis $ro*ision in is
%oo;.BRead )eari RedaeE ytl35 y%tsB GG lm"5AB yr @55D
nC :{ #l1 1888 .). $$.#'=#,C.
Gowe*er. in order to attri%ute suc cild to suc a fater. a woman wo is te *ictim
of suc seduction sould $ro*e at least two facts. In te first $lace. se is e@$ected to
sow tat se was *ictim of seduction. In te second $lace. se must sow tat er
cild was concei*ed witin te le"ally $resumed $eriod of $re"nancy from te time
of te se@ual intercourse wit te man as a result of seduction.
BcC 3at is $ro*ided under &rt.1#3BcC is also anoter inno*ati*e addition to te "rounds
for 0udicial declaration of $aternity. &ccordin" to tis "round. were tere are letters
or oter documents wic are written %y te claimed fater wic une/ui*ocally
$ro*e $aternity te man can %e declared to %e te fater of te cild. Gowe*er. suc
documents alone may not suffice to declare $aternity %y te court. 1e court sould
ma;e furter en/uiry and in*esti"ation as to te relationsi$ of te alle"ed fater and
te moter of te cild. Ga*e a loo; at te followin" e@am$le.
s wrote a letter to is "irl friend wic readsD
GAre ou fine, m darling( 's our little one doing fine( /ife is difficult
for me here for ' am alwas longing for ou and m son. ' will come
soon and visit ou and our bab.H
Can te a%o*e letter. if adduced %y te moter of te cild as e*idence. suffice to
ma;e 0udicial declaration of $aternity4
BdC 1e fourt "round of 0udicial declaration of $aternity is were te claimed fater and
moter li*ed to"eter in continuous se@ual relationsi$. witout concludin" marria"e
or esta%lisin" an irre"ular union. It is clear tat a man and a woman may a*e
continuous se@ual intercourse durin" te time of %etrotal or durin" te time of
friendsi$ witout esta%lisin" %etrotal. In tis case. te man can %e declared to %e
te fater of te cild $ro*ided tat te woman is a%le to $ro*e two facts. 1e first is
tat se as to $ro*e tat tere was continuous se@ual intercourse %etween tem and
secondly tat te cild was %orn witin te le"ally $resumed time of $re"nancy.
BeC 1e last "round of ma;in" 0udicial declaration of $aternity as a lot to do wit te acts
of te claimed fater towards te cild. If te moter of te cild is a%le to $ro*e tat
te claimed fater of te cild as *oluntarily and in te ca$acity of a fater
$artici$ated in te maintenance. care and education of te cild. 0udicial declaration
of $aternity may %e made.
Ga*in" discussed te "round wic. if $ro*ed %y te $laintiff to te satisfaction of te
court ser*e for te ma;in" of 0udicial declaration. te ne@t im$ortant /uestion to %e raised
is wo is te real $arty in interest to %rin" suit a"ainst te claimed fater so tat te court
can ma;e 0udicial declaration of $aternity4
Des$ite te a%o*e "rounds of esta%lisin" $aternity %y 0udicial declaration. an action
%rou"t for declaration of $aternity sall %e of no effect were te conditions enumerated
under &rt.1#' of te RFC are $ro*ed to e@ist.
BaC In case were te moter of te cild ad se@ual relationsi$ wit anoter man in
te $eriod re"arded %y law as te $eriod of $re"nancy unless it is $ro*ed %y
medical or oter relia%le e*idence tat suc man is not te fater of te cild.
B%C In case were te claimed $erson could not %e te fater of te cild %ecause e
was a%sent or as %een a *ictim of accident durin" te $eriod re"arded %y law as
te $eriod of $re"nancy.
BcC In case were te $erson claimed to %e te fater of te cild decisi*ely $ro*es
%y %lood e@amination or oter relia%le e*idence tat e could not %e te fater of
te cild.
&rt.6'8 of te Ci*il Code $ro*ides tat te action for 0udicial declaration of $aternity
may %e instituted only %y te moter of te cild. or if se is dead or not in a $osition to
manifest er will %y te "uardian of te cild. From te $ro*ision of te Ci*il Code. it is
clear tat te only $erson wo as a *ested interest to %rin" action for 0udicial declaration
of $aternity was te moter. 3en te moter is dead or una%le to manifest er will te
"uardian of te cild could institute suit for 0udicial declaration of $aternity. Bear in mind
tat "rand $arents and oter relati*es of te cild cannot institute suc suit unless tey are
"uardians of te cild. 2nli;e te Ci*il Code of (tio$ia. te new family laws do not
a*e incor$orated a $ro*ision in tis re"ard. Gence it is natural to $ut te /uestion as to
wo can institute an action for 0udicial declaration of $aternity.
1e oter issue tat need to %e raised is as to wen te action for te declaration of
$aternity to %e instituted4 &"ain tis /uestion was clearly answered %y &rt.6'2B2C of te
Ci*il Code wic readsD
1e action for te 0udicial declaration of $aternity may not %e instituted two years after
te %irt of te cild or after te sentence of a criminal court in re"ard to te a%duction or
ra$e.
1e new family laws are silent in tis re"ard. Does tis mean tat an action for 0udicial
declaration of $aternity can %e %rou"t at any time4 If we acce$t tis. does tis %rin" a
0ust result4
7.4.4. Regulation of Conflict Paternity
1e time framewor; and sco$e witin wic te $resum$tion of $aternity a$$lies may
result in attri%utin" one cild to two or more faters. 1is is %asically %ecause it is
o$erati*e if a cild is eiter concei*ed or %orn in wedloc; or irre"ular union as te case
may %e. Bot tese elements wen seen se$arately or ta;en to"eter can "i*e rise to
situations wen te law can attri%ute te same cild to two or more faters. Before
considerin" ow tis could a$$en. it is im$ortant to note tat tis $ro%lem of attri%utin"
te same cild to different faters can come a%out only in relation to one mode of
esta%lisment of $aternity. 1e wordin" of &rt.1#, of te RFC is confusin" since it
$ro*ides tat wen on a$$lyin" te $recedin" articles a cild must %e attri%uted to
se*eral faters a re"ulation of $aternity may %e made %y a"reement %etween te $erson to
wom te $aternity of te cild is tus attri%uted %y te law.
1is seems to indicate te $ossi%ility of conflict of $aternity %y a$$lication of one or
more modes of esta%lisment of $aternity as. for e@am$le. a cild a*in" a fater %y
$resum$tion of $aternity and %y ac;nowled"ment at te sometime. Gowe*er. te
re"ulation of $aternity is a$$lica%le only wen a cild is attri%uted to two or more
$ersons %y te $resum$tion of $aternity. 1is could %e understood from te nature of te
modes of esta%lisment of $aternity.
1e nature of te a$$lication of te modes of esta%lisment of $aternity itself e@cludes
te $ossi%ility of one cild a*in" two faters %y different modes of esta%lisin"
$aternity. 1e tree modes are mutually e@clusi*eE one of te tree modes e@cludes te
oter two. 1us. if a cild as is moter?s us%and as a fater. e cannot a*e anoter
fater eiter trou" ac;nowled"ment or 0udicial declaration. Similarly. a cild can a*e
a fater %y 0udicial declaration. if e as no fater eiter %y te $resum$tion of law or %y
ac;nowled"ment. 1erefore. tere is no $ossi%ility were a cild can a*e two faters %y
o$eration of two modes of esta%lisin" $aternity in different ierarcies. 5eiter can a
cild a*e two faters %y ac;nowled"ment nor 0udicial declaration of $aternity. & cild
cannot %e *alidly ac;nowled"ed %y more tan one $erson at te same time for stron"er
reason. te court cannot declare two $ersons to %e te faters of te cild.
1e conflict arises wen te moter as a relation Bmarria"e or irre"ular unionC $ro*ided
%y law wit two or more $ersons and te cild could simultaneously %e attri%uted to te
$erson in eac relation. 1e conflict of $aternity arisin" %ecause of te aforementioned
reason as two $ossi%le solutions as $ro*ided under te RFC and te re"ional family
laws.
1e $ersons to wom $aternity of te same cild is attri%uted may contractually a"ree to
forfeit is $aternity. Suc an a"reement is to %e attested %y tree witnesses and a$$ro*ed
%y te court and te moter must %e eard in $erson e@ce$t in cases of force ma0eure
B&rt.1#6 of te RFCC. &ccordin" to &rt.1'2 of te RFC te re"ulation of $aternity. if
*alidly made. is irre*oca%le. 1is is done to ;ee$ te status of te cild undistur%ed.
&ltou" re*ocation of suc a"reement eiter unilaterally or %y court order is $roi%ited
%y &rt.1'2 of te RFC wit no e@ce$tion. te a"reement on te assi"nment of $aternity
may %e annulled %y te court on te "round of *iolence B&rt.1'3B1C of te RFCC.
1is is te only *ice of consent. te $roof of wic is %y itself enou" to annual te
a"reement. If te $arty wo made te a"reement and wo mo*es to annual te a"reement
$ro*es tat e ad concluded te a"reement under *iolence. e is not re/uired to furter
sow tat te cild could not %e concei*ed of im. 1e annulment of te contract would
result in ma;in" %ot $arties to te a"reement fater as tey were %efore te conclusion
of te a"reement. 1e in*alidation of te a"reement as te effect of restorin" te
$osition tat tey ad %efore te conclusion of te a"reement.
In*alidation of te a"reement for re"ulatin" $aternity on te "rounds of error or fraud is
stricter tan in te "eneral contract. (iter $arty can succeed in in*alidatin" te
a"reement for re"ulation of $aternity %y in*o;in" mista;e or fraud if e can in addition
decisi*ely $ro*e tat te cild was not concei*ed of im BRead &&.1'3B2C of RFCC.
1us. fraud or error. unli;e duress is not %y itself sufficient to in*alidate te a"reement.
In addition to eiter of tese two *ices. te $erson in*o;in" te in*alidation of te
a"reement must %e in a $osition to sow tat te cild was not %orn to te $erson wo as
%y *irtue of te a"reement %ecome te fater of te cild. 1erefore. assume tat &%e%e
and re%ede wo are %ot te le"ally $resumed faters of Getnet decided %y a"reement
tat re%ede is te fater. &%e%e succeed in in*alidatin" te a"reement on te "round of
mista;e or fraud if e can decisi*ely $ro*e tat re%ede cannot %e te fater of Getnet.
>nce the agreement is annulled or if the presumed fathers failed to reach an agreement
the conflict of paternit will be solved b application of the legal presumption as
provided under Art.1AD of the =&< which states that Gfailing regulation of paternit, the
following two presumptions shall be applied successivel where appropriate:
!a" The child shall be attributed to the husband of the mother in preference to the
man who has an irregular union with the mother.
!b" The child shall be attributed to the husband or the man with whom the mother is
living at the time of the birth, in preference to the husband or the man with whom
she was living at the time of the conception.
So. te decisi*e $roof tat te cild was not concei*ed of eiter $arty will a*e te effect
of annullin" te a"reement and no more. It will not "o %eyond tat and o$erate to re%ut
te $resum$tion laid down %y law. It seems illusory to old some one as a fater after it
as %een decisi*ely $ro*ed tat te cild was not concei*ed of im. But tis $arado@ical
solution is in line wit te "eneral $rotecti*e mecanism of te first $resum$tion
incor$orated under &rt.1#7 of te RFC wic $ur$orts to sol*e te conflict of $aternity if
te moter ad a marria"e and irre"ular union at te material time. It $refers te us%and
to te man in irre"ular union e*en if te moter was li*in" wit te latter at te time
wen te cild was %orn.
1e second $resum$tion will a$$ly only if te conflict cannot "et a solution under te
first $resum$tion. 1is will not interfere wit te domain of te first $resum$tion i.e..
wen te conflict of $aternity is %etween a $erson in an irre"ular union and te us%and
of te moter. 1e a$$lication of su% B%C of &rt.1#7 is tus restricted to situations wen
te conflict is %etween two us%ands or two $ersons en"a"ed in irre"ular union wit te
moter.
Assignment of paternit b agreement b virtue of Art.1A2 of the =&< is possible where
the requirements provided there in are satisfied Art.1A2 of the =&< provides that:
!1" 6here the child is born within 01B das from the conclusion of marriage or the
commencement of the irregular union, the husband or the man who is living with
the woman ma, b agreement, assign the paternit of the child to another person
who declares that he is the father of the child.
!0" 6here the child is born more than 01B das after the dissolution of the marriage
or the cessation of the irregular union, the husband or the man who lived with the
mother shall have the right provided in the preceding sub3article.
1ou" it is not clear wy te law as re/uired te duration to %e 219 days. it seems to
a*e te $ur$ose of miti"atin" te force of te $resum$tions of $aternity wen te
conce$tion of te cild could actually a*e ta;en $lace out of te le"ally $ro*ided union.
Li;ewise. te law allows te assi"nment of $aternity for cildren %orn more tan 219
days after te dissolution of marria"e or cessation of irre"ular union ta;in" te $ossi%ility
tat te cild could a*e %een concei*ed after te end of te union. 1e force of te
$resum$tion e@tends u$ to te 288
t
day after te end of te union. But a cild %orn after
219 days from te end of te union could a*e $ossi%ly %een concei*ed after te end of
suc union.
1erefore. te assi"nment of $aternity %y a"reement is te $ossi%le way were%y te
fater sort of te facts sufficient for disownin" a cild. e tin;s is %orn of anoter man.
assi"ns is $aternal status to te $erson declarin" to %e te fater. wo is not in a $osition
of effectin" ac;nowled"ement %ecause te cild as a *alid $aternal filiation %y
$resum$tion of $aternity.
Comin" to formality. suc an a"reement must %e attested %y tree witnesses and
a$$ro*ed %y court as $ro*ided under &rt.1'9 of te RFC. )oreo*er. te moter must %e
eard in $erson e@ce$t in cases of force ma0euere.
1e a"reement in te first case as as its o%0ect te transfer of $aternity to a $erson wo
claims to %e te %iolo"ical fater. 1e earin" of te moter tus seems to %e a means for
ensurin". to te e@tent $ossi%le. te well foundedness of te $erson?s declarations. It is
tere to see to it tat te $aternity wic results from te a"reement would $ossi%ly
corres$ond wit %iolo"ical $aternity of te same. So. tou" te moter is not re/uired to
acce$t te declaration of te $erson. it is *ery li;ely tat. te court will %e influenced %y
te statements of te moter in a$$ro*in" te a"reement. It is unli;ely tat te court will
a$$ro*e te a"reement wic as assi"ned $aternity if te moter of te cild ma;es it
clear to te court tat se ad no se@ual intercourse wit te man at te time of
conce$tion.
&s a matter of $rinci$le. te a"reement of assi"nment of $aternity must %e concluded %y
te interested $arties temsel*es. 1is is so wen te $arties a*e attained te a"e of
ma0ority and are not 0udicially interdicted. 3ere te $arties to suc a"reement a*e not
attained ma0ority or are 0udicially interdicted. te a"reement may %e concluded %y
s$ecially a$$ointed a"ents %y a s$ecial $ower of attorney a$$ro*ed %y te court B&rt.1'1
of te RFCC. Gowe*er. one issue is wort raisin" in connection wit ma;in" a"reements
%y a"ent. Can contractin" $arties to an a"reement wic assi"ns $aternity. %e re$resented
so lon" as te re$resentati*es of te $arties are a$$ointed %y a s$ecial $ower of attorney
and a$$ro*ed %y te court4 +r are only minors and 0udicially interdicted $ersons wo are
allowed to a$$oint a"ents wo would conclude a"reements of assi"nment of $aternity4
Read &rt.1'1 of te RFC critically and try to res$ond to tis /uery.
7.4.5. Disowning
(A) Meaning of Disowning
1e familiar rule concernin" $aternity. Pater est quem nuptiae demonstat, wic as
$assed into all modern system of 0uris$rudence raises a le"al $resum$tion tat a cild
concei*ed durin" marria"e as for is fater te us%and B<ose$ Cullen &yer..
Le"itimacy and )arria"e. Gar*ard Law Re*iew. -ol.1,. $.23C. 1ou" tis
$resum$tion as %een acce$ted in all modern le"al systems it is not conclusi*e. It can %e
re%utted %y te us%and of te moter. if e is not in fact te fater of is wife?s cild. %y
institutin" an action to a*e it 0udicially declared tat e is not te fater. 1is act is
called disownin". In France and Louisiana. it is referred to as disa*owal. 1erefore.
disownin". as !laniol defines it. is a term a$$lied to te act te $ur$ose of wic is to
wi$e out te $resum$tion of $aternity esta%lised a"ainst te us%and. wen e cannot %e
te cild?s fater B!laniol. $.679C.
In te (tio$ian Ci*il Code and te new family laws. tere is no $ro*ision e@$ressly
definin" wat disownin" is. 3en we read to"eter te rele*ant $ro*isions $ertainin" to
disownin". we can understand tat it as an action %y wic te us%and or te man in an
irre"ular union tries to disclaim te $resum$tion of $aternity esta%lised a"ainst im. if
e %elie*es tat e cannot %e te fater.
Disownin" sows tat te $resumed fater owns te status of $aternity. !ersons oter
tan te $resum$ti*e fater a*e notin" to disown. It is less accurate for te law to use
te term disownin". wen after te $resumed fater deat Bor inca$acitationC. is eirs
contest te $resum$tion of $aternity esta%lised a"ainst im. et. &rt.166 of te RFC te
uses te term &ction to disown to desi"nate te action %rou"t %y te $resumed
fater?s eirs. In common law literatures. for e@am$le. since $ersons oter tan te
$resum$ti*e fater are entitled to contest te $resum$tion of is $aternity we don?t find
te word disownin". Instead we find re%uttin" te $resum$tion of $aternity. BRead
!laniol. $.679C.
(B) Disowning as Distinguished from Other Modes of Contesting Legitimacy
Disownin" and oter modes of contestin" le"itimacy are sometimes confused wit one
anoter. 1erefore. it is im$ortant tat te line of distinction %e drawn. since different
rules a$$ly to eac of tem.
Le"itimacy is a status of a cild %ein" %orn in a le"ally reco"niAed union or witin a
com$etent time after its termination under circumstances tat te $resum$ti*e fater can
%e te fater. &nd its contestation in*ol*es contestin" tat a certain cild is not is.
%ecause its %irt or conce$tion did not ta;e $lace durin" te su%sistence of a relationsi$
tat is le"ally reco"niAed. or %ecause no e@istence of suc a relationsi$ at all BSee !ascal
R&E Readin" in Louisiana Family Law. '
t
ed.18,3. -ol.2. $.172C. &lso one may contest
tat te cild was %orn after te declaration of te a%sence of te $resum$ti*e fater.
Still. one may contest te deli*ery of te moter or te identity of te cild. In oter
words. one can %rin" an action in contestation of maternity as $er &rt.1,3=1,, of te
RFC as we a*e seen under our $re*ious discussions.
In suit of disownin". owe*er. one is s$ecially contestin" tat te $resum$tion of
$aternity ta;en a"ainst im is contrary to te trut. Gere. te $erson is contestin" is
$aternity. &s &rt.1,6 of te RFC states. disownin" is te only means %y wic te
$aternity of $erson may %e contested. 1erefore. action to disown is %rou"t to disclaim
te le"itimacy of cildren wo are under te $rotection of te le"al $resum$tion tat tey
are te cildren of te $erson contestin".
From te a%o*e discussion. you can see tat unli;e te oter modes of contestin"
le"itimacy. disownin" is contestation of $aternity. !resum$tion of $aternity is a sin qua
non for disownin". In contestation of le"itimacy. owe*er. $resum$tion of $aternity is
not a necessary re/uirement and te contestation re*ol*es around te issue as to weter
te *ery $resum$tion e@ists or not. +r te /uestion in contestation of le"itimacy lies on
te *ery conditions %earin" u$on te $resum$tion.
1e stron" $resum$tion wic te law lays down will not acie*e 0ust results if it is
$ro*ed tat it is not in armony wit %iolo"ical facts rarl 3. Ca*anau". &ction
;na*eau=callen"in" te !resum$tion of $aternity. BLouisianan Law Re*iew. -ol.23
B18,2C $.6'8C.
1erefore. altou" te le"al $resum$tion of $aternity. once esta%lised. is difficult to
a*oid te $rotection wic te law "i*es to cildren is at lo""er ood wit social realism
and te cild %ecomes faterless if is moter?s us%and can decisi*ely $ro*e tat e
cannot %e te fater of te cild.
In (tio$ia. te $resum$tion of $aternity of a $erson concei*ed or %orn in wedloc; or an
irre"ular union can %e re%utted only %y te $erson to wom te law attri%utes te
$aternity %y $ro*in" decisi*ely tat e could not a*e se@ual intercourse wit te moter
durin" te $eriod %etween te 399
t
and 179
t
day %efore te %irt of te cild B&rt.1,7 of
te RFCC. In tis re"ard. te law $resumes tat te s$ouses sall %e deemed to a*e ad
no se@ual intercourse wit one anoter durin" te time wen tey actually li*ed
se$arately followin" a $etition for di*orce made %y one of tem or in conse/uence of an
a"reement concluded %etween tem B&rt.1,8B1C. Gowe*er. tis is a re%uta%le
$resum$tion as $ro*ided under su%=article two of te same article. 1is is one as$ect of
te $rotection of te $resum$tion of $aternity.
Des$ite tis. &rt.166 of te RFC $ermits tat were te $erson to wom te $aternity of
te cild is attri%uted %y law dies or %ecomes inca$acitated witin te time fi@ed %y law
Bi.e.. &rt.16, of te same codeC for institutin" te action to disown. one of is
descendants. in is stead. may institute an action to disown. &rt.166 B2C $ro*ides tat in
default of descendants. te ri"t to disown may %e e@ercised %y is fater. moter or in
teir default. %y one of is ascendants. In default of ascendants. it may %e e@ercised %y
one of is %roters or sisters. to te e@clusion of any oter eir or re$resentati*e.
1is action %rou"t to disown a cild wose filiation is esta%lised %y law is strin"ent
%ot in te mode and time for ma;in" it. In our law re%uttin" of te $resum$tion tat te
cild was %orn %y a married woman is tat of te us%and is di*ided into tree ste$s.
First. a contestant may $ro*e decisi*ely tat te moter did not a*e intercourse wit im
at te time of te cild?s conce$tion. Second. if te $resum$tion of intercourse is not
dis$ro*ed te contestant may decisi*ely $ro*e tat it is a%solutely im$ossi%le for te
cild to a*e %een $roduced %y intercourse %etween te moter and im. 1ird. te
$resumed fater could $roduce any facts to dis$ro*e is $aternity if te maternal filiation
is esta%lised %y te action to claim status BRead &rts.1,7. 169 and 16,B2C of te RFCC.
1e facts tat must %e $ro*ed to contest te $resum$tion differ de$endin" on wic of
tese tree $oints te contestant %ases is claim.
In te first situation. te $resum$tion could %e remo*ed if te contestant could sow tat
e was not in suc a situation as to a*e ad any se@ual intercourse wit te moter at te
time wen te cild must a*e %een concei*ed. But te $resum$tion cannot %e re%utted
%y circumstances wic only create dou%t and sus$icion. It must %e $ro*ed decisi*ely. In
tis re"ard. let us ta;e te followin" actual case decided %y (tio$ian courts.
In one case. te wife and te us%and concluded marria"e on te 22
nd
of )a"a%it 1879.
3en te wife %ecame $re"nant. te us%and too; er to DaAaAmatc Belca Gos$ital
and se was dia"nosed %y a medical doctor on Sene 18.1879 (.C. and te medical
e@amination re*ealed tat tere was a 1, wee;s old fetus in er wom%. Because of tis.
te lady deserted er us%and. Later on se %rou"t suit a"ainst te us%and $rayin" te
court to declare tat te us%and was te fater of te cild. In er claim. se made it
clear tat te cild was %orn on 1aisas 21.1871 (.C. Gowe*er. te man ous%ando
ar"ued tat. altou" te cild was %orn witin te $eriod of time $rescri%ed %y te law
as $eriod of $re"nancy. e stron"ly ar"ued tat te cild could not %e is as $er te
findin" of te medical e@amination. 1e court wic eard te case re0ected te claim of
te wife acce$tin" te ar"uments of te us%and since te us%and was a%le to $ro*e
decisi*ely tat $re"nancy too; $lace %efore marria"e was concluded since it was $ro*ed
tat %y te 17
t
of Sene Btree monts after te conclusion of marria"eC se was a four
monts $re"nant.
&""rie*ed %y te decision of te court of rendition. se a$$ealed to Su$reme Court. 1e
Su$reme Court confirmed te decision of te Gi" Court BDecision rendered %y te
Su$reme Court on Gidar of 187' (.C Su$.Ct.187' (.CC.
Do you think that the husband in our case decisively rebutted the legal
presumption?
&s $er &rt.161 of te RFC. if te $erson contestin" te $resum$tion %ases is mo*e on
te a%solute im$ossi%ility of is $aternity. tis needs a $ermission from te court.
&ccordin" to &rt.161B2C of te RFC te court sall "rant $ermission were tere are
$resum$tions or serious indications resultin" from sufficient and relia%le facts ena%lin"
te court to acce$t te action.
&rt.162 of te RFC considers as sufficient "rounds for "rantin" te action to disown.
scientifically reco"niAed incom$ati%le $ysical caracteristics of te cild and te fater.
or te concealment of te %irt or $re"nancy to te $resumed fater under circumstances
wic are a$t to create dou%ts as re"ards is $aternity. 1e concealment of te %irt or
conce$tion. as a "round for disownin" can %e 0ustified on te "round tat a moter as no
reason to conceal te conce$tion or te %irt of a cild from er us%and if e is te
fater. Suc a concealment is in te nature of an admission of er wron". It is im$ortant
to note ere tat te $roof tat te moter as idden te conce$tion or %irt of te cild
does not in any way mean tat te contestant will %e re/uired to dis$ro*e $aternity %y
easier and sim$ler means. 1is is in fact te case in some 0urisdictions. For instance. in
Frenc Law. if it is $ro*ed tat te moter as idden te %irt or conce$tion. te
$resumed fater e is not re/uired to $ro*e te a%solute im$ossi%ility of $aternity Bsee
!laniol. $.67'C.
In our law. tese are only $reliminary ste$s made to con*ince te court to "rant
$ermission to institute te action. It seems tat $roof of $ysical incom$ati%ility is only a
$reliminary ste$ and not an end %y itself. 1e e@clusionary %lood ty$in" mecanisms
wic are in some 0urisdictions ta;en to %e conclusi*e to disown a cild may $ro*e te
incom$ati%le $ysical caracteristics of te cild and te fater. 1is may raise a
/uestion of weter or not %lood ty$in". if at all it is $ossi%le. is conclusi*e or sim$ly
falls witin te cate"ory of $resum$tions and $ysical caracteristics te $roof of wic
is only rele*ant for te admissi%ility of te action.
In te modern world. many forei"n courts a*e ta;en %lood "rou$in" tests indicatin" non
$aternity. as conclusi*e to re%ut te $resum$tion of $aternity if it was $ro$erly conducted
altou" tey reco"niAed te $ossi%ility of defect in testin" $rocess. B1o a*e a %etter
understandin". read. 19 &merican <uris$rudence $.7,8C.
In (tio$ia its solution re*ol*es around te meanin" tat may %e "i*en to e*idence
decisi*ely $ro*in" te a%solute im$ossi%ility of $aternity. In forei"n countries similar
$ro*isions a*e %een inter$reted as re/uirin"D
<lear, distinct, satisfactor and conclusive evidence as to convince the
court that the child is not the issue of the union. ;uch evidence must
convince the court beond an reasonable doubt, and is thus equivalent to
the proof in criminal action i.e., a more stringent test applied than
normall applicable to civil action where issues are decided on a mere
balance of probabilit. !=ead Menbere Tseha Taddesse, p. 0E"
3e maintain tat &rt.169 of te RFC and e/ui*alent Re"ional Family Laws $ro*isions
sould %e inter$reted on similar lines. Gence. it may %e ar"ued tat e@clusionary %lood
ty$in" mecanisms if done $ro$erly sould %e conclusi*e to re%ut te $resum$tion
$aternity. &nd sterility may also %e ta;en as suc %ecause it decisi*ely $ro*es tat te
us%and could not %e te fater.
Gowe*er. %y *irtue of &rt.167 of te RFC te fater cannot disown a cild in s$ite of te
a%solute im$ossi%ility of is $aternity te cild was concei*ed %y an artificial
insemination to wic e consented in writin". What do you think is the rationale
behind this Article?
Finally. let us say few words in connection wit $laintiff in suit. defendant in te suit and
$eriod of limitation. &s we a*e said $re*iously. in order to maintain te $resum$tion of
$aternity stron". &rt.16# B1C of te RFC sti$ulates tat te $resumed fater is te only
$erson wo can institute an action for disownin" so lon" as e is ali*e. 5o action to tis
effect can %e %rou"t %y te moter or %y a man wo claim. te $aternity of te cild or
%y te $u%lic $rosecutor B&rt.16# B2C of te RFCC. (*en a 0udicially interdicted $erson
can %rin" suc action wen e "ets $ermission from te court altou" e may %e
re$resented %y is "uardian wen te "uardian o%tains $ermission from te court to do so
in te name of te 0udicially interdicted $erson B&rt.16' of te RFCC. &s re"ards te
$erson a"ainst wom te action to disown is %rou"t &rt.168 B1C of te RFC $ro*ides tat
suc action sall %e %rou"t a"ainst te cild or were eose is dead. a"ainst isoer
eirs and su%=2 of te same article ma;es it mandatory tat te moter of te cild is
0oined in te suit. 3ere te cild is a minor. o%*iously. e sall %e re$resented %y a tutor
ad oc a$$ointed for tis $ur$ose %y te court.
1e action to disown te cild must %e %rou"t witin te time limit $ro*ided %y te law.
In tis re"ard. &rt.16,B1C of te RFC ma;es it clear tat an action to disown sall %e
instituted %y te man to wom $aternity of te cild is attri%uted %y law witin 179 days
followin" te day e ;new or sould a*e ;nown te %irt of te cild. &rt16,B2C
$ro*ides tat were te maternal filiation is esta%lised %y an action to claim status. te
action to disown sall %e instituted witin 179 days from te 0ud"ment decidin" on te
action to claim a status a*in" %ecome final. Su%=article one of &rt.16, of RFC as
de$arted from &rt.682B1C of te Ci*il Code %ecause in te Ci*il Code te la$se of 179
days is rec;oned from te date of %irt of te cild wile in te RFC te la$se of 179
days is to %e rec;oned from time wen te $resumed fater ;new or sould a*e ;nown
te %irt of te cild. 1e followin" court case is $ertinent to understand te issue at and
BCi*il &$$eal 5o 89,. Su$reme Court. 1873 (.CC.
1e a$$eal was lod"ed to te Su$reme Court from a decision made %y te 5ort Sewa
Gi" Court decided on te 1,
t
of Gidar 1879 (.C under file 5o.179o71. 1e a$$licant
named Girma Ga%tewold. a$$lied to te onal Court to disown a cild $resumed to a*e
%een %orn of im. 1e cild was %orn on 1i;mit 6. 1868 and te action to disown was
instituted on 23
rd
of 1aisas 1871 (.C. 1e onal Court dismissed is suit reasonin" tat
te action was %arred %y $eriod of limitation.
In is a$$eal to Su$reme Court te a$$ellant ar"ued tat te 179 days must %e rec;oned
followin" te day e ;new or sould a*e ;nown te %irt of te cild. 1e res$ondent
on er $art ar"ued tat since te a$$ellant and te res$ondent were li*in" in te same
town. e sould a*e ;nown te %irt of te cild.
1e a$$ellate court confirmed te decision of te i" court and reasoned tat actions for
disownin" sould %e instituted witin 179 days from te %irt of te cild.
&s you can understand. te decision of te a%o*e courts would %e oterwise if te case
were %rou"t to court after &rt.682B1C of te Ci*il Code as %een re$laced %y &rt.16,B2C
of te RFC and te res$ecti*e $ro*isions of re"ional family laws since te new family
codes a*e sti$ulated tat te 179 days is to %e counted from te time wen te $resumed
fater new or sould a*e ;nown te %irt of te cild.
7.5. Proof of Filiation
7.5.1. General
1e $re*ious discussions sow tat $aternal filiation is esta%lised %y tree mutually
e@clusi*e modes. !roof of filiation is not esta%lisment of filiation %ut it is rater $ro*in"
te e@istence of suc fact were suc fact is contested %y interested tird $arties. In tis
re"ard. $roof of filiation $ertains to $ro*in" tat a cild is te son or dau"ter of a certain
man or woman.
In te modern world. te $rimary mode of $roof of filiation is record of %irt. Record of
%irt. as $ro*ided under &rt.88 of te Ci*il Code of (tio$ia. contains te day. mont
and year of te %irt. te se@ of te cild. te first names wic are "i*en to im or er.
te names. first names. dates and $laces of %irt of tis fater and moter and were
a$$ro$riate te names. first names. date and $lace of %irt of te $erson ma;in" te
declaration.
In te de*elo$ed countries. as record of %irt is $ro$erly maintained. it is easy to a*oid
confusions as to te identity of te cild and te identity of te $arents. In de*elo$in"
countries suc as ours. tere are no or"aniAed institutions for maintainin" record of %irt
$ro$erly. +f course. in (tio$ia it was $ro*ided under &rt.191B1C of te Ci*il Code tat
te %irt of a cild may %e declared to te officer of Ci*il Status %y any $erson. But
&rt.199B2C of te same code declares tat suc %irt must %e declared %y te fater of te
cild. or in is default %y te moter or "uardian of te cild. or in default. %y te $erson
wo as ta;en care of te cild. In addition. te officer of ci*il status was duty %ound to
draw u$ te record of %irt of is own motion if e is aware of te %irt. By te same
to;en. failure to "et re"istered a cild was a criminal act under te 18'6 $enal code as is
under te new Criminal Code B&rt.,',B1C of te FDR( Criminal CodeC.
Des$ite te a%o*e le"al $ro*isions. record of %irt as remained an e@ercise in futility
since te office of ci*il status as not %een esta%lised in (tio$ia.
&rt.6 B1C of te Cild Con*ention wic as %een ratified %y (tio$ia and wic is te
inte"ral $art of te (tio$ian law $ro*ides tat %irts must %e recorded immediately
followin" te %irt of cildren. Because te con*ention is $art and $arcel of te (tio$ian
law and %ecause (tio$ia as an international commitment in tis re"ard. te need to $ut
in $lace te institutional framewor; "oes witout sayin". In *iew of tis re/uirement. te
Re*ised Family Code under &rt.321 B1C sti$ulates tat te Federal Go*ernment sall.
witin si@ monts from te comin" into force of tis Code. issue re"istration law
a$$lica%le to te administration were tis code is to %e enforced and esta%lis te
necessary institutions. et te Go*ernment as not ta;en any ste$s in tis re"ard u$ to
now BFe%ruary. 2997C.
Des$ite tis. owe*er. it is *ery muc im$ortant to e@amine te rele*ant $ro*isions of te
law as re"ards $roof of filiation. 3en we e@amine te $ro*isions of te code. we can
understand tat tere are two modes of $roof of filiation. 1ese are BaC record of %irt B%C
$ossession of status. 2nder te 18,9 Ci*il Code tere was a tird mode of $roof called
act of notoriety as $ro*ided under &rt.662 of te Ci*il Code of (tio$ia. 1is mode of
$roof as %een remo*ed from te RFC and re"ional family laws. Gence. our discussion
will focus on te two modes of $roof.
7.5.2. Proof by Record of Birth and Possession of Status
&s we said $re*iously. te record of %irt wic a$$ears as te $rimary means of $roof of
filiation was not $ut into $ractice in (tio$ia. &rticle 33,1 of te Ci*il Code sus$ended
te o$eration of te record of ci*il status in wic %irt was to %e recorded. 3at was te
$osition of te $ossession of status as a means of $ro*in" filiation. in li"t of te
sus$ension of te record of %irt4 !ossession of status was a$$lied in default of te
record of %irt as was $ro*ided under &rt.669 of te Ci*il Code. (*en today. altou"
&rt.1'# of te RFC and te rele*ant $ro*isions of te Re"ional Family laws $ro*ide tat
%ot maternal as well as $aternal filiation of a $erson are to %e $ro*ed %y is record of
%irt and altou" te law as im$osed te duty of comin" u$ wit te le"al and
institutional framewor; for te esta%lisment of te office of ci*il status te "o*ernment
as not yet come u$ wit a$$ro$riate laws and institutions. Gowe*er. it as %een
$ro*ided %y &rt.332B2C of te RFC tat until te +ffice of Ci*il Status is esta%lised.
certificates of %irt. marria"e and oter rele*ant certificates issued to issued %y an
a$$ro$riate autority of te administration were tis code is a$$lica%le sall %e deemed
to a*e %een issued %y te office of Ci*il Status. 1e same is true wit te re"ional
family laws. For instance. &rt.332B2C of te &mara 5ational Re"ional State Family Law
$ro*ides tat until te office of ci*il status is esta%lised and commence its wor; in
accordance wit su%=article one Bsu%=article one declares tat te office of ci*il status
sall %e esta%lised witin two years from te comin" into force of te CodeC. certificates
issued or to %e issued %y an a$$ro$riate autority of te re"ion sall %e deemed to a*e
%een issued %y te office of ci*il status and considered *alid BSee also &rt.337 of te
+romiya Family CodeC.
It must %e clear to you tat record of %irt %ot under te Ci*il Code and te current
family laws is te $rimary means of $roof tou" not te only means. Des$ite tis wen
it is not $ossi%le to $ro*e filiaiton %y record of %irt. it is not $ossi%le to switc to $roof
%y $ossession of status. In tis re"ard. &rt.1'' of te RFC $ro*ides in default of
certificate of %irt. filiation is $ro*ed %y te $ossession of status of cild.
1e /uestion to %e raised. terefore. is wen can a $erson resort to $roof %y $ossession of
status4 Can an indi*idual %e allowed to $ro*e filiation %y $ossession of status %y te
mere fact tat eose does not $roduce te record of %irt4 5o. tis cannot %e te case.
Before one resorts to $ro*e is case %y $ossession of status. one sould con*ince te
court tat %irt certificate was not issued from te *ery out set or %irt certificate was
lost. destroyed or stolen. 1erefore. te court must not admit $roof %y $ossession of
status witout con*incin" reasons tat esta%lis tat $roof %y certificate of %irt is
im$ossi%le. Gence. $roof %y $ossession of status is allowed and it re$laces $roof %y %irt
certificate wen te $rimary mode of $roof is of no a*ail for one of te reasons
mentioned a%o*e.
3at factBsC sould %e $ro*ed %y te witnesses4 &rt.1', of te RFC $ro*ides tat a
$erson as te $ossession of status of cild wen te cild is treated %y te community as
%ein" te cild of suc man or woman. 3at does as as %een treated %y te community
as %ein" te cild of suc a man or woman mean4 +f course. if certain mem%ers of a
community a$$ear in court and testify tat tey a*e reasona%le %elief tat te cild
%elon"s to a certain man or woman. tat may %e ta;en as sufficient $roof. Gowe*er. suc
;ind of testimony may not %e sufficient %ecause if te witnesses do not a*e enou"
;nowled"e as to teir relation. tey may %elie*e tat te relationsi$ %etween a relati*e
and a cild may %e a relationsi$ of $arent and cild. Gowe*er. in order to arri*e at a 0ust
result te witness sould testify te identity of te moter and te fater and te fact tat
a certain cild was %orn to tose indi*idual wen te $arents were in a con0u"al life or in
or irre"ular union or te cild was %orn to tese indi*iduals e*en out of suc unions.
In one case B5i"isti (/u%ay -. &ster osef. Su$reme Court Ci*il &$$eal file
5o.161,o196'. 186'C. te a$$ellant filed an a$$lication to te Gi" Court so tat te
court would declare tat &to osef was te fater of &ster. 1o $ro*e te $aternal
filiation. se $roduced witnesses and te witnesses testified tat &ster?s moter and &to
osef were li*in" li;e us%and and wife wen &ster was %orn. Based on te testimony of
te witnesses te Gi" Court decided tat &to ose$ was te fater of &ster. 1e
Su$reme Court to wic te a$$eal was lod"ed also confirmed te decision of te i"
Court. &rt.1'6B1C of te RFC $ro*ides tat were te $ossession of status of cild is
$ro*ed in accordance wit te $recedin" article. te court sall ta;e te $resum$tion tat
te cild is %orn of suc man or woman. 1is $resum$tion is $ro*ided %y te law for te
%est interest of te cild since te standard of $roof is li"t. Gowe*er. tis $resum$tion is
a re%utta%le $resum$tion as clearly $ro*ided under su%=article 2 of te same article. 1is
means tat te man or te woman wo is $resumed to %e a fater a moter can re%ut te
$resum$tion %y adducin" any rele*ant and admissi%le contrary $roof.
Some $eo$le stron"ly ar"ue tat $ossession of status as a means of $roof B$articularly for
$aternal filiationC must %e admitted as means of $roof wen first of all filiation is
esta%lised %y $resum$tion of law. ac;nowled"ement or 0udicial declaration altou"
tere are contrary ar"uments.
Comin" to te $osition ta;en %y our courts. o$inions are di*ided. In one case Bcited %y
)eari Redae -ol.2 $$.63=6#C te Federal Su$reme court arri*ed at te followin"
conclusion. 1e case $ertained to $roof of filiation of a certain cild named )aria %orn in
an irre"ular union. &cce$tin" $roof of filiation %y $ossession of status te court stated as
followsD
3e a*e ad a loo; at te testimony of witness attaced wit te file. &s we a*e
understood from te testimony of witnesses tat tere was a lon" standin" relationsi$
%etween te moter of )aria and Geor"e Bte claimed fater of )ariaC tat Geor"e
occasionally used to $ass te ni"t wit )aria?s moter. tat durin" tis relation )aria
was %orn. tat Geor"e declared tat )aria was is dau"ter and e used to em%race er
in a faterly mood. tat te name )aria was "i*en to er %y Geor"e and tat e was
doin" e*erytin" to )aria tat could %e done %y any fater u$ to te time of is deat.
1erefore. from te testimony of te witnesses we a*e understood not only tat tere
was alon" standin" relationsi$ %etween te moter of )aria and Geor"e %ut also te
relationsi$ was a cause for te %irt of )aria. From te testimony of witnesses and te
actions ta;en %y Geor"e. it is $ossi%le to $resume tat )aria was te dau"ter of Geor"e.
If te testimony of witnesses ena%le us to $resume li;e tis. it is $ossi%le to maintain tat
te a$$ellant can $ro*e filiation %y $ossession of status. &ccordin"ly. we a*e ta;en
$resum$tion tat )aria is te dau"ter of Geor"e as $ro*ided under &rt.1'6B1C of te
Re*ised Family Code.
&ltou" te issue was similar to te a%o*e case. te Federal Su$reme Court too; a
different stance. 1e decision of te court was made on te %asis of te $ro*isions of te
18,9 Ci*il Code. Gowe*er. since te RFC as not made any meanin"ful de$arture wit
re"ard to te issue under consideration. te case and te conclusion made %y te court is
rele*ant to te issue at and.
1e a$$licant. BmoterC te moter of Fi;rete ;assaun filed an a$$lication to te court
statin" tat Fi;rete was %orn to &to rassaun 3u%e wile tey Bte a$$licant and &to
rassaunC were li*in" to"eter in a non=marital relationsi$. Se stated tat &to
rassaun was su$$ortin" er financially %efore te %irt of te dau"ter and after te
%irt of te dau"ter. Ge B&to rassaunC "a*e er "rains wic would ser*e for te
$re$aration of renfo and Fteff? and %arely tat would %e used for te $re$aration of
food and drin;s tat would %e ser*ed wen te dau"ter was %a$tiAed. Se also added
tat &to ;assaun was "i*in" money for maintenance. clotin" and education. Because
&to rassaun died on te 39
t
Sene 1872 (.C. se $rayed to te court so tat te court
would declare tat Fi;rete was te dau"ter of &to rassaun and a certificate %e "i*en to
er to tat effect.
1e le"al wife of &to rassaun o%0ected to te $etition sayin" tat Fi;rete was not
ac;nowled"ed %y &to rassaun durin" is life time. Se added tat filiation is to %e
esta%lised %y $ossession of status only wen a cild is %orn in an irre"ular union.
1e court to wic te a$$lication was filed called te witnesses named %y te a$$licant
and te witnesses confirmed te alle"ations made %y te a$$licant. 1e court. owe*er.
re0ected te $etition of te a$$licant %y citin" te $ertinent $ro*isions of te 18,9 Ci*il
Code. 1e case was ta;en %y a$$eal to te Federal Su$reme Court and te a$$ellate court
confirmed te decision of te lower court. 1e court stated tatD
1e a$$ellant BFi;rete?s moterC did not alle"e tat Fi;rete was %orn to &to ;assaun in
a marria"e or irre"ular union. nor did se $roduce a document wic sows tat &to
rassaun ac;nowled"ed Fi;reteE didn?t $ro*e tat &to rassaun was 0udicially declared
to %e te fater of Fi;rete %ecause of ra$e or a%duction of te moter %y &to rassun.
1e ar"ument of te a$$ellant is %ased on te fact tat se $roduced witnesses wo
testified tat &to rassaun was te fater of Fi;rete &rt.6#7B1C of Bte ci*il codeC
$ro*ides tat an ac;nowled"ement of $aternity sall %e of no effect unless it is made in
writin". Li;ewise su%=article 2 of tis article clearly $ro*ides tat ac;nowled"ement
cannot %e $ro*ed %y witnesses. 1erefore. since te a$$ellant in er claim tat Fi;rete is
te dau"ter of &to ;assaun did not $roduce any e*idence su$$orted %y law.
3e a*e confirmed te decision of te lower court Bsee ci*il a$$eal 5o16,7o77 Federal
Su$reme Court or Read )eari Redae *ol.2 $$.6'=66C. From te for"in" discussions and
sam$les of court decision you can realiAe tat tere is no consensus amon" our 0ud"es as
re"ards te nature of $roof of filiation %y $ossession of status.
7.6. Summary
Filiation is an im$ortant as$ect of family law. It is im$ortant %ecause it is trou" te
rules $ertainin" fililiation tat %ot material filiation and $aternal filiation can %e
esta%lised. 1e esta%lisment of filiation is $articularly im$ortant to $rotect te interest
of cildren.
1at is wy $ast and $resent (tio$ian family laws. a*e incor$orated rele*ant
$ro*isions wic are instrumental for te esta%lisment of filiation. 1e esta%lisment of
material filiation is not as difficult as te esta%lisment of $aternal filiation. 1is is
%ecause maternal filiation is esta%lised %y te mere fact of %irt altou" %irt is not
defined in (tio$ian law and it will remain a source of confusion $articularly in *iew of
artificial insemination.
&s re"ards $aternal filiation. tere are tree modes of esta%lisment of $aternity. 1ese
are le"al $resum$tion. 0udicial declaration and ac;nowled"ment. In te case of le"al
$resum$tion. once te e@istence of marria"e or irre"ular union is $ro*ed. te law
$resumes tat te us%and of te woman or te man in a irre"ular union is $resumed to
%e te fater of te cild wo is %orn or concei*ed in marria"e or durin" te irre"ular
union. Gowe*er. it must in mind %e %orne tat suc $resum$tion is a re$uta%le
$resum$tion. Comin" to 0udicial declaration. Bwen it is $ossi%le to $ro*e tat wat are
$ro*ided under &rt. 1#3 of te RFC and te corres$ondin" re"ional family lawsC. te
court is duty %ound to declare tat a man is te fater of te cild under consideration.
1e tird mode of esta%lisment of filiation is ac;nowled"ment. &c;nowled"ment is
de$endent u$on te free will of te man. In oter words. te man freely declares tat e is
te fater of a certain cild so lon" as te strin"ent re/uirements of te law are fully
satisfied.
&s far as $roof of filiation is concerned. te law as $ro*ided to modalities of $roof.
1ese are $roof %y record of %irt and $roof %y $ossession of status.
7.7. Review Questions
1. 3y is it said tat maternal filiation is te %asis for consan"uinal relationsi$4
2. & and B are a us%and and a wife B as remained to %e a "ood wife e@ce$t tat se as
$ro%lem of $re"nancy since er wom% is not a%le to carry fetus. Because of tis. &
and B a"reed to transfer a fertiliAed e"" from B?s wom% to anoter lady called
1iitina. wo ad te desire to remain *ir"in trou"out er life. Des$ite er
*ir"inity. te fertiliAed e"" was transferred to te wom% of 1iitina as $er er
a"reement to carry te same. 1en se %ecame $re"nant and a %oy called 1ari;u was
%orn. In tis case. wo is considered to %e te moter of te cild as $er &rt.12# of
te RFC4
3. &rt.127 of te RFC $ro*ides tat a cild sall %e deemed to a*e %een concei*ed in
wedloc; if e is %orn more tan 179 days after te cele%ration of te marria"e and
witin 399 days after its dissolution. 3at would %e te fate of a cild %orn 399 days
after te dissolution of marria"e wen it is $ro*ed witout any dou%t tat te women
ad no se@ual relation wit anoter man4
#. &ssume tat &to Be"asaw and 3oro De%ritu married on te 1
st
of )es;erem. 2999
(.C. & cild was %orn on te 19
t
of )e"a%it. 2999 (.C. Can &to Be"asaw %e
$resumed to %e te fater of te cild4 3yowy not4
'. &to 1omas saw 3ort (ndeli%is wen se was returnin" from scool. &ttracted %y
er $ysical a$$earance. 1omas a$$roaced er and in*ited er to se@ual
intercourse. Se acce$ted te offer and commenced recreatin" to"eter. 1en. tey
transformed teir relationsi$ to se@ual intercourse. Ga*in" ad se@ual intercourse for
certain days. a dis$ute arose %etween tem and tey $ut an end to teir relationsi$.
Few monts after te termination of suc relationsi$. 3ort (ndeli%is went to &to
1omas and told im tat se ad %ecome $re"nant. Gowe*er. 1omas fran;ly told
er tat e could not %e te fater of te concei*ed cild since teir relation was only
intermittent wit no continuous se@ual intercourse.
1ree years after te %irt of te cild. se %rou"t suit a"ainst 1omas so tat te
court would declare tat 1omas was te fater of te cild. Se named tree
witnesses wo testified tey saw 3ort (ndeli%is and 1omas se*eral times wen
1omas came to (ndeli%is?s ouse to ta;e er to restaurants and certain recreational
areas.
'.1. If te case were %rou"t to your %enc. wat would your decision %e4
'.2. If you are an ad*ocate of 1omas. wat defenceBsC would you raise in is
fa*or4
,. &to &wu"icew a$$eared %efore an officer of Ci*il Status and declared tat e was te
fater of a cild wo Bte cildC could not %enefit from te $resum$tion of $aternity.
1e declaration of ac;nowled"ement was reduced into writin" and was ;e$t as a
$u%lic document. Four years after te ma;in" of te ac;nowled"ement. &to
&wu"icew died intestate. 3en te succession of te deceased was o$ened. te
ac;nowled"ed cild a$$eared and claimed is sare on e/ual footin" wit oter eirs=
at= law. Gowe*er. te oter eirs of te deceased ar"ued tat te cild wo alle"ed to
a*e %een ac;nowled"ed was not te son of te deceased. Because of tis. te
ac;nowled"ed cild was ordered to $roduce e*idence tat would %e a $roof tat e
was ac;nowled"ed %y te deceased. 3en e as;ed te officer of Ci*il Status to "i*e
im e*idence to tat effect. te officer of ci*il status alle"ed tat te declaration of
ac;nowled"ement wic was reduced into writin" was lost. Rater te officer told
im tat e Bte officerC was more tan a$$y to a$$ear in court and testify tat tere
was a *alid ac;nowled"ement.
Would his testimony be admissible in evidence?
6. 1e RFC ma;es it clear tat ac;nowled"ement of a dead cild is not acce$ta%le. 3y
does te law $roi%it suc ac;nowled"ement4 3y does te law $ermit
ac;nowled"ement of a dead cild were suc cild is sur*i*ed %y descendants4
Discuss te $olicy considerations of te law=ma;er in tis re"ard.
7. In order to declare tat a certain indi*idual. wo as alle"edly ra$ed or a%ducted is te
fater of a cild. sould te ra$ist or te a%ductor %e con*icted %y te criminal court4
8. 3en e was wal;in" from )eneli; II Gos$ital to te Lion?s oo B&n%essa Gi%iC. &to
&"eneu found a newly %orn %a%y witout any care and treatment. Gis eart %ro;e
and e soon too; te %a%y to is ome and e@tended e*ery umane treatment. Ge
named te foundlin" 1e"e"ne. 3en te cild was a four years old. a certain lady
a$$eared and claimed tat se wanted to ac;nowled"e tat se was te actual moter
of te cild. Gowe*er. &to &"e"neu was not *oluntary to "i*e te cild to te lady.
Because of tis. se as sued &to &"e"neu in court. If you were a 0ud"e to wose
%enc tis case was %rou"t. wat would your decision %e4
19. &to (rana and 3ot Bilise li*ed to"eter in a continuous se@ual relationsi$ altou"
tey did not esta%lis an irre"ular union. Later on. se %ecame $re"nant. 3en suc
was communicated to im. &to (rana told er tat e could not %e te fater of te
cild since e ad serious sus$icion tat se ad se@ual relationsi$ wit oter
indi*iduals. 3ot Bilise died immediately followin" te %irt of te %a%y. Gowe*er.
te %a%y was ta;en care of %y its "rand $arents. 5ow te cild is a si@=years old %oy
and e as started to in/uire as to wo is is fater. Because of tis. te "randfater
of te cild wants to file an a$$lication to court in order to o%tain 0udicial declaration
of $aternity since te deceased told er $arents tat te cild %elon"s to (rana.
19.1. Is te "randfater of te cild a real $arty in interest4
19.2. 3at ;ind of $roof sould te $laintiff $roduce to con*ince te court and
o%tain 0udicial declaration of $aternity4
19.3. 3at defenceBsC can %e raised in fa*or of &to (rana4
11. 3at is te rationale %eind &rt.1#7 of te RFC4
12. &to <andere%a was a eunuc. Des$ite tis. e concluded marria"e wit a certain lady
called 3oro (ndeli%e. Ge married er not %ecause e ad se@ual desire %ut %ecause e
ad an interest to li*e to"eter wit te lady. 1e lady acce$ted tis offer since &to
<andere%a was a *ery ric man in er locality. Des$ite te marria"e. se was a*in"
se@ wit oter indi*iduals. Because of tis relationsi$. a %a%y was %orn. &ltou"
&to <andera%a ;new tat te %a%y was not is issue. e used to treat te %a%y as
tou" e were a fater.
Before te cild reaced ma0ority a"e. &to <andere%a died witout ma;in" any will.
Because of tis. te cild claimed tat e was te le"al successor of te deceased.
Gowe*er. &to <andere%a?s sisters and %roters o%0ected to te claim of te cild
alle"in" tat te cild was not te issue of &to <andere%a. 1ey adduced medical
e*idence as well as witnesses and $ro*ed to te satisfaction of te court tat. &to
<andere%a could not $roduce s$erm and ence a cild could not %e %e"otten to im.
&ssumin" tat te case were %rou"t to your %enc. ow would you "o a%out te
case4
1#. 1e followin" case was decided %y te su$reme court of (tio$ia in 1872 (.C under
Ci*il a$$eal file 5o.1198o72.
&ltou" e was %ound %y a lawful marria"e wit is wife named 3oro ene%etc
Le"esse. &to Belayne &%e%e esta%lised an irre"ular union wit Bairewor; 1ilaun. It
was in suc union tat Bairewor; %ecame $re"nant. Because of tis. &to Belayne
concluded marria"e. altou" a %i"amous one. wit 3oro Bairewor; on te 2,
t
of
Gamle. 1867 (.C. Gowe*er. &to Belayne &%e%e died on te 26
t
of 5easie 1867 (.C. a
mont after te cele%ration of te marria"e. 1en. after tree monts followin" te deat
of &to Belayne. 3oro Bairewor; "a*e %irt to female cild named )essay.
3en te %a%y was %orn. te %irt was told to &to Belayne?s moter. 3oro &danec
Fanta. and te latter ac;nowled"ed te cild %efore te Gead of &cts and documents
De$artment. )inistry of <ustice. 1e ac;nowled"ement was also attested %y tree
witnesses.
1en 3oro Bairewor; filed an a$$lication to te ten &ddis &%a%a Gi" Court for
declaratory 0ud"ment wic would confirm tat )essay was te dau"ter of &to
Belayne. Gowe*er er a$$lication was o$$osed %y te former wife of &to Belayne.
3oro ene%etc Le"esse.
In order to $ro*e er alle"ation. 3oro Bairewor; $roduced te document of
ac;nowled"ement issued %y te )inistry of <ustice and te witnesses wo attested te
ac;nowled"ement. In order to re%ut te e*idence $roduced %y te a$$licant. 3oro
ene%etc named te moter of te deceased. 3oro &danec Fanta. as a witness.
&danec Fanta testified tat se did not ac;nowled"e )essay as er "rand dau"ter. Se
made it clear to te court tat se si"ned te document induced and defrauded %y te
ad*ocate of te a$$licant and te a$$licant erself. Because of tis. te court called te
officer %efore wom ac;nowled"ement was made and te officer "a*e is testimony tat
3oro &danec Fanta ac;nowled"ed witout any e@ternal influence. 1en te Gi" Court
decided tat te ac;nowled"ement was duly made and it could not %e re*o;ed on te
"round of inducement or fraud.
&""rie*ed %y te decision of te Gi" Court. 3oro ene%etc a$$ealed to te Su$reme
Court. Gowe*er. te Su$reme Court confirmed te decision of te Gi" Court %y citin"
te rele*ant $ro*isions of te Ci*il Code.
1#.1. Gow could you e*aluate te decision of te courts in te li"t of te rele*ant
$ro*isions of te 18,9 Ci*il Code4
1#.2. 3ould your e*aluation %e different if te case was decided on te %asis of te
current family laws4
1#.3. 3ould 3oro Bairewor; %e successful if se in*o;ed $resum$tion of
$aternity4
1#.#. 3ould 0udicial declaration of $aternity %e of any el$ if 3oro Bairewor;
resorted to suc mode of esta%lisment of $aternity assumin" tat te case
arose after te new family laws of te country ad entered into force4
1'. In a case decided %y te Su$reme Court Bci*il a$$eal 5o. 83,9 decided on te 13
t
of
e;atit. 1871 (.CC te res$ondent named GiAes Gailu filed an a$$lication in te
Gi" Court $etitionin" te court to "i*e a declaratory 0ud"ment tat &to Gaile
3oGanan was er fater. Ger a$$lication was su$$orted %y a olo"ra$ will in
wic te deceased ac;nowled"ed GiAes Gailu as is dau"ter. 1e a$$ellant.
3oro )ulunes Beyene. te wife of te deceased o%0ected to te a$$lication
alle"in" tat te will was not *alid. 3oro )ulenes made te o$$osition altou"
se did not a*e any cild %orn from te deceased.
1e Gi" Court decided in fa*or of te a$$licant and te Su$reme Court
confirmed te decision of te Gi" Court4
1'.1. (*aluate te decision.
1'.2. If you were an attorney retained %y GiAes Gailu. wat $reliminary o%0ection would
you raise in fa*or of your client4
CHAPTER EIGHT
ADOPTION
8.1. Introduction
In te normal course of circumstances. it is natural filiation wic creates $arent=cild
relationsi$s. Gowe*er. e@ce$tionally an artificial filiation is esta%lised %y a"reement
%etween an ada$tor and an ado$tee for se*eral reasons. &ltou" ado$tion seems to %e a
$ri*ate a"reement %etween te ado$ti*e $arents and te ado$tee. te in*ol*ement of te
law is *ery muc crucial in definin" te manner of esta%lisment of suc artificial
familial %ond. te res$ecti*e ri"ts and o%li"ations of te ado$ter and te ado$tee. te
essential effects of ado$tion and re*ocation of ado$tion wen te need to do so arises.
1is ca$ter introduces students to te rele*ant $ro*isions of te law re"ulatin" %ot in=
country and inter=country ado$tion in (tio$ia. Gence. te ca$ter discusses. te meanin"
of ado$tion. te essential conditions of ado$tion. effects of ado$tions and inter=country
ado$tion. 5.B. &s usual. since it is te model for all re"ional family laws. reference will
%e made to te $ro*isions of te Re*ised Family Code B1e RFC ere in afterC in order to
a*oid unnecessary re$roduction of le"al $ro*isions.
8.2. Objectives
&fter com$letin" tis ca$ter. students will %e a%le toD
define ado$tionE
discuss te essential conditions of ado$tionE
analyAe effects of ado$tion i.e. %ot in=country and inter=countryE
analyAe te "rounds wic lead to re*ocation of ado$tion.
8.3. Adoption Defined
&do$tion is so widely reco"niAed tat it can %e caracteriAed as an almost world=wide
institution wit istorical roots tracea%le into anti/uity. 1e conce$t of ado$tion is
understood differently in *arious culture. Des$ite tat it is "ood to a*e a loo; at few
definitions wit a *iew to seddin" li"t on te conce$t. For instance. Blac;?s Law
Dictionary defines ado$tion asD 1e creation of $arent=cild relationsi$ %y 0udicial order
%etween two $arties wo usually are unrelated. BBlac;?s Law Dictionary. 7
t
ed. 299#. $.
'2C.
!laniol defines te conce$t asD & solemn contract wic creates relation %etween two
$ersons analo"ous and tose flowin" from le"itimate filiation B!laniol. $. 762C.
1e (tio$ian Ci*il Code of 18,9 defines ado$tion as a %ond of filiation created
artificially %y a contract of ado$tion %etween te ado$ter and te ado$ted cild B&rt.
68,B1C of te Ci*ilC. 1e RFC $ro*ides te same tin" as te Ci*il Code.
2nder (tio$ian law. filiation is a "rou$in" of $ersons %ased on %lood relationsi$.
&do$tion is. terefore. acce$tance of te rules of filiation in wic suc relationsi$ is
created artificially.
In "eneral. ado$tion is a way of ome findin" to cildren wo a*e lost teir natural
$arents %y deat. desertion. or teir misconduct. and in a secondary de"ree for cildren
wose $arents are una%le or unwillin" to maintain tem. &nd it is te $ractice of
a%sor%in" a cild into a family tat a cild is not %orn into and "i*in" it te le"al ri"ts
and duties of a cild tat is naturally %orn to te ado$ti*e $arents.
8.4. Essential Conditions and Effects of Adoption
&do$tion in (tio$ia %ot in country and inter country is "o*erned %y international laws
and con*entions to wic (tio$ia is a si"natory and %y its national laws $articularly te
RFC and re"ional family laws. Ga*in" %ased oursel*es on tese laws. we will discuss in
tis ca$ter some of te le"al re/uirements and effects of ado$tion. BRead &rts.68,=79,
of te 18,9 Ci*il Code of 18,9. te &frican carter on te Ri"ts and welfare of te
cild. +&2 Doc. C&BoL(Go 2#.8o#8o1889o entered into force 5o*. 28. 1888 and te
1878 cild con*ention.
8.4.1. Essential Conditions
In te $ast. &rt 686B1C of te Ci*il Code $ro*ides tat any $ersons of a"e may ado$t a
cild. 3en it says any $erson of a"e it is referrin" %ac; to &rt 187 of te Ci*il Code
wic sets 17 years as a"e wen a $erson is no more considered as a minor. In case of
ado$tion also a $erson %eyond te a"e of 17 years is ca$a%le of ado$tin" a cild unless
suc $erson is declared inca$a%le %y te law. 2nli;e te Ci*il Code. &rt. 17# of te RFC
$ro*ides tat any $erson wose a"e is not less tan twenty fi*e years may ado$t. 3ere
an ado$tion is made %y two s$ouses. it is sufficient tat one of tem %e of full a"e of
twenty fi*e years. &s re"ards te a"e of te ado$tee. te RFC $ro*ides tat any $erson
wo is less tan 17 years of a"e and under "uardiansi$ may %e ado$ted. 1is means tat
once a $erson as attained ma0ority a"e. no $ur$ose would %e ser*ed %y ado$tin" tat
$erson since is eose a%le to maintain imselfoerself. 1is is a clear de$arture te RFC
as made from te 18,9 Ci*il Code since te latter did not say any tin" concernin" te
a"e of te ado$tee. 1e Code as no u$$er a"e limit %ecause te $ur$ose of ado$tion
traditionally is to a*e some one as eir. But one can ar"ue tat in case of ado$tion. it is
te %est interest of te cild wic is "i*en $aramount im$ortance. So if te ado$ter is
too old it can?t $ro*ide te necessary care re/uired for te cild and tis isn?t in te %est
interest of te cild.
&s to marital status of te ado$ti*e $arents. tere is no $ro*ision wic $roi%its
ado$tion %y a sin"le $erson. Gowe*er. if te ado$ter is married te cild is ado$ted %y
s$ouses 0ointly as $er &rt.179 of te RFC. But tis doesn?t a$$ly were a $erson ado$ts
te cild of is s$ouse and one of te s$ouses is not in a $osition to manifest isoer will.
Generally. owe*er. ado$tion %y two s$ouses is te %est solution for te cild. as e
ac/uires te status of %ein" eac ado$ter?s own cild and %ot are e/ually o%li"ated to
care for im. It also a*oids misunderstandin" %etween te s$ouses on te future
u$%rin"in" of te cild. )oreo*er. ado$tion %y a cou$le is $referred. sim$ly %y reason of
te li;eliood tat cou$les will $ro*ide a more normal family en*ironment tat could
%e $ro*ided %y a sin"le ado$ter.
If te a%o*e re/uirements are satisfied. te fact tat te $ros$ecti*e ado$ti*e $arents may
a*e %iolo"ical or ado$ted cildren of teir own doesn?t affect ado$tin" a cild.
&ccordin"ly. &rt 177 of te RFC states tat. te e@istence of cildren of te ado$ter
sall not constitute an o%stacle for ado$tion. Gowe*er. %y way of e@ce$tion su%=article
two of tis article states tat altou" a*in" cildren is not an o%stacle to ado$tion te
court must ta;e into consideration te effects of e@istence of cildren of te ado$ter on
te well=%ein" and interest of te ado$ted cild.
3en you closely read te (tio$ian family laws. it is $ossi%le to understand tat
ado$tion is $ossi%le e*en if te natural $arents are ca$a%le of rearin" te cild. +n te
oter and. te 1878 Con*ention on te Ri"ts of te Cild $ermits ado$tion if te cild
can?t %e reared %y is families or oter alternati*e metods. 1e former can?t ta;e into
account te ca$acity of natural $arents to rear te cild. 3ile te latter ta;es into
account te ca$acity of natural $arents to rear te cild. 1erefore. tere is discre$ancy
%etween %ot laws.
How can you reconcile the contradictions? 1e con*ention on te Ri"ts of te cild is
an inte"ral $art of te (tio$ian law %y *irtue of &rt.8 B#C of te FDR( Constitution since
(tio$ia as ratified it and te RFC was a$$ro*ed %y te G!R. Gence. %y ta;in" into
consideration te $rinci$le of ierarcy of laws. sould you "i*e effect to te $ro*isions
of te cild con*ention or te $ro*isions of te (tio$ian Family Laws4
It may %e ar"ued tat "rantin" ado$tion for e*ery cild reduces te cance of oter
cildren wo a*e no oter means to teir care tan ado$tion. 1is can %e 0ustified
$ursuant to &rt. 792B2C of te (tio$ia Ci*il Code for it says If te cild is under 1'
years of a"e te contract of ado$tion sall %e %etween te ado$ter and te "uardian of te
ado$ted cild. 1erefore. in tis case consent is "i*en %y te "uardian. &nd wen an
institution of assistance or an indi*idual see;s to act as "uardian of te cild. te ci*il
code re/uires a court a$$ointment. 3en an institution is to act as "uardian. te
mana"ement as to dele"ate one of it mem%ers to e@ercise suc functions. courts are
directed to a$$oint relati*es as "uardians. wen $ossi%le and to a$$oint institutions only
were necessary.
For te esta%lisment of *alid ado$tion. te consent of $arents of te ado$ted cild is
mandatory. &ccordin"ly. &rt.189B1C of te RFC $ro*ides tat %ot te fater and te
moter of te ado$ted cild must "i*e teir consent to te ado$tion a"reement were tey
are ali*e and ;nown. Su%=article two of tis article $ro*ides tat were one of tem is
dead. a%sent. un;nown or inca$a%le to manifest isoer will. te oter $arent sall "i*e
is consent. Des$ite te fact tat te consent of %ot $arents is necessary. one of te
$arents may not %e willin" to "i*e isoer consent to te ado$tion. In tis case. te court
may a$$ro*e te ado$tion u$on earin" te o$inion of te oter $arent and of te cild
were te cild is ten and a%o*e years of a"e. Sometimes. tere may not %e ascendants
wo may "i*e teir consent to te ado$tion a"reement. In tis case. te court is
em$owered to a$$ro*e suc a"reement %y ta;in" into account te interest of te cild
B&rt.181C.
In some circumstances. "o*ernment or $ri*ate or$ana"es may "i*e any cild under teir
custody to ado$ters. 3en tis is te case. suc or$ana"es are re/uired to $ro*ide
sufficient information to te "o*ernment or"an a*in" autority to follow u$ te well=
%ein" of cildren. as to te identity of te cild. ow te or$ana"e recei*ed im and
a%out te $ersonal. social and economic $osition of te ado$ter. &ll te information must
%e "i*en to te "o*ernment or"an %efore te a"reement of ado$tion is concluded. BRead
&rt.182 of te RFCC
3ere te ado$ter is a forei"ner. te court may a$$ro*e te ado$tion unless an autority
em$owered to follow te well=%ein" of cildren. after collectin" and analyAin" rele*ant
information on $ersonal. social. and economic $osition of te ado$ter "i*es its o$inion
tat te ado$tion is %eneficial to te cild. B&rt.183B1C.
However, how can such authority in Ethiopia collect and analyze relevant
information with regard to the personal, social and economic position of a foreign
adopter?
Des$ite wat is $ro*ided under &rt.183B1C of te RFC. te court may disre"ard te
o$inion of te autority and re0ect te a"reement of ado$tion were te court tin;s tat
te a"reement is not %eneficial to te cild. In oter circumstances. were te court finds
tat te information $ro*ided %y te concerned autority is insufficient. it may order te
autority to conduct furter in*esti"ation and su%mit additional information. 1e $ower
of te court is also e@tended to orderin" oter indi*iduals or or"aniAations to $ro*ide any
rele*ant information in teir $ossession or to "i*e testimony BRead &rt.183B3C.
1e $ower of te court does not sto$ ere %ecause an a"reement of ado$tion does not
$roduce any le"al effect unless it is a$$ro*ed %y te court. In te case. te court is duty=
%ound to *erity tat te ado$tion is to te %est interest of te cild %efore a$$ro*in" te
a"reement. In addition. %efore a$$ro*in" te a"reement. te court is re/uired to ta;e into
considerationD
te o$inion of te cild a%out te ado$tion were te cild is ca$a%le of "i*in"
o$inionE
te o$inion of te "uardian or te tutor of te cild if eose as not $re*iously
"i*en is consentE
te ca$a%ility of te ado$ter to raise and ta;e care of te cildE
were te ado$ter is a forei"ner. te a%sence of access to raise te cild in
(tio$iaE
te a*aila%ility of information wic will ena%le te court to ;now tat te
ado$ter will andle te ado$ted cild as is own cild and will not a%use im.
BRead &rt.18# of te RFCC.
8.4.2 Effects of Adoption
3en it is duly esta%lised. ado$tion $roduces certain le"al effects. 1e cons$icuous
effects of ado$tion are marria"e. succession. maintenance and te li;e. Let us see tese
effects %riefly as follows.
A. Marriae
1ere are certain conditions to %e fulfilled %efore marria"e is concluded. 1e Ci*il Code
$ro*ides tat marria"e %etween $ersons related %y consan"uinity and affinity is
$roi%ited. In case of ado$tion %onds of consan"uinity and affinity are created $ursuant
to &rt. '', of te Ci*il Code. &rt. 7 of te +romiya Family Code $ro*ides tat ado$tion
is one source of familial relationsi$. By te same ta;en. &rt. 6 of te 1i"ray family code
$ro*ides tat %ot consan"uinal and affinal relationsi$ can %e esta%lised %y ado$tion.
&rt. 171 of te RFC also $ro*ides tat an ado$ted cild sall. for all $ur$oses. %e deemed
to %e te cild of te ado$ter.
1erefore. relationsi$ esta%lised %y ado$tion may %e an im$ediment to marria"e in
accordance wit te de"rees tat are $ro*ided %y te family laws of te res$ecti*e
re"ional family laws and te RFC.
B. S$cce''i"#
Because ado$tion esta%lises an artificial filiation. te $ro*isions of te Ci*il Code
dealin" wit succession %ot intestate and testate do a$$ly to te ado$ted cild. Gowe*er.
tere is no $ro*ision under our law wic $ermits or $roi%its an ado$ted cild from
ineritin" is natural $arents. But we can raise ere two ar"uments. First te cild is
considered as a cild naturally %orn into te family of te ado$ti*e $arents. e forfeits te
ri"t of ineritin" is natural $arents. for &rt.73, says ado$ted cildren sall %e
assimilated to te oter cildren in case of succession. 1e oter ar"ument is. as te
ado$ted cild sall retain is %onds wit is family of ori"in. if so is ri"t to inerit is
not in 0eo$ardy as is relation isn?t dissol*ed. Gowe*er. tere is no a $ro*ision in te
Ci*il Code wic $roi%its te ado$ted cild from ineritin" is natural $arents.
3it re"ard to te ineritance of te $ro$erty of te ado$ted cild. it is te family of
ado$tion tat is te ascendants. descendants and collaterals of te ado$ti*e $arents wo
a*e te ri"t to inerit. Since &rt. 173B3C of te RFC states tat. Fwere*er a coice as
to %e made %etween te family of ado$tion and te family of ori"in. te family of
ado$tion sall $re*ail.
C. Ri-t' a#d &bliati"#' a' t" S$pp"rt a#d Care
&do$ti*e $arents are duty=%ound to su$$ort and care for te ado$ted cild. Since te
ado$ted cild as an e/ual ri"t as a naturally %orn cild. it is also incor$orated in %ot
te FDR( Constitution and 25 Con*ention on te Ri"ts of te Cild tat te cild is
entitled to ac/uire care of isoer "uardian. Gence. te moter and fater are durin" teir
marria"e 0ointly "uardians and tutors of teir minor cildren. 1e "uardians or tutors of a
cild are duty %ound to e@ercise different functions related to different needs as to
residence. ealt. education. social contacts and corres$ondence. and income. etc. of te
cild. &nd te $arents are res$onsi%le to maintain te cild and "i*e all te necessary
material su$$ort witin teir ca$acity.
In return for su$$ort and care. a cild wo is ca$a%le. as reci$rocal duty to "i*e
maintenance to is ado$ti*e $arents. &s e@$ressly $ut under &rt. 187 of te RFC an
o%li"ation to su$$ly and maintenance e@ists %etween relati*es %y consan"uinity or
affinity in te direct line and %etween %roters and sisters. Gowe*er. te ado$ted cild.
is s$ouse and is descendants may not claim maintenance from te family of ori"in of
te ado$ted cild unless te ado$ti*e family isn?t in a $osition to su$$ly suc
maintenance. 1ey aren?t also %ound to su$$ly maintenance to ascendants of te family
of ori"in unless te latter can?t claim maintenance from anoter mem%er of teir family.
3it re"ard to o%li"ation to su$$ly maintenance to natural $arents. tere is no $ro*ision
wic o%li"es or $roi%its. So it is at te discretion of te $arties to su$$ly maintenance
or not.
8.5 Inter-country Adoptions and Safeguards to Children
8.5.1 Inter-country Adoption in General
1e sorta"e of ado$ta%le cildren in de*elo$ed countries. te unfortunate circumstances
in wic some cildren and $arents in de*elo$in" countries find temsel*es. alon" wit
"reatly increased international mo%ility. a*e "i*en rise to te new $enomenon of inter=
country BinternationalC ado$tions. 1e first sceme of inter=country ado$tion was
arran"ed in te 18#9s %y te family welfare association in (n"land in con0unction wit
te &merican Branc of te International Social Ser*ice +r"aniAation. BSee Gery D.
rrause. Family Law in a 5utsell. 3est !u%lisin" Com$any 188'. $$. 297=298C and
)ary (llision. 1e De$ri*ed Cild and &do$tion. !an Boo;s Ltd. London. 18,3. $. 19'C.
In (tio$ia. te main cause for te start of inter=country ado$tion as an alternati*e care
for or$aned and a%andoned cildren was te 186#o6' drau"t and famine tat resulted in
or$aned and a%andoned cildren. Because of tis. te ten !rime )inister?s office "a*e
directi*es to te )inistry of La%our and Social &ffairs B)+LS&C to consider and wor;
on inter=country ado$tion for or$aned and a%andoned cildren in late 1869s. 1e
directi*e esta%lised a committee for facilitation of ado$tion. as well as it $ro*ides te
$rere/uisites for selection of ado$ti*e $arents and documents re/uired at tat sta"e
BDin;alem Betru. 1e Conce$t of &do$tion and !rocedures Followed in (tio$ia.
wor;so$ at 5aAaret. <uly 1886. $. '.C
1e term inter=country ado$tion refers to an ado$tion in wic ado$ters and cild don?t
a*e te same nationality. as well as one in wic te a%itual residence of ado$ters and
cild is in different countries. 5owadays in (tio$ia. tere are two ;inds of inter=country
cases. 1e first one is te %iolo"ical moter *oluntarily relin/uises er cildren for
$ersonal reasons. It may also %y %ot $arents and "uardians for reasons suc as lac; of
means to su$$ort. 3e call tese $ri*ate inter=country ado$tions. 1ey are arran"ed
directly %etween te %iolo"ical $arents and ado$ti*e $arents or teir re$resentati*es or
trou" an intermediary. 1e oter is ado$tion of or$aned or a%andoned cildren or
cildren wose $arents are ill and ence a*e no one else to act on teir %ealf. 1ese are
called a"ency inter=country ado$tions for te reason tat it is te a"ency wic acts on
%ealf of te cild in case of ado$tion.
)oreo*er. in te field of $ri*ate international law. two as$ects must %e distin"uised.
+ne concerns te coice of lawE te oter te e@ercise of 0urisdiction. 1e same two
as$ects $resent temsel*es. once a"ain. wen te reco"nition of inter=country ado$tion is
in issue. In ci*il law. ado$tion is re"arded as a contract. al%eit su%0ect to a$$ro*al %y te
$u%lic autoritiesE te constituti*e act of an ado$tion under tis teory is te e@ercise %y
te $arties in*ol*es certain $ri*ate ri"ts. If one adds it te contract teory of ado$tion a
$erson?s $ri*ate ri"ts re"ardin" any $oint of is $ersonal situation sould %e "o*erned
%y a $ersonal law. suc as te law of is nationality. 1en. it sould follow tat te ri"t
to ado$t a cild. or to %e ado$ted. must %e determined accordin" to te national law of te
$erson in /uestion. In oter words. te contract teory tends to %rin" wit it coice of law
tat is for te *alidity of an ado$tion in wic com$liance wit te national laws of at
least one of te $arties is necessary. Br. ri$stien. &do$tion in !ri*ate International
Law. 12 International and Com$arati*e Law :uarterly. B18,3C $. 73,C.
In "eneral. ado$tions sall %e "ranted only if it will %e in te %est interests of te cild.
&nd tat te autority a$$ro*in" te ado$tion is to carry out a torou" in/uiry relatin"
to te $arties trou" te a"ency or te a$$ro$riate autorities. and as for as $ossi%le wit
te el$ of e@$erienced social wor;ers and a"encies /ualified in te field of inter=country
ado$tions. 1e ma;in" of te a$$ro$riate in*esti"ations $reliminary to an ado$tion. is
terefore. left to te initiati*e of te forum state rater tan to an internationally uniform
$rocedure. and tis is eac country?s courts are to a$$ly forum law to all $rocedural
matters. Gence. it is wit tis in *iew tat we will discuss some of te $rocedural matters
suc as selection of $ros$ecti*e ado$ti*e $arents. court $roceedin" etc.. in relation to te
two ty$es of inter=country ado$tions.
8.5.2 Placement of the Child
25 Con*ention on te Ri"ts of te Cild reco"niAed tat Inter=country ado$tion may
%e considered as an alternati*e means of cild care. if te cild can?t in any suita%le
manner %e cared for in te cild?s country of ori"in BCon*ention on te Ri"ts of te
cild. B1878C. &rt. 21BcCCC. 1is $rinci$le also finds e@$ression in a directi*e issued %y te
)inistry of La%our and Social &ffairs in 188,. &rt. 3 of te directi*e $ro*ides tatD &
cild can %e ado$ted and e@$atriated only wen it as %een $ro*en tat it cannot "et
$ro$er care in (tio$ia %ecause foster $arents or $ersons willin" to ado$t it could not %e
found and tat tere is no oter way it can %e %rou"t u$ $ro$erly ere.
5oneteless. in certain circumstances inter=country ado$tion may offer te ad*anta"e of
a $ermanent family to a cild for wom a suita%le family can?t %e found in isoer state
of ori"in. 1is su""ests tat tere are circumstances in wic inter=country ado$tion
may %e re"arded as $refera%le for a cild o*er institutional care in te country of ori"in.
It is also o%*ious tat te successful o$eration of tis $rinci$le re/uires tat te $lacin"
a"ency in (tio$ia sould a*e te ca$acity to e@$lore te alternati*es to inter=country
ado$tion. 1is im$lies a $lacement system wic in some way is inte"rated into or at
least as ready access to information a%out te cild=care ser*ices in (tio$ia. Gowe*er.
in inter=country $ri*ate ado$tion. i.e.. in te sense of not %ein" arran"ed trou" an
a$$ro*ed a"ency. insufficient attention may %e "i*en to te $ossi%le alternati*es to inter=
country ado$tion. 1at is wy &rt. 21BeC of te Con*ention in te Ri"ts of te Cild
states tat te $lacement of a cild in anoter country sould %e carried out %y com$etent
autorities and must not result in financial "ain for te $arties in*ol*ed.
8.5.3 Selection of Adoptive Parents
In te total e*aluation of te interest of te cild. te e@amination of te $ersonal
/ualities of te ado$ter is of s$ecial si"nificance. (ac country as its own laws and
$rocedures re"ardin" te selection and a$$ro*al of $ros$ecti*e ado$ti*e $arents. In te
2nited States. in order to %e a$$ro*ed for ado$tion families "o trou" a $rocess called
ome study. 1is entails contractin" a licensed social wor;er to carry out te study %y
means of *isits and $one calls. In (tio$ia. &rt.183 of te RFC states tat were te
ado$ter is a forei"ner. te court may not a$$ro*e te ado$tion unless an autority
em$owered to follow te well=%ein" of cildren. after collectin" and analyAin" rele*ant
information a%out te $ersonal. social and economic $osition of te ado$ter. "i*es its
o$inion tat ado$tion is %eneficial to te cild. Gowe*er. te court may re0ect te o$inion
of te autority and decline to a$$ro*e te ado$tion were it Bte courtC tin;s tat
ado$tion is not %eneficial to te cild. &ccordin" to te afore=mentioned directi*e
cildren are ado$ted and e@$atriated were it is *erified tatD
a. 1e would %e ado$ter?s income will ena%le im to raise a cild.
%. 1e ado$ter is ealty. tat is social life is not tainted. tat e is of a sound mind
and is not at all addicted to any dan"erous dru"s.
c. 1e ado$ter as ne*er %een con*icted of a crime or of %ein" en"a"ed in an ille"al
acti*ityE and
d. 1e written consent of is lawful s$ouse as %een o%tained wit re"ard to te
ado$tion.
In "eneral. it is necessary to arri*e at a firm conclusion tat te future ado$ti*e $arents
will %e a%le to %rin" u$ te cild $ro$erly and maintain im financially. Beyond tat
$arents a*e res$onsi%ility to teac teir cildren. res$ect and to $ro*ide wit a
conduci*e en*ironment in wic e may de*elo$ sound caracter. 1is res$onsi%ility
im$oses on a $arent an o%li"ation to train is cild in differentiatin" ri"t from
wron" and de*elo$ is cild?s conscience. It also re/uires a $arent to teac %y
e@am$le. tat is. to conduct imself in a manner tat is cild may imitate.
8.6 Safeguards for Children in Inter-country Adoption
8.6.1 Follow-up Work
&s re"ards inter=country ado$tions. te Con*ention on te Ri"ts of te Cild calls for
te "uarantee of %ein" informed of te cild?s condition after autoriAation of ado$tion
and is de$arture a%road. 1is ena%les te concerned autorities to ensure tat te cild?s
ri"ts are res$ected and tat te cild is farin" well. 1o tis end. te com$etent
autorities sould follow=u$ te ado$ted and e@$atriated cildren. 1is can %e done %y
re/uestin" concerned "o*ernmental as well as non "o*ernmental or"aniAations found in
te cild?s country of residence. Follow=u$. amon" oter tin"s. is done %y $eriodical
*isits %y e@$erts from te com$etent autority and assess te situation of ado$ted
cildren in te cild?s country of residence. 3en it as %een found out tat te ri"ts of
te ado$ted and e@$atriated cild a*e %een *iolated or tat its welfare is not ensured. te
com$etent autority sall ta;e te necessary measures to remedy te situation. What do
you think are such measures?
8.6.2 The Child`s Right to Identity and Secrecy
In te ado$tion $rocess tree interests are in*ol*ed i.e. te interest of te cild. te
$arents i.e. %ot ado$ti*e and natural. and $u%lic interest. 1e cild as an interest to
;now is identity. +n te contrary. security is a "uarantee %ased in $art of a desire to
$rotect te $arent from $u%lic em%arrassment. 1e ado$ti*e $arents are "uaranteed te
same anonymity as te %iolo"ical $arents. 1e ado$ti*e family needs to %e $rotected
from intrusion in order tat a ealty and sta%le relationsi$ may %e allowed to de*elo$.
Beyond tis. te ado$ti*e $arent may feel isoer $arentood %e treatened %y disclosure
and %y te un;nown results of any $ossi%le reunion. 1ey can?t easily $ut distance
%etween temsel*es as $arents and teir cild?s $ersonal need for identity. Furtermore.
te $rimary interest of te $u%lic is to $reser*e te inte"rity of te ado$ti*e $rocess. 1at
is. te continued e@istence of ado$tion as a umane solution to te serious social $ro%lem
of cildren wo are or may %ecome unwanted. a%used or ne"lected. Gence. te $u%lic as
a stron" interest in $reser*in" te confidential and non $u%lic nature of te $rocess.
Because of te difference in interest tere is contro*ersy. 5owadays. tere are stron"
mo*ements in many countries to reco"niAe te interest of te ado$ted cild to disco*er
is true identity. &rt. 7 of te Con*ention on te Ri"ts of te Cild seems to %e a result
of tis it tou" identity is no defined in &rt.7 or elsewere in te con*ention. Instead
instances of identity are listed nationality. name and family relations as reco"niAed %y
law. and. under &rt. 7B1C te ri"t of a cild to $reser*e isoer identity witout
unlawful interference can %e inter$reted as $lacin" a duty on states $arties to allow
ado$ted cildren te ri"t to a*e access to records re*ealin" te identify of teir natural
$arents. )oreo*er. in te interest of cildren ado$ted. it must %e re*ealed to tem tat
tey a*e %ot %iolo"ical and ado$ti*e families. Gowe*er. anonymous ado$tions will
usually $re*ent te ado$ted cild from ;nowin" wen or weter an ineritance is due.
+n te contrary. some say tat ado$tion records must %e ;e$t secret to $rotect $arents and
te $u%lic at lar"e. If ado$tion is made $u%lic. $otential ado$ters may decline to ado$t
cildren wic may a*e a ne"ati*e effect on *ulnera%le cildren. )oreo*er. o$en
ado$tion will encoura"e natural $arents to %ecome o*er de$endent on ado$ti*e $arents.
a""ra*ate ado$ti*e $arents? sense of insecurity and confuse ado$ted cildren. To which
of these arguments do you subscribe?
Generally. owe*er. any ri"t to information must %e %alanced a"ainst te $u%lic interest
in te ado$tion $rocess wic confidentiality is intended to $rotect. 1o tis end. &rt. 6 of
te Con*ention on te Ri"ts of te Cild states tat te cild?s ri"t to ;now its natural
$arents will a*e to %e restricted %y o$erati*e le"al solutions. aimed at ;ee$in" te
ado$tion secret. 1e afore=mentioned directi*e also reco"niAes tat ado$tion to %e treated
as a strictly confidential matter. unless it as a ne"ati*e effect on te welfare of te cild.
&nd also reco"niAes te cild?s ri"t to information a%out isoer country. natural $arents
and family mem%er or in order to set free imoerself from any difficult condition tat
faces. Gere we understand tat te law demands tat te secret of ado$tion %e ;e$t in
cases were an ado$tion is re*ealed. dama"e to te $arties in*ol*ed can %e "reat and lead
to a se*ere family crises. &t te same time. te cild?s ri"t to is identity is reco"niAed
$articularly wit res$ect to "rantin" access to information at some $oint in an ado$tee?s
life weter at ma0ority or earlier.
&do$ted cildren unli;e natural cildren don?t sare ancestry. "enetic erita"e. or family
resem%lance wit teir ado$ti*e $arents. 1ey stru""le wit /uestions li;e Fwy was I
$laced for ado$tion4E 1o wom do I %elon"4. wo am I4. wo are my natural
$arents4 &s tey mature. tey need acce$tance. reassurance. and $ositi*e %ut realistic.
res$onses to teir /uestions from teir families and communities. 1ey also need to
understand tat te decision made %y teir natural $arents was %ased on teir own
$ersonal circumstances and not on te cild?s %ein" %ad or dama"ed. 1is can %e seen
from tese two cases.
In te first one. a youn" man of 23 years old came to (tio$ia. were e was a%andoned
as a little cild. to $re$are is "raduation tesis on te to$ic F&do$tions in (tio$ia.? Ge
wanted to learn a%out is natural $arents. Ge was ta;en to recene Cild Care Institution
in &ddis &%a%a were e li*ed %efore e was ado$ted. Ge was told tat is moter
wouldn?t $ay a *isit to im as se a%andoned im. Finally. e realiAed tat e would not
%e a%le to meet is natural $arents.
1e oter was a "irl from Sweden wo was a%andoned as a little cild in (tio$ia and
came %ac; to learn a%out er natural $arents alon" wit er ado$ti*e $arents. Se was
ta;en to recene Cild Care Institution were se li*ed %efore se was ado$ted. Se left
for <imma wic was traced to %e te $lace were se was a%andoned. In <imma. se saw
te e@act s$ot were se was found a%andoned and realiAed te werea%outs of er
natural $arents is un;nown. &nd se was /uite relie*ed tereafter for se learnt te trut.
Gence. te lon"er an ado$ti*e $arent ;e$t secret te fact of ado$tion from a cild. te
more serious te conse/uences %e wen te fact is finally re*ealed. Similarly. te less
information is re*ealed a%out te ado$tee?s ori"ins. te "reater te $ro%lems for te
ado$tee. 1us. "enerally $arental moti*ation and commitment. te ado$ti*e $arent?s
o$enness in discussin" ado$tion issues wit teir cild. te a"e of te cild at te time of
$lacement. and te cild?s indi*idual tem$erament a*e an influence on ado$tion
ad0ustment.
8.6.3 Prevention of Unlawful Acts in Inter-country Adoption
1e $arent. "uardian or foster $arent may claim or acce$t money or oter material "oods.
for imself or some%ody else. in e@can"e for a cild?s ado$tion. & $erson may also
o%tain im$ro$er financial "ain trou" actin" as an intermediary or facilitator in a cild
ado$tion. But. in most states it is a crime to offer or recei*e money or any *alua%le
consideration for relin/uisin" or acce$tin" a cild for ado$tion since ado$tion is %ased
on te cild?s need to a*e a family and not on te economic $rofit of intermediaries.
Similarly. te afore=mentioned directi*e states tose acts wic are unlawful wit re"ard
to ado$tion of cildren. 1ese are. acce$tin" %ri%es to willfully "i*e away of one?s cild
for ado$tion. ma;in" ado$tion a %usiness and $rofitin" %y it. and ado$tin" a cild a"ainst
is will or witout te written consent of is $arents.
)oreo*er. under te "uise of ado$tion. certain $eo$le en"a"e in cild a%use suc as
e@$loitation of cildren trou" $orno"ra$y. $rostitution. cea$ la%or. te remo*al and
sale of or"ans used in trans$lants and oter forms of a%use. some %eyond e*en te wildest
stretc of te ima"ination. 1o a*oid tis. &rt.11 of te Con*ention on te Ri"ts of te
Cild states tat $arties sall ta;e measures to com%at te illicit transfer and non=return of
cildren from a%road. &nd &rt.3' of same con*ention calls for te counteraction of
a%duction. sale. or traffic;in" in cildren for any $ur$ose or in any form. In addition. te
Ga"ue Conference on Inter=country &do$tions calls for ado$tions to %e or"aniAed %y
autoriAed ado$tion a"encies. 1erefore. altou" %iolo"ical $arents are often willin" to
ma;e $ri*ate arran"ements for ado$tions. te "o*ernment as to deter tis %y re"ulatin"
and su$er*isin" ado$tions to eliminate ille"al traffic;in" in cildren. &nd ence stron"
administrati*e screenin" and le"al su$er*ision to a*oid intermediaries from ma;in" $rofit
in inter=country ado$tion is needed.
Do you think that Ethiopia has put in place the institutional and legal framework to
combat abuse of the right of the child using adoption as a cover?
8.7. Revocation of Adoption
&ltou" ado$ti*e filiation is esta%lised %y te a"reement of te ado$ter and te
ado$tee. it cannot $roduce any le"al effect unless it is a$$ro*ed %y te court. 1e court.
%efore "i*in" te decision of a$$ro*al. conducts serious in*esti"ations and in/uires to
ma;e sure tat te a"reement of ado$tion is in te %est interest of te cild in all res$ects.
If an ado$tion is a$$ro*ed %y te court. as a matter of rule. if is not re*oca%le as clearly
$ro*ided in &rt. 18'B1C of te RFC. Gowe*er. unli;e &rt. 79, of te Ci*il Code wic
$ro*ided for te irre*oca%ility of ado$tion for wate*er reason. &rt. 18'B2C of te RFC
states tat ado$tion may %e re*o;ed for te reasons mentioned tere under. &ccordin" to
tis su% article. ado$tion may %e re*o;ed %y te court were te ado$ter. instead of
loo;in" after te ado$ted cild. andles im as a sla*e. or in conditions resem%lin"
sla*ery. or ma;es im en"a"e in immoral acts for is "ain. or andles im in any oter
manner tat is detrimental to is future.
1e $etition for re*ocation of ado$tion may %e made %y te cild. a "o*ernment or"an
autoriAed to follow u$ te well=%ein" of cildren or any oter interested $erson B&rt.
18,B1CC.3en $etition is su%mitted to te court te court sall determine weter te
"rounds for $etition are real and sufficient to warrant re*ocation. If te court is satisfied
tat te $etition is well founded. ten it re*o;es te ado$tion.
8.8. Summary
5ormally. it is natural filiation wic creates $arent cild relationsi$. Gowe*er. artificial
filiation is esta%lised %y a"reement to %e entered %etween te $arties concerned. Suc
mode of esta%lisment of familial relationsi$ is called ado$tion wic is entirely
de$endant u$on te a"reement of te ado$tee Bte cildC and te ado$ter.
In order to esta%lis a *alid ado$tion. essential conditions of ado$tion $ro*ided %y law
must %e satisfied. +nce a *alid ado$tion is esta%lised. it is only on few "rounds tat
ado$tion is re*o;ed. (*en ten. ado$tion is only to %e re*o;ed %y te order of te court
wen it is satisfied tat te continuance of ado$tion does not ad*ance te %est interest of
te cild.
& *alidly formed ado$tion $roduces certain le"al effects. 1e first is. ado$tion %ecomes
an im$ediment to marria"eE secondly. it creates te o%li"ation to su$$ly maintenance and
ri"ts and duties of su$$ort and care %etween te ado$ter and te ado$tee.
&do$tion could %e in country or inter country. In te case of inter= country ado$tion. we
a*e to ta;e care tat te ri"ts of cildren are res$ected and $rotected in accordance
wit te re/uirements of (tio$ian laws and international uman ri"t instrument to
wic (tio$ia is a $arty.
8.9. Review Questions
1. Because ado$tion is an a"reement %etween te ado$tee and te ado$ter. te consent of
%ot $arties must freely %e o%tained. If te consent of eiter of tem is *itiated %y
*ices of consent suc as fraud. mista;e or coerciono*iolenceo. te contract of
ado$tion may %e in*alidated. Do you a"ree wit te a%o*e /uotation4 3yowy
not4
2. Identify te de$artures tat a*e %een made %y te RFC and re"ional family laws from
te 18,9 Ci*il Code as re"ards ado$tion and critically analyAes te rationale %eind
suc de$artures.
3. &ltou" te law $ro*ides tat a $ysical $erson can ado$t a cild u$on te attainment
of 2' years. it as ne*er $ro*ided te ma@imum a"e=limit. Because of tis. tere are
$eo$le wo ar"ue tat te law ma;er sould a*e $ut an u$$er limit to te a"e of te
ado$ter. 3ould %e of any el$ to safe"uard te %est interest of te cild if an u$$er
limit to te a"e of te ado$ter is $ro*ided %y law4
#. 3at is te si"nificance of inter country ado$tion to de*elo$in" countries suc as
(tio$ia4 Do you see any ne"ati*e conse/uences of inter country ado$tion4 Discuss
critically4
'. &rt. 17' of te RFC states tat any $erson wo is less tan 17 years of a"e and under
"uardiansi$ may %e ado$ted. 3at do you understand %y te $rase under
"uardiansi$4 Does tis mean tat cildren wo are not under "uardiansi$ cannot
%e ado$ted4 Discuss critically $articularly %y ta;in" into consideration street cildren
in (tio$ia and foundlin".
,. )r. s is a Swedis 5ational. Ge concluded an a"reement of ado$tion wit te $arents
of cild . %ecause te court was satisfied tat te ado$tion was in te %est interest of
te cild. it a$$ro*ed te a"reement and )r. s too; to Sweden. 1ou" te life of
te ado$tee was decent. te ado$tee was *ery muc discontented since is ado$ti*e
$arent $re*ented im from ma;in" any corres$ondence wit is natural $arents.
,.1 3ould te act of te ado$ter %e a sufficient cause for re*ocation of ado$tion
seen in li"t of (tio$ian laws and international uman ri"t con*entions4
,.2 3o could %e te real $arty in interest to $etition te court for re*ocation of
te ado$tion4
6. &to Gemecu ado$ted a cild called Desta in 1869 (.C u$on te a$$ro*al of te court.
Because &to Gemac was not *oluntary to send te ado$tee to scool. te latter
deserted &to Gemecu and went to te &ity of &ddis &%a%a were e could "et
%etter o$$ortunity to education and 0o%. &ltou" &to Gemecu e@erted effort to
trace te werea%outs of te cild. e was not successful. &to Gemecu died in 2999
(.C. 3en te succession of &to Gemecu was o$ened last Decem%er 2999 (.C. te
ado$tee BDesta a 3' years old manC a$$eared and claimed tat e is an eir at law and
deser*es a sare from te estate of te deceased since &to Gemecu died intestate.
Gowe*er. te oter eirs of te deceased o%0ected to is claim alle"in" tat since
Desta disa$$eared te ome from of te ado$ter. te a"reement of ado$tion was
terminated i$so facto. Desta. on te oter and. ar"ues tat. te fact e disa$$eared
from te ado$ter does not affect te effects of te ado$tion tat was duly esta%lised.
&ssumin" tat te case were %rou"t to you. ow would you decide it4
7. &rt. 179 of te RFC $ro*ides tat ado$ti*e filiation may %e created %y an a"reement
%etween a $erson and a cild. +n te oter and. &rt. 176B1C of te same code states
tat a cild merely concei*ed may %e ado$ted. Do you tin; tat tere is
com$ati%ility %etween tese le"al $ro*isions4 If your res$onse is in te ne"ati*e. ow
would you redraft &rt. 179 of te RFC4
8. &ssumin" tat you are a$$roaced %y a would %e ado$ter and a would %e ado$tee to
draft tem an a"reement of ado$tion. wat elements would you incor$orate in te
a"reement %eyond and a%o*e te le"al $ro*isions and witout $re0udice to te
su%stanti*e $olicies of your clients4
19. ou ;now tat e*ery a"reement is not a contract wile e*ery contract is an a"reement.
Gow do you caracteriAe te a"reement creatin" an ado$tee=ado$ter relationsi$4
11. Because ado$tion is esta%lised %y te a"reement of te $arties concerned. suc $arties
can $ut end suc relationsi$ %y mutual consent or one of te $arties is at li%erty to
terminate it wene*er e demands so. (*aluate te *alidity of tis statement in li"t
of te rele*ant $ro*isions of te (tio$ia Family Laws.
12. &to Gaymanot concluded an a"reement of ado$tion wit te $arents of a cild called
Guddinna. &ltou" &to Gaymanot?s intention was to foster te cild. educate im
and ma;e im uman. te cild. now 18 years of a"e. is not *oluntary to "o to scool
en"a"in" imself in "am%ilin". cewin" cat and smo;in". Because of tis. &to
Gaymanot wants "et re*o;ed te a"reement of ado$tion can e succeed4
CHAPTER NINE
OBLIGATION TO SUPPLY MAINTENANCE
9.1. Introduction
In our $recedin". discussions you a*e learnt tat family relationsi$ may %e esta%lised
%y consan"uinity. affinity or ado$tion and one of te salient effects of familial
relationsi$ is tat an o%li"ation to su$$ly maintenance amon" and %etween suc $ersons
is created witin te %ounds of te law. +ne may %e o%li"ed to su$$ly maintenance only
to tose $ersons te law as identified Bto one?s ascendants. descendants. s$ouse or
ado$tee or ado$terC. 1e de%tor in a maintenance o%li"ation is o%li"ed to su$$ly to te
creditor tose tin"s necessary for te sur*i*al of te creditor $ro*ided tat te creditor is
a needy one. Demandin" maintenance allowance is not an a%solute ri"t. Rater tere are
certain limitations. (*en te one wo is entitled to suc an allowance may lose is ri"t
under certain circumstances defined %y law.
1is ca$ter is. terefore. aimed at introducin" students to te law dealin" wit te
o%li"ation to su$$ly maintenance. 1o tis end. te ca$ter will concentrate on te
rationale %eind maintenance allowance. $ersons entitled to suc allowance and $ersons
o%li"ated to su$$ly. te su%0ect matter of te allowance and termination of suc de%tor=
creditor relationsi$.
9.2. Objectives
Ga*in" com$leted tis ca$ter. students sould %e a%le toD
define te su%0ect matter of o%li"ation to su$$ly maintenanceE
identify $ersons entitled to maintenance and $ersons o%li"ed to su$$ly
maintenanceE
discuss te rationale %eind suc o%li"ationE
state te reasons leadin" to e@tinction of te o%li"ationE

9.3. Rationale behind the Obligation
&s you can understand. o%li"ation is a le"al relation. wic consists in te duty of one
$erson Bcalled te de%torC to $erform or not to $erform sometin" towards anoter $erson
Bnamed te creditorC. +%li"ation emanates from two sources=contractual o%li"ations and
le"al o%li"ations. 1e former is an o%li"ation created %y te a"reement of te creditor and
te de%tor wile le"al o%li"ations. owe*er. emanate from te law itself. 1e o%li"ation
to su$$ly maintenance is a ty$ical e@am$le of le"al o%li"ation. 1erefore. tose $ersons
identified %y law to discar"e suc an o%li"ation are %ound to meet teir o%li"ations e*en
if tey a*e not "i*en teir consent to do so.
Gowe*er. wat is te rationale %eind suc o%li"ation4 1ey rationale %eind suc
o%li"ation is a moral duty tat e@ists amon" family mem%ers. 3en a mem%er of a
family %ecomes needy. no one is nearer tan te family mem%ers to maintain suc
mem%er.
9.4. Subject Matter of the Obligation
&ccordin" to &rt.186 of te RFC. te $erson wo is o%li"ed to su$$ly maintenance is
%ound to su$$ly to is creditor tin"s tat are necessary for te li*eliood of te creditor.
1is means tat te de%tor is not %ound to su$$ly to te creditor tin"s tat would
facilitate lu@urious life. 1e tin"s tat are necessary for te well=%ein" of te creditor
must %e "i*en to im %ased on te social conditions and local custom of te area in wic
te creditor li*es. 1at is. te creditor wo li*es in te countryside may not claim to %e
"i*en e@$ensi*e clotes tat are worn %y fasion=conscious youn" $eo$le of %i" cities.
Generally. tin"s tat are necessary for te li*eliood of te creditor areE te means to
feed. lod"e. and clote. to care for is ealt and education. de$endin" on conditions of
te creditor. 1erefore. maintenance com$rises e*erytin" indis$ensa%le for sustenance.
dwellin". clotin". medical attendance. education and trans$ortation de$endin" u$on te
financial ca$acity of te de%tor. 1e education of te $erson entitled to %e su$$orted may
include is scoolin" or trainin" for some $rofession. trade or *ocation.
9.5. Persons between Whom the Obligation Exists
&s $ro*ided in &rt. 187 of te RFC. a $erson may %e o%li"ed to su$$ly maintenance to
is s$ouse. ascendants. and descendants. is %roters and sisters. &ltou" it is not
e@$ressly $ro*ided in tis article. a $erson is o%li"ed to su$$ly maintenance to isoer
ado$tee or ado$ter as te case may %e. 1is is %ecause &rt.171 of te RFC clearly
$ro*ides tat Bwitout $re0udice to &rt.172 of te same codeC an ado$ted cild for all
$ur$oses. %e deemed to %e te cild of te ado$ter. If an ado$ted cild is for all $ur$oses
considered as te cild of te ado$ter. it means tat te ado$ter will %e o%li"ed to su$$ly
maintenance to te ado$tee and te ado$tee will %e o%li"ed to discar"e suc o%li"ation
since suc o%li"ation e@ists %etween a cild and is ascendants and %etween a $arent and
is descendants. 1ese are te only $ersons tat demand $ayment of maintenance from
someone. 1e con*erse is also true. 1at is. someone can demand $ayment of
maintenance only from te a%o*e $ersons. 1erefore. no $erson may %e o%li"ed to su$$ly
maintenance to is uncles. aunts. ne$ews. nieces and oter relati*es.
&ccordin" to &rt.291 of te RFC. te o%li"ation to su$$ly maintenance sall not e@ist
unless te $erson wo claims its fulfillment is in need and not in a state of earnin" is
li*eliood %y is wor;. But te /uestion is as to wo is a $erson in need of maintenance
and not in a state of earnin" is li*eliood %y is wor;4
Generally. minors are in need of maintenance. 1eir $arents are o%li"ed to su$$ly
maintenance to tem. )oreo*er. $ersons wo a*e no sufficient means to ta;e care of
temsel*es as a result of $o*erty may %e considered to %e needy if tey are una%le to
wor; and earn an income. &"ed $ersons and tose wo are seriously sic; are considered
to %e not in a state of earnin" teir li*eliood %y teir wor;. If your %roter. wo as
com$leted a secondary scool. claims maintenance from you. you may re0ect is claim on
te "round tat e is a%le to wor;. altou" e as no income.
1e o%li"ation to su$$ly maintenance sall. as a rule. %e fulfilled %y means of a
maintenance allowance $aid %y te de%tor to te creditor for maintenance. 1e $ayment
could %e in ;ind or in cas. 1e amount to %e $aid sall %e determined %y ta;in" into
consideration te needs of te $erson claimin" it and te means of te $erson lia%le to
$ay maintenance B&rt. 292 of te RFCC. 1e ideal amount to %e $aid is te one tat
corres$onds to te need of te creditor and te $ayin" ca$acity of te de%tor. 1e amount
fi@ed at one time may %e re*ised at anoter %y te a$$lication of te de%tor or of te
creditor B&rt. 293C. 1is means. maintenance may %e reduced or increased $ro$ortionally.
accordin" to te reduction or increase of te necessities of te creditor and te resources
or means of te de%tor to furnis te same.
&s te maintenance allowance is %elie*ed to %e e@tremely necessary for te sur*i*al of
te creditor. it cannot %e attaced nor can it %e assi"ned. For e@am$le. suc $erson may
%e a de%tor of anoter $erson. Gis creditor cannot attac te maintenance allowance. &lso
te creditor of tis $erson cannot as; te maintenance allowance %e assi"ned to im. In
tis re"ard tere is a similarity %etween maintenance allowance and $ension allowance.
&ssume tat &. a son $ays maintenance allowance to is fater B. B ta;es some
money in loan from is friend C to drin; alcool. C cannot as; & to assi"n te
maintenance allowance tat is to %e $aid to B. &lso C cannot attac te maintenance
allowance of B.
1is rule as an e@ce$tion. In te a%o*e e@am$le. assume tat C su$$lied to B tin"s
tat are necessary for te li*eliood of . BFor instance e su$$lied B wit food. or
"a*e im medicine or "a*e money to $ay ouse rent. etc.C In tis case. C as te ri"t
to re/uire te assi"nment or te attacment of te maintenance allowance tat is "oin" to
%e $aid to B for tis is allowed as $er &rt . 29' of te RFC.
&ll arrears. wic a*e not %een recei*ed or claimed witin tree monts from teir
fallin" due. sall cease to %e due unless te creditor $ro*es tat suc arrears were
necessary for is su%sistence B&rt 29, of te RFCC.
&s $er &rt 296 of te RFC. in fulfillin" is o%li"ation of maintenance allowance. te
de%tor may offer to discar"e is o%li"ation %y ta;in" te creditor for maintenance into
isoer ouse. 3ere tere is a disa"reement. te disa"reement may %e settled %y te
court. 1e court is e@$ected to render a$$ro$riate decision ta;in" into consideration all
te circumstances of te case. Gowe*er. %y *irtue of &rt.296 B3C of te RFC. te de%tor
may not %e com$elled to ta;e into is ouse te $erson entitled to claim maintenance.
1is was also incor$orated in te 18,9 ci*il Code Bsee &rt 717B3C. 3at do you tin; is
te rationale %eind &rt.296B3C of te RFC4
3ere se*eral $ersons are lia%le to su$$ly maintenance. te creditor may claim
maintenance from any one of suc $ersons. !articularly. wen all of te de%tors a*e
similar relationsi$ wit te creditor. te creditor may claim te $ayment of maintenance
from anyone of suc de%tors B&rt. 297C Gowe*er. te de%tor wo as $aid te allowance
sall a*e recourse a"ainst tose wo a*e not $aid teir sares B&rt. 298C. 1at is wen
te o%li"ation to su$$ly maintenance falls u$on two or more $ersons. te $ayment of te
same sall %e di*ided %etween tem in $ro$ortion to te resources of eac. Gowe*er. in
case of ur"ent need and s$ecial circumstances. only one of tem may furnis te su$$ort
$ro*isionally. witout $re0udice to is ri"t to claim from te oter o%li"ors te sare due
from tem.
ou may a*e understood from &rt 187 tat %etween wic $ersons te o%li"ation to
su$$ly maintenance e@ists. &ltou" tere is a reci$rocal o%li"ation to su$$ly
maintenance %etween tese $ersons. tere is an order of $recedence %etween tem. For
instance. you are o%li"ed to su$$ly maintenance. first of all to your s$ouse. In te second
$lace. you are o%li"ed to su$$ly maintenance to your descendants accordin" to teir
de"ree. 1en your ascendants. accordin" to teir de"ree sall follow. BSee &rt. 219C. 1at
is wen two or more reci$ients at te same time claim maintenance from one and te
same $erson is le"ally o%li"ed to "i*e it. sould te latter not a*e sufficient means to
satisfy all claims. te order esta%lised in &rt 219 of te RFC sall a$$ly.
1e de%tors for maintenance may *alidly a"ree. as re"ards teir reci$rocal relations. tat
maintenance sall %e su$$lied to teir common creditor %y one of tem. 1is a"reement
is %eneficial to te creditor. %ecause e can $ursue only a"ainst one de%tor instead of
many de%tors to "et is maintenance allowance $aid. In suc conditions. te creditor may
not ma;e a claim a"ainst te oter de%tors to o%tain maintenance unless e as a serious
reason for not res$ectin" suc a"reement B&rt 211C.
1e ado$ted cild. is s$ouse and is descendants may claim maintenance from te
family of ori"in of te ado$ted cild wen te ado$ti*e family is not in a $osition to
su$$ly suc maintenance. It is said tat ado$ted cild as two families. 1e family tat
as to ta;e te $rior o%li"ation to su$$ly maintenance is te ado$ti*e family. It is only
wen te ado$ti*e family is una%le to su$$ly maintenance tat te family of ori"in is
o%li"ed to do so. Li;ewise. te ado$ted cild sall not %e %ound to su$$ly maintenance to
te ascendants of te family of ori"in unless te latter cannot claim maintenance from
anoter mem%er of teir family B&rt. 212 of te RFCC.
1e o%li"ation of su$$ly maintenance sall include te funeral e@$ense of te creditor of
te maintenance. 1erefore. te de%tor of maintenance is o%li"ed to co*er te funeral
e@$enses of te creditor. For instance. if te nei"%or of te creditor co*ers te funeral
e@$ense of te creditor. te $erson wo is o%li"ed to su$$ly maintenance for te deceased
as to $ay %ac; te funeral e@$ense to te nei"%or of te creditor B&rt. 213 of te RFCC.
1is rule sall also a$$ly wen te $erson o%li"ed to su$$ly maintenance to anoter
refuses or fails to "i*e and wen maintenance is ur"ently needed %y te creditor. any
tird $erson may furnis maintenance to te needy indi*idual. wit ri"t of
reim%ursement from te $erson o%li"ed to su$$ly maintenance.
9.6. Termination of the Obligation
In our $re*ious discussions. we a*e said tat te o%li"ation to su$$ly maintenance is a
le"al o%li"ation. &s suc. it creates a de%tor creditor relationsi$. 1e one wo is o%li"ed
to su$$ly maintenance is te de%tor wile te one wo entitled to recei*e maintenance is
a creditor. 1e source of suc relationsi$ is te law. Des$ite tis le"al %ond. te de%tor
creditor relationsi$ cannot e@ist in $er$etuity. It terminates on certain "rounds. 3at do
you tin; could %e te "rounds of termination of suc o%li"ation4
&ltou" te (tio$ian Family laws a*e not fully incor$orated te "rounds of
termination. we can *alidly maintain tat te followin" can %e ta;en as te "rounds of
termination of te o%li"ationD
A( Aree)e#t "% t-e partie'01 1e de%tor and te creditor may a"ree to terminate suc
relationsi$ witout affectin" te mandatory $ro*isions of te law. 1is is %ecause under
&rt. 186' of te (tio$ian Ci*il Code a contract is defined as an a"reement were%y two
or more $ersons as %etween temsel*es create. *ary. or e@tin"uis o%li"ations of
$ro$rietary nature. Loo; at te followin" e@am$leD &to &. a mon;. was li*in" in &ddis
&%a%a. Because e was not a%le to maintain imself. is son. B. was ordered %y te court
to su$$ly maintenance. &fter tree years. te mon; was resol*ed to $ass te rest of is
life in De%reli%anose )onastery and a"reed wit is son not to claim any maintenance
allowance from im. 1ey also a"reed tat in case te mon; a%andon monastic life and
return to &ddis &%a%a. te o%li"ation of B would re*i*e. From te a%o*e illustration. it is
clear tat te a"reement of te $arties as te effect of termination of te o%li"ation.
B( T-e ability "% t-e credit"r t" ear# -i'2-er liveli-""d01 $re*iously. we a*e said tat
one is entitled to claim maintenance allowance wen one is not a%le to earn isoer
li*eliood %y is eroown effort due to some reasons. But wen it is $ossi%le to sow tat
te creditor is in a $osition to earn is li*eliood or as ac/uired enou" means to sustain
isoer life. tere is no reason tat ma;es te o%li"ation continue.
For instance. 3oro s was *ery muc $oor. &s a result. se was recei*in" 399.99 Birr
maintenance allowance from er son=in=law as of 1889 (.C. Fortunately. se %ou"t a
tic;et sold %y te 5ational Lottery &dministration and won 1.'99.999.99 Birr. In tis
case. %ecause se %ecame ca$a%le of maintainin" erself. te de%tor=creditor relationsi$
e@istin" %etween er and er son=in=law terminates.
C( I#ability "% t-e debt"r t" di'c-are t-e "bliati"#01 te relationsi$ tat e@ists
%etween te de%tor and te creditor does not suffice to entitle te creditor for
maintenance allowance. Rater te de%tor must %e a%le to $ro*ide maintenance. Gence.
altou" de%tor=creditor relationsi$ as %een esta%lised %etween te $arties. suc
relationsi$ terminates wen te de%tor is una%le to discar"e is o%li"ation for *arious
reasons.
For instance. &to &. a farmer. was ordered %y court to su$$ly maintenance allowance to
is moter amountin" 3 /uintals of teff $er annum. Gowe*er. %ecause tere was a serious
drou"t in is locality. &to & as ne*er collected any cro$ for te last tree years. Ge
sustains is life and te li*es of is cildren tan;s to te food relief $ro"ram. In tis
case. te de%tor creditor relationsi$ %etween & and is fater terminates since & is not
a%le to su$$ly maintenance.
3( C"#de)#ati"# "% credit"r !Art. 244 R5C(01 1e creditor loses is ri"t of
maintenance were te commits or attem$ts to commit a criminal act a"ainst te de%tor.
1e creditor may also lose is ri"t of maintenance were e as committed or attem$ted
to commit a criminal act on te life or $ro$erty of te ascendants or descendants of te
de%tor. 1e same is true or suc crimes are committed or attem$ted on te life or
$ro$erty of te s$ouse of te de%tor.
9.7. Summary
+ne of te cons$icuous effects of familial relationsi$ is tat an o%li"ation to su$$ly
maintenance allowance amon" suc $ersons is created witin te %ounds of te law. +ne
is o%li"ed to su$$ly maintenance only to tose $ersons wom te law as identified. 1e
o%li"ation to su$$ly maintenance esta%lises a de%tor creditor relationsi$ $ro*ided tat
te de%tor is not a%le to maintain imself and te creditor is a%le to $ro*ide suc
maintenance allowance.
Generally. suc o%li"ation e@ists %etween ascendants and descendants. ado$ter and
ado$tee. s$ouses. and sisters and %roters. Suc o%li"ation is a moral duty e@istin"
%etween suc $ersons. &s to te su%0ect matter of maintenance allowance. te law
$ro*ides tat te de%tor is duty %ound to su$$ly to te creditor tin"s tat are necessary
for te li*eliood of te creditor.
1e o%li"ation to su$$ly maintenance allowance is not an e*erlastin" o%li"ation. It may
%e terminated on a num%er of "rounds. 1e "rounds of termination are "enerally wai*er
of te ri"t %y te creditor. te a%ility of te creditor to earn is li*eliood. ina%ility of
te de%tor to su$$ly maintenance and condemnation of te creditor.
9.8. Review Questions
1. Gow can we say tat te relationsi$ %etween te $erson wo su$$lies
maintenance allowance and te one wo recei*es maintenance allowance is a
de%tor=creditor relationsi$4
2. Gow do you 0ustify te o%li"ation to su$$ly maintenance4
3. Discuss te re/uirements tat must %e fulfilled to ma;e some one su$$ly
maintenance to anoter4
#. Does irre"ular union $roduce te effect of maintenance allowance as %etween
te $artners4 Discuss.
'. &to &%dulfata was o%li"ed to $ay #99.99 Birr $er a mont to is moter.
3oro redi0a. &fter tree years. 3oro red00a. a 82 years old lady. lost er eye=si"t
and li*in" alone was difficult to er. Because of tis. se was *ery muc desirous of
li*in" in te ouse of er son. Gowe*er. te wife of &to &%dulfata seriously
o%0ected to te demand of 3oro redi0a. 1e attorney of te old lady sued &to
&%dulfata in court and re/uested te court to order &%dulfata to ta;e te old lady
to is ouse since te lady was too old to li*e alone witout any treatment. Can &to
&%dulfata %e com$elled to ta;e is moter to is ouse4
,. &to 20ulu was ordered %y court to su$$ly maintenance allowance to is fater
called &to 2%on". 1e court ordered tat 20ulu sould $ay 399.99 Birr a mont to
te creditor. Later on. 20ulu as;ed is fater to ta;e im into is ouse so tat
maintenance would %e con*enient to tem. 1e creditor a"reed and was ta;en into
te ouse of te de%tor. Gowe*er. &to 2%on" was not comforta%le wit is
dau"ter=in=law 20ulu?s wife since se was not a$$y a%out te comin" of &to
2%on" into er ouse. Gradually. &to 2%on" de*elo$ed a dee$=routed atred
towards is dau"ter=in=law. 3orst of all. te dau"ter=in=law started reducin" food
and drin;s tat would %e ser*ed to &to 2%on". Because of tis. &to 2%on" decided
to ;ill er. +ne day. e loaded is "un and discar"ed te "un at er. Gowe*er. te
old man missed is tar"et and ea*en s$ared te life of te lady. 3at would
a$$en to te ri"t to maintenance allowance of &to 2%on" after tis e*ent4
6. Discuss te "rounds of termination of maintenance allowance.
7. 1e $ro*ision of te law dealin" wit maintenance allowance im$ose
o%li"ations on te de%tor and confer ri"t on te creditorE ence. te $arties to suc
relationsi$ cannot ma;e any a"reement dero"atin" from suc $ro*ision.
comment.
8. &rt. 188 of te RFC $ro*ides 1e o%li"ation to su$$ly maintenance sall not
su%sist %etween relati*es %y affinity unless te marria"e wic created te affinity
is dissol*ed %y deat. 3at do you tin; is te rationale %eind tis $ro*ision4
19. Discuss te rele*ance of te $ro*isions of te Ci*il Code on $lurality of
de%tors and creditors to &rts. 297=211 of te RFC.
CHAPTER TEN
SETTLEMENT OF DISPUTES
10.1. Introduction
It is o%*ious tat misunderstandin"s and dis$utes arise %etween s$ouses or $artners in an
irre"ular union. 1e dis$utes may %e attri%uta%le to a num%er of factors. Gowe*er. te
main tin" is resol*in" suc dis$utes usin" *arious dis$ute settlement mecanisms. 1ese
mecanisms are "enerally di*ided into twoD settlement of dis$utes %y courts and
settlement of dis$utes %y out=of=court mecanisms wic are collecti*ely called &DR
B&lternati*e Dis$ute ResolutionC mecanisms. 1e RFC and Re"ional Family Codes
a*e incor$orated tese dis$ute resolution metods. 1erefore. tis unit is de*oted to te
study of dis$ute settlement mecanisms %y concentratin" on te rele*ant $ro*ision of te
law. &s usual. it is te $ro*isions of te RFC tat are to %e cited under tis ca$ter since
tere are not $oints of de$arture made %y re"ional family laws from te $ro*isions of te
RFC.
10.2. Objectives
Ga*in" com$leted tis ca$ter. students will %e a%le toD
identify dis$ute resolution mecanisms used to settle dis$utes arisin" in
marria"e and irre"ular unionE
a$$reciate te role of re"ular courts in resol*in" family dis$utesE
define te status and si"nificance of family ar%itrationE
discuss te de$artures tat a*e %een made %y te new family laws wit re"ard to
te $ower and functions of ar%itrators from te 18,9 Ci*il Code.
identify and analyAe matters tat need to %e settled after te se$aration of te
s$ouses.
10.3. Settlement of Disputes Arising out of Marriage and Irregular
Union
10.3.1. Preliminaries
&s you can understand from te fore"oin" ca$ters of tis course. marria"e is te %ase
for te e@istence of society. 1is may %e te case only if tere is a system wic treats
%ot of te s$ouses and $artners in an irre"ular union e/ually in sta%iliAin" teir union at
te time wen tere e@ists disa"reement %etween tem. It is im$ossi%le to a*oid dis$utes
from cro$$in" u$ %ut it is $ossi%le to resol*e tem %y utiliAin" different dis$utes
settlement mecanisms.
1ere are a lot of causes for dis$utes tat arise %etween a us%and and a wife or %etween
a man and a woman li*in" to"eter in an irre"ular union. In order to resol*e tese
dis$utes %etween tese $ersons effort is made %y tird $arties. 1ese tird $arties may
include courts. ar%itrators. conciliators. mediators etc. &ltou" courts are te ideal
institutions to ad0udicate family dis$utes in almost all countries. usin" te alternati*e
dis$ute settlement mecanisms suc as ar%itration. conciliation or mediation is a common
$ractice all o*er te world.
In (tio$ian family laws. a solution is sou"t for disa"reements %etween s$ouses or
$artners to an irre"ular union eiter %y ad0udication or %y usin" ar%itration. 1e law as
$ut in $lace %ot te su%stanti*e and $rocedural $ro*isions in order to el$ te dis$utants
resol*e teir $ro%lems %y re"ular courts or ar%itration. 1ese are clearly incor$orated
under te RFC and Re"ional Family Laws. It is tese two im$ortant dis$ute settlement
mecanisms tat will %e discussed under tis ca$ter of te course material.
10.3.2. Settlement of Disputes by Court
In any society. courts of law a*e %een te $ro$er institutions for settlement of dis$utes
of *arious nature. Des$ite tis. *arious &DR metods are as old as society itself for
settlement of dis$utes altou" suc metods cannot a%solutely oust te 0urisdiction of
courts in settin" family dis$utes. &ltou" &rt. 117 of te RFC $ro*ides tat any dis$ute
arisin" out of marria"e or irre"ular union is to %e decided e@ce$t for decidin" di*orce. %y
ar%itrators cosen %y te s$ouses. if reconciliation %ecomes difficult to ar%itrators or if
one of te $arties or %ot of tem feel tat te way te ar%itrators andle te ar%itration
$rocess is wron" ten tey may a$$eal to a court a*in" 0urisdiction. &fter te a$$eal is
made to te court. te court will analyAe te $etition and may a$$ro*e. amend or re*erse
te decision of ar%itrators and te decision of te court sall %e final.
1is el$s te $arties to resol*e teir dis$utes amica%ly. In te case of marria"e. e*en
tou" te s$ouses $etitioned for di*orce. te court does not immediately "i*e decision to
di*orce. &s $er &rticle 81 of RFC. wen te s$ouses eiter con0ointly or one of tem
$etition for di*orce. te court s$ea;s to te s$ouses se$arately or 0ointly in order to ma;e
tem renounce teir intention to se$arate for "ood and &rticle 72B1C of te RFC can %e
referred for tis. 3ere tis effort is not successful. it will direct te $arties to ar%itrators
to settle teir dis$utes. & coolin" $eriod of u$ to tree monts is "i*en to te dis$utants
were tey did not a"ree to settle teir dis$ute trou" ar%itration BRefer to article 72B3CC.
1is time. after te court as e@austed all te means to %rin" te s$ouses into an
a"reement in order to renounce teir $etition for di*orce. te court accordin" to article
72B#C of te RFC sall $ronounce di*orce witin one mont from te recei$t of te
re$orts of ar%itrators. or te end of te coolin" $eriod as te case may %e B&rts. 71 and 72
of te RFCC.
Gowe*er. under te Ci*il Code. failin" te a"reement %etween te $arties. te family
ar%itrators would $ronounce te di*orce witin one year from te $etition for di*orce
a*in" %een made to tem Bsee article ,67B1C of te Ci*il CodeC. 1e de$arture of te
RFC and re"ional family codes is tat tey a*e reduced te $eriod from one year to
tere monts. if di*orce related dis$utes are not decided %y te courts witin sort time.
tey will cause unnecessary sufferin" %ot to te $arties temsel*es and to teir cildren.
1e court is duty=%ound to "i*e an order re"ardin" te matters to %e settled after di*orce.
i.e.. re"ardin" maintenance of te s$ouses. te custody and maintenance of teir cildren
and te mana"ement of teir $ro$erty BRead &rt. 71 and 72 of te RFCC.
&ccordin" to &rt 72B,C of te RFC.
where circumstances absolutel require that one of the spouses leave their
common abode, the court shall when giving an order under sub3article !5"
of this article ta)e into consideration the interest of children and the
condition of the spouse who ma be affected more b leaving their
common abode.
In order to ad*ance te %est interest of cildren. &rt 113 of te RFC "i*es direction to te
courts to treat te custody of cildren *ery carefully. !rior to te $ronouncement of
di*orce. it may encounter $ersonal matters of te s$ouses tat could not %e dis$layed to
te $u%lic. 1erefore. accordin" to &rticle 119 of RFC. te court sits in camera wile
consultin" wit te s$ouses eiter 0ointly or se$arately a%out tese $ersonal issues.
By te same ta;en. accordin" to &rt.111 of te RFC. decision of te court sould not
incor$orate te details of te case %ut only state te e@istence of sufficient causes for
di*orce wic is meant to maintain re$utation of te s$ouses.
&ltou" courts are %elie*ed to %e ideal institutions for settlement of dis$utes of families
nature. tey cannot %e free from $ro%lems. !articularly in (tio$ia. a num%er of $ractical
$ro%lems are encountered %y $arties to a family dis$ute wo ta;e teir cases to a court.
&s you may understand family cases are tou" and tey need well trained 0ud"es and
lawyers in courts wo "i*e sound 0udicial decisions %ased on teir $rofessional o$inions.
+ne of te main duties of courts to is to consider cases relatin" to te custody of cildren.
BRead for instance. Ro%ert Coulson. Family )ediation. 2
nd
ed. 188,. $. ##C.
If te $arties are una%le to come to a"reement. te 0ud"es render te decision. & court
trial is full of contro*ersies were%y lawyers do all te tal;in" wile te clients are
watcin" teir $ri*ate life on sow. Durin" liti"ation. te $arties are to %e cross=
e@amined %y lawyers wo as; tem im$olite and un$leasant $ersonal /uestions. 1is is
umiliatin" for te $arties %ecause teir marital $ri*acy is %ein" intruded in front of te
$u%lic BI%idC.
Because of te fact tat courts do not a*e time to listen to $arties. tey will not %e well
suited to decide cases of cild custody. *isitation and financial su$$ort. Furtermore. te
$arties? o$inion as to %e ta;en into account for insurin" te cildren?s interest. 1us. te
enforcement of an order. wic does not reflect te wises of te $arties a*e %ad
conse/uence on te u$%rin"in" of te cildren BRefer to Da*id Fos;ett. 1e Law and
!ractice of Com$romise. 1879. $. 1'9C.
)oreo*er. tere is a lar"e amount of cost incurred %y te $arties wen tey coose teir
case to %e treated in courts %ecause tey a*e to ire a lawyer and reim%urse *arious
costs incurred %y witnesses.
1e a%o*e limitations of courts would force te $arties to resort to alternati*e dis$ute
settlement mecanisms. 1ese alternati*e dis$ute resolution tecni/ues incor$orate te
fundamental mecanisms %y wic dis$utes are resol*ed B<an )acneil. &merican
&r%itration Law. 1882 $. 3C.
Comin" to (tio$ia. it was %elie*ed tat te RFC would a*oid $ractice related $ro%lems
in courts wic were faced trou"out te $eriod in wic te 18,9 Ci*il Code remained
o$erati*e. In s$ite of tis. tere are still $ro%lems in relation to te $ractice of courts
wile tey entertain dis$ute of s$ouse or wen tey deal wit $ost=di*orce matters. 1e
situation may not %e different in re"ional states since te family laws of te re"ional
states a*e not made any de$arture in relation to settlement of dis$utes arisin" out of
marria"e or irre"ular union from te RFC.
&s it is discussed a%o*e. if te s$ouses $etition te court for di*orce. te RFC re/uires
te courts to discuss wit te $arties $atiently and "i*e te $arties a coolin" $eriod in
order to calm down teir an"er. 1e court directs te $arties to ar%itrators of teir own
coice so tat tey will end u$ teir dis$ute in reconciliation. Gere you a*e to note
ta;in" te dis$ute to ar%itrators is not com$ulsoryE rater it is *oluntary. But accordin" to
some sources wat $ractically o%ser*ed in courts is tat te $arties are not as;ed weter
tey are willin" to ta;e teir case to ar%itrators or not rater te courts direct tem to
ar%itrators witout doin" wat te law $rescri%es wic is clearly a"ainst te s$irit of te
law.
1e 18,9 Ci*il Code was amended in tis re"ard wit te idea tat %ot $re di*orce and
$ost=di*orce matters Bmaintenance. $artition of $ro$erty. custody of cildrenC to %e under
te control of courts. But tere is a $ro%lem created $ractically. wile courts transfer teir
res$onsi%ility to re"ulate te $artition of $ro$erty of s$ouses. to ar%itrators.
1e draftin" committee %elie*ed tat tere would a*e to %e a se$arate %enc in order to
com$lete te dis$utes so successfully %y coolin" te an"er of te dis$utants and reconcile
tem. 3itout tis se$arate %enc. it will %e difficult to im$lement te law. But in
$ractice. tere is no so called se$arate %enc to re"ulate family dis$utes.

1ere are also additional $ro%lems tat are reflected in te $ractice of courts. For
instance. te $ro%lem. wic was %elie*ed to %e resol*ed %y &rticle 72B'C of te RFC. is
still witout solution. &ccordin" to tis su% article. court sall "i*e a$$ro$riate order
re"ardin" te maintenance of te s$ouses. te custody and maintenance of teir cildren
and te mana"ement of teir $ro$erty and it sall ta;e into consideration te interest of
cildren and te condition of te s$ouses wo may %e affected more %y lea*in" teir
common a%ode. But after te file as %een o$ened tese matters ta;e a considera%le lon"
$eriod of time resultin" in sufferin" of te $arties $articularly women.
&mon" te issues tat are to %e re"ulated %y courts. after te dissolution of te marria"e
%y di*orce or termination of irre"ular union is cild custody. &rticle ,71 of te 18,9
Ci*il Code states tat cildren under te a"e of fi*e years are to %e entrusted to teir
moter unless tere is a serious condition to do oterwise. Gowe*er. accordin" to &rticle
113B1C of RFC. te court is e@$ected to "i*e an order as to wic s$ouse sall a*e
custody of te cildren. care of teir education. ealt. maintenance and te ri"ts of te
$arents and te cildren to *isit eac oter. )ost of te time. it is o%ser*ed tat s$ouses
$ray te court so tat te decision would %e in fa*or of one of tem. In suc conditions.
$ractically courts render decisions witout "i*in" reasons as to wy te custody of a cild
is entrusted to te fater or te moter. 1is is a $ro%lem. wic is $ractically o%ser*ed
wile te court is entrainin" cild custody issues. In most of te decided cases it. is
sown tat courts do not ta;e into account te re/uirements listed under article 113B2C of
te RFC Bincome. a"e. ealt and condition of li*in" of te cildrenC wen decidin" on
cild custody. 1e oter $ractical $ro%lem o%ser*ed in courts wen tey are ad0udicatin"
cild custody issues is tat. courts "i*e decision only on te interests of te cildren.
(*en tou" te law demands te courts to consider te interests of te cildren. it does
not suffice to "i*e a decision only %ased on tat. tere must %e additional conditions tat
are to %e ta;en into account %y te courts B3ondwossen. Demissie. }r< u4}cw
I }*u a u}Sr} ;u ! "+#$ Ide 22. 1887 (.CC.
1e oter issue is tat of $ro$erty li/uidation decisions. Courts after $ronouncin" di*orce
close te file and tere is anoter file to %e o$ened for te $artition of $ro$erty of te
s$ouses %ecause te court considers tis case anew. &s a result of tis. te $arties will %e
in difficulty as tey waste teir time. ener"y and money BI%idC.
(*en if te $etition for $artition of $ro$erty is %rou"t %y te $arties to te court after te
*ery moment of di*orce $ronouncement. still te case ta;e a $rolon"ed time to %e
com$leted. 1e "rant of undue $ower to ar%itrators is also anoter additional $ro%lem.
BI%idC.
10.3.3. Settlement by Arbitration
Gistorically. te idea or conce$t of $ri*ate dis$ute settlement mecanisms e@isted lon"
%efore te creation of formal and or"aniAed 0udicial systems and codes of law. &ncient
societies ad te tradition of resol*in" dis$utes %y usin" means *ery muc related wit
mediation and ar%itration since tose disa"reements %etween $ersons e@isted many
centuries a"o.
In our case. in certain $art of (tio$ia. te $ersons wit s$ecial /ualities of $ersonality
and e@$erience are tose wo are traditionally called shimagiles in order to sa*e a
marria"e from fallin" a$art and $reser*e te inte"rity of te family. S$ouses wose
marria"e is in difficulty and as a result of tis wo see; for a di*orce $ronouncement.
first $resent teir case to a local 0ud"e wo is traditionally ;nown as at%ia da"na. But
$rior to te endin" u$ of te marria"e in di*orce te $arties as well. as te local 0ud"es
sould try teir %est to cool down te an"er and te disa"reements created %etween te
s$ouses. 1is was done trou" te $rocess of reconciliation. If te 0ud"es fail to %rin"
te $arties into an a"reement tey. will "rant a di*orce in cases of non=serious cause of
di*orce. B&;lilu 3o&manual. 1e Fallacies of Family &r%itration under te 18,9 Ci*il
Code. <(L. -ol. 8B1863C $. 18#C.
1is metod of settlement of family dis$utes out of court was retained %y te 18,9 Ci*il
Code of (tio$ia since te Ci*il Code incor$orated $ro*isions on ar%itration. &ltou"
traditionally. no one could %e com$elled to "o to %y ar%itration. te 18,9 Ci*il Code
introduced com$ulsory ar%itration of s$ousal dis$utes. BSee &rts.622=631 of te Ci*il
CodeC.
&ltou" family ar%itration was criticiAed for not treatin" women in e/ual footin" wit
men. te RFC and te re"ional family laws a*e retained tis alternati*e dis$ute
resolution metod. 1e 18,9 Ci*il Code ad incor$orated ar%itration $rimarily for te
$ur$ose of $rotectin" marital $ri*acy. to minimiAe di*orce and to decrease court
con"estion. But altou" te new family laws of (tio$ia a*e ta;en into consideration
tese $ur$oses tey a*e si"nificantly reduced te $owers of te family ar%itrators. BRead
1ilaun 1esome. (tio$iaD Reflections on te Re*ised Family Code of 2999 1e
International Sur*ey of Family Law. )ay 2992. $. 6.
Comin" to te essence of ar%itration. it is one of te traditional ways of a*oidin" dis$utes
%etween conflictin" $arties irres$ecti*e of te causes of dis$utes. It is one of dis$ute
settlin" mecanisms most $eo$le coose %ecause of its sim$licity and since it %rin"s a
solution to te conflict in te sortest $ossi%le time. It is $refera%le to ordinary court
liti"ation since it is not as e@$ensi*e as liti"ation B<udit &reen. Cases and )aterials on
Family Law. 3
rd
ed. 1882. $. 7#3C.
&r%itration is an out=of=court mecanism of settlement of dis$utes in wic te $arties
Bdis$utantsC ta;e teir cases %efore a tri%unal of teir own coice. Besides. te $arties
a*e te freedom to limit te $ower of ar%itrators and re"ulate ow te tri%unal $erforms
trou"out te $rocess. 1is is te main distinction %etween re"ular courts and ar%itration
tri%unals. BRead &scalew &sa"re. In*ol*ement of courts in &r%itration !roceedin"s
under (tio$ian Law (tio$ian <ournal of Business and De*elo$ment. -ol. 2 5o 2.
2996 $$. 1=3C. e;arias ;eneaa. Formation of &r%itral 1ri%unals and Dis/ualification
and Remo*al of &r%itrators under (tio$ian Law. <ournal of (tio$ia Law. -ol. 21.
&u"ust 2996 $$. 137=162.
In many countries includin" (tio$ia. ar%itration as %een widely used in %ot modern
and traditional ways. &nd it is stron"ly %elie*ed tat it $lays "reat role in %rinin" solution
to dis$utes of all ;inds. i.e. it could %e disa"reements created in commercial relations.
%etween s$ouses. la%or dis$utes. etc.
&ltou" tere are ar"uments a"ainst ar%itration. it is $referred to liti"ation in court
%ecause of its cost effecti*eness. fle@i%ility e@$ediency and ada$ta%ility.
3at is ar%itration4 &ltou" ar%itration is one of te oldest mode of dis$ute settlement
mecanisms. it as ne*er %een accorded a uni*ersally acce$ta%le definition. Different
indi*iduals define it differently altou" te difference is sli"t.
Generally. to sed some li"t on te conce$t. let us ta;e te followin" two definitions.
Blac;?s Law Dictionary defines te term ar%itration asD
GA method of dispute resolution involving one or more neutral third
parties who are usuall agreed to b the disputing parties and whose
decision is binding. BBryan &. Gamer Beditor=in=ciefC, *lac)s /aw
dictionar, D
th
ed., 0BBA, p. 110".
From te a%o*e definitions. we can understand tat te ar%itral tri%unal is constituted %y
te a"reement of te $arties Bwere ar%itration is *oluntaryC to a dis$ute and te decision
anded down %y a neutral tird $arty is %indin" u$on te $arties as tou" it were "i*en
%y a court of law.
&ccordin" to Rene Da*id. ar%itration is defined asD
GArbitration is a device whereb the settlement of a question, which is of
interest for two or more persons, is entrusted to one or more other
persons3the arbitrator or arbitrators3 who derive their powers from
private agreement, not from the authorities of a state, and who are to
proceed and decide the case on the basis of such agreement.H !=ene
.avid, &r%itration in International 1rade. rluwer Law and 1a@ation
!u%lisers. De*entor. 5eterlands. 187'. $. 'C
1is definition also tells us tat ar%itration is a dis$ute settlement mecanism and te
$ower of te ar%itrators does not emanate from te autorities of te state %ut from te
a"reement of te $arties.
Gow do you e*aluate te institution of family ar%itration in (tio$ia in te li"t of te
a%o*e definitions4
(*en tou". te institution of family ar%itrators is retained in te RFC. as it as its
$owers are so muc reduced. (@ce$t for reconciliation of te s$ouses. all oter $owers of
ar%itrators wic were incor$orated te under te Ci*il Code. are "i*en to te court.
Gence. te institution of ar%itration retained in te family laws does not fulfill te
distin"uisin" features of ar%itration. Des$ite tis. ar%itrators $lay si"nificant roles in
resol*in" of dis$utes of s$ouses and es$ecially in te countryside. 1is is %ecause $eo$le
li*in" in countryside ;now eac oter *ery well and te ar%itrators are selected amon"
friends. *illa"e elders and reli"ious leaders. &nd it is for tem to find out te actual cause
of te dis$ute of s$ouses and see; for a solution.
In te RFC. and oter re"ional family laws. ar%itration could only ser*e as an alternati*e
mecanism of dis$ute settlement and te reason for tis is tat if ar%itration outs re"ular
courts for matters of family dis$utes ten te ri"ts of women would %e at sta;e. 1is is
%ecause ar%itrators. it is %elie*ed. in (tio$ia may not %e /ualified enou" to resol*e all
family dis$utes includin" $ronouncement of di*orce.
1ere is an international concern a%out te $ronouncement of di*orce to %e under te
$ower of com$etent court. )any $ressure "rou$s. 5G+?s. etc stron"ly %elie*e tat te
$ronouncement of di*orce %y a com$etent court is wortwile. &mon" te international
instruments tat re/uires only com$etent 0udicial autorities "rant di*orce is te 25
(conomic and Social Council. in its Resolution 19,7 G BsssIsC o 1,
t
of <uly 18,'.
1is as influenced te law ma;ers of many countries includin" (tio$ia Since it is
The basis for the argument here is that, such tribunals usurp court
powers. 6hen an organ other than the court ma)es decisions that would
seriousl affect the lives of people, there is a danger that $ustice could not
be served well.
&t tis 0uncture. we a*e to as; /uestion suc asD Gow are ar%itrators a$$ointed. 3at
are te res$onsi%ilities of ar%itrators4 3at are te limitations of family ar%itration and
wat $ro%lems are associated wit family ar%itration BRead e;arias renea. Formation of
&r%itral 1ri%unals and Dis/ualification and Remo*al of &r%itrators under (tio$ian Law.
<ournal of (tio$ia law -ol. ssI. 2996. $$. 137=16,C
&s re"ards a$$ointment. &rt. 118 of te RFC confers te $ower u$on te dis$utants to
a$$oint te ar%itrators and te num%er of te ar%itrators is not limited under tis same
article. 3at it sim$ly $uts is tat teir num%er can %e one or more tan tat. &ltou"
te ar%itrators are a$$ointed %y te $arties. ar%itrators are under te control of te court.
1e court ma;es an uninterru$ted follow u$on te ar%itrators and "i*es direction as to
ow tey entertain case. &ccordin" to &rticle 118B1C. te $arties are e@$ected to su%mit
te names of te ar%itrators tey a*e selected witin fifteen days from te date tey
were told to do so.
&s it is clearly stated under &rticle 121B1C te same code. sole duty of te ar%itrators is to
ma;e an e@austi*e effort to reconcile te s$ouses. &nd article 118 orders te court to
"i*e te $ro$er direction to te ar%itrators as to ow tey el$ te s$ouses reac
a"reement. 1e result of te ar%itration or attem$t of reconciliation as to %e su%mitted to
te court witin tree mots.
&ccordin" to te law. te $rocess of ar%itration as to %e com$leted witin tree monts
%ut if tere is any $ossi%ility or condition tat reconciliation could not %e com$leted
witin tis $eriod of time. one mont additional time may %e added B&rt 129 of te RFCC.
&s to te res$onsi%ility of ar%itrators. te role of te ar%itrators is to settle te dis$ute of
te s$ouses or $artners in an irre"ular as te case may %e trou" amica%le means. +ter
tan tryin" teir %est to reconcile te $arties tey can not $ronounce di*orce. If it
%ecomes %eyond teir ca$acity. tey a*e te duty to re$ort tis fact to te court witout
delay.
&rticle 72B2C of te RFC sets fort tat wen te $arties $etitioned di*orce and te court
is una%le to $ersuade te $arties to renounce teir $etition for di*orce and sol*e teir
dis$utes amica%ly. ten it will direct te case to te ar%itrators of teir coice so tat te
dis$ute will %e resol*ed $ositi*ely. &ccordin" to &rt. 72B2C of te Code. te role of te
ar%itrators is confined only to $ersuadin" te $arties to resol*e teir $ro%lems amica%ly.
In tis re"ard. &rt. 121 of te RFC $ro*ides tat te ar%itrators sall ma;e an effort to
reconcile te s$ouses and to ma;e tem renounce teir $etition for di*orce. 3ere te
ar%itrators a*e concluded tat te dis$ute cannot %e sol*ed e@ce$t %y di*orce. tey sall
re$ort te result of teir attem$t to te court witout delay.
3at would te conse/uence %e if te ar%itrators fail to su%mit re$orts in accordance
wit &rt. 118. &rt. 121 of RFC $ro*ides tat te court is re/uired %y law to close te case
B&rt. 122B1C of RFC. 1is does not mean tat te case is closed for "ood %ut if te
s$ouses Bor one of temC $resent teir reasons to te court and $etition for te reo$enin"
of teir case ten te court after e@aminin" teir reason will reo$en te case and "i*e
a$$ro$riate decision. Su% article one of article 122. does not $roi%it te s$ouses from
$etitionin" anew and from as;in" te court for teir case to %e reconsidered as lon" as te
us%and or te wife or %ot of tem can sow to te court tat te ar%itrators a*e failed
to a$$ro$riately discar"e teir res$onsi%ility &rt. 122B3C of RFC.
10.4. Settlement of Other Family Disputes
10.4.1. Preliminary
1ere are two $ossi%le outcomes from te $rocesses of dis$ute settlement %e it %y courts
or %y alternati*e dis$ute settlement mecanisms. i.e.. eiter te s$ouses %e %rou"t to
reconciliation or teir contention end u$ in di*orce. In cases were te s$ouses se$arate
for "ood. it does not mean tat tey a*e a%solute freedom to %uild u$ a new life of teir
own. 1is is %ecause dis$ute settlement of te s$ouses "oes furter tan tis Be*en after
di*orceC. 1us te di*orced man and woman are e@$ected to act accordin" to te
$rescri$tion of te law wic is concerned wit te $ost= di*orce matters tat need to %e
settled.
&ccordin" to te law. te court as to "i*e its decisions on tree *ery im$ortant $ost=
di*orce issuesE namely. cild custody. maintenance allowance for te cild and *isitation
ri"ts of te cild %y te non=custodial $arent. 1ese matters will %e discussed under te
followin" su%=sections.
10.4.2 Child Custody
1e coice of determinin" te custody of a cild lies eiter on te $arents temsel*es or
on te court. In "eneral terms. te word custody $ertains to wom te cild is to li*e
wit. and wic $arent as te res$onsi%ility to ma;e ma0or decisions a%out te life of te
cild. In some cases. $arents may %e "i*en ri"t of 0oint custody wic is te case wen
te cild li*es wit %ot $arents at different times. Sometimes wile one $arent ac/uires
custodial ri"t. te oter $arent would %e allowed %y te law to e@ercise te *isitation
ri"t. 1ere are times wen te law determines ow often te non=custodial $arent is
allowed to *isit isoer cild Brennet Fo@. (*ery 1in" you 5eed to rnow a%out your
Le"al Ri"ts. 188'. $. 21C.
Cild custody may %e understood as te ri"t to retain a cild at one?s ome wic at te
same time em$owers te $arent to control te cild. Custody ori"inated from te
common law and te word custody used %y tis autor is in relation to cildren wic is
defined as & state of factE in tis sense a cild is in te custody of an adult if e
a$$ens to %e under te adults? $ysical control or in te wider sense of a F%undle of
$ower? includin" not only te $ower of $ysical control %ut also $owers relatin" to
cild?s education. reli"ion. $ro$erty and te "eneral mana"ement of is life wic is
almost te e/ui*alent of "uardiansi$ BFasil 1addesse. &r%itration and Resolution 2r%an
and Rural $ers$ecti*e in (tio$ia. te $ractice of Family ar%itration in selected four
3oredas in &ddis &%a%a. Decem%er. 1887C.
1e law "o*ernin" cild custody as its own ori"in. !re*iously. were tere was a%solute
male dominance in e*ery as$ect in te society. men were %elie*ed to %e endowed wit a
ri"t to ac/uire e*erytin". Li;ewise. were traditional male autority o*er te family
was of $re*alence. te custody of cildren was "i*en to faters only. 1is a%solute ri"t
of te fater was e@tended e*en after is deat. 3itout ta;in" te moters Bwo is ali*eC
ri"t into consideration. e could a$$oint testamentary "uardian for is cildren. But tis
$aternal dominance wic would affect ri"t of moters o*er teir cildren as %een
"radually re$laced %y a conce$t wic is muc %etter tan te $re*ious one. 3omen?s
ri"t to custody of teir cildren was reco"niAed %ecause tey were %elie*ed to %e te
%est $ossi%le indi*iduals for te $ro$er u$%rin"in" and nurture of teir cildren. &s te
result. $rimacy of $aternal custody ri"ts as %een undermined BI%idC.
1is e*olution of te law re"ardin" cild custody is to some e@tent reflected in $ro*isions
of te 18,9 Ci*il Code of (tio$ia. &s $er &rticle ,17 of te Ci*il Code. te "o*ernin"
$rinci$le re"ardin" custody of cildren a%o*e te a"e of fi*e was te %est interest of te
cild and tis ma;es it se@ neutral. But tis e*olution of te law concernin" cild
custody issues wic as %een u$"raded from te $rimacy of $aternal custody to te
best interest standard enanced 0udicial autority o*er cild custody issues. 1is
doctrine was criticiAed %ecause it created im$lementation $ro%lems %y te 0ud"es. 1e
%est=interest standard was *ery wide and an indeterminate as it em%races so many
tin"s to %e ta;en into account %y te 0ud"es in order to "rant a decision on cild custody
issues. 1us. tis resulted in unlimited 0udicial autority. 1e mo*ement from $aternal
custody to te a$$lication of %est interest of te cild doctrine. is mo*ement from
Gpaternal patriarch to $udicial patriarchH which shifted child custod issues from the
unlimited paternal authorit to unlimited $udicial authoritH BFasil 1addesse $. 3#C.
2.S courts were also faced wit te same ;ind of $ro%lem in connection wit te %est
interest standard. 1e solution tat was sou"t was ;nown as Ftender years rule. wic
declared tat infant cildren %elow $u%erty. and youn"sters affected wit serious ailments
sould %e $laced in a moter?s care unless se was $ro*en unworty of te res$onsi%ility.
&s $er te 17,9 5ew <ersey Code. Gthe mother is entitled to the custod of her children
under the age of seven unless it affirmativel appears that, in her custod, the should be
e%posed to either neglect, cruelt or the acquisition of immoral habits and principles.H
BId. $. #1C.
1is ;ind of maternal $reference rule was also reflected under article ,71B2C of te
18,9 Ci*il Code. Comin" to te RFC. as it is incor$orated under &rticle 113B1C of te
RFC. te court. after $ronouncin" te dissolution of te marria"e. as to deal wit tree
im$ortant mattersD cild custody. maintenance allowance for te cild and *isitation ri"t
of te cild and te non custodian $arent. &s $er &rticle 113B2C of te RFC. since te
court as to ta;e into consideration te income. a"e. ealt. and condition of li*in" of te
s$ouses as well as te a"e and interests of te cildren. it is felt unnecessary to retain te
$ro*ision of te 18,9 Ci*il Code B&rt.,71B2CC. wic entrusts cildren %elow te a"e of
fi*e to teir moter.
1e RFC tries to state elements tat te court as to ta;e into consideration rater tan
a$$lyin" te F%est interest? standard or te outdated Fmaternal $reference? rule. 1e
a$$roac of te RFC in tis re"ard is in line wit te current trend followed %y oter
0urisdictions for determinin" cild custody issues. 1us. for tis $ur$ose. te RFC.
illustrates "uidelines %ased on wic te court may $ass its decision re"ardin" cild
custody. maintenance allowance for te cild and *isitation ri"ts of te cild and te
non=custodian $arent. 1e court is re/uired to ta;e se*eral factors suc as. te income.
a"e. ealt and condition of li*in" of te s$ouses as well as te a"e and interests of te
cildren into consideration.
1e aim of &rticle 113B2C of te RFC. is to a*oid material $reference to cild custody
witout a 0ustified reason. 1erefore. RFC re"ardin" cild custody is desi"ned in suc a
way as to deal wit suc issues from different an"les since it demands "reat care wile
te court is to decide on te fate of te cildren wo are te future "enerations of te
country.
Gowe*er. tere are some im$lementation $ro%lems. 1o %e"in wit. te final 0ud"ment of
te courts as to wom te cild %elon"s to. does not contain satisfactory reasons. 1ere
are situations were%y te 0ud"ment of te court is made ar%itrarily wen it cooses te
fater or te moter to %e %etter custodian of te cild. Courts. most of te time. do not
e/ually consider all te factors tat are listed down under &rticle 113B2C of te RFC. 1e
court "rants 0ud"ment solely relyin" on te $reference of te cild. 1e court as to
clearly identify weter te cild?s $reference was some ow influenced %y $arental
$ressure or not and weter tere are oter factors tat a*e stron" effect directly or
indirectly on te $reference of te cild. B%c &2c4$ }r< u4}cw : }*u
a u}Sr} ;u ! "+#$ Ide 22 ; 1887 '.2 " #3C.
1e reliance of te courts on te cild?s $reference as also created $ro%lem in
destroyin" te %est interest of te cild standard tat is ensrined under &rticle 113B2C of
te RFC. &rticle 3 of te 25 Con*ention on te Ri"ts of te cild "i*es a $aramount
concern for te %est interest of te cild wen it statesD
'n all actions concerning children, whether underta)en b public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primar consideration.
Des$ite te $ro%lems reflected in te $ractice of te courts wen tey entertain cild
custody issues. &rticle 113 of te RFC is one ste$ aead tat el$s for te $rotection of
cildren?s ri"t and wic tries to incor$orate te current trend concernin" determination
of cild custody %y te courts of oter 0urisdictions.
19.#.3 )aintenance &llowance
&ccordin" to Blac;?s Law Dictionary B,
t
ed. 1883 $. 8'3C
:maintenance is sustenance support assistance and the furnishing b one
person to another, for his or her support of the means of living, or food,
clothing, shelter, etc, particularl where the legal relation of the parties is
such that one is bound to support the other, as between father and child or
husband and wife, the suppling of the necessit of life. 6hile the term
similarl means food, clothing and shelter, it has also been held to include
such items as reasonable and necessar transportation or automobile
e%penses, medical and drug e%penses, and household e%penses:
&s as %een clearly incor$orated in &rticle 113 of RFC. maintenance of cildren is one
amon" te issues tat te court sall see after decidin" te dissolution of marria"e.
Referrin" to &rticle 187 of te RFC. te $erson wo is a%le to soulder te res$onsi%ility
of maintenance is o%li"ed to su$$ly maintenance only to is $ro@imate relati*es %y
consan"uinity and affinity. and to is s$ouse. 1us. wat we infer from tis same
$ro*ision is tat tere is a %oundary %eyond wic te o%li"ation of a $erson to su$$ly
maintenance may not %e e@tended. 1e ;ind of %ond tat %ot te $erson wo is o%li"ed
to su$$ly maintenance and wo is demandin" it. is de%tor=creditor relationsi$ were te
one tat $ays maintenance is te de%tor and te $erson wo recei*es te $ayment of
maintenance is te creditor. But at te same time. te RFC as laid down re/uirements
for te e@istence of tis ;ind of o%li"ation. i.e.. in order to %e su$$lied wit maintenance.
te $erson wo is demandin" it BcreditorC as to %e in need of it and e as to %e not in a
state of earnin" is li*eliood %y is wor; BRead )ellese Damte. Cases and )aterials on
te (tio$ian Family Law. )ay 299#. $. 23#C.
3it no dou%t. minors are in need of maintenance %ecause tey are de$endant on teir
$arents to sustain teir li*es and at te same time tey are not e@$ected or are una%le to
earn teir li*eliood %y teir wor;. But tere are circumstances were%y cildren may
earn income %y teir la%or since under te (tio$ian la%or !roclamation. wic is in line
witinternational standards cildren of 1# years of a"e and a%o*e are allowed to %e
em$loyed. )oreo*er. a"ed $ersons and tose wo are seriously sic; are cate"oriAed to
tose ;inds of $ersons wo are una%le to earn an income %y wor;in". 1ese $ersons due
to te condition tey are in. tey are unfit or inca$a%le to earn teir own income in order
to fulfill teir %asic needs.
&s $er article 186 of te RFC. te o%li"ation of te $erson wo is ready to su$$ly
maintenance is limited only to tin"s tat are necessary for te li*eliood of te creditor.
)oreo*er. te same article sti$ulates tat te su$$ly of maintenance %e in decent manner
a*in" re"ard to social conditions and local custom of te area in wic te creditor li*es.
In some 0urisdictions. suc ri"ts of te creditor would e@tend e*en after eose as
attained isoer ma0ority a"e and e is a%le to wor; and earn is income altou" tis
;ind of rule is a%sent in our Re*ised Family Code and te re"ional family laws.
Ga*in" re"ard to te $ro*isions of RFC dealin" wit o%li"ation to su$$ly maintenance
let us resort to &rticle 113 of te RFC wic re/uires courts wic decided te
dissolution of marria"e at te same time to render its decision on matters of custody of
te cildren. care of teir education. ealt. maintenance and te ri"ts of te $arents and
te cildren to *isit eac oter. It also $ro*ides tat after te court decides u$on to wic
s$ouse te custody of te cildren %elon"s. care of teir education. ealt. maintenance
and *isitation ri"t. te court sould consider te income. a"e. ealt. and condition of
li*in" of te s$ouse wo is a%le to assume duties tat are lied down under article 113B1C
of te RFC.
&s far as te maintenance of te cildren is concerned. once te marria"e %ond is
dissol*ed %y di*orce of te s$ouses. te o%li"ation to su$$ly maintenance to te wife
ceases and te e@ecution $roceedin"s ta;en after te di*orce 0ud"ment would
conse/uently a*e to %e for maintenance of te cildren only. &ccordin" to &rticle 292
of te RFC. te s$ouse Bde%torC a"ainst wom te court $asses its decision to maintain
te cildren may fulfill te o%li"ation to su$$ly maintenance in ;ind or in cas. But tis
sould fundamentally %e %ased on %ot te needs of te $erson claimin" it and te means
of te $erson lia%le to $ay maintenance.
& cild wose $arents are se$arated due to none of is fault sould not %e su%0ected to
sufferin". (*en if tere is notin" %etter tan li*in" wit is %ot $arents a$$ily %ut if
tin" turn out to te contrary and conditions ma;es im li*e only wit one of is $arents.
e as to at least %e maintained $ro$erly %y te non=custodial $arent.
3en te court is ready to decide on te $ayment of maintenance for te cild it must
ta;e into account factors li;e for ow lon" and ow muc does te non=custodial $arent
$ays te maintenance to is cild. )ost of te time. te non=custodial $arent is com$elled
to $ay maintenance until isoer cild attains ma0ority a"e B17 years of a"eC. But te
$arents may reac an a"reement as to te additional time of $ayment of maintenance. &s
to te amount of te maintenance to %e $aid. te court will ta;e into account te earnin"
of %ot $arents and te li*in" condition of te family. But tis does not el$ muc
%ecause after ;nowin" ow muc te non=custodial $arent earns. decidin" ow muc
eose as to $ay is sometin" difficult to deal wit.
1e oter $ro%lem re*ol*es around wen te $arties $lan to effect te $ayment of
maintenance %y teir own Bout of courtC a"reement or %y in*ol*in" tird $arty. !uttin"
te money into %an; account of te $erson wo is to %e $aid maintenance is also anoter
o$tion tat te $arties willin" to ta;e. )a;in" $ayment %y comin" to te court e*ery
mont and tellin" te em$loyer of te non=custodial $arent to deduct from is salary te
amount of maintenance money are also oter ways of enforcin" $ayment of maintenance.
10.4.4. Visitation Right
-isitation ri"t is a ri"t "ranted to non custodial $arent. 1is means in oter words tat.
te oter $arent to wom te custody ri"t of a cild is "i*en must $ermit te oter non=
custodial $arent to *isit te cild. )oreo*er. it is usually $ut in te decision of te court
te manner and ow often te non=custodian $arent *isits is cild. Gowe*er. te
*isitation ri"t sould not "o a"ainst te %est interests of te cild. 1us. courts $ut
se*eral restrictions on tis ri"t li;e fre/uency. len"t and location of *isitation and
weter someone else or tird $arty %esides te non=custodial $atent must %e $resent.
1erefore. "enerally s$ea;in". $ysical custody of te $arent wo is awarded sole le"al
custody is sared trou" *isitation ri"t. 1ere are certain conditions under wic
*isitation ri"t is denied or restricted. 1is is wen *isitation ri"t would affect te cild
ad*ersely BGarry D. rrause. Family Law. 1877. $. 18,C.
Some 0urisdictions old te $osition of denyin" te *isitation ri"t of te non custodial
$arent if it endan"ers seriously te cild?s $ysical. mental. moral or emotional ealt.
+ter statutes "i*e te court $ower to deny *isitation ri"ts sim$ly if *isitation is deemed
not to %e in te %est interest of te cild BI%idC.
1e %asic dilemma is tat wile te "rant of meanin"ful *isitation ri"ts to te non=
custodial $arent softens te im$act of a custody decision and el$s $reser*e for cild and
$arent a continuin" social relationsi$. coerced *isitation. wen $arents Fate? eac oter
may $rolon" te cild?s trauma. 1ere are times wen *isitation ri"t is so muc a%used
%y te non=custodial $arent so tat te latter would ;ee$ intouc wit te former s$ouse
of isoer and wit te cild BI%idC.
Due to tis $ro%lem. some ar"ue tat forced *isitation must %e a%olised. But. tis $oint
of *iew would "o a"ainst te natural ri"t of te cild to ;now %ot of is $arents. BGarry
D.rrause. Family Law in a 5utsell. 3
rd
ed.. 188'. $. 318C. How do you explain this
problem in light of the Ethiopian situation?
&ccordin" to &rt. 113B2C of RFC. wen te court $ro*ides its decision as to wo would
%e te custodial $arent of te cild and oter related matters li;e maintenance $ayment.
and *isitation ri"t of te non= custodial $arent. it as to ta;e into account te income.
a"e. ealt. and condition of li*in" of te s$ouses as well as te a"e and interest of te
cildren. But tere are cases were %y te court sim$ly awards te cild custody ri"t and
*isitation ri"t to eiter of te $arents %ased on te mere 0oint a"reement of te $arents.
1is would "o in contrary to wat &rticle 113B2C $uts as te a"e and interests of te
cildren.
10.5. Summary
It is not ar"ua%le tat dis$utes of *arious nature and ma"nitude arise %etween s$ouses or
$artners in an irre"ular union. But. suc dis$utes must %e resol*ed in one way or anoter
in order to $rotect te family as a wole and to $rotect te interests of cildren in
$articular.
Family dis$utes arisin" in marria"e or irre"ular union may %e resol*ed %y courts or &DR
metods suc as ar%itration. conciliation. mediation and te li;e.
It is o%*ious tat in any society. courts of law are te ideal institutions for settlement of
dis$utes= %e it family. commercial or la%or dis$utes. Gowe*er. *arious &DR metods are
also as old as society itself for settlement of dis$utes altou" te latter cannot a%solutely
oust te 0urisdiction of courts.
1e (tio$ian family laws a*e also "i*en reco"nition to settlement of family dis$utes
%y courts and &DR mecanisms altou" te roles to %e $layed %y courts are /uite
different from te roles to %e $layed %y &DR mecanisms.
10.6. Review Questions
1. &r%itration is %asically caracteriAed %y in*ol*in" one or more neutral tird
$arties wo are usually a$$ointed %y te $arties to a dis$ute and wose decision is
as %indin" as a court decision altou" suc decision may %e su%0ect to 0udicial
re*iew on certain clearly defined "rounds. 1erefore. is te conce$t of ar%itration
and te roles and functions of ar%itrators $ro*ided under te current (tio$ian
Family laws in line wit te %asic features of ar%itration4
2. Is te formula ado$ted %y te RFC and re"ional family laws in resol*in" family
dis$utes %y ar%itration %etter tan tat ado$ted %y tat of 18,9 Ci*il Code4
3yo3y not4
3. 3y do you tin; te role of so=called ar%itrators is si"nificantly reduced under
te RFC as com$ared to te 18,9 Ci*il Code4 Do you tin; tat te reduction of
te $owers of family ar%itrators $lays roles in safe"uardin" te ri"ts of women
and cildren4
#. Sould family ar%itration $roceedin"s %e o$en to te $u%lic or closed4 3yowy
not4
'. 2nder wat circumstances sould te court sit in camera Bin a closed sessionC
wen it entertains family dis$utes4
,. 1e (tio$ian family laws seem to confine temsel*es to settlement of dis$utes
%y ar%itration and court. Gowe*er. wouldn?t it %e a$$ro$riate to incor$orate oter
&DR forums suc mediation. conciliation and te li;e in te laws in *iew of te
fact tat court con"estiono%ac;lo" of cases is an actuate $ro%lem in (tio$ia4
6. !articularly an etnic=%ased federalism is esta%lised. amon" oter tin"s. to
entertain di*ersities. Gowe*er. ma0or family law codes B&mara. 1i"ray. +romiya
and S55!C a*e ado$ted te same family dis$ute resolution mecanisms as tat
of te RFC. Do you tin; tat is $ro$er4 In oter words. wouldn?t it %e %etter if
re"ions were to a*e em%raced oter dis$ute settlement mecanisms tat would
fit into teir social. $olitical and economic realities4 Discuss.
7. 3at would te conse/uenceBsC %e if di*orce were to %e $ronounced %y
ar%itrators4
8. &s you ;now. te re/uirements for te formation of irre"ular union are not so
astrin"ent as marria"e. &s re"ards. termination. eiter of te $arties can $ut an
end to suc union for no a$$arent reason. If tat is te case. wy do we tal; a%out
settlement of dis$utes arisin" out of irre"ular union4 Discuss.
19. Field 3or;
Form a "rou$ consistin" of # or ' students. "o to courts and collect decided cases
in relation to settlement of dis$utes arisin" out of marria"e and irre"ular union.
1en. %y critically studyin" te cases. e*aluateD
19.1. weter te courts are settlin" dis$utes in line wit te s$irit of te law.
19.2. te efficacy of te new family laws in resolution of family dis$utes.