INTRODUCTION

1.1Definition of Family

In law, the concept of family could generally be understood in two senses in broad and
narrow senses.

 Broad: Family is “a collective body of persons who live in one home or

management”. Black’s Law Dictionary
 In a narrow sense, the term ‘family’ has been defined as ‘the group of persons
who are united by marriage, by filiations or, even, but very exceptionally, by
adoption. (Planiol)
 Narrower definition is the one provided by the US Census Bureau. According to
such definition, family is “two or more persons who are related by birth, marriage
or adoption who live together as one household”.

Form wise, family may be of two kinds, namely nuclear and extended family.

 A nuclear family consists of parent(s) and child (ren).

 Extended family, includes relatives, in addition to the nuclear family, members
who are ascendants and descendants (other than children) of the spouses and those
who are collateral relatives.

 Neither the 1960 Civil Code of Ethiopia nor the currently enacted Federal and
Regional Family Codes define the term ‘family.’

 Nonetheless, we have elements of relationship here and there which could serve
as a base for a definition.

 In all laws, relations by blood and by marriage are recognized.

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  it is clearly provided that relationships would be created by a contract of adoption.

 The concept of family under our family laws is similar to the second definition,
the basic relations are emanated from blood, marriage or adoption.

Distinction between a ‘family’ and' ‘marriage’

 Where Marriage refers to the relationship between spouses (married couples)
 family arises out of marriage
 However, valid marriage is not a necessary precondition for the existence of the
institution of family
 Children born of irregular unions and couples be considered as forming a family

1.2. Significance of the Family

A. Procreation
 The family is the center of procreation/reproduction.
 Ensure continuity of society

B. Socialization
 Family has, through socialization, a central role in education and care for the
children.

C. Providing personal Security and Acceptance

 Family provides a home base with stability that allows its members to develop –
in their own way, at their own pace

D. Ensuring Continuity of Companionship

 Family associations can be expected to endure

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E. A Unit of Economic Cooperation

 Family is also a unit of economic cooperation that traditionally divides the labor
along gender lines
 In modern world, husband and wife, each with special skills, considering
themselves as partners contribute definite service to the marriage partnership,
which, in effect, serves as economic cooperation.

Other institutions sharing the role of the family

Most functions formerly performed within or by families are now shared with or
provided by other institutions or evolve due to advancement in technology.

1.3. Legal Protection of the Family

 The state is interested not only in the regulation of the institution of family, but
also in the institution of marriage
 That is why the institution of family is backed by different legal standards and
instruments.
 International human rights instruments extend protection to the family as a natural
and fundamental unit of the society and impose on the state parties the duty to
preserve the institution.
 State parties discharge this obligation by enacting or incorporating legal
provisions
 1995 FDRE Constitution and other Regional Constitutions extended protection to
the family.
 Other domestic laws such as the Civil Code and federal and regional family codes
also regulate conditions for conclusion of marriage, effects of marriage and its
dissolution as well.
 Some of these provisions are also backed by Penal Code provisions.

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1.4 Family Law Reform and the Forces at the Back ground
1.4.1 General
 Generally speaking, family law has undergone great changes especially since the
2nd half of 20th century
Reasons for the reforms
1. Socio-economic changes/economic independence of women
 industrialization and urbanization have brought the seeds of change on the roles of
the couple within the family. The former created more jobs so that women can
work outside of homes, and the latter develops their educational and skill level.
 the incomparable higher training and educational level of women has been
increased and they became equally rewarded with men based on merit than other
grounds which in the long-run facilitated their emancipation.

2. the passion for freedom, liberty and equality of the feminist struggle has also
contributed in molding the attitude of the society and there by the law.
3. Better protection for the rights of children

Pillars of family law reform

 Equality of men and women,
 Legal filiations system; abolition of legitimate (those born in wed lock) and
illegitimate (not born in wed lock) children
 Recognition and better protection of other forms of family than those established
by marriage

1.4.2 Ethiopian Perspective

 Ethiopia began to codify her customary and statutory laws in the 1950s, and 60s.
 One out come of this codification process was the 1960 Civil Code of Ethiopia.
 It is Book II, Title IV of this Code that used to regulate (and still regulates in
some of the States) the institution of family in Ethiopia.

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  The first comprehensive legal instrument in the history of hither to traditional
society of Ethiopia
 This, however, does not mean that all the provisions of the Code fit in to the
objective realities of present-day Ethiopia.
 the government acceded to a number of International Human Rights Instruments
 The 1995 Constitution extended protection to the institution of family and
marriage, and recognized equality of sexes and spouses, and the rights of the
children as well.
 Revision of the Civil Code provisions relating to family matters have been
necessitated by keeping place with the constitutional provisions and international
instruments
 Not all regions have family laws

1.5 Power to Enact Family Law

 Ethiopia has embarked on federal system of government by virtue of the 1995

Constitution
 The power of law making, enforcement and interpretation apportioned between
the federal government and states or regions (Art. 50(2))
 Art. 51-powers and functions of the federal government
 Art 52 (1) of the constitution also provides that “all powers not given expressly to
the Federal Government alone or concurrently to the Federal Government and the
states are reserved to the states.
 And nowhere in the constitution is the power to enact family law expressly given
to the Federal Government alone or concurrently with the states.
 Of course, one may argue that since the constitution empowers the HoPR to enact
civil laws if the House of Federation deems that the law established and sustains
one economic community per Art.55(6) of the constitution, enacting family law is
under the jurisdiction of the Federal Government.

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  However, family law is local in its nature and neither did the House of Federation
take a stand that family law should be uniform through out the country nor is it a
type of civil law that creates and sustains one economic community
 It could be concluded that enacting family law is within the power of states.

 Accordingly, it has been suggested that let the Federal Government enact a family
code for the administrative region of Addis Ababa and Dire Dawa and then states
adopt family laws of their own through their respective state councils using the
federal law as a model.

 Each state should freely accept this approach and that such family laws should not
contravene the FDRE Constitution.

1.6. Sources of Family Relationship

 under the Civil Code, sources of family relationship, i.e, relation by way of
consanguinity, affinity and adoption were treated a separate chapter.
 Since the two legal effects that arise among family members are prohibition of
marriage and the obligation to supply maintenance, it has been preferred to
include those sources & family relationship in areas dealing as to between whom
conclusion of marriage is prohibited and the obligation to supply maintenance
exists.

1.6.1 Relationship by Consanguinity

 Consanguinal relationship is a relationship derived from community of blood.
 This kind of relationship arises from birth.
 This type of relationship can be divided in to two groups.
 Consanguinal relationship in the direct line and consanguinal relationship in the
collateral line.

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Consanguineal relationship in the collateral line

 Under Art 550 (2) of the 1960 Civil Code and Art. 8 (1) of the RFC, a bond of
relationship by consanguinity exists, in the direct line, between ascendants and
descendants.

Grand father Grand mother

Father
Mother
Or

Son
Daughter

Grandson
Grand daughter

 The Ethiopian law does not specifically indicate as to how to calculate the degree
of relationship in the direct line. In European countries, however, the degree of
relationship is computed simply by counting the number of generations. That is,
the number of generations is equal to the number of degrees of relationship. There
is one generation between a father and a son or two generations between a person
and his grandson. To make the discussion clear, look at the following figure

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Ayalew
1 (First generation)

Gebeyehu
2 (Second generation )
Nadew
3 (Third generation)

Getachew
4 (Fourth generation)

Aragaw

 There is no point at which consanguinity relation ships stop in consanguinal

relationship in the direct line.

Consanguinal relationship in the collateral line

 Art 550 (3) of the Civil Code, consanguinal relationship in the collateral line
exists between persons who descend from one or more common ascendants.
 siblings
 a person and his/her uncle/aunt
 a person and his cousin/ a child of one's uncle or aunt
 a person and his nephew/ a son of one's brother or sister
 an individual and his niece/ a daughter of one's brother or sister

Alemayehu

Ayenachew Gete

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Limenih Genetu Kindu Yilma

Sara

There are two approaches in computing the degree of relationship by consanguinity in the
collateral line. These are:
 The civil law approach and
 The canon law approach

 The civil law approach of calculating degree of relationship between two

collaterals is used in many European countries.

 According to this approach, the degree of relationship between two collaterals is

computed by counting the number of generations in each line departing from the
nearest common anscestor and taking the summation thereof.

 Canon law approach: the number of generations are counted only on one of the
lines of descent if the two sides are equal.

 When the related persons are not on equal distance from their common ancestor,
only the line that has a greater number of generations is taken in to account

Which of the two approaches is incorporated in our family laws?

 Art. 551 (1) of the Civil Code: the degree of relationship by consanguinity in the
collateral line shall be calculated by counting seven generations in each line from
the common ancestor.
 But this article is not as such clear as to which approach is included in the Civil
Code.

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  Some of the judges argue that what is incorporated is the civil law approach and
others interpret this article in a way similar to canon law approach.
 To avoid such confusion, the RFC avoids calculation of degree of relationship
and specifically indicated as between whom such relationship exists.
 Accordingly, as per Art 8 (2) consanguinal relation in the collateral exists
between a man and his sister or aunt and a woman and her brother or uncle.

 Collateral relation beyond certain point shall not produce any legal effect.

 Art. 551 (2) which provides “relationship by consanguinity shall be of no affect

beyond the seventh generation.”

 Like wise, under the Revised Family Code, consanguinal relation in the collateral
line for the purpose of prohibition of marriage is limited to the relation between a
man and his sister or his aunt and a woman and her brother or uncle.

1.6.2. Relationship by Affinity

 Relationship derived from marriage even if the law attaches some legal effects to
it.
 relationship that exists between a person and the consanguinal relatives of his/ her
spouse.
 Affinal relation cannot exist between the spouses themselves
 There is no affinal relationship between consanguinal relatives of the husband on
the one hand and the consanguinal relatives of the wife

Two categories
Direct Line
 As per Art. 552 (2) of the Civil Code (CC) and Art. 9 (1) of the RFC, a bond of
affinity in the direct line exists between a person and the ascendants or
descendants of his spouse.

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  produces equal legal effects no matter how the degree of the affinal relationship in
the direct line between two individuals is remote

Collateral line

 Art. 552 (3) of the CC., a relation of affinity exists between a person and the
collaterals of his or her spouse.
 Doesn’t have any legal consequence beyond a certain degree.
 Art. 553 of the CC., affinal shall be of no effect beyond the third degree in the
collateral line.
 Art. 9 of the RFC, affinity relationship is limited between a man and the sister of
his wife, and a woman and the brother of her husband.

Double affinity
 As per Art. 554 (1) of the Civil Code, a bond of double affinity exists between a
person and the spouse of the person to whom he is related by affinity.
 To cite one instance, a bond of double affinity exists b/n the husband and the
spouse of the brother of his wife.
 It is also mentioned that such bond of double affinity shall produce the same
effect as a bond of simple affinity.
 However, such type of affinity is not recognized under the RFC

Does dissolution of marriage entails the termination of affinal relation created as a result
of that particular marriage:

 The Civil Code answers this question negatively.

 As indicated under Art. 555 of the Civil Code, a bond of affinity shall subsist in
the direct line and collateral line notwithstanding that the marriage by which it
was created is dissolved.
 Art. 9 and 11 of the RFC, we may reach in the same conclusion. As has been
mentioned under Art. 11, a person may not conclude another marriage while he is

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 bound by a preceding marriage. Therefore, while his/her marriage is pending, a
person can not conclude another marriage with another person including his
affinal relatives.
 Art. 9 specifically provides that a person can not conclude marriage with affinal
relatives. But the massage of Art. 9 is not to prohibit a person from concluding
marriage with his has affinal relatives while he is bound by a preceding marriage
as this message is already covered under Art. 11. Hence, the message behind Art.
9 is that a person is prohibited from concluding marriage with his affinal relatives
even if his preceding marriage is dissolved.
 1.6.3. Adoption
 an artificial means of creating family tie.
 Once an agreement of adoption is entered between the adopter and the adopted,
consanguinal and affinal relation shall be created between the adopted, and the
family of the adopter.

1.7. Legal Effects of Family Relationships

1.7.1. Family Relations Confer Rights on Persons

The existence of family relationships may give rise to rights to its members. Examples
are given below.

 Father and mother have the right to become guardians and tutors of their minor
children (Art. 219 of the R.F.C.)
 People who are related by consanguinity have a reciprocal right to succeed each
other under rules of intestate succession (Art 842 and the following of the C.C.)
 Persons who are very poor and are unable to get their livelihood by their work,
have the right to require maintenance from their relatives who have a better
means. (Art. 198 of the R.F.C)

1.7.2. Family Relations Impose Obligations on Person

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In addition to rights, there are also obligations which are imposed on people as a result of
their being relative of other persons. Among other things:

 Members of the family may be obliged to supply maintenance, if other member of

the family is in need and unable to earn his livel-hood (Art. 198 of the R.F.C.)
 Parents are bound to protect and give due care for their minor children. (Art. 36
(1) (c) of the FDRE Constitution)
 The father shall be obliged to make the damage good if his minor children incurs
extra – contractual liability (Art. 2124 of the Civil Code)
 The spouse is duty bound to be fidel

1.7.3. Family Relationships as Ground of prohibition

The existence of family relationship would also result in prohibitions. Marriage between
persons who are related by consanguinity or affinity is prohibited

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 CHAPTER TWO
CONCLUSION OF MARRIAGE

2.1 Definition of Marriage

 Difficult to come up with a single universally acceptable definition of “marriage”
applicable in every legal system.
 According to Planiol, “marriage is a contract between two parties sanctioned by
law and cannot be broken by free will.”
 Marriage and contract have some similarities: consent and capacity
 At least under the Ethiopian legal system, marriage is not a contract for the
following reasons.
 Firstly, ordinary contracts are of proprietary nature (Art. 1675) (of the CC) while
marriage is not.
 Secondly, as indicated under Art. 1675 of the CC, ordinary contracts may be
extinguished by mutual agreement of the contracting parties. But marriage can not
be terminated only by the consent of the spouses. Its terminations require the
order of the court (Art 117 of the RFC.)
 Thirdly, there is no variation of obligation in marriage unlike the contract of
proprietary nature,
 Fourthly, marriage invariably requires formality for its conclusion but form is an
exceptional requirement for ordinary contracts.

Other writers define marriage as “a union for life and is an institution to bring about
property relations.” (Emphasis supplied).
 all marriages may not create property relations between the spouses.

Still others define marriage as “a society of man and woman who join together to
perpetuate their species, to help each other through mutual assistance to bear the burden
of life and to share their common destiny.

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  Once again this definition is narrow because it exclude the conclusion of marriage
between sterile individuals.

In the legal systems of states of the western civilization, and those other states whose
legal system are influenced by the former, marriage is defined as:
“… a voluntary union for life of one man and woman as
husband and wife, to the exclusion of all others, for the
discharge to each other and to the community of duties
legally incumbent up, on married person.”

 This definition, though incomplete consists some basic features of marriage under
Ethiopian laws.
 a ‘voluntary union’ free consent of the parties to live together as husband and
wife
 The second element which distinguishes marriage from other sexual unions and
other contracts is its permanence.
 The third element to be fulfilled is the element of monogamy.

Even if the Civil Code, the Revised Family Code of the Federal Government and other
Regional Family Codes fails to define marriage, The Amhara Region Family Code under
Art. 11 has provided the definition of family as follows:
“… a relationship where by a man and a woman having
attained majority, officially establish out of their own
free will and consent, with an intention to sustainably
live together united in law or “legal institution structured
as a result of this relationship there to”

So the definition of marriage under the Amhara Region Family Code has the following
important points:
1. Marriage is essentially entered between a man and a woman. This implies two things;
First, only monogamous marriages are recognized under the Amhara family law. So

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 bigamous and polygamous marriage are excluded. Second, marriage concluded
between persons of the same sex, that is gay and lesbian are also excluded.
2. The spouses are required to attain the age of majority.
3. The marriage should be established officially. So any undertaking by the spouses to
conclude marriage does not have any effect if it is not made either before the officer
of civil status, or according to the formalities required by their religion or their
custom.
4. The full and free consent of the spouses is required.
5. There must be an intention to sustainably live together.

2.2. Betrothal
2.2.1. General
 Betrothal is an agreement where by the future spouses or both the future spouses
and their respective families undertake that the former conclude marriage.
 The term betrothal is called by different names in different legal systems. Promise
to marry, agreement to marry and engagement are some of the synonyms of
betrothal.

 Under the 1960 Civil Code, betrothal is regulated by Arts 560-576.

 But excluded from the RFC but why?
1. Betrothal is not a precondition to marriage.
2. With respect to problem of property exchange through gift as a consequence of
betrothal, it could, if any, be governed by other provisions of the Civil Code. That is
the situation can be governed by the general law of obligation.
 As long as no legal ban is put on the practice of betrothal, it can continue in its
cultural form
3. There is no uniform culture of betrothal. This is especially true in the two cities
which are governed by this Code, Addis Ababa and Dire Dewa.

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  However, regional family codes, such as the Tigray, Amhara, SNNP, and
Oromia Regional family Codes have retained this institution with certain
modifications.

Some areas of reform

2.2.2. Parties to the Contract

 Under the Civil Code, Betrothal shall be of no effect unless both the future spouses
and their respective families consent to (Art. 565).
 The consent of the fiance, the fiancee, the fiance’s family and the fiancee’s family,
the latter two being represented by an individual member.
 The regional revised family Codes, a contract of betrothal shall be of no effect
unless the future spouses consent thereto.
 In line with Art. 34 (2) of the FDRE Constitution that provides “marriage shall be
entered into it only with the free and full consent of the intending spouses.”

2.2.3. Form and Other Requirements

 Under the Civil Code and the Tigray Family Code, the form of contract of betrothal shall
be regulated by the usage of the place where it is celebrated. Under the civil code,
however, there shall be no valid contract of betrothal unless made in the presence of at
least four witnesses, two for the fiance and two for the fiancee.
 The Amhara Family Code provides that betrothal shall be in written form. Beyond this, it
also requires the presence of four witnesses.
 The Oromia Family Code provides that “the form of betrothal may be regulated by the
usage of the place where it is celebrated or written form”.
 The parties there to should have capacity.
 Other impediments to marriage shall equally applicable to it.

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 2.2.5. Breach of Betrothal

 Despite the promise, can’t be forced to marry

 A party who breaches the betrothal agreement is responsible to cover expenses relating to
betrothal, return presents made there to, redress moral damage, and pay an amount
agreed up on as a penalty clause, if any.
 Amhara Family Code made inapplicable the provisions of the Civil Code dealing with
penalty clause

2.3. Essential Conditions for the Validity of Marriage

Broadly speaking, essential condition to the validity of marriage can be divided in to
two categories. These are:
1. Formality (procedural) requirements of marriage; and
2. Substantive requirements of marriage

2.3.1. Formality Requirements of Marriage

 Formality requirements of marriage have to do with celebration the manner of
conclusion of marriage. They are procedural in nature.
 Art. 1 of the RFC, various forms of marriage
1. Civil
2. religious
3. customary marriage

 Marriages celebrated in different formalities are equally recognized by the law

(Art 34 (4) of the FDRE Constitution).

2.3.1.1. Civil Marriage (Art. 2)

 it is only a man and a woman/monogamous
 excludes the possibility of same sex marriage

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  The officer of civil status is an officer who registers births, deaths and marriage of
people (Art. 47 of the C.C)
 For long, there was no officer of civil status in Ethiopia.
 Municipalities were involved in recording the civil status by way of delegation,
until when the officer of civil status is established. (Art. 321 of the RFC.)
 But we have now vital invents registration agency established at federal level with
branches at woredas/kebeles by Proc. No. 760/2012 (as amended by Proc. No.
1049/2017) and Reg. No. 278/2012

 are required to personally appear before the officer of civil status at the time and
place of celebration of marriage.

 in principle marriage cannot be concluded by way of representation. (Art. 12(1))

 Exception (Art. 12(1))

How could we identify whether a certain officer of civil status is competent to celebrate a
particular marriage?
 Art. 22 of the RFC
 they shall inform their intention to conclude marriage not less than one month
prior to its celebration (Art. 23 of the RFC).
 decide the exact date of the conclusion of marriage and publicize same by any
appropriate means (Art. 24 of the RFC). The aim of publicizing the date fixed for
celebration is to give a room for individuals who are entitled to make opposition if
the marriage is to be concluded in violation of one of the substantive requirements
of marriage.
 Art. 25. … shall inform… the consequences of their declaration. marriage found
concluded in violation of the substantive requirements could be dissolved and
entail the criminal liability of the spouses, the witnesses and the officer of civil
status who celebrated such marriage.

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2.3.1.2. Religious Marriage (Art. 3)
 by their religion or the religion of one of them.
 Due regard to the rules or practice of celebration of marriage of that religion. Art.
26 (1)
 Substantive conditions should be met Art. 26 (2)

2.3.1.3. Customary Marriage (Art. 4)

Customary marriage is celebrated in accordance with one of the following:

 Custom of the community in which both spouses live, or

 Custom of the community to which one of them belong, or
 Custom of the community they belong to.

 customary marriage and the formalities thereof shall be prescribed by the custom
of the community concerned Art. 27/1
 Substantive conditions should be met Art. 27/2

Conclusion

 while marriage celebrations in all civil marriages follow similar procedures, the
procedures followed in religious and customary marriages vary from religion to
religion and from culture to culture.

Marriage celebrated abroad (Art. 5)

Two conditions to be recognized in Ethiopia:

 must be celebrated in accordance with the law of the place of celebration.
 the celebration shall not contravene public moral
 must be consistent with the Ethiopian laws as regards substantive requirement

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2.3.2. Substantive Requirements of Marriage
 marriage is said to be defective, unless the essential conditions are fulfilled
 substantive conditions of marriage have to do with the content of the marriage
itself
 Every marriage should comply with substantive conditions of marriage.
 This can be inferred from the cumulative reading of Art. 25(2), 26(2), and 27(2)
of the RFC.

Why mandatory essential conditions prescribed by the law?

 Marriage is an institution which gives rise to family and hence more than a mere
personal relationship between two persons.
 The validity of state regulation of marriage depends on a balancing of interests.
That is, the individuals’ interest in marrying the chosen partner (Art. 34(1) of the
FDRE Constitution) is measured against possible state interest in regulation. The
state is highly interested towards greater marriage stability and enjoyment.
 Age, consent, consanguinal and affinal relationships, monogamy, mental
condition and period of widowhood

2.3.2.1. Consent (Art. 6 cum. Art. 34 (2) of the FDRE Constitution)

 All family codes

 The Oromia Family Code has placed much emphasis on consent when it clearly
out laws marriage by abduction under Art 3 (1) which is prevalent in the region.
 Even if the woman has consented to the “marriage” subsequently, it can not be
valid
 If consent is given and that consent in not given freely and fully, then this is a
defective consent.
 A defective consent results in a defective marriage.

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  Error and violence are those two circumstances that vitiate consent under the
Revised Family Code

A. Fundamental Error (Art. 13)

 makes consent defective.
 any ordinary error doesn’t vitiate consent.
 Fundamental error
 The law doesn’t specifically give us a definition of ‘fundamental error’ except
enumerating instances of fundamental error.
 When the provisions of the family law are silent on certain issue, we can apply the
pertinent provisions of the Civil Code in general and contract provisions in
particular.
 Even if the general contact provisions are primarily applicable to settle disputes
arising from contractual agreement, these provisions might also be applicable to
other obligations in general and marriage in particular when a need arises (Art.
1677 (1) of the Civil Code).
 By Appling Art. 1697 of the Civil Code, we can define fundamental error.
 Pursuant to this article, a certain error (mistake) is fundamental when it is
established that person world not have entered in to a contract (marriage) had he
known the truth.

(a), ----- should be taken as a physical identity of the person.

 A while having in mind to marry B married C, it constitutes an error of identity.

 The qualification, character, poverty or richness of the person are disregarded.

(b) HIV/AIDS?

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(c) cum. Art 53 (2) of the RFC provides that the spouses shall have with one another the
sexual relations normal in marriage unless these relations involve a risk of seriously
prejudicing their health.
 But such obligation can be put in to effect if and only if the two spouse have the
requisite sexual organ.

B. Violence (Art 14 (1) of the RFC)

 Art. 14 (2), Should this serious and imminent danger be directed only against life?
 Does it include dangers against honor and property of the aforementioned
persons?
 Should the violence be judged by the objective or subjective standards?
 The law is not clear
 Duress under ordinary contact requires the objective standard for the fact that the
essence grave evil of the danger depends only up on the decisiveness of the duress
in the eyes of a reasonable person who takes in to consideration the age, sex and
positions of the parties concerned (Art. 1706 (2) and (3) of the Civil Code).
 Shall we apply the Civil Code provisions to the family law by way of analogy?

What about fraud?

 In other countries, consent procured by ‘serious’ fraud invalidates the marriage,

 False representations as to wealth usually are not considered to be essential, but a
misrepresentation concerning willingness to have children is considered as
essential

Should we include fraud in the RFC:

 Position 1: Including fraud will be contrary to the intention of the legislature
 Position 2: inclusion of fraud as a third factor
 Apply the pertinent contract provisions from Art. 1677 (1) cum. 1704 of the Civil
Code by analogy.

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2.3.2.2. Marriageable Age (Art. 7)
 make sure that the couples are mature enough both biologically and
psychologically
 The Civil Code under Art. 581 fixed marriageable age at 18 for men and 15 for
woman
 Exceptionally, however, a dispensation of not more than two years may be
granted

Why the Civil Code opted for different marriageable age for men and women?
 women attain puberty earlier than men;
 increasing the marriageable age of women above 15 has adverse affect in that
women will be vulnerable to abduction and birth out of wedlock.

 RFC fixes 18 years as a minimum marriable age

 The rational behind departing from the Civil Code and raising the lower
marriageable age for women are legal, scientific and socio-economic grounds

 Legal: Under Art. 299 cum. 215 of the RFC, a person performs a juridical act only
if he attains the age of majority; that is, 18 years

 It can hardly be said that she can, at this stage, give her free and full consent to
marriage as required by Art. 34 (2) of the FDRE Constitution.

 Setting different marriageable ages for the sexes would be against the
constitutional equality of sexes in all respects including marriage as enshrined
under Art. 25, 34 (1) and 35 (1) and (2) of the FDRE Constitution.

 Scientific and socio-economic: if women are allowed to conclude marriage before

18 years, usually, they face so many biological problems which in turn results in
psychological and socio-economic problems.

24
  Early marriage will have adverse effect on the health of the woman and the baby
particularly at the time of pregnancy and birth Early marriage may also create
obstacles on the woman to attain her education because it might be immediately
followed by birth.

 The repealed Tigray Family Code took a different stand.

 Pursuant Art. 27 of the Code, the minimum marriageable age for man and a
woman is 22 and 18 respectively.

 What constitutes “serious cause” that warrants dispensation?

 Do you think that dispensation is allowed if the woman become pregnant below
18 years?

 Permission of marriage under article 7(2) results in emancipation (Arts. 311, 313
& 314)

2.3.2.3. Relationship by Consanguinity and Affinity

 Prohibition of marriage within the immediate family (ascendants, descendants,
siblings, etc) are universal and Ethiopia is not an exception.
 Relationships created by a former marriage (affinity) continue to be considered
impediments to marriage in a small minority of jurisdiction
 Marriage between consanguinal relatives (incestuous marriage) is prohibited.
 scientific and moral reasons.
 Science: incestuous marriage will cause genetically transmitted diseases to be
transmitted more rapidly and seriously.
 moral reasoning: marriage between closely related persons is repugnant to good
morals.

25
  The degree of relationship in the collateral line under the Civil Code (7th degree)
was found out to be too long.

 prohibition of marriage between collaterals in the REFC is in line with the above
(scientific) justification.

 The degree of prohibited relationships on marriage provided by the Federal and

Amhara codes are too narrow contrary to the culture of the people living there
where, prohibition up to the seventh degree is widely practiced.
 One may argue here saying these provisions deny the right guaranteed by the
Constitution Art. 39 (2) to the people of Ethiopia to express, develop and promote
their own culture.
 . But justification was given saying that provisions are adopted to accommodate
the needs of the two main religions and only the minimum requirement to be
fulfilled is provided.

In affinal r/n the collateral line, there are differences.

 Under the Civil Code, affinity shall be of no effect beyond third degree in the
collateral line (Art. 553). Under the Revised Family Code, on the other land, the
degree of relationship is narrowed. Accordingly, in the collateral line, marriage
between a man and sister of his wife, and a woman and brother of her husband is
prohibited (Art. 9 (2)).

justification in prohibiting marriage between affinal relatives?

 moral consideration of the society.

 securing the sustainability of marriage

The prohibition of that marriage between consanguineal and affinal relatives is equally
applicable to filiations not established legally.

26
Art. 10 of the RFC: Filiations not Established Legally
The existence of a bond of natural filiations which is commonly known to
the community is sufficient to render applicable the impediments to
marriage referred to in Articles 8 and 9, not with standing that the filiations
is not legally established.

Let us assume that a certain child is born or conceived as a result of sexual intercourse
outside of marriage and irregular union; For instance, sexual intercourse performed as a
result of rape or abduction. Let us further assume that the community knows the fact that
father of that child is a person who is engaged in the act of abduction or rape.
Furthermore, the community also is aware of the fact the rapist, as a father, covers the
food, cloth, education and other expenses of the child. Despite all these acts of this
person, the paternity is not established legally until he acknowledges the child formally or
is judicially declared to be the father of the child.

2.3.2.4. Bigamy
 Bigamous marriage is void under most jurisdictions, while it is a valid type of
marriage in others.
 The Civil Code under Art. 585 also outlaws bigamy.
 The Revised Federal Family Code expressly outlaws
 Justification: equality
 But what about the right to promote and develop ones culture is recognized by the
constitution (Art. 39 (2) of the FDRE Constitution).
 But it is only “… Culture and traditions that are compatible with fundamental
rights, human dignity, democratic norms and ideas and the provisions of the
Constitution” that deserve promotion and enrichment (Art. 91(1) of the
Constitution).

27
 2.3.2.5. Representation not Allowed (Art. 12) (1)
 Applies to all forms of marriage
 No delegation
 Since personal appearance is more of procedural requirement; it is also indicated
under Art 2 and Art 25 (1)

What do you think constitutes a serious cause?

 If for example, a marrying spouse, while preparing to conclude marriage, is sent
to a war front to defend his country???
 But as an exception, the minister should apply narrow interpretation.
 Representation is applicable only for the purpose of signing on the certificate of
marriage on behalf of the marrying spouse

2.3.2.6. Judicially Interdicted Persons (Art. 15)

 a judicially interdicted person is a person who is pronounced by a court of law as

incapable to perform juridical acts.
 prior permission of the court is necessitated to avoid unwanted effects.
 For instance, if the interdicted person is not capable of rearing the children born
out of marriage

2.3.2.7. Period of Widowhood (Art. 16)

 Justification: protecting the right of children to know their parents which is

recognized under the FDRE Constitution and International Treaties ratified by
Ethiopia.
 Avoid any kind of conflict that may arise on the question of paternity
 a child could be attributed to two fathers if he is born in less than 300 days as of
the date of dissolution of the first marriage (Art. 126 cum. 128 (1)).

28
  Both the ex-husband and the present husband are presumed to be the father of the
child under the eyes of the law.

 The 180 days period of widowhood may some how minimize the problem.
 However, it doesn’t totally avoid the problem.
 In other countries, the period of widowhood is 300 days.
 So, to avoid conflict of paternity, the period of widow hood should be ten months.

Exceptions:

 No exhaustive
 The power of dispensing the woman from observing the period of widowhood is
given to the court.
 What additional reasons might be considered by the court?
 For instance, if the woman is sterile and this fact is evidenced by medical
evidence??
 if a menstruation flows for three consecutive months after the dissolution of
marriage??

2.4Opposition to Marriage (Art. 17)

 Objective_ preventive a defective marriage from being concluded.
 it is possible to apply for dissolution of such marriage after its conclusion

Art. 18 of the RFC- persons entitled to make opposition

 public prosecutor- Government represented by public prosecutor is a concerned

body to make opposition because child marriage is against the FDRE
Constitution, International conventions ratified by Ethiopia and the criminal law
 “Any interested person” is entitled to make opposition- doesn’t and shouldn’t
include any by passer.

29
 non-governmental organizations that work on children and women rights.

Who is entitled to make opposition if marriage is to be concluded without the free and
full consent of the spouse (s) or without observing period of widowhood? Discuss!

How, when and o whom is opposition to be made? Art 19 (1)

 “opposition to marriage shall be … submitted to the officer of civil status…”
Amharic version…“ለለለለ ለለለለለለ ለለለለለለ”.”/marriage celebrating
authority.
 The marriage celebrating authority varies from one form to another form of
marriage.
 For example, if the marriage is to be concluded in accordance with the religion of
the future spouse(s), opposition shall be made to the religious authority.

Time and formality

 The 15 days time of opposition compromises two interests:
 From the view point of the future spouses, it helps to avoid unnecessary expenses
that may be incurred to celebrate marriage in case the opposition is sustained.
 From the perspective of persons who are entitled to make opposition, it gives
enough time to make an application thereby prevents a defective marriage from
being concluded.

Per Art. 20 (2), a decision against opposition to marriage is final with no possibility of
appeal. On the other hand, a decision against celebration of marriage is appealable to
courts. What is the rationale behind to make such distinction? The decision of the
authority against celebration of marriage should not be final as it affects the right of
future spouses to marry and found a family. This constitutional right can not be deprived
of by administrative decisions and hence appeal is possible. In contrast, a decision against
opposition doesn’t have a far reaching consequence when compared to a decision against

30
celebration of marriage. Even if the opposition is sustained a defective marriage may be
attacked and dissolved after the conclusion of the marriage.
2.5. Registration of Marriage
Why do you think is the power of registration of marriage is given only to the officer of
civil status? Why not to for other marriage celebrating authorities?
1. More organized
2. Some international instruments, such as Art. 16 (2) of CEDAW, make registration
of marriage compulsory

Purpose of registration
 Registration is not a validity requirement to marriage
 Regardless of the fact that marriage has been registered or not, it shall have effect
from the date of its conclusion (Art. 28 (3).
 Hence, the purpose of registration is for evidential purpose.
 Once the officer of civil status registers marriage, it shall issue a certificate of
marriage to the spouses. (Art. 25 (2).
 Such certificate of marriage shall be produced to prove marriage where the
existence of a certain marriage is challenged.

 To assure the establishment of the registering organ, the Federal Revised Family
Code, under Art. 321, compels the Federal Government, with in six months from
the coming in to force of the Code, to issue registration law applicable to the
Administrations where this code is to be enforced and establish the necessary
institutions.

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 CHAPTER THREE
EFFECTS OF VIOLATIONS OF ESSENTIAL CONDITIONS FOR
THE VALIDITY OF MARRIAGE

3.1 General

 Non-observance of essential condition to marriage may entail both criminal and

civil liability.
 marriage concluded without fulfilling one or more essential conditions to
marriage shall be a defective marriage.
 Defective marriage is of two types these are void and avoidable marriage.

3.1.1. Void Marriage

 has no any legal effect from the very inception.
 Such marriage is also known as void abinitio.
 Deemed as never to have taken place.
 is no effect in the eyes of the law.
 In the Ethiopian family. law, there is no concept of void marriage.
 Because if a certain marriage is rendered void abinitio, the effect is that no
common property and illegitimating of children.
 But this effect is highly prejudicial to the children who are born out of this void
marriage.
 In general, void marriage will result in chaos in the society.
 However, in some other countries, there is a concept of void marriage.
 In these jurisdictions, void marriage may arise from incestuous marriage, non -
observance of minimum marriageable age, bigamy and lack of requisite mental
capacity to conclude marriage.

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  In France, for instance, if a brother and sister conclude marriage, their marriage is
void from the time of its conclusion.
 it can be attacked by all affected and any interested person.
 Once attached, it will become invalid for the past and for the future.
 Void marriages does not require special formality to come to an end.
 Nevertheless, a declaratory judgment is required to the effect that a void marriage
really is void.

3.1.2. Voidable Marriage

 a marriage which is deprived of effect for the future but which holds good for the
past.
 susceptible to invalidation when attacked and it remains valid until it would be
attacked for defect and dissolved by court order.
 Order of invalidation is requested only by specified persons.
 Result of less serious defects in marriage.
 For instance, marriage concluded without parental consent, without formal
requirements and as a result of fraud.

 the Civil Code or the newly enacted Federal and Regional family codes, adopted
only voidable marriage.

 a marriage concluded without the observance of one or more essential conditions

to marriage (defective marriage) shall be invalidated by a court of law if and only
if an application is made by an authorized person to it for invalidation.

 The defective marriage shall produce all legal effects of a normal marriage unless
and until it is invalidated by a court of law.

3.2. Effects of Violations of Marriage Requirements under the Federal

Revised Family Code

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3.2.1 Effects of Violations of Substantive Requirements of Marriage
Taking in to account the effect of their violation, substantive requirements of marriage or
impediments to marriage could be divided in to three groups. These are:

 Absolute impediments to marriage

 Relative impediments to marriage and
 Prohibitive impediments to marriage

3.2.1.1. Absolute Impediments to Marriage

 The marriage will always remain defective if it is affected by such impediments
and it is always possible to invalidate the marriage.
 Neither the passage of time nor change of circumstances remedies the defect.

 an impediment that falls under this heading is a relationship either by

consanguinity or affinity.

Art. 32 – Consanguinity or Affinity

The dissolution of marriage concluded in violation of impediments
arising out of consanguinity or affinity shall be ordered on the
application of any interested person or the public prosecutor.

3.2.1.2. Relative Impediments to Marriage

 Marriage concluded in violation of these impediments may be invalidated.
However, removal of the impediment or passage of time may bring about validity.
 So, an application for invalidation can not be brought after a period of time fixed
by the law lapsed or circumstances are changed.

Under this category, we have:

a. Marriage concluded without the observance of minimum marriageable age;

34
 b. Bigamous marriage;
c. Marriage concluded by a judicially interdicted person without the authorization of
the court.
d. Marriage concluded under the influence of violence; and
e. Marriage concluded due to fundamental error

Art. 31 – Age
1) Without prejudice to sub-Article (2) of Art 7 of this Code, marriage concluded by
a man or a woman under the age of eighteen years shall dissolve on the
application of any interested person or the public prosecutor.
2) It may no longer be applied for after the age required by law for marriage is
satisfied.

Art. 33 – Bigamy
1) The dissolution of a bigamous marriage shall be ordered on the application of
either of the spouses of the bigamous marriage or the public prosecutor.
2) The dissolution mentioned in sub-Article (1) of this article may no longer be
applied for where the former spouse of the bigamous marriage has died.

 Is the dissolution of the former marriage due to divorce causes the validity of the
second (“bigamous”) marriage?
 What if the first marriage is dissolved because of declaration of absence of the
first spouse of the bigamous spouse or non-observance of essential conditions to
marriage?

Art. 34 – Dissolution of Marriage of a Judicially Interdicted Person

1) Where a judicially interdicted person has contracted marriage with out prior
authorization of the court, the dissolution of such marriage may be requested from
the court by the judicially interdicted person himself or by his guardian.
2) The judicially interdicted person may no longer make an application for
dissolution six months after the date of termination of his disability.

35
 3) An application for dissolution by the guardian may no longer be made six months
after the day on which the guardian came to know the existence of the marriage or
in any case, after the disability of the interdicted person has ceased.

 The interdicted person is given six months after the termination of his disability to
request the dissolution of his marriage. The reason is that as long as he is in
disability, he is not entitled to apply for dissolution.
 If the action of dissolution is brought by his guardian, on the other hand, it will
not be entertained after the date of the termination of the disability of the
interdicted person. This is because after the termination of his disability, the
interdicted person himself can apply for dissolution.

 Unlike judicially interdicted person, a legally interdicted person has capacity with
regard to conclusion of marriage (Art. 386 (1) of the Civil Code).

 So, the marriage concluded by him shall be valid even if it is done without the
authorization of the court.

Art. 35 – Act of Violence

1) Who so ever has concluded marriage under the influence of violence may apply to
the court to order the dissolution thereof.
2) Such an application may not be made six months after the cessation of such
violence and, in any case, two years after the conclusion of the marriage.

Art. 36 – Error
1) Whosoever has concluded marriage due to fundamental error may apply to the
court to order the dissolution thereof.
2) Such an application may not be made six months after the discovery of such error,
and in any case, two years after the conclusion of the marriage.

36
  The two years period of limitation is set because within the two years period,
circumstances which strengthen the sustainability of the union like birth of a child
could possibly occur.

 The lapse of the time stipulated under Art. 35 and 36 doesn’t totally bar the
individual from requesting dissolution on the basis of other grounds. For instance,
he/she may avail her/himself of divorce provisions.

3.2.1.3. Prohibitive Impediments

 Once the marriage is concluded in violation of these impediments, dissolution
shall not be ordered by the court.
 The only impediment that falls under this category is period of widowhood.

Art. 37 – Period of widowhood

The dissolution of marriage may not be ordered for the sole reason
that the period of widowhood specified under sub-article (1) of
article 16 has not been observed.

 The aim of observance of period of widowhood is to avoid conflict in ascertaining

paternity.
 Once a woman concludes the second marriage without staying 180 days after the
dissolution of her first marriage, we can not avoid the conflict in regulating
paternity by dissolving the second marriage.
 Hence, the law opted the sustainability of the second marriage despite the
violation of the law.

3.2.2. Effects of non-observance of Formal Requirements of Marriage

Art. 38 – Incompetence of Officer of Civil Status

The dissolution of marriage may not be ordered solely
on the ground of incompetence of the officer of civil

37
 status who celebrated the marriage.

Some formalities do not also lead to dissolution:

Art. 39 – Non – Observance of Formalities

The dissolution of marriage may not be ordered on
the sole ground that the formalities of celebration
specified under sub-articles (3) and (6) of Art. 25 have not been observed.

Does it mean that the dissolution of marriage shall be ordered if the formalities under Sub
articles (1), (2), (4) and (5) of Article 25 are not complied with? Why/why not?

CHAPTER FOUR
EFFECTS OF MARRIAGE
4.1. General
 The law does not make any distinction among various types of marriage when it
comes to effects of marriage (Art. 40 (1))
 Effects of marriage shall not depend on the real or presumed consummation of the
marriage (Art. 41).
 The effect of marriage shall be operative as of the date of conclusion of marriage
regardless of the fact that the spouses have performed sexual inter course or not.
 The effects of marriage are derivatives of either the spouses’ contractual
agreement (contract of marriage) or the legal stipulations (legal regime) or both.

4.2. The Contractual Regime (Contract of Marriage)

 Contract of marriage is an agreement of the spouses to regulate both the personal
as well as the pecuniary effects of marriage

Article 42 – (1) contract of marriage

38
 1) The spouses may before or on the date of their marriage, regulate by a contract the
pecuniary effects of their marriage
2) They may also specify in such contract their reciprocal rights and obligations in
matters concerning their personal relations
3) Such contracts shall not affect mandatory provisions of the law

 A distinction between contract of marriage and record (certificate) of marriage:

purpose
 Contract of marriage may be concluded even before the conclusion of marriage
but the issuance of certificate of marriage always follows celebration of marriage.

Preconditions to the validity of contract of marriage:

1. Time
 before or on the date of celebration of the marriage (Art. 42 (1)).
 Possibility during marriage-Art. 73- should be approved by the court.
 Does Art. 73 unduly restricts contractual freedom?
 The aim is to ensure that the spouses are free from influence.
 Freedom of contract gives sense when the contracting parties have equal
bargaining power.
 questionable whether such kind of freedom and equality (arm’s length
transaction) exists when the husband and wife
 So long as the two spouses are under the marital bond, such influence could
possibly arise

2. No derogate from the mandatory provisions of the law (Art. 42(3))

 Rules that may not be set a sided by the agreement of the parties.
 Different from permissive rules
 Example, Art. 49 (1)

39
 3. form (Art. 44)
 in writing and attested by four witnesses, two for the husband and two for
the wife
 Even if Art. 44 is silent, we can also add the requirement of signature.
 Pursuant to Art. 1676 (1) of the CC, general contract provisions are
applicable to contract of marriage.
 Art. 1727 (1) of the CC, any contract required to be in writing shall be
supported by a special document signed by all parties bound by the
contract, if one of the aforementioned formality is not observed, the
contract of marriage shall remain a mere draft.

4. capacity
 a judicially interdicted person (Art. 43 (1))
 A legally interdicted has capacity (Art. 43 (2)).

Capacity of Persons (Art. 192-ff)

 Minors (Articles 198-338 of the CC) repealed by Family code provisions
 Judicial interdiction (Arts. 351-379)
 Persons interdicted by law (Arts. 380-388)
Administration of property due to a criminal sentence

5. Scope of obligation
 The spouses shall not impose an obligation up on third parties by their
contract of marriage (Art. 46 (2)).
 contracts lawfully formed shall be binding between the contracting parties.
 For instance, assume that a man, who is getting married, had a child prior
to this marriage. Now this man and his marrying spouse can not agree that
only the relatives of the child on his mother’s side are responsible for the
up bringing of the child.
6. Sufficient clarity of the terms of the contract (Art. 46 (2))

40
  shall be of no effect where it simply refers to local custom, religion or law of a
country
 it will make the obligation of the spouses undefined
 simply agree to govern their personal and pecuniary relation by local custom,
religion or law of a country, it will be too general and lead to different
interpretations
 Under the general contract provisions, it is given that the obligation of the parties
as stated in the contract should be ascertained with sufficient precision (Art. 1714
(2)).

7. Depositing the K of Marriage (Art. 45)

 The effect for the non fulfillment of this requirement is not provided.
 Even if not deposited, the validity of the contract of marriage will not be affected.
 First, in other provisions dealing with essential conditions of contract of marriage
like form, the effect of non-observance is explicitly stated in that it shall render
the contract of marriage null and void.
 But under Art. 45, the sanction for failure to deposit is not stated.
 Second reason is that the aim of depositing the contract of marriage either in court
or with office of civil status is for safety and to protect the interest of third parties.

Modifications to contract of marriage

 Unlike other ordinary contracts, however, the modification of contract of marriage
shall fulfill stringent conditions.

Art. 47 – (6) Modifications to contract of marriage

1) where the interest of the family so requires, the spouses may, by agreement,
modify the terms of the contract of marriage and request the court for approval of
such modifications.
2) The court may approve such modifications where it ascertains that it does not
affect the interest of the family.

41
 3) Where the modifications are approved by the court under sub- Article (2) of this
article, a copy of the modified contract shall be deposited in the court or with the
office of civil status.

Based on this article, the following conditions should be full filled for a modified contract
of marriage to be valid,
 The modification shall be necessitated by the interest of the family.
 The spouses shall consent for such modification.
 Even if it is not explicitly stated, from the reading of Art. 47 (3) and Art. 1722 of
the Civil Code, such modification shall be made in writing. To that effect Art. 1722
provides that a contract made in special form shall be varied (modified) in the same
form. Since a contract of marriage is originally to be concluded in special or, it must
be modified in the same form. By the same token, the phrase “… a copy of the
modified contract shall be deposited … “under Art. 47 (3) shows the requirement of
writing for modification of contract of marriage. If it is not reduced in written form
we can not imagine depositing.
 Approval of the court- justification similar to the one that is given for Art. 73.

4.3. Legal (Statutory) Regime

 Where the spouses didn’t not enter in to a contract of marriage; or
 The contract of marriage is rendered invalid

The personal and pecuniary effect of marriage shall be regulated by law (Art. 49-73).

Art. 48 – (7) legal Regime

In the absence of contract of marriage or where the contract of marriage is not valid under
the law, the following provisions shall apply.

The legal regime regulates effects of marriage in two ways.

42
  The first is as a gap filling provisions. That is, the law by its provisions from Art.
49 – 73 govern the effect of marriage only where there is no contract of marriage,
or the contract of marriage is invalid
 The second aspect of application of the legal regime (Arts. 49 – 73) is in their
mandatory nature
 Mandatory provisions such as Arts. 49, 50 and 53 are always applicable no matter
how the spouses concluded contract of marriage.

We may consider the legal regime governing effects of marriage under two heading:
 Personal effects of marriage and
 Pecuniary effects of marriage.

4.3.1. Personal Effects of Marriage

A) Head of the Family
 Under Art 635 (1) of the Civil Code the husband is the head of the family.
 The husband is entitled to obedience of his wife in all lawful activities which he
orders.
 He guides the management of the family, protects his wife and watches over her
relations and guides her in her conduct in the interest of the family

 Civil Code are in clear contradiction with the constitutional principle of equality
of sexes and equality of spouses in marital life as enshrined under Arts. 25, 34 (1)
and 35 (1) and (2) of the FDRE Constitution.

 the Revised Family Code abolished this and introduced the concept of collective
leadership of family in which both the husband and the wife have equal rights and
duties over their personal relation ship. According to Art. 49 (1), an equal and
mutual obligation of support, respect and assistance applies.

 The obligations under Art. 49 (1) is mandatory which cannot be set asided by
contract of marriage (Art. 49 (2)).

43
  Should contributing all expenses for the well-being of the house hold If the
spouses are living separately, they may discharge their obligation by supplying
maintenance for the needy spouse.

 If one of the spouses is unable to pay his personal debt, the other spouse may
discharge his obligation by paying from their common property.

B) Management of the Family

Art. 50 – Joint Management of Family (1) General Rule
1) The spouses shall have equal rights in the management of the family
2) The spouses shall, in all cases, co-operate, to protect the security and interest of
the family to bring up and ensure the good behavior and education of their
children in order to make them responsible citizen

Art. 51 – (2) Inability of One of the Spouses

1) Where one of the spouses is under disability, absent, abandons his family or is
away or, for any other reason, is not in a position to give his consent, the other
spouse shall alone carry out the duties mentioned in Article 50.
2) The spouses shall not agree to the contrary in the contract of marriage.

Art 52 – Children of Previous Marriage

1) Each of the spouses shall retain an exclusive right of decision in matters
concerning the up bringing of children whom he had before the marriage.
2) Any agreement to the contrary shall be of no effect.

 Art. 637 (1) of the Civil Code provides that the spouses shall cooperate, under the
guidance of the husband, in the interest of the family, to ensure the moral and
material direction of the family, to bring up the children and to prepare for their
establishment.
 Though it seems the wife must be given the right to participate in these activities,
the final veto power was left in the hand of the husband.

44
 In line with Art. 34 (1) of the FDRE Constitution which declares the spouses have
equal right during marriage, under the Revised Family Code, however, the
spouses shall have equal rights in the management of the family

 The spouses may be at disagreement on, say the management of the family. This
may lead to a problem. Because neither of the spouses has a casting vote over
such matters as both are authorized to be equal. The Revised Family Code doesn’t
have a ready-made solution to the problem.

 the first solution may be given depending on economic considerations, as some

American courts tend to favor.

 The casting voice has to be given to the principal family bread winner.

 But since in Ethiopia, most of the time the bread winners are husbands,
advocating this proposition would be returning to the old anachronistic tradition
of husband’s dominance and the wife’s subordination.

 The second and, I think, the better solution is referring the dispute to family
arbitrators.

 Pursuant to Art. 118 (1), disputes between spouses during marriage is to be

adjudicated by arbitrators appointed by the spouses as long as that dispute doesn’t
lead to divorce.

 Any party who is dissatisfied with the decision of arbitrators may appeal to the
court having jurisdiction whose decision shall be final (Art. 118 (2) and (3)).

C) The Duty of Cohabitation (Art. 53 and 55)

 is the supreme duties of the spouses.
 Even though the spouses are bound to live together exceptionally, they may agree
to live separately for a definite or indefinite period of time (Art. 55 (1)). Dear

45
 student, don’t you see any apparent or real contradiction between Art. 53 (3) and
Art. 55 (1)? Read the provisions her in under.

Article 53 – cohabitation
1) The spouses are bound to live together
2) They shall have one another the sexual relations normal in marriage unless these
relations involve a risk of seriously prejudicing their health.
3) Any agreement to the contrary shall be of no effect

Article 55 – Separation by Agreement

1) Notwithstanding the provisions of Article 53 (1) of this Code, the spouse may
agree to live separately for a definite or indefinite period of time.
2) Any agreement made to this effect may be revoked at any time by one of the
spouses provided that such revocation is not arbitrary.

 Some writers try to reconcile in the following way.

 According to them what is prohibited under Art. 53 (3) is agreement to live
separately in the contract of marriage.
 However, where a compelling situation arises, like change of business place of
one of the spouses, agreement to live separately is allowed under Art. 55 (1).

D) Choice of Residence (Art. 54)

 Art. 641 (1) of the Civil Code provides that the common residence shall be chosen
by the husband.
 Art. 34 (1) of the FDRE Constitution that guarantees the equality of man and
woman during marriage.

E) Duty of Fidelity (Art. 56)

 Non-compliance with the duty to fidelity (adultery) is also criminally sanctioned.
(Art. 652 of the FDRE Penal Code).

46
  It is also a tort, for which civil action for damage may be brought. (Art. 2035 of
the Civil Code cum. Art 652 of the FDRE Penal Code)

4.3.2. Pecuniary Effects of Marriage

A. Personal Property and Its Administration
 possible to own a property personally while living under a common roof.

Art. 57 and 58 personal properties

 Acquisition by onerous title is the acquisition of a property through an effort or work, or
by exchange of one property by another or through purchase by expending money.
 Art. 57 deals about property not acquired by onerous unless such property is made
common property under contract of marriage
 Art. 58- approval of the court, if not pursuant to Art. 62 (2), this property shall be deemed
to be common property
 Why court approval?
 Because there is a possibility of mixing personal property with common property. For
instance, a personal property of a spouse may be maintained or repaired by common
property. Let us assume that the owner of this property sold this property and bought
another car by the proceed of the sell of the first property. In this case, even if the
property is originally owned personally by one of the spouse, it has been mixed with
common property in due course.
 What is the period of limitation within which an application for court approval is to be
made?
 Art. 58 (2) is silent in this regard.
 In view of the silence of the law, it may be argued that an application may be made until
the marriage is dissolved.
 But as time goes, the probability of the mixture of personal property with common
property is high.
 Hence it is advisable to make an application in the earlier possible opportunity.

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 Art. 59-61 – Administration of Personal Property (1) Principle

 In principle, each spouse shall administer his own personal property.

 By free disposal, we mean the power of selling or exchanging or donating the property
to somebody by one’s free choice.
 In general, the owner of personal property shall have all private property rights
indicated under Art. 1204, 1205 and 1206 of the Civil Code.
 The only restriction imposed on an owner of personal property is with respect to
ownership of income derived from personal property (Art 62 (1))

 Of course, from the relevant provisions of property law, ownership is the widest right.
It includes the right to use the property (usus), the right to collect the income or fruit of
that property (fructus), and the right to dispose (abusus).

 If ownership right includes all these rights, would it be logical to prohibit an owner of
personal property to collect the fruits (incomes) derived from his personal property?

 Under Art. 1204 (2) of the Civil Code, such right may be restricted by law. One of the
laws that restrict such right is Art 62 (1) of the RFC.
 It reasonable limitation on ownership right.

 Should we expect the spouses to ask the confirmation of the judges for the contract of
agency to be valid within the meaning of Art. 61?
 Some individuals argue that since the contract of agency is a contract that is to be
concluded during marriage it shall be of no effect unless approved by the court as
required under Art. 73.
 Ato Mehari Redae, in his book argues that we could not. To this effect, he raised two
justifications.
 If either of the parties wants to grant agency power, it must be considered no more as a
family matter. The power giver (the principal) can reclaim at any time the
representation power that he once extended. (Art. 2183 of the Civil Code) If we were to

48
 ask him to seek the blessing of the court, this right of the principal, i.e., giving or
retaking the power at any time he wants would be neutralized. And this may have a
negative impact on the spouse who wants to go for representation for various reasons.
 The other is that even in the Civil Procedure Code Art 58 (a), the law permits the spouses
to represent each other in bringing a claim, or defend actions. Even if this is a
representation, there must not be a requirement to get an approval of the court, and
there exists no statement in the Civil Procedure Code.

 Thus, it can be concluded that Art. 61 has to be considered as an exception to Art. 73.

B. Common Property of the Spouses and Its Administration (Art. 62-69)

What is common property?

 Matrimonial property
 The difference between co-ownership and common property of the spouses.
 They are two distinct regimes in fact.
 Joint ownership which is extensively dealt under the Civil Code (Art. 1257 –
1308) is a situation where a single object of ownership is made to fall under two
or more individuals. True, matrimonial property (common property) is a species
of co-ownership.
 Yet it must be distinguished from co-ownership governed by the law of property.
 Firstly, matrimonial is created principally by operation of the law, and not by the
will of the parties unlike joint ownership proper.
 The agreement of two or more enumerable individuals is behind the joint
ownership of property law (Art. 1258). In fact some times, the law could also be
source of joint ownership, but this is an exception.
 Second, during marriage, neither spouse can apply simply for the division of the
matrimonial property. Where as in case of joint ownership as a rule one of the
joint owners may transfer his right to some body while the indivision lasts. In
principle, therefore, joint ownership, unlike communal property, is not perpetual.

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  Third, the number of the co-owners. In case of owning a certain property in
common, the number could be as many as the parties want it to be. In fact for
matrimonial property the co-owners are always two, no more no less.

Properties that constitute common property (Art. 62)

 Salaries and wages of spouses are their incomes derived by their efforts.
 The parties are not prevented from adding other properties as being common by
their contract.
 Could we say there exists no prevention to exclude any of these assets as not
communal either?
 For instance, can the spouses by a contract of marriage stipulate the exclusion of
salary from common property?
 Possibly , two arguments may be forwarded.
 The first line of argument action proposes the spouses are at liberty to exclude one
of those properties
 The idea is that Art. 62 is not mandatory and hence can be set a side by contrary
intention of the parties.
 Particularly, taking in to account clear provisions that outlawed any contrary acts
by the spouses, like Art. 49, 51, 52, 53, etc and the silence of Art. 62,

 The second line of argument strongly rejected the possibility of exclusion of

properties under Art. 62 from being common property.

 If we were to allow them to agree to the extent of making their wages fall under
their personal ownership, it would be very difficult to imagine the existence of “a
fiscal unit” constituting a family.
 Moreover, one can sense the mandatory nature of Art. 62 though it failed to
provide prohibition on contrary and mutual agreements.

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 Borderline cases

i.Lost and Found Objects- Art. 1159- As it is a wind fall acquisition, we have to
decide in favor of the communal property
ii.Damages to Bodily Injury- This is neither a wage nor an income from the effort of
either of the spouses.
iii.Moral compensation--- due to defamatory words, physical assault, physical
restraint

Art. 63 – Legal presumption

 a point of departure in the adjudication of all disputes over the division of

matrimonial estate
 one need not look for evidence in favour of “common property”
 it is only the spouse who asserts sole ownership of a given property who has the legal
duty to adduce in support of his or her claim.
 There is no onus of proof on the spouse maintaining that the property is common.
 the standard of proof to rebut the presumption must be the preponderance of the
evidence. Only pervasive arguments….

 Arts. 57 and 58- Either of the spouses may assert sole ownership:
f. It was owned by him or her on or before the day on which the marriage was
celebrated.
g. It was donated exclusively to him or her after the marriage was celebrated.
h. It was bequeathed exclusively to him or her after the marriage was
celebrated.
i. It was acquired by means of exchange of property which belonged to him or
her personally.
j. It was purchased with money owned by him or her personally, or,
k. It ws acquired with money derived from the alienation of property owned by
him or her personally.

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  That is, even if a certain property is registered in the name of the spouse the
legal presumption is equally applicable. This element is not included under Art.
653 of the Civil Code.
 although a property is registered in one of the spouses, this cannot be a
conclusive evidence to show that the property is personal. It requires additional
evidence.
 Form this we can say that the family law provisions shall prevail over
ownership certificate given by the concerned government organ.

 The presumption laid down, by the law is also equally applicable to third
parties.

 As a result of this presumption of the law, every one can assume any property in
the possession of the spouses as common property of the same.

Administration of Common property Art. 64-66

 Art. 65 (1)-The mandate may be given through a contract of marriage or any

other agency contract.
 Art. 65 (2)- granted may be because of behaviors such as extravagancy or
prodigality of the other spouse.
 Art. 65 (3) provides that the court may also order the full or partial attachment
of the income of either spouse. But such order shall not include income of the
spouses that is not subject to attachment by the clear prohibition of various laws.
For, instance the Federal Civil Servant Proclamation Number 262/2002 prohibits
attachment of pension allowance. More over Art. 404 of the Civil Procedure Code
enumerates those types of properties and amount of salary that can not be subject
to attachment.

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  Art. 656 (1) entrusts to the husband the power to administer the common
property of the spouses.
Article 66 – Administration of Common Property

Article 67 – Duty to give Notice

The spouse who performs an act of management in respect of common
property is duty bound to inform the other spouse thereof.

 If one of the spouses is given a power to administer common property, what will
the scope of such power?
 In my opinion, Art. 67 by itself tells us the scope of the power to be exercised
by the agent when it says “the spouse who performs an act of management …”
(Emphasis supplied).
 If the agency receiving spouse is conferred with an agency expressed in general
terms he/she would only be performing acts of management/ordinary
administration in relation to the common properties of the spouses. (Art. 2203 of
the Civil Code), Acts of management per the provisions of Art. 2204 are:
1. Acts done for the preservation or maintenance of property, leases not exceeding
three years, the collection of debts, the investment of income, and the discharge
of debts shall be deemed to acts of management.
2. The sale of crops, goods intended to be sold or perishable commodities shall be
deemed to be acts of management.

 This argument is supported by Art 68 that requires the consent of both spouses to
perform the acts there in or extra – ordinary administration, such as alienation.
One spouse alone can not perform the transactions under Art. 68.

 If the spouse conferring agency, on the other hand, is expecting the agency
receiving spouse to perform acts other than acts of management such as sale of
immovable the agency to be conferred must necessarily be special agency.

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  Special agency, as it transpires from the Code, is an agency not expressed in
general terms and that does not expressly mention the acts listed in Art. 2205 of
the Civil Code.

 Incidentally, it is also important to note that for one of the spouses to peform the
activities listed under Art. 68 of the RFC, he/she needs to be conferred with a
special agency though some of the acts mentioned under Art. 68 of the RFC fall
within acts of management as listed under Art 2204 of the Civil Code.

Article 68 – (1) Requisite of Agreement of Spouses

Article 69 – (2) Absence of Agreement

 Art. 68 (1)…. excluded by other laws.

 under Arts. 15 – 21 of the Commercial Code, any married person may carry on a
trade as though he were unmarried unless his spouse objects thereto. So, from
this, we can see that a married trader can enter in the aforementioned transactions
without the consent of the other spouse and the latter can’t set up a defense
against third parties who enter in to these transactions unless he/she made an
opposition which is entered in commercial register.

 Art. 69- effect to contracts or acts done with out securing the consent of the other
spouse as required by Art. 68.
 aims at striking the balance between the interest of the spouses and family and
security of commercial transaction
 fixing a shorter period of time for invalidation of such an obligation seems that
since the spouses are presumed to live together, both know what is going on their
common property or even if for one reason or another both do not know the daily
state of their property, two years is a fair period to enable the consenting spouse to
be aware of such facts and if after being aware of the circumstance such a spouse

54
 kept quite for six months, the presumption is that he/she has tacitly accepted the
obligation.
 If however, the non-consenting spouse didn’t come to know the existence of the
obligation within two years he/she can’t in any manner revoke it.
 The remedy in such case is to claim indemnity up on divorce per Art. 87 of the
RFC provided of course, that the divorce is declared within five years since the
obligation has come to existence. This seems to prevent the non-consenting
spouse from unjustifiably benefiting from the conduct which has been tolerated
for years.

 What is the purpose of Art. 68 in the face of Art. 66 ?

 the Revised Family Code introduced joint administration of common property

 There fore, every act relating to all common property requires the consent of the
spouses.

 Doesn’t it amount to redundancy to select some acts under Art. 68 and put the
requirement of both spouses to perform them.

 Under the Civil Code, Art. 658 (a similar provision) is important as common
property is administered by the husband; putting some restraint against such
power is undoubtly important.

 Hence Art. 68 is of no use when common property is conjointly administered.

Debts
Art. 70 – Debts of spouses
Art. 71 – Debts in the Interest of Household

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 Common debt -The Amharic version of Art. 70 (2) provides that common debt
may be recovered from common property, and in the absence of such common
property, it may be recovered on the personal property of one of the spouses.
 Hence if a creditor of a common debt brings a direct action against personal
property of either of the spouses, each spouse may raise the defense of benefit of
discussion (direct your request 1st from common property)

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 CHAPTER FIVE
DISSOLUTION OF MARRIAGE AND ITS EFFECTS
To be more specific, at the end of this chapter, the student will be able to:
l. Identify causes of dissolution of marriage;
m. Explain the two ways by which divorce shall be declared;
n. Understand as to how the pecuniary relationship of the spouses shall be
liquidated.

5.1. Causes of Dissolution of Marriage

Art. 74- various forms marriages equivalent

Article 75 – Causes of Dissolution of Marriage
 These are the only grounds of dissolution of marriage.
 By argument of a fortiori (for stronger reason), the death of both spouses shall be
the cause of dissolution of marriage.

Declaration of absence
 As provided under Art. 154 (1) of the Civil Code, where a personal has
disappeared and has given no news of himself for two years, any interested party
may apply to the court to declare his absence. And it is also given that the court
shall declare the absence where the death of the absentee appears it to be
probable. (Art. 157 (1) of the (Civil Code).

Does the declaration of absence result in the automatic dissolution of the marriage of the
absentee with out any other formality or does dissolution of marriage require further
formality after the declaration of absence like making an application to the court to
dissolve the marriage?

 Art. 163 (1) of the Civil Code allows the automatic dissolution of marriage of the
absentee when the judgment declaring absence becomes final.

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 5.2. Divorce as a Cause of Dissolution of Marriage

 Art. 117 of the RFC provides that only the court is competent to decide on
divorce.
 Rules of divorce under the revised family code are liberalized.
 Without classifying causes of divorce as serious and others, it is able to get
divorce even by mutual consent of the spouses.
 The Civil Code follows a fault-based divorce system Art. 665 CC provides that
divorce by mutual consent is not permitted by law.
 The Code classified causes of divorce in to serious and other causes. The
existence or non-existence of serious cause is relevant in determination of the
condition on which divorce is ordered and effects of divorce.
 When there is a serious cause for divorce, it shall be pronounced within one
month from the petition; however, when divorce is pronounced for other causes, it
shall be pronounced within one year from the petition for divorce (Art. 668 cum.
678 (1) of the civil code).
 Moreover, the liquidation of pecuniary relations is highly affected by the
existence or non – existence of a serious case. In case where divorce is declared
due to serious cause of divorce imputable to a spouse, the spouse at fault may be
condemned to the extent of forfeiting the whole of the common property to the
other (innocent) spouse. (Art 693 (1) of the CC). Where, on the other hand, the
divorce is not ordered for a serious cause, the penalties mentioned herinabove
shall be imposed to the spouse who has made the petition for divorce (Art. 694 of
the CC).

 Why the new law opted for the liberalization of divorce rules? Doesn’t it go
against the responsibility of state to maintain the stability of marriage? The
possible rational behind the reform are:
a) Marriage is a result of consensual relationship of two parties. If the consent of one
of the parties completely disappear so does the marriage. If the legislature narrows

58
 down the grounds or even if the legislature wants to have causes for dissolution, it
is in a way violating right of a person to marry.
b) The belief that the test for successful marriage was its durability is found out to be
wrong. If the law stick families together, despite the fact that they run out of love, it
would have a negative effect on future spouses for they might not be motivated or
encouraged to conclude marriage.
c) The other area that provokes the legislature’s and the women’s right activists
towards the reform is the issue of children. If the law forced the spouses to live
together where there is no love, respect to each other and affection, then the
children may end up in psychological trauma and unhealthy state of mind.

Article 76 – Conditions and types of Decision for Divorce

5.2.1 Divorce by Mutual Consent of Spouses (Arts. 77-80)

Art.77- prerequisites
 if the law allows divorce by mutual consent, according to Art. 77 (1), the spouses
can not end their marriage without the knowledge and approval of a court of law.
 Should agree on Consequences of divorce. Liquidation of pecuniary relation,
determining the custody of children.
 Art. 77 (2) shows that divorce by mutual consent is not permitted for all spouses.
 ….lasted for less than six months are not permitted to divorce by mutual consent,
they can avail them selves of divorce by petition.
 …are not obliged to state the reason thereof (Art. 77 (3)).

Procedures- (from Arts. 78 – 80)

1. court may discuss separately or jointly and counsel to renounce

2. Cooling period
 neither cooling the spouses nor granting cooling period are mandatory.

59
  ------ is not contrary to law and morality. (Ar. 80 (1)). For instance if the
divorceagreement is procured as a result of fraud or violence, the court shall not
approve the agreement. More over, one of the spouses may intend to get divorce
while the other spouse is seriously sick or in another difficult situation,

5.2.2 Divorce by Petition, Arts.81-84

Article 81 – (1) Petition for Divorce

 there may not be prior knowledge as to the intention of one of the party to
institute divorce. Even if there is, there might not be consensus as to the
dissolution of the marriage by divorce and the effect thereof
 the role of the court is not limited to approval of the divorce agreement.
 It shall also attempt to rectify defects in the marriage by the assistance of the
spouses and arbitrators.

two points:

 are not mandatorily required to state why they petition for divorce
 whether divorce can be conducted through an agent?
 The law is silent
 whatever is not explicitly prohibited should be deemed to have been permitted
 A look at Art. 82 (1) of the RFC seems not to allow representation when it
provided that the court should speak to the spouses separately or jointly with the
view to persuade
 Per Art. 78 (1), the same is true for cases where the spouses submit their petition
for divorce by mutual consent.
 By the same token, divorce by representation shall be allowed only in exceptional
situation when the spouses can not appear personally.

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Role/duties of the court

 Shall speak to the spouses separately or jointly with a view of persuading them to
(Art. 82 (1))
 May direct the spouses to settle their dispose through arbitrators of their own
choice. If the case is referred to family arbitrators, it will be the power of the
court to accept the report of the family arbitrators and to give guidelines to the
same as envisaged under Arts. 119 – 122 of the RFC.
 the court may dismiss the parties by giving them a cooling period of up to three
months. (Art. 82 (3)).
 The court shall pronounce divorce within one month from the date of receipt of
the report of the arbitrators, or the end of the cooling period as the case may be
(Art. 82 (4)).

Pending divorce, the court should give provisional orders:

 regarding the maintenance of the spouses, the custody and maintenance of their
children and the management of their property (Art. 82 (5).
 In deciding as to which spouse shall have custody of children, the court shall take
into account the income, age, health, and condition of living of the spouses as
well as the age and interests of the children. (Art. 113).
 the temporary order of the court is as to which spouse may leave the common
abode of the spouses until divorce is finally pronounced. Art. 82 (6)

 Under the Civil Code a party who requests divorce may be punished. The
punishment may be effected at the time of partition of property between the
spouses. As indicated under Art. 694 (1) of the Civil Code, a spouse who petition
for divorce on non serious causes may be penalized to the extent of losing the
whole of the common property to the other spouse. Under the Revised Family
Code too the concept of indemnity is included. But unlike the Civil Code, the
spouse who may be required to indemnify the other spouse is the one who

61
 commits a misconduct which is the cause of the divorce as opposed to the spouse
who petition for divorce.

Article 84 – Indemnities

 a party who claims indemnity should disclose the reason or cause of the divorce.
 the damage to be made good may be moral or material damage or both.
 The extent of compensation shall be resolved having regard to law of extra –
contractual liability
 Material damage- 20290 and (Art 2102 (1) of CC).
 Mora damage-2105 and ff

 Provisions of indemnities (Art 84) is located under the section dealing with
divorce by petition.

 Doesn’t it mean issues of indemnity may not arise in case where divorce is
requested by mutual consent? As its very name implies, divorce by mutual
consent of the spouses is an agreement to disagree. The source of disagreement
may also be the fault or misconduct of one of the spouses. So long as the other
spouse is able to prove the existence of damage, nothing will prohibit him from
demanding compensation.

 Once dissolution of marriage is declared by the court, be it in case of divorce by

mutal consent or divorce by petition, no appeal shall lie solely on the judgment of
the court deciding divorce. (Art. 112) This is because where the subordinate court
decides on divorce, it is assumed that at least one of the spouses is not willing to
the continuity of the marriage.

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Roles of family arbitrators

 Under the Civil Code (Arts. 677 – 679), family arbitrators were given a number of
powers including passing decision on divorce.
 Of course, contradictory views have been forwarded during discussing the draft
Revised Family Code as to whether the institution of family arbitrators should be
accorded legal recognition.
On the one hand, it has been argued that the institution of family arbitrators has to be
accorded legal recognition on the following grounds.
 since members of the family arbitrators are close relatives or neighbors of the
spouses, they will exert all possible efforts to reconcile the spouses. So, in view of
the government’s policy to maintain marriage, this traditional institution of family
arbitrators should be backed by the law.
 Since members of the arbitrators are the spouses close relatives or neighbors, the
parties would not be ashamed of disclosing the facts which they may not explain
to court, but which if disclosed may save the marriage from divorce.
 Since adjudication of family matters by arbitrators doesn’t require representation
of lawyer, the spouses can settle their dispute with low cost.
 It is a deep rooted Ethiopian culture to adjudicate cases through arbitrators and
this practice should be encouraged.
 In view of the congestion of cases in regular courts, authorizing the family
arbitrators to handle family cases would help regular courts dispense justice duly.

On the other hand, against recognition of the institution, it has been argued that:
 Family arbitrators intentionally delay cases for the sake of allowance which
clearly jeopardizes the interest of the spouses.
 Since they have no legal knowledge required by law, leaving such institution as
marriage at the hand of these lay men would adversely affect the parties to it and
is against the constitutional protection of the institution of marriage.
 Since the institution of family arbitrators takes the power of the courts its
constitutionality is questionable.

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 Under the Revised Family Code disputes are divided into two categories; namely,
disputes arising during marriage and divorce.
 As per Art. 117, only the court is competent to decide on divorce, decide or approve the
effects of divorce in accordance with Art 83 of this Code.
 Disputes arising during marriage, i.e., dispute short of divorce and the effect there of shall
be decided by arbitrators chosen by the spouses (Art. 118 (1).

 Revised Family Code is also departed from the civil code as regards the number
and compositions of arbitrators. Under the Civil Code, family arbitrators are
appointed two from the side of the husband and two from the side of the woman.
But such composition is found out to be the source of complexity of many cases
as arbitrators from the husband side far our the husband and arbitrators from the
woman side favour the woman. To avoid this problem, under the RFC, all the
arbitrators shall be appointed by the mutual consent of the spouses. Their number
may also be less or greater than four in so far as the spouses agree on this point.

 Family arbitrators still play a vital role in reconciling the spouses but not deciding
on divorce. Arbitrators, under the Revised Family Code, are responsible to
reconcile spouses who petition for divorce. (look Art. 118 above).

 However, the responsibility of the arbitrators is subject to the close scrutiny of the
court.

 To put in other words, this is a court supervised arbitration.

 This is manifested in various ways. As soon as the arbitration is commenced, the

court shall give direction as to how the reconciliation has to proceed and to submit
the result of the arbitration or the attempt of reconciliation within three months
(Art. 119 (2).

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  Where it deems necessary, the court may also examine the progress of the
arbitration and make orders for submission of periodical reports there on (Art. 119
(3)

5.3. Liquidation of Pecuniary Relations Between Spouses

 the main effect of dissolution of marriage, namely, liquidation of pecuniary
relations between the spouses

Article 85 – Liquidation by Agreement

 contract of marriage
 agreement of this sort after their wedding approved by court
 spouses to agree how their pecuniary relations shall be liquidated after divorce
upon the request and approval of the court. (Art. 83 (1) & (3).
 There is a restriction to such contractual right, that is, the spouses, by their
agreement cannot set aside indemnity provisions (Art. 85 (1))
 Indemnity/compensation provisions: Art 84, 87

5.3.2. Liquidation in Accordance with the Law

 In default of a contract of marriage or an agreement,
 or if these are not valid under the law
 the pecuniary relations between spouses shall be liquidated in accordance with
law, i.e., Arts 86 – 93

1. Retaking personal property: Art. 86.

 Where personal property has been alienated and the price thereof has fallen in the
common property, each spouse is given the right to withdrawal thereform money
or things of value corresponding to such price. In doing so, the Civil Code has
given priority to the wife. Why the revised family code fails to provide such

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 priority right to the wife? Under the Civil Code, only the husband was authorized
to administer their common property.
2. Payment of debt, Art. 89- Since common debts are incurred in the interest of the
house hold, it is a plane fact that they shall be paid from common property before
partition (Art. 70 (2) cum Art. 71). The problem is as to whether personal debts shall
be paid from common property within the meaning of Art 89 where such debt is due
after dissolution of marriage and before partition of common property. Here, we have
two lines of arguments.

The first argument- it shall be paid from common property where the indebted spouse
doesn’t have personal property or his personal property is not sufficient to cover his
debt. (Art. 70 (1) It is also argued that Art. 89 simply says “ … such debt shall be paid
before partition of property.” (Emphasis added). Since it refers to all debts

The second argument is that Art. 89 shouldn’t be interpreted to included the payment
of personal debt from common property. Art 70 (1)…. shall be interpreted to be
applicable where the maturity date of the personal debt is before dissolution of the
marriage. The former spouses are not duty bound to support and assist each other.

How the law protects creditors where the maturity date of either personal or common
debt is after dissolution of marriage and partition of common property? Art. 93 has an
explicit answer for this question.
Article 93 – Debts of Spouses after Dissolution of the Marriage

3. Partition of common property (Arts. 90-92)

 As a rule, partition shall be made in kind (Art. 91 (2))

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 CHAPTER SIX
PROOF OF MARRIAGE
 admissible evidences to prove the existence of marriage
6.1. Certificate of Marriage (Art. 94)

 “Marriage certificate- drawn up by the officer of civil status in accordance with

the provisions of Arts. 28 – 30.
 We have also said that marriage certificate and contract of marriage are entirely
two different documents
6.2. Possession of Status, Art. 95

Art. 96 the following facts:

1. The two persons are behaving as being married;
2. …. and

 unilateral consideration of the status is not enough.

 Some lawyers argue that Art. 96 shall be interpreted as impliedly stipulating
“proving celebration of marriage” in addition to the expressly stated facts therein,
that is, when the spouse (s) intend to prove marriage by possession of status, the
evidences must also show that marriage has been celebrated.
 The justification for this view is, according to the proponents, that the possession
of status of spouses is distinguished from the possession of status of persons
living in an irregular union by the fact that in case of the former the parties have
actually celebrated their marriage, while in the latter the parties have never
entered into marriage.
 Some of our courts also argue that a marriage is deemed concluded only where
the parties have celebrated the marriage in either of the three forms…..
 Note that these problems are not only the problems of the Revised Family Code;
they were also problems of the Civil Code.

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  However, having appreciated this problem under the Civil Code, the supreme
court had made a directive (Directive No. July 5, 1989; Ethiopian Supreme Court
on Proof of Marriage) by virtue of its power under proclamation No. 9/1987.
 The Directive had made it clear that proof of marriage is the act of proving the
celebration of marriage,. The petitioner who alleges the existence of marriage and
wants to prove it by possession of status shall prove under which of the three
forms of marriage has been celebrated.

 There is also another line of argument, which states that since Art. 96 is clear,
there is no need of interpretation and we should apply the law as it is.
 The advocates of this argument lay their foundation on the fact that when the
legislature enacted the law it had taken into consideration the problems of getting
eye witnesses who can testify the celebration of the marriage.

Revised Family Code vs. Civil Code

 Under the Civil Code, four witnesses were required to prove marriage by
possession of status (Art. 700 (1). Under the RFC one can prove possession of
status not only by witnesses but also by any kind of evidence as long as it can
prove the existence of such fact (Art. 96 cum 97)
 In addition to that, the number of witnesses required to prove possession of status
is not restricted under the RFC and hence it can be proved by producing any
number of witnesses.
 Possession of status under the Civil Code can be contested only by producing four
witnesses. (Art 700 (2)). However, producing any kind of reliable evidence under
the RFC may rebut the presumption of the existence of marriage by the
possession of status (Art. 97 (2).

 contract of marriage can be cited as the best example of documentary evidence

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 CHAPTER SEVEN
IRREGULAR UNION
 This cohabitation is known by various names under various jurisdictions
including common law marriage, defacto relationship, non–marital relationship,
cohabitation and concubine.

Thus, at the end of this chapter, the student will be able to:
 Define irregular union;
 Explain the justifications given to include irregular union under the RFC;
 Compare and contrast marriage and irregular union;
 List the effects of irregular union;
 Identity the modality of proof of irregular union; and
 Understand as to how irregular union may be terminated.

7.1. Definition, Art. 98-99

As pointed out earlier, the institution of irregular union has been recognized and accorded
protection by the RFC. Under Art. 98 of the RFC, irregular union is defined as the state
of fact which is created when a man and a woman live together as husband and wife
without having concluded a valid marriage.

The most important elements under this definition are:

 Under the RFC, same sex cohabitation is not recognized.
 Living together is an important element in defining irregular union.
 But how long: The RFC does not answer.
 The living together of the man and the woman should last for a long time in such a
way that it can give an impression to the community in which they live that….
 the existence of an irregular union is proved… when their families as well as the
community in which the partners live consider them as married couple. (Art. 106
(2)

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  For the existence of irregular union, the behavior of the man and the woman
should be analogous to married couples though the parties need not represent
themselves to third parties as being married. (Art. 99 (1) and (2). It means that the
parties need not introduce themselves to their relatives or the community as
having concluded a formal marriage; rather it is the latter who should consider the
parties as being married from their conduct.

7.2. Why Do People Cohabit?

 Scarcity of resources and economic interdependence of individuals inclination of
one of the parties not to share his property for the other
 suspicion by the parties as to the possibility of establishing a valid marriage
acceptable to the society due to impediments such as race or religion, belief of
parties that they are too aged to conclude marriage
 financial constraint to celebrate marriage which entails payment for bride price,
presents and feasts.
 Sometimes also people may engage in irregular union thinking that they have
concluded marriage while in fact they haven’t mainly due to lack of knowledge to
draw a distinction between the two.
 No costly legal procedures are required to terminate the relationship, and the
financial consequences of divorce are absent.

7.3 Is It Justified to Recognize Irregular Union Under the RFC?

 was one of the controversial issues during discussions on the draft RFC
 argued that the law should not recognize the union because it undermines the
institution of marriage which has a constitutional protection
 since irregular union is condemned by religion, the law should not encourage
such a practice.

 On the other hand, it has been argued that the constitution neither expressly
recognized nor prohibited irregular union

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  Neither does it reduces the sanctity of marriage as the law does not treat the two
on equal footing.

 the practice might be against the cultural and religions norms of the society. To
deny it legal recognition is to deny the objective reality.

 denying legal recognition to the union would adversely affect the interest of
particularly women and children born out of such union.

 the Constitution extends legal recognition to the family irrespective of the manner
in which it is formed. (Art. 34 (1) of the FDRCE constitution)

7.4. Effects of Irregular Union

7.4.1. Absence of Bond of Affinity, Art. 100
 Other consequences that arise from bond of affinity such as the obligation to
supply maintenance shall be effective between the affinal relatives.
 is justified so long as it is done in the interest of protecting and maintaining the
good relations between relatives and also maintaining peace and order in society.
One can imagine the attendant chaos if a man is allowed by the law to marry the
sister of the woman with whom he had been previously engaged in irregular union
leaving her aside and vice versa.
 Even though it has not been specifically dealt with by the RFC, relatives by
consanguinity can not engage in an irregular union for it amounts to the crime of
incest under Art. 654 of the FDRE Penal Code.

7.4.2. Duty to Contribute the Common Expense

7.4.3 Community of Property

 Under the Civil Code irregular union does not create community of property as
between the parties thereto no matter how long the relationship lasts (Art. 712).

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  Of course, even under the Civil Code, up on the termination of the union the man
may be ordered to pay to the woman an indemnity corresponding to not more than
six months maintenance (Art. 717 (2)

Article 102 – Community of Property

Article 103 – Effects of Community of Property.

 The law singled three years for creation of common property because it will be
difficult to ascertain the very existence of irregular union unless the partness live
at least for three years.
 In this connection, it should also be borne in mind that though common property
is not created for failure to meet the three years requirement, there might be a
possibility of formation of joint ownership.

 Once it is proved that the parties lived together for three years in the relationship,
the effect of common property applies retroactively and properties they acquired
even in the first year of the relationship are considered to be common property
(Art. 102 (2))..

 Art. 102 (3), the credit of joint and several debtrs have different options. That is
he can demand payment either from the man or the woman individually or
collectively.
 The mode of payment of a debt indicated under Art. 102 (3) is applicable where
the cohabitees did not live at least for three years.

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  If the man and the woman engaged in an irregular union have lived for not less
than three years, payment either common or personal debt shall be governed by
Art. 103, not be Art 102 (3).

7.4.4. Filiations of Children. Art. 104

7.5. Termination of the Union

 Under the Civil Code, if the man terminates the union, he is liable for paying an
indemnity corresponding to the expense of maintenance of the woman for not
more than three months, where as the woman is not required to pay same
 Under the RFC, however, neither party who terminates the union is liable to pay
indemnity unless he/she commits fault a part from partitioning the common
property, if any (Art. 105 (2). But neither the basis of assessment of the indemnity
nor its extent has been indicated under the RFC

7.6. Proof of Irregular Union, Art. 106

 As we have discussed it previously, the cohabitees do not mutually consider them
as spouses.
 They only behave as married couple and perform such acts, which are common
among married people.
 Therefore, the witnesses called upon and other evidences produced to prove
marriage according to Art. 96 should know the fact that the two persons mutually
consider themselves and live as spouses, and they also consider and treat these
persons as spouses. However, in proving irregular union, the witnesses are
expected to prove the fact that the two persons, though not married, behave like
married persons.
Other relationships

 Art. 107 (1)

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 CHAPTER EIGHT
FILIATION
 exclusively to the immediate relationship of father and mother with their child
 ascertainment of filiations is essential for the father, mother or their children to
avail oneself of the legal effects of filiations such as succession and maintenance.

At the end of this chapter, the distance learner is expected to:

 Know how maternal filiations is ascertained;
 Enumerate the modes of establishment of paternity;
 Explain as to how to resolve conflicts in regulating paternity;
 List evidences that can be produced to proof filiation; and
 Discuss when and how should an action to disown a child be instituted by a man.

8.1. Ascertainment of Paternity and Maternity

 the legal rules concerning the ascertainment of paternity and maternity shall not
be derogated by agreement (Art. 123).
 The law may authorize an agreement between two or more persons as to how they
are going to regulate the paternity of the child (see Arts. 146 and 149).
 If such agreement is allowed, a situation may arise whereby a child may not know
his/her legal / biological father or mother.
8.1.1. Maternal Filiations
 The maternal filiations is the basis for the whole consanguineal relationship.
 A child who does not have a known mother will not have a father either.
 is a sin qua non also in acknowledgement and judicial declaration

 How is maternity to be established/ascertained? Art 124…..

 difference between establishment and proof of maternal filiation.

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  The establishment of maternity is the creation of the legal bond as a result of
birth. Where as proof of maternal filiation, is a means by which a person purports
to prove an already established filiation.
 By the sole fact of birth
 Maternity can’t be established via acknowledgment.
 The need for the voluntary declaration of paternity rests on the objective problem
of ascertaining ones actual biological father.

 the legal problems involved in artificial insemination called in vitro fertilization

 Through this mechanism, it has now become possible to fertilize the ovum and
sperm outside a the body and transplant the embryo into the uterus of a third party
or the “hostess” who carries the child for the duration of pregnancy and then give
birth to it.
 The resulting infant is said to be biologically the offspring of the woman who
contributed the ovum and gestationally the offspring of the “hostess” who bore it.
 Art. 124 considers as a mother the one that gave birth to the child.
 The issue therefore is which of the two women has given birth to the child.
 The RFC no where defines birth. Thus, in the absence of any clear definition of
the term, we have to see as to what birth ordinary means.
 Lexically birth means the emergence of a new individual from the body of some
person. It constitutes the extrusion of the child from the mother’s womb whether
in a natural way or by an operation like the caeserian section.
 The agreement that may be made between the interested parties to consider the
contributor of the ovum as the mother is an agreement in vain. (Art. 123).

8.1.2. Paternal Filiation

 Identifying the biological father is not as direct as ascertaining a biological
mother.
 Has science and technology (DNA test) resolved this problem fully?

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  To avoid the problem in determining paternity, the law opted for enumerating all
possible ways by which paternity may be known.
Article 125 – Paternal filiation (ways of ascertaining paternity)

8.1.2.1. Presumption of paternity

(Arts. 126 – 130)

 Arts. 126 and 130, a child in order to be protected by the legal presumption must
meet either of the two requirements. He must either be born or conceived in
wedlock. Here in under is a separate discussion of these alternatives.
A) The first alternative for the operation of the presumption of paternity is that of
being born in a legally recognized union (wedlock or irregular union).
 This obviously refers to the time within which the spouses were in the status of
being married.
 This begins from the time of celebration and ends when the marriage is dissolved
 Ethiopian law of filiation therefore attributes paternity to the husband of the wife
if the child is born from her within this period.
 proof of pre-marital conception neither destroys nor weaken the presumption.
 have been done on the ground that a person marries a pregnant woman, if it is he
that impregnated her

B. The second alternative for the operation of the presumption of paternity is that of
being conceived in a legally recognized union.
 Particularly, if a child is not born in wedlock
 Pursuant to Art. 128 (1), a child is deemed to have conceived in wedlock if
he is born more than 180 days after the celebration of the marriage and
within 300 day after its dissolution.
 Art 128 (1) simply defines the shortest and the longest period of
pregnancy which may be useful in case where paternity is to be
ascertained by judicial declaration and in case of disowning.

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  The presumption of paternity based on conception is paramount important
for those born after the dissolution of marriage.
 (Art. 128 (2)). That is, the period of pregnancy can not be rebutted saying
that it is shorter or greater than the legally stipulated one.

 Art 127 (1) which provides the application of the presumption what ever
the manner in which the maternal filiation of the child may have been
established (proved, i.e Art. 154 – 162).

But what is the justification to presume the husband to be the father of the child?

 justified on the duties of cohabitation and fidelity of spouses.

 The law does not impose, however, the duty of cohabitation and fidelity on a man
and a woman engaged in an irregular union.
 the presumption of paternity to irregular union is based on the probability that the
child is begotten from the man in such union.

 Even if the child is conceived or born in a legally recognized union, the husband
may not be presumed as a father if the same is declared absent within the meaning
of Art. 129.

 It must be noted that there might be a discrepancy between actual biological

father and a legally presumed father.
 Such presumption is strong which may be rebutted only by an action of
disowning.

8.1.2.2. Acknowledgement of Paternity

 important for children born or conceived out side of a legally recognized union
(Art. 131).

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  To avoid the possibility of having two fathers for a child, Art. 142…. no other
acknowledgement of the child by another man shall be permitted unless the first
acknowledgement has been annulled.

 But what if the legally presumed father disowns the child as per Art. 167 and the
following?

 The literal interpretation of Art. 131 seems exclude children that were conceived
or born in wedlock but were disowned.
 However, it is more tenable to argue that where a child is disowned,
acknowledgement must be possible in as far as the law aims to avoid
fatherlessness.

Art. 132- Definition

Article 133 – (3) form
1. a declaration made by a man before on officer of civil status:
2. a will he made in writing; or
3. a document attested by any competent authority that he it the father of the child.

 The fact of declaration of the man before officer of civil status that he is the father
of the child amounts to acknowledgement seems to imply the possibility of oral
acknowledgement. However, since such declaration, though not written by the
man is reduced to writing by the said officer, it is not meant to enshrine oral
acknowledgement.
 The rest elements clearly refers to the written form.
 The explanatory material of the RFC categorizes documents relating to
employment contract and pension documents attested by competent authority
though the list is not exhaustive.
 Owing to this open-ended provision, federal courts are recognizing documents
registered in the acts and documents office, insurance policy made by the alleged
father in favor of the child etc as documents attested by competent authority.

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  Other than those mentioned above, other personal documents such as letters and
correspondences written by the man, supplying maintainance to the child and
introducing to the child for others as his own child do not constitute
acknowledgement.
 But such situations, even if they are not sufficient to show acknowledgement may
serve as a ground for judicial declaration of paternity.
---
 Art. 136 (1)- In effect the mother is required to attest that such a man could
possibly be the father of a child and a person could possibly be a father if he had
sexual intercourse with the mother of the child at the time when the child could
have possibly been conceived, i.e., between 300th and 180th days before the birth
of the child.

 With regard to the age of the child that will be acknowledged, the law does not
enshrine any limitation .
 Nevertheless, an acknowledgement of paternity shall be of no effect unless it has
been accepted by the child himself when it is made after the latter has attained
majority. (Art. 137)
 A child who has attained majority is a grown up child and he may not need some
one who cares for him. Particularly, a man who did not participate in his
upbringing upto now may acknowledge him for his own advantage. For instance,
such man may claim maintenance from the child. The child who did not accept
acknowledgement shouldn’t be imposed of such an obligation.

 acceptance of acknowledgement by the mother or the major child must not

necessarily be made either orally or in writing. As indicated under Art. 138, the
acknowledgement of paternity shall be deemed to be accepted where …have not
raised any protest against such acknowledgement with in one month after they
came to know of it.

 That is, the silence of these individuals shall be taken as acceptance.

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  Art. 139-Why do you think the legislature prohibited the acknowledgement of
dead child?
 Acknowledging an already dead child will have no any significance for the dead
child.
 If the law allows such acknowledgement, persons may try to unduly acknowledge
dead children in pursuit of their own advantages (for example, to get benefits
from the succession of the child).
 This is justifiable exception because the descendants of the dead child will benefit
from the acknowledgement as the right of their deceased father shall be
transferred to them.

Article 140 – Revocation (NO!!!)

 What do you think is the rationale of this exception? As it is generally known, a

minor is incapable of performing juridical acts. Acknowledging a child is a
juridical act. The minor, even if allowed by law to acknowledge a child, is
inexperienced and may be put at a disadvantage position as a result of his
inexperience. So, the law allows only a minor to revoke the acknowledgement
made by him within a certain period of time.

Article 141 – Annulment (Allowed)

1) Acknowledgement of paternity may be annulled on the ground of violence.
2) It may not be annulled on the ground of error or fraud unless it is decisively
proved that the child could not have been conceived of the person who made
acknowledgement.

 Revocation is the personal declaration not to be bound by what one has

committed himself.
 Annulment is a declaration made by the court of law when some one applies to
the court to get the cancellation of his obligations.

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8.1.2.3. Judicial Declaration of Paternity
 Art. 125 (3): Conditions:
1. If the child has no presumptive father, disowned by such father and not
acknowledged.
2. Either one of the five conditions under Art. 143 are fulfilled. As indicated under
Art 145, judicial declaration of paternity shall no be demanded or made except in
specified under Art 143 of this code.

Article 143 – (1) Judicial declaration of paternity

 The RFC departed from the Civil Code with respect to grounds that entail judicial
declaration of paternity.
 Under Art. 758 of the Civil Code, judicial declaration of paternity may be
obtained where the mother of the child has been the victim of the abduction or
rape….
 .Art. 759, it is only by the mother of the child or if she is not in a position to
manifest her will, by the guardian of the child that such case is instituted.
 The action can not be instituted two year after the birth of the child or after the
sentence of a criminal court in relation to the abduction or rape. However,
conviction for these crime is not a necessary condition for institution of an action
for declaration of paternity for the purpose and standard of proof of the two
actions are different.

 the RFC has come up with additional grounds for judicial declaration of paternity.
 the RFC doesn’t enshrine a period of limitation within which an action for judicial
declaration of paternity may be brought.
 Nor does it specify a person entitled to bring an action. In the absence of clear
stipulation, one can possibly argue that the action for declaration of paternity may
be brought at any time and by any interested person.

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the mother has been the victim of abduction or rape at the time of conception
 no consensus among lawyers as to the type of evidence that shall be adduced to
prove the act of abduction or rape.
 Some argue that the only admissible evidence to declare paternity is the judgment
of the court showing that the alleged defendant has committed the crime of
abduction or rape.
 According to this position, criminal conviction is a precondition for the civil
bench to declare that the accused is the father of the said child.
 Others argue that conviction for the crime of rape or abduction is not a necessary
condition for institution of an action for declaration of paternity for the purpose
and standard of proof of evidence of the two actions are different. What the
plaintiff is required to prove is only the facts and not any more.

 even if a man commits an act of rape or abduction, he may not be declared by the
court to be the father of the child if such acts are done against a married woman
because the child will have a legally presumed father within the meaning of Art.
126.

 Moreover, the time of conception of the child shall coincide with the day on
which an act of rape or abduction has been committed.
 how could we calculate the time of conception? In the absence of clear answer
under Art 143 (a), we may resort to Art 168 pursuant to Art 168, period of
conception is the period between the 300th and 180th day before the birth of the
child. Thus, it must be proved that the man has abducted or raped the woman
within 300th and 180th day before the birth of the child.

For instance, let us assume that the child is born on Hamle 10, 1997 E.C. In this example,
the 180th and 300th days preceding the birth of the child are Tir 10, 1997 E.C. and
Meskerem 10, 1997 E.C. If the plaintiff proves that an act of rape is committed on
Tahisas 18, 1997 E.C, his/her claim will be acceptable because this date is between the

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300th and 180th date preceding the birth of the child. Look at the following diagram to
have a better understanding.

The date on which an act of rape is committed

(Tahisas 18, 1997)
Period of conception
(4 months)

Meskerem 10, 1997 Tir 10, 1997 the 180th date Hamle 10, 1997
The 300th date preceding birth preceding birth date of birth of the
Child
Seduction of the mother accompanied by abuse of authority, promise of marriage or any
other similar act of intentional deception
 Websters Dictionary define, seduction as the act of persuading or enticing in to
partnership in sexual inter course.
 A mere seduction does not suffice for declaration of paternity. In stead, the
seduction must be accompanied by those acts mentioned here in above.
 It seems that the man need not be a top official to be an authority.
 It suffices if there is hierarchy of authority between him and the mother of the
child which may among other things, emanate from employment contract. Even
seduction by a person whom the woman owes reverential fear could fall under
this category.

Letters or other documents written by the claimed father, which unequivocally proves
paternity

 such letters and documents need not contain express declaration of the man that
the child is his.
 It is not also necessary that the letters are directly addressed to the mother.

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  What is important for the purpose of this provision is that these letters and other
documents should show the relationship of the mother and the father or of him
and the child which leads to a conclusion that the child is fathered by such man.

The claimed father and the mother of the child have lived together in a continuous sexual
relation
 For how long should the parties live in such type of relationship so that it amounts
to “continuous sexual relationship”? In view of the fact that conception is a matter
of seconds or minutes, it appears that the period should not necessarily be counted
in terms of months, weeks or days for that matter. However, since the law aims at
identifying the biological father of the child, the continuity element is important.
If, however, the woman can conclusively prove that she didn’t have sexual
intercourse with any other person within such period, living in a sexual
relationship of even days suffices for the purpose of Art 143 (a) of the RFC.

Participation in the maintenance, care and education of the child by the alleged father

 it may happen that the alleged father contributes for the maintenance of the child
but declines to acknowledge the child either because he believes that the child is
his and hence there is no further procedure required to father the child in the eyes
of the law or for fear of consequences of establishing paternity which, among
other things, gives rise to the right of inhentance and the possible opposition by
his wife, if any.

should the man cover the whole maintenance expense of the child so as to hold him father
of the child?
 He should not, because from the wording of the provision it self “participation in
the maintenance of the child” .

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  Art. 144. protects the alleged father from undue litigation of paternity.
a) should the court absolve such man from fathering the child for the mere fact that
the mother had sexual relation with another man also?
 What is the fate of paternal filiations of the child in such cases? In as long as
the objective of the action is to search for the father of the child, if the alleged
father avails himself of the defenses provided earlier, it should be interpreted
as shifting the burden of proof that he is the father of the child. In such cases,
both or all men should be parties to the suit and one who is proved to be
sterile or can not give birth would be out of the suit. If both or all could give
birth to a child, DNA test might be used to identify the biological father.

8.2. Legal Conflicts in Regulating Paternity

 applicable only when a child is attributed to two or more persons by the
presumption of paternity.
 The three modes are mutually exclusive.
The attribution can take either of the following three forms.
1. The child could be attributed to each relationship because he is born within such
relationships, or
2. The attribution could be because of his conception in both relationships; or
3. The child can be attributed to each relationship because he is born in one relation
and conceived in the other.

The conflict of paternity arising in either of the aforementioned three situations has two
possible solutions.
 The first solution is agreement between or among the presumed fathers, Art. 146.
 no time limit for the conclusion of the agreement
 Second, the law intervenes, Art, 148
a) The law doesn’t give us a solution where the mother has conceived or born the
child while she concluded two marriages or engaged in two irregular unions at the
same time

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 b) The second presumption will apply only if the conflict can not get a solution
under the first presumption. The term “successfully” under Art 148 makes both
presumptions mutually exclusive. Had it not been for it, there could have existed
situations where both presumptions compete to governing the same conflict. This
is the case, for example, if we take a child born when the mother was in an
irregular union with “A” but before the 300th day after dissolution of his mothers
first marriage to “B”. The first presumption prefers the husband. Thus the child
will have B as a father. The reverse will be true if we apply the second
presumption. Thus the child will have A as a father in preference to B. The
mutually exclusive nature of the presumption has avoided such undesirable
results. Now the child will have A as a father because it is the second presumption
that is given priority. Therefore, the second presumption is applicable where the
mother terminated her first legally recognized union and engage in another
thereafter. That is, the two unions unlike case of presumption one, do not exist at
the same time. The husband or the man with whom the mother is living at the
time of birth is preferred as a father to the husband or the man with whom she was
living at the time of the conception. This is done to secure the interest of the child
and maintain the sustainability of the second union.

8.3. Assignment of Paternity by Agreement, Art. 149

 Assignment of paternity is a means by which the person to whom the child is
attributed by the law (in accordance with Arts. 126 – 130) agrees to assign his
paternity under specified conditions.
 It is an agreement by which one legal father (the presumed father) transfers his
paternity to another person who has had no juridical bond with the child before
the agreement (probable father).
 Such transfer of right of paternity is allowed when the legal presumption leads to
a manifestly odd conclusion when viewed in light of biological reality.
 Thus, the purpose of the agreement is not to determine who amongst two or more
legal fathers should be the sole father to the exclusion of the others.

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  Though assignment of paternity is found under the section of conflict of
paternity, it is not in reality a mechanism for solving conflict of paternity in the
strict sense.
 The child is attributed to one father but such a father agrees to give up his
paternity in favour of a third person who declares to be the father but is not legally
the father of the child.

 Therefore, the assignment of paternity is the possible way where by the father
short of the facts sufficient for disowning a child he thinks is born from another
man, assigns his paternal status to the person declaring to be the father, who is not
in a position of affecting acknowledgement because the child has a valid paternal
filiation by presumption of paternity.

8.4. Proof of Filiation

 as to how an already established filiations can be proved
 important to acquire rights and to impose obligations arising from filiations

Under the RFC, we have three ways of proving filiation.

These are:
1. Record of birth
2. Possession of status
3. Action to claim filiation

8.4.1. Record of Birth, Art. 154

 What kind of document is referred to as record of birth?
 This is a document issued by an officer of civil status following registration of
birth as per Art. 99 of the Civil Code

8.4.2. Possession of Status, Art 155-6

 under what circumstances can we speak of the record of birth defaulting?

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  The term “in default” under Art 155 shall be interpreted so as to include the non-
issuance of record of birth at all or an already issued record of birth has been lost
for various reasons.
 Since Art. 156 doesn’t expressly put a certain number of witnesses, one can say
that possession of status can be proved even by producing three or two witnesses

8.4.3. Action to Claim Filiation

When it is not possible to proof filiation by record of birth or possession of status, it
could be proved by an action to claim filiation.

Article 158 – Action to claim filiation

 why do you think the law require the permission by the court to institute an action
to claim filiation? In case of action to claim filiation, filiation could be proved by
witnesses or by any other evidence. Therefore, if such an action is allowed
without any scrutiny by the court, people may abuse this rule and may introduce
false evidence.
 Art. 158 (3)---Such circumstantial evidence could be a great resemblance between
the child and the alleged mother or fathers
 In giving permission to institute an action to claim filiation, courts shall take
utmost care. Specifically, no permission to institute the action to claim filiation
shall be granted where the person whose filiations is to be established has already
another filiation resulting from his birth certificate and corroborated by possession
of status in conformity with such certificate.

8.5. Contestation of Filiation and Disowning

 the possibility of contesting an already establish maternal or paternal filiation
 Maternal filiations is contested by the contestation of filiations
 Paternal filiations is contested by disowning
8.5.1. Contestation of [Maternal] Filiations
Art 163

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 No period of limitation
 any other person that can show interest
 The only valid limitation is that the action to contest filiation may not be instituted
except with the permission of the court (Art. 164 (1)).
 But why the law requires permission of the court to institute the action to claim
filiation? We can cite the following two reasons.
1. On the basis of an action to contest filiations, the court may deny that the said
woman is not the mother of the child. If this is so, it may also render the child
fatherless. Because, as we have seen, maternal filiation is the base for paternal
filiation. Thus, if the child is denied his maternity, it gives rise to denial of
paternity particularly where the child is born or conceived out of a legally
recognized relationship.
2. This kind of action is brought to cancel an already established filiation. If such an
action is allowed to be instituted without the permission of the court, individuals
in bad faith would be given an opportunity to disturb stable mother child
relationship.
 grant for permission to institute an action to contest the maternal filiation
 Art. 164 (2), --- there are presumptions or indications resulting from concrete
facts enabling the court to grant permission.
 ----resulting from concrete facts that enable the court to presume a certain woman
is not the mother of a certain (child).
 These indications could be at the time of birth of the child, the woman may not be
available at the place of the birth of the child. Or the woman could not be the
mother of the child due to infertility, etc.
 Once the person is allowed to institute an action to contest maternal filiation, he
shall produce witnesses to obtain court declaration.
 In general, he has to prove that either of the elements necessary for the
establishment of maternal filiation are missing.
 Thus the person instituted an action has to show to the court either 1) that the
woman was not confined at the time when the child was born and / or 2) even if

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 the woman was confined at the time when the child was born, the child whom,
she delivered is not the one whose status is in question.
 Therefore, the fact that the court allows to institute an action to contest maternal
filiation is not sufficient by itself to efface all doubt and convince the court. The
proof thus commenced may be completed by the hearing of witnesses.

 But the court can by no means give permission for the institution of the action if
the child whose status is contested has a filiation resulting from the record of birth
and is corroborated by a possession of status corresponding with such record of
birth (Art. 165)

8.5.2. Disowning
 an action by which the husband or the man in irregular union tries to disclaim the
presumption of paternity established against him, in circumstances in which he
can not be the father.
 In short, disowning is the means by which a paternal filiation is contested.
 An action to disown is relevant when paternity is established by way of legal
presumption

There are two grounds, for the man who is attributed paternity, to disown a child. These
are:
1. No sexual intercourse with the mother, 168-169
2. When paternity is impossible, 170-173

 Art 168----adducing evidences to the effect that he was imprisoned, confined to

hospital or mental institution, mobilized to the war front and so on. He may also
show that he is impotent, i.e, he is unable to have sexual intercourse.
 Art. 170- Even if the presumptive father and mother do have sexual relation with
the period in which the child must have been conceived, there is still a second
ground to disown a child.

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  To disown a child on this ground, it suffices to show the impossibility of
paternity.
 As opposed to the first ground, the action to disown based on the second ground
may not be instituted except with the permission of the court (Art. 171).
 The scrutiny of the court is required to narrow the possibility of fatherlessness.
 The court gives its permission when there are presumptions or serious indications
resulting from sufficient and reliable facts enabling the court to accept the action
(Art. 171 (2).
 The presumptions and serious indications are those indicated under Art 172.

Article 172 – (3) Presumptions and Serious Indications

Art. 172 (1)- Examples of physical characteristics of the child incompatible with those of
the father could be:
o. if a white child with blonde hair and blue eyes is born of Ethiopia parents; or
p. if the blood test of the child gives a negative result.

 Art 172 (2)- When the mother conceals the birth of the child or of her pregnancy
from the presumptive father, there is a strong presumption that she had sexual
relation with another person and also that the child is not that of the husband or
that of the man in an irregular union with her. This fact alone will create a doubt
as regards his paternity.

 The adultery of the mother or her admission that the child has another father are
not sufficient, by themselves, to constitute serious circumstantial evidence. (Art.
173). However the commission of adultery or the admission of the mother if
followed by other corroborating facts which can put the paternity of the
presumptive father in question, the court will allow the latter to institute action to
disown. For example, if the mother’s adultery is corroborated by the fact that the
presumed father uses contraception or the conditions under Art. 172, this can be

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 considered as a presumption and serious circumstantial evidence to grant
permission.

 Are we to say that the above discussed circumstances are the only ones to grant
permission of the court?
 There is no provision expressly excluding other grounds than the expressly given
ones.
 Even the wording of Art. 172 (1) when it says “the presumptions and serious
indications may consists of …” seems to be illustrative. As a result, other
evidences
 An example of this kind could be the presumptive father’s sterility.

 At this juncture, it must be noted that admission of action does not necessarily
complete the action.
 It is only after admission that the presumptive father will be allowed to adduce
proof of his being not the father of the child.
 In this mode of disowning, as Art. 170 requires, the presumptive father must
decisively show that he is not the father of the child in the particular case.
 If he is expected to show decisively his being not the father, mere doubt as
regards his paternity won’t suffice to complete the action.
 For example, the exclusionary blood typing mechanisms are in some jurisdictions
taken to be conclusive to disown a child. So after admission, the presumptive
father must convince the court without a reasonable doubt as he is not the father
by any evidence at his disposal.

 it is the interest of all concerned that an action for disowning shall be brought
without delay.
 The law prescribes a period of limitation within which an action for disowning
shall be brought, Art. 176 (1)

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  So, if the presumptive father was around at the time of birth of a child, he shall
bring an action within six months as of the date of birth of the child. If, on the
other hand, the presumptive father came to know the birth of the child some times
after the birth of the child for he was not around at the time of birth, the 6 months
period shall be calculated as of the date of his knowledge.

 Once all the procedural requirements of the law are met the presumptive father
will be allowed to disown the child if he establishes the facts necessary to sustain
the action to disown.

 There is, however, one instance in which case suit for disowning will not be
permitted even if the procedural as well as the substantive requirements of the law
are met.

 This instance is Art. 178 which provides “disowning shall not be allowed where it
is proved that the child has been conceived by means of artificial insemination
with the written consent of the husband.”

There are two commonly used types of artificial insemination These are:
1. Artificial insemination with the husband’s semen, commonly termed as AIH
(Artificial Insemination Husband). This method is usually applied when the
presumptive father is impotent or unable to engage in sexual act.
2. Artificial insemination with the semen of a third-party donor, commonly termed
as AID (Artificial Insemination Donor). This method is performed probably due
to the presumptive father’s sterility. Although a sterile is able to engage in sexual
act he can not impregnate a woman.

 Article 178 is particularly referring to the AID types because in the first situation
(AIH) the husband can not disown the child for there would be a compatibility
between the presumption and the biological fact. The father will not be in a
position to decisively prove the absolute impossibility of his paternity.

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  Thus when AID is applied the semen used is the semen of third party donor. In
this case, it may arise a question of paternity. Art. 178 resolves this issue by
attributing the paternity of this child conceived as a result of artificial
insemination to the presumptive father who has consented in a written form for
the carrying out of this insemination.

CHAPTER NINE
ADOPTION
 The third source of family relationship
 The objectives of this unit:
 Define adoption;
 Explain the purpose of the institution of adoption;
 Enumerate essential elements that the adoption agreement shall satisfy;
 Discuss the legal consequences of adoption; and
 Distinguish grounds on the basis of which adoption agreement can be revoked.

9.1. Definition and Purpose of Adoption

 a, “fictious creation of blood relationship between persons who are not so
related.”
 a juridical act by which a permanent artificial parent – child relationship is
created.
 Art. 180 defines adoption as an agreement by which a person and a child create
artificial filiation.

purpose of adoption
 In earlier times, adoption was employed to secure to the adopter support in his old
age, or to provide him with an heir, or to prevent the extinction of his race, or to
perpetuate the performance of the family cults.
 It also served to give sons to house holds which have daughters only, or daughters
to households which have son.

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  In some societies, its purpose was to fill up vacancies caused by death so that the
person adopted shall take the deceased person’s place; to confer honour and
cement friendhip; to bring profit to the adoptive or natural parent, or both; to
recruit the ranks of a failing genes to tribe; and to avert ill – luck or to rick evil
spirits.

 the principal purpose of adoption in early societies was to benefit the adopter and
was not viewed as an alternative means to the welfare of the adoptee.

 The first half of the 20th century witnessed mass displacement of people and many
orphane children.

 adoption began to be viewed as instrument of protection of the orphan, the

destitute and fugitive.

9.2. Essential Conditions of Adoption

 essential elements which the adopter and the adoptee must satisfy

9.2.1. The Requirement of Consent

 Art. 180 of the RFC provides that adoptive filiation may be created by an
agreement between a person and a child.
 This Article may lead you to believe that the parties to the agreement of adoption
are the adoptive parent and the adoptive child.
 How ever, as provided under Art. 190, parties to the contract of adoption are the
adoptive parent and the guardian of the child.
 Art. 180 simply shows that an adoptive filiation shall be created between the
adoptive parent and the child as a result of an agreement of adoption.

 Where the adopter is married, an agreement of adoption may not be made unless
the two spouses conjointly adopt the child (Art. 186).
 (Art. 186 (2))..because there already exists consanguineal relation

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 From the adoptee side
 The other party to the agreement is the guardian of the adopted child (Art. 190).
 the father and the mother of the child are joint guardians of their minor children,
during their marriage.
 Some times, the child may have a guardian different from his father or mother.
 In such a case also the father and mother of the child are required to give their
consent to the adoption agreement, although they are not party to the agreement.

Article 191 – Consent of Parents of the Adopted Child

 As the agreement of adoption requires the natural parents to surrender all parental
rights and duties they have over the child, it follows that the adoption may only be
valid where the natural patents, having full knowledge of the consequences…..
 Sub-article 3 of Art 191… is justified where the parent has unreasonably
suspended his/her consent.
 Its application is, however, doubtful where the refusing parent is capable, in every
aspect, of upbringing his child.
 In other jurisdictions, there are also other circumstances which enable the courts
to dispense with the consent of natural parents.
 For instance, consent of the natural parents is not required where they forfeit their
parental rights by their neglect of the child or by their misconduct towards their
child.
 Perhaps the court may, in pursuit of the principle of the best interest of the child,
dispense the consent of the natural parent and approve the adoption.

 Art. 192 (1) expressly stipulates that government or private orphanages may give
any child under their custody to adopters.
 But this provision is not clear as to whose consent shall be given where the child
to be adopted is in the orphanage.

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  Art. 190 stipulates that the agreement of adoption may be made between the
adopter and the guardian of the child
 how can we apply Art 190 Vis -a-Vis article 192?
 Can we say that the orphanage is the guardian of the orphaned child?
 It may, however, be argued that the orphanage has, by virtue of article 192 (1),
got the capacity to enter into adoption agreement on behalf of the orphaned child
under its custody.

 Currently, the government organ that has the power to follow up the well being of
children is Ministry of Women and Social Affairs

9.2.2. Who may Adopt?

9.2.2.1. Age of the Adopter
 Art. 184
 why the legislature raised the age of the adopter to twenty – five years?
 Three reasons
 First, the “best interest of the child.” ….a person below the age of twenty – five
years is not materially, socially, and mentally ready to rear a child.
 Second, allowing people to adopt at 18 may affect the rational decision of the
spouses. That is, they may get despaired within few months of their marriage and
resort to adoption without identifying the cause for infertility especially in the
countryside where medical examination is less available. If they by a dint of
chance give birth after the adoption, it would be unlikely that they extend to the
adopted child the same love and affection they used to extend before the birth of
the natural child which in turn adversely affects the interest of the adopted child.
 Third, since adoption is designed to create ties of relationship analogous to those
which spring from filiation in the direct line, it would be logical to hold that the
adopter to be of a certain number of years older than the person who according to
the law becomes his child.

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  The law does not say anything about maximum age of the adopter.
 It seems that the courts will determine the maximum age of the adopter having
regarding to the circumstances of the case.

9.2.2.2. Mental and Physical Capacity of the Adopter

 nowhere expressly stated the requirement of mental and physical capacity of the
adopter.
 they are implicitly set as requirements. Art. 194 (3) (C)
 Capacity of the adopter should be determined in light of the mental, physical and
financial condition of the adopter.
 Thus, the court should, before approving the adoption agreement, make sure that
the adopter is of sound mind; that he is not insane, judicially and legally
interdicted.

9.2.2.3. Adoption between Blood Relatives

 Can a person adopt his grand child, his nephew or niece or other relatives?
 Nowhere in the Revised Family Code or the Civil Code has this been answered.
 One may argue that the concept of adoption presupposes transplanting a child to a
family to whom he does not belong.
 This can be inferred from the definition we have given here in above which say
“it is an artificial creation of blood relationship between persons who are not so
related.” (Emphasis supplied).

 Nevertheless, as the principle underlying the concept of adoption is the welfare

and best interest of the child, and where the proposed adoption between relatives
promotes this principle, the existence of a natural bond between the adopter and
the adoptee should not be taken as a vice. Of course, where the court having
regard to the circumstances of the case thinks that the adoption is against the
interest and welfare of the child, it may disapprove it in accordance with its power
vested under Art. 194.

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9.2.2.4. Nationality of the Adopter
 The Revised Family Code expressly stated that a foreign national may adopt a
child so long as other essential conditions of adoption are fulfilled.
 But this does not mean that a special precaution is not made when the adopter is a
foreigner.
 The law is much more strict in the adoption agreement, when the adopter is not an
Ethiopian and such adopter intends to take the child abroad. (Read Art. 193).

 From various conventions or inter-country adoptions, we can identify at least

three requirements that should be met before approving adoption by a foreigner.
 First, the foreign adopter should present evidences given from the competent
authorities of the country that he is eligible and suited to adopt a child, that his
personal, social and economic position is enabling to raise a child in a truely
family situation.
 Secondly, it should be made clear that the child will be authorized and permitted
to enter and reside permanently in the country where the adopter is a national or
resident.
 And thirdly, we should make sure that the adoption approved by our courts shall
be recognized and given effect by the adopter’s state.

 Art. 193 (1) (3) and Art 194 (3) (e) require that sufficient information should be
provided by a competent authority before the court approves the adoption.

 Currently, the authority following the well being of children is the Ministry of
Women and Social Affairs.

 The Ministry is now handling the issue of adoption of an Ethiopian child by a

foreigner in accordance with the procedures set out for this purpose in a
“Guideline on Alternative Child Care Programmes, (2001).”

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Thus, in accordance with the guideline a foreign applicant is eligible for adoption if
he/she is:
q. able to produce a document certifying that the applicants state law is
consistent with the legal requirements of Ethiopian adoption;
r. at least, twenty – five years of age;
s. able to produce a document from a competent and specified governmental
body certifying that he/she has an income that is sufficient to raise the child;
t. Free of any incurable and/or contagious disease and mental health problem.
u. Free from any criminal activities;
v. able to produce a marriage certificate if the applicant is married; and able to
produce a document certified by a relevant governmental body, indicating
the consent of the applicant’s spouse to adopt the child.

 We can, therefore, say that the requirements set by the Ministry concerning inter
country adoptions are compatible with the requirements which the various
international conventions set.

 However, in 2018, the House of Peoples’ Representatives issued Proclamation No.

1070/2018 amending the Revised Federal Family Code, which banned inter-country
adoption.

 In 2020, the Federal Supreme Court Cassation Division Bench gave an interpretation to
the ban as not applicable to foreigners of Ethiopian origin (Wondossen Tadesse Yisma
et. al. File No 189201, March 11, 2020))

 Further, in another recent decision, the Court extended the interpretation as not
applicable to foreigners who are adopting their Ethiopian spouse’s child(ren) ( W/ro.
Arsema Elias et.al case (File No 215383, May 30, 2022))

9.2.3. Who May be Adopted?

 only minors are to be adopted, Art. 185
 This position is justified by the fact that the main purpose of adoption is to extend
due care and protection to a minor child.

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  Moreover, unless the maximum age of adoptee is restricted, his age may exceed
the age of the adopter in which case a sense of normal father /mother – child
relationship will be lost.
 The adoptee shall be under guardianship.
 Exceptionally, however, a person may be emancipated or be out of guardianship
administration even if he doesn’t attain the full age of 18.
 There are two situations whereby a person who does not attained the age of 18
may be emancipated. Read the following articles from the Revised Family Code.

Article 311 – Marriage

Where a minor is married in accordance with Art. 7 (2) of this code, he shall be
emancipated by the sole fact of such marriage.

Article 312 – Explicit Emancipation

1) Where a minor has attained the age of fourteen years, his guardian or his tutor or
any interested person may apply to the court for his emancipation.
2) The court may decide to emancipate the minor after considering his conditions,
the reasons applied for, and where it finds that the emancipation is in the best
interest of the minor.

 The law has not fixed the minimum age of the adoptee. A minor at any age may
be adopted.
 The law even permits adoption of a merely conceived child subject to the
mother’s right of unilateral revocation within six months following the birth of the
child. (Art. 187).

9.2.4. Impossibility of Adoption by Several Persons

 (Art. 189 (1)) and its exceptions
 Although the law fails to expressly provide, a child may be adopted by another
person where a former adoption is revoked as per Art. 195 – 196.

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9.2.5. Approval of the Court
 In other ordinary juridical acts, approval of the agreement by the court is not
essential condition of validity.
 They shall be valid so long as the parties thereto agree and the agreement is
concluded in conformity with the mandatory provisions of the law.
 An agreement of adoption shall be of no effect unless it is approved by the court
(Art. 194 (1)).
 The court shall, in approving adoption, be guided by the principle of the “best
interest of the child” which lies at the foundation of the institution of adoption
(Art. 194 (2).
 ……based on their appreciation of the adopter’s personal, economic, social
condition, and other circumstances.
 Should religious belief be considered as an element constituting the best interest
of the child? No doubt

 Without prejudice to the general guidelines located under, Arts. 192, 193 and 194
(2) which the court shall verify before approving the agreement of adoption, the
same shall take the following in to consideration before such approval (Art. 194
(3))……

9.3. Effect of Adoption

general effect of adoption and specific effects of adoption.

9.3.1. General Effects of Adoption

 There are two methods of adoption in general.
 They are complete adoption and incomplete adoption.
 In the complete adoption the adopted child shall be fully assimilated to the
adoptive families.

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  The adoption is so complete that it severs all the relationship the adopted child has
towards his natural parents.

 Incomplete adoption: the bond between the adopted child and his/her natural
family remains intact.

 Our law of adoption recognizes the incomplete adoption.

 Art. 181-83

9.3.2. Specific Effects of Adoption

9.3.2.1. Status of the Adoptive Parent and the Adopted child
 confers a legal status of parent and child upon adopting parents and adoptive
children with the legal rights and duties flowing from the relation of a natural
parent and child.
 The effect of adoption concerning the name of the adopted child has been
expressly governed by the Civil Code. Art. 41 of the Civil Code states that the
adopted child shall take the name of the adopter.
 The domicile of the adopted child becomes that of the adoptive parent. Art. 190 of
the Civil Code states that the natural child of a person who is a minor shall have
the domicile of his guardian, who is in most cases the parent. By the same token,
the adopted child who is deemed, to all intents and purposes to be the child of the
adopter, shall take the latter’s domicile.

9.3.2.2. Rights and Duties of the Adoptive Parent and the Adopted Child
 Adoption transfers the natural parents right of exclusive custody over the child to
the adoptive parent. After adoption, the adoptive parent will have custody of the
child, the right to control its education, the duty of obedience owing by the child,
and all other rights flowing from the natural parent – child relationship.

 The adoptive parent shall, as of the adoption, assume the primary duty of support
of the child.

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  The adopted child, too, has the same rights and duties a natural child has to wards
his natural parent.
 He also owes to the adopting parent duties which he would otherwise owe to his
natural parent.

9.3.2.3. Effect of Adoption on the Right of Inheritance

9.3.2.3.1. Inheritance from the Adopted Child
 When the adopted child dies intestate without leaving descendants but leaving his
natural parents and adoptive parents, upon whom shall his estate devolve must be
answered in light of Art. 181, 182, and 183 of the Revised Family Code and Art.
836 (2), 843 of the Civil Code.
 Art. 843 of the Civil Code states that where the deceased is not survived by
descendants, his father and mother shall be called to his succession.
 But where the deceased is an adopted child there are two parents, viz, the adoptive
father and mother and the natural father and mother.
 Up on whom should the estate of the adopted child devolve must be answered in
light of Art. 183 (3).
 We can thus safely say that although the natural parents have still right of
inheritance from the deceased, their claim shall not have priority to the adoptive
parents.

 A question may, however, arise where the adopted child is not survived by the
adoptive parents but by his natural parents.
 The competing claimants in this situation are the heirs and next of kin of the
already deceased adoptive parents and the natural parents of the adopted deceased
child.
 Is the right of the natural parents still subordinate to the rights of the heirs of the
deceased adoptive parents?
 The answer to the question again lies in Art. 183 (3).

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  The term family is broad enough so as to include descendants and ascendants of
the adoptive parents.
 Where the adopted parents of the deceased adopted child dies, they will be
represented for instance by their descendents to succeed the estate of the adopted
child.
 The natural parents cannot claim the estate of their deceased child unless the
estate is to devolve up on the state.

9.3.2.3.2. Inheritance by the Adopted Child

 not totally extinguish the rights and obligations the adopted child has towards his
natural parents.
 The adopted child’s right of inheritance from the ascendants or collaterals of the
adoptive parents, is however, dependent up on the latter’s consent to the adoption.
The law preserves their right of opposition to the adoption under Art. 182. Thus,
in the absence of express and valid opposition of adoption, the adopted child has a
right to inherit the ascendants and collaterals of his adoptive parents.

 The last point worth considering is the possibility of inheritance through the
adopted child; that is, by representation.
 Where the adopted child dies during the life of the adopting parent leaving
descendants, whether such descendants are entitled to inherit from the estate of
the adoptive parents by way of representation is not answered in the Revised
Family Code.
 It may be said that as the purpose of adoption is to create an artificial filiation
which takes after the natural bond of relationship, the descendants and spouse of
the adopted child shall be related as if they were related to the natural parents of
the adopted child.

9.4. Revocation of Adoption (Arts. 195-96)

 Under the Civil Code, adoption once made may not be revoked for any reason.

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  Where adoption fails to achieve its purpose, however, the best interest of the child
requires the adoption be revoked or terminated.

 One should, however, ask as to whether adoption may be revoked on the ground
of fraud or duress where the child is comfortably placed and successfully
assimilated in the adoptive parents. The best interest of the child should guide

 The revocation of adoption brings all the effect of adoption to an end. That means
the rights and obligations of the adopted and the adoptive parents towards each
other shall be extinguished.

CHAPTER TEN
OBLIGATION TO SUPPLY MAINTENANCE
 one of the legal obligations which emanate from family relationship

Generally, a student who successfully complete the study of this unit will be able to:
 Define the subject matter of obligation to supply maintenance;
 Enumerate the persons between whom the obligation exists;
 List conditions that must be fulfilled for the obligation to exist;
 State the reasons why a person loses his right to be maintained; and
 Elaborate as to how the obligation shall be executed.

10.1 Subject Matter of the Obligation

 In spite of the fact that family law restricts the existence of this obligation
between specific relatives, broadly speaking, the obligation may arise from
agreement, will or law. For example,
 In case of contract of donation, where the donor is in need, the donee is duty
bound to supply maintenance (Art. 2458 C.C).
 Besides, in case of succession, the testator, in his will, may order his heirs or
legatees to provide a certain service from the property they received for one or

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 more persons. (Art. 820 C.C) An obligation to supply maintenance can be
included therein.
 Moreover Art. 2558 of the Civil Code provides that where the worker loses half
or more of his capacity to work because of employment injury or disease, the
employer shall supply maintenance to minor children of the worker.
 In rules of extra – contractual liability, the tort feasor may be obliged to supply
maintenance to the spouse and descendants of a person who died as a result of a
mortal accident (Art. 2095 C.C).

 Art. 197

Two points must be borne in mind.

 Firstly, ---things that are necessary for the livelihood of the creditor
 Since education became one of the basic needs in modern life, it is included in
maintenance. This is one area of departure from the Civil Code.
 ---- is not bound to supply to the creditor things that would facilitate luxurious
life.
 shall pay the funeral expenses of such person. (Art. 213 (1)).

 Secondly, the extent of the obligation … shall be determined having regard to

social conditions and local custom of the area in which the creditor lives.

 Art. 202 (2) provides that the amount of maintenance allowance shall also be
fixed by taking in to consideration the needs of the person claiming it and the
means of the person liable there to.

10.2. Persons Between whom the Obligation Exists

 Art. 198, taking into consideration the proximity of their relation, lists out persons
between whom such obligation exists.
 no person may be obliged to supply maintenance to his uncles, aunts, nephews,
nieces and other collateral relatives.

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  Doe not totally arise between affinal relatives in the collateral line.

 “without prejudice to the provisions of Article 49 (1) … “under Art 198 (1)
indicate? Art. 49 (1) mandatorily provides that the spouses owe each other
respect, support and assistance.
 For example, while divorce proceeding is pending the court, under Art. 82 (5), is
expected to give appropriate order regarding the maintenance of the spouses.
 The obligation to supply maintenance, in addition to relatives, exists between
spouses as long as the marriage is not dissolved.

exception

 Art. 198 in conjunction with Art. 212 (1), the right of the adopted child is
restricted.

10.3. Possibility of Losing the Right to Claim Maintenance

 Art. 199
 Art. 200)
 In general, Art. 200 included a limitation against a creditor who in bad faith
commits or attempts to commit a crime against the debtor, his/her spouse and
relatives.

10.4. Conditions for the Existence of the Obligation and Its Execution
 emanates from a legal relationship between the claimant (creditor) and the person
bound to supply maintenance (debtor) within the meaning of Art. 198.
 Additional essential conditions for the obligation to exist.
 We can classify the conditions for the existence of the right of maintenance into
two those attributable to the economic condition of the creditor. (Art. 201) and
those attributable to the economic position of the debtor. (Art. 202 (2)).

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  Art. 201 of the RFC.. in need and not in a state of earning his livelihood by his
work

 But the phrase “not in a state of earning his livelihood by his work” in Art. 201
may raise a question;
 is it an actual incapacity to be engaged in whatever activity contemplated or does
it also include potential inability to work and help oneself?
 By actual incapability it may mean the failure of a potentially productive and self
– helping individual in being engaged in any income earning activity for reasons
attributable not to his working ability but due to some other objective social and
economic conditions.
 If the interpretation is widened so as to refer to both actual and potential ability to
work, the probability of the existence of the obligation will increase as the group
of beneficiaries may increase numerically.
 A degree holder who does not have any kind of job is with full potential of
working capacity.

 The claim should not threaten the economic or material well – being of the debtor.

 Hence, for a creditor have a viable of maintenance against his debtor, the latter
must be economically better off.
Execution
 We have two types.
 Firstly, … fulfilled by means of maintenance allowance paid by the debtor to the
creditor for maintenance. (Art. 202 (1)).
 It shall to the extent possible, be paid at a place convenient to the creditor (Art.
204).
 Art. 203, the decision which fixed the amount of maintenance allowance or
residence of the creditor for maintenance may be reviewed….

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  As the maintenance allowance is believed to be extremely necessary for the
survival of the creditor, it cannot be attached nor can it be assigned (Art. 205).

 Arrears of maintenance cannot be accumulated (Art. 206)

 The creditor fails to take arrears of maintenance within three months from their
falling due; the assumption is that the creditor is not in need of maintenance.

 The second mode of fulfillment of the obligation to supply maintenance is by

taking the creditor to the debtor’s home (Art. 207).
 …supply the creditor with necessities like food, shelter, clothe, etc in kind

 Can a creditor claim a lump sum payment when maintenance is to be paid in

terms of money?
 Though the law does not have a ready-made answer to the question posed, it can
be argued in the negative.
 Allowance shall be paid periodically
 if the payment of maintenance allowance is effected in lump sum, the creditor
after finishing the money may be exposed to problem.
 This argument is also supported by Art. 206 which prohibits accumulation of
arrears of maintenance allowance.
 The debtor and the creditor cannot validly agree because all maintenance
provisions are mandatory that can not be set a sided (Art. 214).

10.5. Plurality of Debtors

 Art. 208 gives the creditor of maintenance in that he can claim the maintenance
from any debtor whom he thinks is in a better financial position without due
regard to the degree of relationship.
 Recourse against those who have not paid their shares. (Art. 209 (1))
 Even a distant relative may be obliged to pay the maintenance by the mere fact
that he is in a better positioned relative to other debtors. But in order to decide a

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 relative up on whom the ultimate burden rests, there is an order of precedence that
we have to adhere. Read Art. 210 RFC).

 The debtors for maintenance may validly agree, as regards their reciprocal
relations that maintenance shall be supplied to their common creditor by one of
them (Art. 211 (1))

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