Divorce and Ethiopian Law - Divorce and Its Effects under Ethiopian Family Law
By Fikadu Asfaw and Associates Law Office
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In Ethiopia, there are three forms of marriage. i.e. civil, customary and religious marriages. But the effect of dissolution of all forms of marriage is the same.
If you wonder to know how marriage dissolves in Ethiopia here is some brief note. In Ethiopia, there are three forms of marriage. i.e. civil, customary and religious marriages. But the effect of dissolution of all forms of marriage is the same.
The Three Ways Of Dissolution of Marriage
There are three causes of dissolution of marriage in Ethiopia.
1. Death of one of the spouses or declaration of absence, by the court, of one of the spouses,
2. when one of the essential conditions of marriage is violated
How can marriage be dissolved by divorce?
Marriage can dissolve by divorce, when
1. the spouses have agreed to divorce by mutual consent and such agreement is accepted by the court; or
2. The spouses or one of them made a petition, for divorce, to the court.
Divorce by Mutual Consent
Now letís see how divorce can be made by mutual consent.
A. When the spouses have agreed to divorce by mutual consent, such agreement, which also should regulate the consequences of the divorce, must be submitted in writing to the court for approval. However, the spouses whose marriage lasted for less than six months shall not be permitted to divorce by mutual consent. In their petition the spouses are not obliged to state the reason of the divorce. The court may not necessarily approve divorce immediately.
The Ethiopian family law empowers family courts with the right to discuss with the spouses separately or jointly and counsel them to renounce their intention to divorce. Further the court may grant a cooling period, not exceeding three months, to the spouses. If the spouses did not change their intention they can reapply to the court for approval of the divorce within six months from the last date of cooling period. But nothing shall prevent the spouses from submitting a new petition for divorce.
If the agreement to divorce is the true expression of the intention and free consent of the spouses and is not contrary to law and morality the court shall approve the divorce. When the court approves the divorce it shall also approve the conditions of the divorce agreed between the spouses. Here the interest and wellbeing of their children is strictly considered by the court. If the agreement on the conditions of divorce doesnít sufficiently protect the interest and wellbeing of the children or even where it adversely affects the inertest of one of the spouses the court may approve, only the divorce agreement and give decisions it may deem appropriate to correct the defects of the conditions of divorce.
B. How Divorce Can Be Effected By Petition?
The two spouses co jointly or one of them can make a petition for divorce to the court. They can include the reasons for divorce in the petition. The court shall speak to the spouses separately or co jointly with a view of persuading them renounces the petition for divorce and tries to solve their dispute amicably. If this attempt fails, the court may direct the spouses to settle their dispute through arbitrators of their own choice. When this did not work the court may dismiss the spouses by giving them a cooling period of up to three months. Where all the efforts made before, have failed, the court shall pronounce divorce within one month from the receipt of the reports of arbitrators or the end of the cooling period, as the case maybe.
From the time the petition for divorce is brought before it, the court shall forthwith give appropriate order regarding the custody maintenance of their children, the maintenance of the spouses and the management of their property. Sometimes circumstances may force one of the spouses to leave their common abode. During such case, the court shall take into consideration the interest of children and the condition of the spouse who may be affected more by leaving their common abode, when giving the above order.
When divorce is made by petition, the court shall request the spouses to agree on the conditions of divorce. When they are not willing to agree the court shall, by itself, or through arbitrators, or experts appointed by it, or by another means it thinks appropriate, decide on the conditions of divorce. The conditions of marriage agreed by the spouses or decided by arbitrators or experts shall be submitted to the court for approval. The court may postpone the judgment on the conditions of the divorce for not more than six moths after deciding on the divorce. When justice so requires and when the cause of the divorce is imputable to one of the spouses, the court may order such spouse to make good the damage sustained by the other spouse.
The Two Common Effects of Divorce
The two common effects of marriage are its pecuniary effect and its effect on children.
1. Pecuniary Effects Of Divorce
It is good to note that the pecuniary effect of divorce is the most sensitive area that usually results in countless court litigations. So here are the pecuniary effects of marriage.
If the spouses have an agreement in their contract of marriage the pecuniary relation shall be liquidated according to this agreement. If not, each spouse is entitled to retake his personal property at first and common property shall be divided equally between the spouses.
But here the Reader may raise one question. Which property is personal and which one is the common? That is good question.
The property which the spouses acquired on and after the day of their marriage by succession or donation shall remain their personal property.
Property acquired by onerous title, by one of the spouses after marriage shall also be personal property where such acquisition has been made by exchange for property owned personally, or with monies owned personally or derived from sale of property owned personally. But this applies when the court, at the request of one of the spouses, has decided that the property thus acquired shall be owned personally by such spouse.
All properties which are not personal shall be common property even if it is an income derived from personal property. The spouse may regulate their personal and common property by their contract of marriage, if any.
If one of the spouses proves that any of his personal property has been alienated and that the price thereof has fallen in the common property he has the right to withdraw, beforehand, money or things of value corresponding to such price, where both spouses have such right, each of them shall take their respective share from the common property in proportion to their contribution.
If there is a debt incurred by either soused or both spouses conjointly, and such debt is confirmed by judicial decision, or acknowledged by the spouses, such debt shall be paid before the division of property.
Without prejudice to the above statements or/and agreements of the spouses, common property shall be divided equally between the spouses. Each spouse shall receive equal share of the property from the common property.
If it is not possible to divide equally the inequality of shares in kind shall be set off by the payment of sums of money. While doing this, utmost care should be taken to give each spouse things which are most useful to him. If certain property is difficult or impossible to be divided and if the spouses do not agree as to who shall have that property in his share, such property shall be sold and the proceeds thereof shall be divided between them. If they do not agree on the condition of sale and if one of them requires, the sale shall be made by auction.
If a debt to be paid from the common property becomes due after the dissolution of the marriage and after the partition of the property, each spouse shall be liable in proportion to ones share. But if the debt concerns one of the spouses, only such spouse shall pay it.
2. Effect of Divorce on Children
Dissolution of marriage will have effects on the children. The Ethiopian family law takes the matter of children seriously and tries to protect their best interest. The court when deciding the divorce, also decide, as to which spouses shall have custody of the children, care of their education, health, maintenance and the rights of the parents and the children to visit each other, The court shall take into account the income, age, health and condition of living of the spouses as well as the age and interest of the children. The court can, on application and taking into account the change of circumstances revise or reverse its diction requiring the custom day and maintenance of the children.
ABOUT THE AUTHOR: Fikadu Asfaw Law Office
Fikadu Law Office is an Ethiopia law office providing advisory and litigation services to corporate and private clients in Ethiopia and throughout the world. The Law Office is licensed to practice throughout Ethiopia at all level of courts including Federal First Instance Court, Federal High Court, Federal Supreme Court, Cassation Court and any other similar legal tribunals.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.