Forms of Marriage Under Ethiopian Family Law

 FORMS OF MARRIAGE

Marriage can be celebrated in three different ways under the jurisdiction of Ethiopian legal system. Marriage can be concluded before an officer of civil status or in accordance with religion or custom of the future spouses. The future spouses are free to choose one of the forms of marriage to conclude marriage.

Below detailed account of each of the forms of marriage is given.

1. Civil Marriage

Important provisions

RFC

Art 2 –Marriage concluded before an officer of civil status

 Marriage shall be deemed to be concluded before an officer of civil status when a man and a woman have appeared before an officer of civil status for the purpose of concluding marriage and the officer of civil status has accepted their respective consent.

 

Art 22-Authorized officer of civil status

Civil marriage shall be concluded before the officer of civil status of the place where one of the future spouses or one of the ascendants or close relatives of one of them has established residence by continuously living there for not less than six months prior to the date of the marriage.

 

Art 23- Request for celebration of marriage

The future spouses shall inform the officer of civil status of their intention to conclude marriage not less than one month prior to its celebration.

Art 24- Fixing the date of marriage

Upon receipt of the request, the officer of civil status shall, in consultation with the future spouses, decide the exact date of the conclusion of marriage and publicize same by any appropriate means.

 

Art 25- Formalities of celebration

1. Marriage shall be concluded publicly in the presence of the future spouses and two witnesses for each of the future spouses.

2. The future spouses and the witnesses shall declare, under oath, that the essential conditions of marriage are not violated.

3. The officer of civil status shall inform the future spouses and their witnesses, before taking oath, of the consequences of their declaration.

4. Each of the future spouses shall declare openly to the officer of civil status that they consented to conclude marriage on their own free will.

5.  Each of the spouses and their witnesses shall sign in the register of civil status.

6. upon fulfillment if the formalities prescribed above, the officer of civil status shall pronounce them united in marriage and shall issue a certificate of marriage to that effect.

 

The Amhara Regional Government and Oromia Regional Government Family Law proclamations have exactly the same provisions on civil marriage as that of RFC. The Tigray Regional Government Family Law proclamation’s provision on civil marriage has some deviation from the RFC. 

Civil marriage is said to be concluded when the future spouses appear before an officer of civil status under take whatever procedure the law requires and the officer accepts the consent of the man and woman. The Tigray family law requires the future spouses to appear before a person who register a marriage if they want to conclude national marriage (civil marriage).

The Ethiopian civil code has introduced in Ethiopia the office of civil status. The institution is responsible for registering births, deaths and marriage (Art 74 of civil code).  A Person who is responsible to draw up such records is called officer of civil status. However, such institution has never been established in Ethiopia. When the RFC was enacted the government is given 6 months to establish such institution (Art 321 of RFC). Still up to now, nine years after RFC’s enactment, the office is not a reality. Some give the reason that as the institution is indigenous to Ethiopian law (does not exist in other countries); it was not possible to find any model that will be the basis for making it function able.

The appropriate question that will come into your mind by this time is, “Where do births, deaths, and marriage get registered?” The office of the municipality is undertaking the registrations work in addition to many other separate mandates it has. Given the reality in Ethiopia concerning officer of civil status, it may be better to use the phrase a person who registers marriage like the Tigray Family Law proclamation.

Let us list some of them:

ü  Marriage should be concluded before the officer of civil status of the place where one of the future spouses or one of their parents or close relatives has established residence by continuously living there for not less than six months before the marriage is concluded.

ü  Future spouses have to inform the officer of civil status their intention to get married one month or more before the date of celebration (in the case of Tigray family law before one week or more).

ü  The exact date of celebration is to be fixed by the future spouses and the officer of civil status.

ü  On the date of celebration, the future spouses are required to be present. Two witnesses for each of them are also required to appear before the officer if civil status.

ü  The future spouses and the witnesses should swear that the essential conditions of marriage are not violated.

ü   After the future spouses declare openly to the officer that they consented to get married to each other without any kind of influence they should sign in the register of civil status.

ü  And finally, the officer of civil status pronounces the future spouses’ union in marriage.

2. Religious Marriage

Important provisions

RFC:

Art 3- Religious marriage

Religious marriage shall take place when a man and a woman have performed such acts or rites as deemed to constitute a valid marriage by their religion or the religion of one of them.

Art 26- Religious marriage

1. The conclusion of religious marriage and the formalities thereof shall be as prescribed by the religion concerned.

2. The provisions of this code relating to the essential conditions of marriage shall be complied with in religious marriage.

 

     Essentially the same provisions have been provided in Amhara, Oromia and Tigray family laws.

 

Religious marriage is said to be concluded when future spouses have concluded marriage by fulfilling the requirements or procedures put forward by their religion or the religion of one of them. Depending on the type of religion, the acts or rites the future spouses are required to perform may differ.

 

The important point that should not be left unmentioned is that upon the conclusion of religious marriage, the conditions that the law has put forward as essential should be fulfilled. These conditions are going to be discussed on the next section.

3. Customary Marriage

Important provisions

RFC:

Art 4- Marriage according to custom

Marriage according to custom shall take place when a man and a woman have performed such rites as deemed to constitute a valid marriage by the custom of the community to which they belongs.

Art 27- Customary Marriage

1. The conclusion if customary marriage and the formalities thereof customary marriage and the formalities thereof shall be as prescribed by the custom of the community concerned.

2. The provisions of this code relating to the essential conditions of marriage shall be complied with in customary marriage.

     The Amhara, Oromia and Tigray family laws have provided essentially similar provisions concerning customary marriage.

 

When future spouses conclude marriage after performing acts or procedures considered to constitute a valid marriage according to the custom of the community to which they belong or in which they live or to which one of them belongs, it is called customary marriage.

 

Ethiopia is a home of a multitude of customs and cultures. Therefore, the procedures that are required to be performed by future spouses who want to conclude customary marriage may differ from one community to another. Whatever acts the custom may require the future spouses to perform, the essential conditions that the law provided to be fulfilled by any type of marriage should be complied with.

Art 5 of the RFC states that marriage celebrated abroad in accordance with the law of the place of celebration shall be valid in Ethiopia so long as it does not contravene public moral. It can be understood, from this Article that marriage concluded abroad by a form which cannot be categorized under one of the three forms provided by Ethiopian law can be considered valid unless the things or acts required to conclude a marriage by the foreign law are against the Ethiopian society’s morality.

Apart from what so far have been discussed about forms of marriage, during the celebration of marriage whatever the form, the future spouses should be personally be present and consent to the marriage at the time and place of its celebration. The RFC under Art 12(1) prohibited representation for the purposes of conclusion (celebration) of marriage. The same rule is provided by Amhara, Oromia and Tigray family laws.

Sub Art (2) of Art 12 of the RFC however, by way of exception, permits the conclusion of marriage by proxy not withstanding the mandatory provisions of sub-Art (1) of Art 12. Pursuant to sub-Art 2 of Art 12, celebration of marriage by representation may be allowed by the ministry of justice where it has ascertained that there is a serious cause and the person who intended to do so have fully consented thereto. The same rule has been provided on the above mentioned three regional states family laws except that permission is to be given by justice bureau, instead of Ministry of Justice, in their region. Art 12(2) begs a number of unaddressed questions and as such has left issues like: what is a serious cause? How would the Ministry of justice ascertain that there is a serious?