The Effect of Bigamous Marriage on Distribution of Marital Property in Ethiopia: A Case comment

Journal of Ethiopian Law, Volume 25, Issue 2, Sep 2012, p. 236 - 253

Aschalew Ashagre

Introduction

 Marriage is a sacred institution which has been well accepted by society in every corner of the world. As such, marriage has been recognized and protected by both national laws of countries1 and international legal instruments.2Legal recognition and protection is given to marriage because it is through marriage that humanity establishes and maintains family, which is the fundamental unit of society.3The recognition and protection of marriage becomes meaningful when the law gives recognition and protection to the effects produced by marriage. The basic effects of marriage can be divided into personal and pecuniary.4 In Ethiopia, personal effects of marriage pertain to respect, support, assistance,5 joint management of family,6 cohabitation,7 determination of residence,8 duty of fidelity9 and the like.

 

Pecuniary effects of marriage, in turn, relates to the creation of new legal relationship between the spouses regarding property. In this regard, the most fundamental effect is the presumption that all property of the spouses shall be deemed to be common property even if registered in the name of one of the spouses10 unless such spouse proves that he/she is the sole owner thereof.11 From this, we can understand that in the absence of contrary proof, spouses have equal share from the common property. This can be true only when the marriage is a monogamous marriage.  

However, there are circumstances where a man may have two or more wives at the same time, although polygamous marriage or bigamous marriage is not allowed under the Revised Family Code of Ethiopia of 2000. In this regard, Art 11 of the Code clearly provides that a person shall not conclude marriage as long as he/she is bound by bonds of a preceding marriage. In addition to the Federal Family Code, the Criminal Code of the Federal Democratic Republic of Ethiopia of 2005 had declares that bigamy is a criminal act.12Despite the fact that bigamy is prohibited both by the Federal Family Code and the Criminal Code, there are incidences of bigamous marriages in Ethiopia.  

As a matter of fact, bigamous marriage poses multifaceted problems. The problem posed by a bigamous marriage, inter alia, looms large when the issue of determining the share of the spouses from the common property comes into the picture in the case of dissolution of such bigamous marriage. In other words, determining the exact share of the spouses has remained to be an arduous task for courts when a bigamous marriage is dissolved for various reasons. Because of this, Ethiopian courts, both at the Federal and regional level, have held divergent positions on the issue under consideration. Nonetheless, because treating many court decisions is absolutely beyond the scope of this short case comment, I have confined to the analysis of two decisions of the Cassation Division of the Federal Supreme Court of Ethiopia (hereinafter cited as the Cassation Division) in which the Cassation Division held two conflicting positions though the facts of the case were similar and the questions of law involved in both the cases were identical.  

The first case I selected was litigated between two wives of a man (their husband) who had died at the time of the litigation. In this case, the Cassation Division decided that half of a building (a common property) was to be given to the son of the deceased born to one of the disputants, and the remaining half to be divided between the two wives. The second case I have selected was again litigated between two wives of a man( the husband) in which the Cassation Division decided that one of the wives was entitled to half of a house (which was the subject of the litigation) and the other half should be divided between the husband and the other wife of this man.13 

From the above brief presentation of the facts and decision of the Cassation Division, we can grasp that the Cassation Division has held different positions at different times with regard to determining the actual share of spouses, out of the common property, in the case of dissolution of a bigamous marriage. The question, however, is how did the same Bench arrive at different conclusions in a similar case brought to it? Did the Cassation Division have any concrete legal basis to negate its previous position and to hold the latter position? Will the vacillating approach of the court mean any thing towards insuring the predictability of the decisions of the Bench? At any rate, how can we put in place a lasting solution to the problem of determining share of spouses in the case of bigamous marriages? As a modest response to the call made by the Federal Supreme Court of Ethiopia,14 this case comment is, therefore, meant to carefully analyze the above issues and recommend possible solutions. Nevertheless, the author cannot claim that he will suggest an absolute solution to the problem. Rather this case comment is basically aimed at exposing the problem and provoking thoughts among legal scholars and students of law. To this end, this case comment has been organized as follows. The second section of the work has been devoted to the summary and presentation of the facts of the case and the holding of the courts while the third part deals with the analysis of the cases and the accompanying comments. The fourth section deals with brief concluding remarks.