The possible implication in proving possession of status of spouses

Addis Ababa University
Law faculty
LL.M Program
Legal Research

The possible implication in proving possession of status of
spouses




Submitted to: Elias Nour (Ass. Prof)
By: Beiza Nigussie
GSR/6866/03







May 02, 2011

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The possible implication in proving possession of status of
spouses








By: Beiza Nigussie
GSR/6866/03

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TABLE OF CONTENTS

CHAPTERS Pages

Part one: Research Proposal
Introduction
Part two:
Concept and definition of marriage

1.1 General Overview --------------------------------------------------------- 1
1.2 Customary Definition of marriage -------------------------------------- 2
1.3 Religious Definition of marriage ---------------------------------------- 2
Part Two
Proof of possession of status of spouses --------------------------------- 3
2.1 Possession of status of spouses ------------------------------------------ 3
2.2 Circumstances where this mode of proof is Available----------------- 3
2.3 What is to be proved-------------------------------------------------------- 4
Part Three
The possible Implication in proving possession of status of
Spouses ------------------------------------------------------------------------- 11
3.1 The significance of requiring proof of possession of
Status of spouses------------------------------------------------------------12
3.2 economic Implications ---------------------------------------------------- 14
3.3 legal implications ----------------------------------------------------------- 14
3.4 Implications on children -------------------------------------------------- 15
Conclusion ---------------------------------------------------------------------- 16
Recommendation -------------------------------------------------------------- 17
Bibliography -

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Part 1: The possible implication in proving possession of status of spouses

Introduction
Proof of possession status of spouse is one of the legally recognized methods of
ascertaining the existence of marriage. Nonetheless this is the main area of
controversy and disputes among the day to day activities of judges. That is
whether the existence of marriage could be sufficiently proved either by
producing certificate of marriage or by proof of possession of status. In fact
such uncertainties could also be inferred from the interpretation and analysis
given on the issue at hand by different scholars.
When the problem existed at the time when the Family law was part of the Civil
Code, the Supreme Court, as a way out, give legal interpretation to erase this
problem. However, due to the firm resistance from some courts, this mandatory
interpretation of the law was almost unsuccessful to achieve the intended
result. Practically even after the promulgation of the RFC, it is not difficult to
witness the manifestation of this problem in different decisions of courts.

Statement of the problem
Proof of possession status of spouse is one of the legally recognized methods of
ascertaining the existence of marriage. However this is the main area of
controversy and disputes among the day to day activities of judges. And it
seems that the judges and legislative bodies are so far incapable of handling
this problem or reach to consensus regarding the interpretation of the law.

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Objectives of the Study
• The main objective of this thesis is to critically scrutinize and relate the
analysis of the law with the practice. Accordingly it is attempted to find
out whether there is any kinds of gap between requirements of the laws
and the practice. An assessment is also made as to the implication of the
diversion of the practice from the law, if any. As of it main concern, all
necessary efforts will be exerted to pin point if the existing method of
proof of existence of marriage has any impact on the society and the
family.
• Provide a workable solutions and recommendations

Significance of the Study
Avoiding uncertainties or difference of interpretation or decision given by
judges, that whether the existence of marriage could be sufficiently proved
either by producing certificate of marriage or by proof of possession of status, is
an important ingredient for the development of trust of the society towards
court. In addition, it protects marriage which is the basis of family which in
turn is the basis of the society.
Thus the study will deal whether there is any kind of gap between
requirements of the laws and the practice.
Hence, this study is significant because it will provide policy makers,
practitioner and academician an insight in to the problem and suggest possible
recommendations.
Scope and Limitation of the Study
The scope of this research will only focus on federal revised family law of 1995
and the three tiers of federal courts. However, it is believed that the outcome of

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this research will reveal problems and recommendation applicable to States as
well.
The major limitation of this research will be shortage of time. However in
collaboration with the colleagues it is possible to solve to this problem and
produce a good research.

Research Design and Methods
The main sources of data for this research will be interviews with practitioner,
questioner distributed among judges and scrutinizing cases. In addition the
research will look in to proclamations, books, foreign legislations and others.

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INTRODUCTION

Proof of possession status of spouse is one of the legally recognized methods of
ascertaining the existence of marriage. Nonetheless this is the main area of
controversy and disputes among the day to day activities of judges. That is
whether the existence of marriage could be sufficiently proved either by
producing certificate of marriage or by proof of possession of status. In fact
such uncertainties could also be inferred from the interpretation and analysis
given on the issue at hand by different scholars.

When the problem existed at the time when the Family law was part of the Civil
Code, the Supreme Court, as a way out, give legal interpretation to erase this
problem. However, due to the firm resistance from some courts, this mandatory
interpretation of the law was almost unsuccessful to achieve the intended
result. Practically even after the promulgation of the RFC, it is not difficult to
witness the manifestation of this problem in different decisions of courts.

Therefore, the main objective of this thesis is to critically scrutinize and relate
the analysis of the law with the practice. Accordingly it is attempted to find out
whether there is any kinds of gap between requirements of the laws and the
practice. An assessment is also made as to the specific implication of the
diversion of the practice from the law, if any. As of it main concern all
necessary efforts will be exerted to pin point, if the existing method of proof of
existence of marriage has any impact on the society.


The thesis has comprised of three parts in the first part an attempt is made to
discuss the general overview and definition of marriage from different
perspectives, like from the point of view of custom and religions towards
marriage.

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Part two is devoted to discuss about proof of possession of status of spouses. It
primarily deals with the law and the practice in respect of the definition given
to proof of possession of status of spouses.

The last part dedicated to give much emphasis on the potential implication of
absence of common understanding among judges as to the legality of proof of
marriage by possession of status of spouses. Significantly it tries to show the
socio-economic and legal implications especially on women and the role of non-
governmental organization is also be part and parcel of this chapter; more
specifically we will see the role and contribution of Ethiopian Women Lawyers
Association in combating these possible implications.

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Part-2 Concept and Definition of Marriage
1.1 General Overview

Marriage is the most indispensable and essential mechanism of establishing
family relationship. It plays crucial role in a society. That is why some
personalities count family as a basic building of a society.1 Thus there is a
ringed and unabridged chain between marriage, family, society and nation.
Hence had it not been for the coming into being of marriage, it would have been
a dream to talk and even visualize the existence of the off springs i.e. family,
society and a nation in its proper sense.

This is evident by virtue of the fact that marriage has been accorded due
attention by the clear promulgation of several proclamations including the
constitution which is the supreme law of the land. The FDRE constitution goes
on to emphasize the aforementioned fact in the following manner “men and
women, without any distinction as to race, nation, nationality or religion, who
have attained marriageable age as define by law, have the right to marry and
found a family…”2

Suffice it to say the Revised Family and Code (here in after called as RFC) with
the special task of regulating family and marriage related matters through
incorporating detailed provision strengthen the position of the Constitution.
For Planiol “marriage is nothing else but the sexual union of man and woman;
elevated to the dignity of contract by law… The canon law has always adhered

1 M. Planiol and G. Ripert, (1959) Treatise on the Civil Law, (12thed, 1939)
(Translations by Louisiana State Law Institute, P. 386.
2 Article 34(1) The Constitution of the Federal Democratic Republic of Ethiopia. Neg.
Gaz. Year 1st No. 1
1

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to the maxim that the consummation of marriage (copula carnalis) was of its
essence. A marriage not followed by consummation was null’’.3
1.2 Customary Definition of Marriage
Because of the nature of custom It is very difficult to find a single and specific
customary definition of marriage which could be equally and commonly
applicable in every society. Of the aforementioned fact marriage as a concept
does not have a similar customary definition in different societies.4
It may also have various definitions in a single country but diversified society
such as the Ethiopian one.5 Taking those Africans who have adopted Islam are
of course limited to four wives and those who have adopted Christianity are
required to be monogamous.”6 The RFC recognizes marriage concluded
according to custom or religion and it excludes same sex marriage.7

1.3 Religious Definition of Marriage
The Holy Bible which consists of basic governing commandments and religious
norms puts marriage as a life commitment between a man and a woman in the
following manner “Christian marriage is a permanent, committed relationship
and that a man will leave his father and mother, be forever united to his wife.
The two shall become one no longer two, but one in.”8 Thus, strictly speaking,
bigamy, polygamy and divorce are out-ruled on Christianity. The position held
by Islam is, “marriage is an agreement between husband and wife which must
be reduced to writing, they should agree in lawful manner”9 Marriage here is

3 M.planiol supra at note 1 p.415
4 Alemayehu kifle,Dr.kifle Tadesse, Tesfay H/Mariam and Cap.Tilahun Mekonen, Law
and justice, journal law of the supreme court Vol.1 No.2(1998) pp11-12
5 Aberra Jembere, legal history of Ethiopia,1434-1974(1998),p.76
6 Commissioner of Inquiry Act of Kenya, Report of the Commission on the Law of
Marriage, (1968), P. 21
7 .supra at note 1.Art.34(4)
8 Records’…World Bible School ,Holy Bible, Exodus 20:14,17
9 .



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