family law short note.pdf

Family law short note for exit exam Dear readers you are expected to read the provisions of the Family code, which are mentioned under this short note and Provisions that are not mentioned. Since the content of this Note are only the essential pointes that one should have to Know in order to understand the rational behind the Provisions of RFC and foundational concepts of family law. BY: Mikiyas.D Contact at: mickysmart43@gmail,com or +251925503628 Mickysmart short note center Chapter one Deﬁnition and sources of family law What is family? Family is a group of person who are united by marriage, by ﬁliation or even exceptionally by adoption. Family is considered as a social group characterized by common residence, economic cooperation and reproduction. Q. What are the common forms of family? From the above deﬁnition family can be classiﬁed into; a. Nuclear family: consist of a married man and women with their offspring's, from which more complex familial forms are compounded. b. Extended family: consists of two or more nuclear families af filiated through the extension of the parent child relationship rather than husband wife relationship. Sources Of Family Relationships There are commonly three sources; A. Relationship by consanguinity: it results from birth (relation between son and father, between grandson and grand father) or those who descended from common ancestors (such as two brothers or two cousins) Q. What are the forms of consanguinity relationship? There are two forms;  Direct line relation: serious of relatives descended from each other form what is called a straight line.  Collateral line relation: a relationship which unites two relatives descended from common ancestor. Q. how we can determine the degree of relationship in cases of collateral relationship? There are two modes of calculation: 1. Civil law legal system; just count the number of generations in the two line by departing from the common ancestor and by adding the two serious of degrees. 2. Canon law: the generation are counted in one side only, thus;  If the two lines are equal take the one side only and count as one generation  If the lines are not equal just take the longest line and leave the short line. B. Relation by Aﬃnity: is created as a result of marriage. Thus;  The women who marries become the daughter in law (by marriage) of the father and mother of the husband and  The husband become the son in law to the mother and mother of the wife. C. Relation by adoption: created as a result of a special contract between the adopter and the original families of the adopted child. Effects of Family relationship Once the family relationship is created it has three effects; 1. Rights emanating from the relationship: is maintenance (art 198 of RFC) and succession for the relatives. 2. Obligations emanating from the relationship: is alimony for destitute family and custody of child (see art 219 cum 255 of RFC) 3. Incapacity of persons: consists of relation requirement to conclude marriage (see art 32 RFC) and marriage between close relatives are prohibited. CHAPTER TWO Marriage Q. What is marriage? Does Ethiopian laws deﬁne marriage? In Ethiopia marriage is regarded as institution rather than a contract. However there is no legal deﬁnition of marriage under Ethiopian family laws. But the close look at foreign laws set three basic elements of marriage that should be fulﬁlled at least to call it a marriage; a) The marriage should be between man and women (i.e. no homosexual marriage has a legal protection) b) There should be free and full consent in conclusion of marriage by both parties and c) It should last for life time N.B. marriage can be considered as a status or as a contract, i.e.; a) Marriage as status: once the person are concluded a marriage they are subjected to family law, regardless of their intention of volition b) Marriage as contract: once persons are concluded a marriage they are bound by the terms of their marriage contract, concluded based on their intention or volition as long as it does not contravene with the provisions of the law.. Modes of conclusion of marriage Under Ethiopian RFC there are three modes of concluding marriage; A. Civil Marriage: (see art 1(1), and 2 of RFC): when a man and women have appeared before an oﬃcer of civil status for the purpose of concluding marriage and the oﬃcer of civil status accepted their respective consent. Q. What are the requirement to conclude marriage before civil status? The requirements are;  Residence (see art 22)  Giving notice to the oﬃcer (see art 23): to inform the marriage will be concluded without impediment and to notify other persons if they have opposition on the marriage  Publicity (see art 24): for the same purpose above  Solemnization or celebration of marriage (see art 25(1) Q. Is it possible to conclude marriage by proxy or representation? See art 12 of RFC In principle each of the feature spouses are required to appear personally and give their consent to the marriage at the time and place of celebration; However, if one of the parties for serious cause, could not be personally present, marriage by representation may be allowed. Q. If so, what constitutes serious cause mean? The law does not deﬁne what serious cause is, however the practical experience shows that; in case of military work, navy and some times in case of prisoners representation is allowed. B. Religious Marriage (see art 1 and art 3): when a man and women have performed such acts or rites as deemed to constitute a valid marriage by their religion or by one of them. C. Customary Marriage: (see art 1 and 4): custom refers either of; However the civil code exclude  The custom of the community community custom, see art  Custom of both spouse 580  Custom of one of them D. Marriage celebrated abroad (see art 5) There are two essential requirements, in which marriage celebrated abroad shall be; a) Shall fulﬁl the legal requirement of the place of celebration and b) Shall not be against Ethiopian public moral. Essential conditions marriage Period of widowed (see art 16 of RFC) It is the prohibition of women to remarry after 180 days from the dissolution of her marriage. However she may remarry in cases where;  The women give birth to a child after the dissolution of her marriage. Since the child is concaved before the dissolution of marriage  When the woman remarry her former husband: since she resumed he pervious marriage relationship  When she proves by a medical evidence that she is not pregnant. Since the prohibition purpose is to protect the right of children to know his parents, in particular his father  When the court at its own desecration dispenses the women from the period of limitation provided under art 16(1). Q. Why the law set a period of limitation on widowed? To respect the right of children enshrined under FDRE constitution (art 36(c)) and under international convention (UNCRC), which provides that each child has the right to know and be cared for by his/her parent or legal guardian And according to Art 128 of RFC presumption of the duration of pregnancy is provided. Thus, so as keep the presumption in a proper manner it is better to set limitation on remarriage of women's, not to create doubts as to the proof of paternity. Opposition to Marriage Q. For whom the opposition should be submitted? See art 19 The Amharic version provide the opposition to be summited to the one that celebrate the marriage (it could be oﬃcer of civil status, religious or customary celebration of marriage) On the other hand the English version limits to the oﬃce of civil status (i.e. it exclude religious and customary marriage) Q. Which shall prevail? The Amharic version shall prevail for two reason; a) so as to include all modes of marriage celebration b) Since the Amharic version prevail as provided under art 2(4) of Proc. 3/95 Q. If so who may oppose? See art 18 Opposition by whom made? Consanguinity and aﬃnity Age (see art 18(1) By; By; 1. Ascendant of feature spouse 1. Parent of the child 2. Ascendant of one of the Bigamy Judicial interdiction 2. Public prosecutor spouse By; By; 3. Any interested person (who 3. Brothers or sisters of the 1. prior/ former spouse and 1. Guardian has a vested interest or affected future spouse 2. Public prosecutor Public prosecutor by the conclusion of the 4. Public prosecutor marriage e.g. NGOs) N.B. Ethiopian family law only recognize voidable marriages only, thus the defective marriage has the effect of annulment only. What is more, Ethiopian civil code provide both civil and criminal punishments for the violation of essential conditions of marriage, Whereas The RFC provides only the civil sanctions. However, it does not mean the criminal code provisions are not applicable to such effect of violations. Effects of Violation of Essential Conditions of Marriage Effect of violation of essential conditions of marriage Impediment of celebration of marriage Preventing the conclusion of marriage Absolute impediment It has only prohibitory effects, but does it result in invalidation of marriage. However, Consanguinity and af fin ity are the principal it may be validated after the defect of the ex a mp le, t h a t mea n s t h e ma r r ia g e is not affect subsequent validity; violation is corrected through time known as prohibited totally and cannot be validated in It mainly includes art 25(3), 25(6), 37 validation. any means as long as it contravene art 8 and -39 It includes art 31(2), 33-36 9 of RFC. Chapter Three Effects of Marriage Q. Does all forms of marriage has the same effects? Irrespective of the modes of calibration, all forms of marriage has the same effect. (see art 40) moreover it have the same effect irrespective of the existence or non existence of consummation of marriage (see art 41) Q. Is it possible to conclude a pre martial agreement? Premarital agreement also known as ante nuptial or pre nuptial agreement, which set the rights of the parties during divorce or if one of them dies. Ethiopian law also allows the future spouses to sign the contract of marriage before or during the conclusion of marriage. (see art 42(1) Q. What is the difference between certiﬁcate of marriage and contract of marriage? a. Certiﬁcate of marriage: is the document to be drawn by the oﬃcer of civil status which shows the conclusion of marriage of the parties b. Contract of marriage; is a contract which is signed by the future spouses or spouses before or during the conclusion of marriage respectively, for the purpose of regulating their personal relations and pecuniary effect of their marriage. Q. If so, when the law intervene to govern the pecuniary and personal relation of spouses? See art 48 The law intervene or the provisions of RFC applicable when;  Spouses does not conclude marriage contract  In case when there is a contract of marriage, but which is invalid by the law Q. If so what is contract of marriage in general? Contract of marriage Forms of the contract( art 44-45) a. It shall be in written form Subject matter of the contract b. There shall be four witness a. Pecuniary matters (art 42(1) (two for husband and two for b. Personal matters (42(2) wife) c. Shall be deposited in the court or in oﬃce of civil status (however, only for informing third party they are married or to make the marriage oﬃcial, but the non compliance of deposition does not affect the validity of the contract.) Limitation on freedom of contract Capacity (art 43) a. It shall not contravene mandatory a. Judicially interdicted person: provisions of the law (art 42(3) shall himself conclude the contract plus shall be b. It shall not impose obligations on approved by the court third parties (art 46(1) b. Legally interdicted person: always capable of concluding contract of marriage Personal Effect of contract Are obligation as a result of the status of spouses; that includes; a) Respect, support and assistance (art 49): this duty shall be observed irrespective of the health of the spouses b) Family management (art 50): based on the equal right of men and women in marriage relationship under FDRE constitution art 34(1). c) Cohabitation (53) d) Duty of ﬁdelity (art 56): is not a duty of mere morality, rather it is sanctioned by positive law. Pecuniary effect of marriage Q. Why we needs to know who own the property? The major reasons are; i. in case of bankruptcy whose spouse property shall be subject to liability ii. In case of sale to know whether the other spouse consented iii. In case of purchasing to know who is the owner of the property and’ iv. In case of succession Q. What are the major pecuniary effect of marriage? a) Personal property: marriage results in the uniﬁcation of the spouses and not the uniﬁcation of property, thus the law recognize personal property in marriage, when the either of the spouse acquire the property;  without onerous title (art 57) ; before or after the marriage by donation or succession or  with onerous title (art 58); acquired after the marriage due  by exchange of property owned personally; or  with money owned personally or  derived from the sale of property owned personally N.B. in principle properties acquired by onerous title after marriage through the exchange of personal property will remain to be personal property of the spouse. But it shall be declared by the court to such effect up on the request of the owner of the property (see art 58(2) b) Common property of spouses; which includes; i. income of spouses: (art 62) which derived from three sources, from personal effort; common property and from personal property If so, does pension is common or personal property of spouses? There are arguments for and against; 1. FFIC: reject the claim on the ground that it is personal nature of the pension payment, on the ground that, the employee contributes from his own personal income and due to the deposits of the employer 2. However, the opponents argues that in contributory forms pension payment the employee contribute while in marriage from the common property of spouses. Thus it is common property. ii. Property acquired by onerous title (art 62 (2) iii. Property donated or bequeathed conjointly to the spouses( art 62 (3), unless otherwise the will or the donation contract provide for either of the spouse. Q. Can spouse raise personal properties as a defense against third parties? NO! it can be raised only when the third party knew of should have known such fact (art 63) N.B. in case where the house is constructed on the land acquired by either of the spouse, but the house is f inished during the marriage it shall be regarded as the common property of the spouses for the following three reasons; a) Currently the land is under the ownership of the state and peoples of Ethiopia b) The contribution to ﬁnish the building is during marriage from the common property and c) Since the house has full forms and its ﬁnishing is during marriage relationship c) Management of personal and common properties of spouse Q. Can spouse represent or conclude a contract of agency between them for the administration of their property? Yes! But the contract of agency entered between the spouses for the administration of personal property of one of them will not require , unlike other contracts, the approval of the court. It is because of the special feature of agency contract in which the principal spouse can takeaway the authority of agent at any time. Thus, art 73 shall not be extend to art 61 N.B. unlike art 1808 (1) of the civil code under art 69 of the RFC the spouse without whose consent the contract was entered to the request for the invalidation of for the contract. d) Debts of spouses (art 70 & 71) Debts arises from;  personal debt (see art 70(1)  Debt in the interest of household (70(2) and 71 Q. What if the personal debt of one spouse is recovered from the common property of the spouse, but what if the marriage is dissolved? It falls under art 87, in which the other spouse shall have the opportunity to claim the recovered amount of money during the division of the property of the spouse due to the dissolution of marriage. Chapter Four Proof of Marriage One thing that should be noted that in here is the effect of marriage begins at the time of conclusion of marriage and not at the time of the issuance of marriage certiﬁcate. Since the law accommodates a situation in which the certiﬁcate might be issued at the latter time. See the registration of marriage (art 28-30) Q. What are the major modes of proof of marriage? Proof marriage Possession of status of spouse (art 95-97) a. It is employed in the absence of the certif icate of marriage (if Certiﬁcate of marriage (art 94) destroyed or in whatever reason lost) a. In principle the marriage shall be proved by the certiﬁcate of What are the elements of possession of status? marriage 1. When they mutually consider themselves and live as spouses b. It shall serve for all, i.e. both for the spouse and to the children, who may beneﬁt from adducing the certiﬁcate of marriage. 2. When they are considered and treated as such by their family and community Q. What to proof? There are two opposing positions? A. Proof only elements of art 96: if one alleges the existence of marriage is allowed to proof it by possession of status he needs to prove two facts; i. Whether a man and women treat and live each other as husband and wife ii. How the external community and families of the alleged spouse relationship to be a marriage and treat the two as husband and wife. B. Proof the celebration of marriage plus elements of art 96: the parties have to show that the marriage was concluded following one of the three nodes of celebration of marriage (be it religious, customary and before of fice of civil status), hence the basic issue should not about the existence and non existence of the possession of status of spouses. N.B. the second argument is more plausible and sound. Chapter ﬁve Dissolution of Marriage Dissolution marriage By operation of law (art 75 (a and b) Includes; a. Death or declaration of absence b. Violation of essential condition of By petition of one spouse (art marriage (75 (b) By acts of spouse 76(b) by divorce By mutual consent (76(a) Dissolution of marriage by Divorce Q. Which approach's of divorce of marriage is adopted in Ethiopia? There are commonly two approaches in various legal system for dissolution marriage by divorce; a) Consensual or fault based: it is based on the application of both spouse for dissolution of marriage by divorce. (few and old legal systems adopted this approach) b) Non-fault based: either partner can end the marriage simply by asserting that the marriage has broken down. (most legal system including RFC and regional family laws of Ethiopia adopted this approach) Q. What are the major justiﬁcations and arguments on the above approaches? The major arguments are; A. Empty shell: it has been maintained that if non fault based approach is adopted there is little value in forcing the couple to stay married. B. The right to divorce: from the human right perspective, forcing someone to remain married against his wish violation of their right to marry or the right to family life. C. Bitterness: arises from the fault based approach, in which by focusing on the spouses mind in the past and the unhappiness of the marriage and making this in public exacerbate the anger and frustration they feel towards each other. D. The impossibility of allocating blame: it is diﬃcult in fault based approach to determine who is at a fault. Since the only witnesses are the spouses themselves. Q. Why RFC adopted the non fault based approach in cases of divorce in Ethiopia? During the draft of RFC there are various negative impacts of fault based approaches are identiﬁed including;  Like reduction from the common property of the spouse at a fault as punishment and  Long litigations and impossibility of allocating blame On the other hand, others were arguing that the law should provide for simple and grave grounds for divorce. Thus, to strike a balance between the two opposing views, the RFC provides both devoice by mutual consent (not obliged to state the reason for divorce) and by petition (may state or may not state the reason for divorce). See art 77-84 Q. Is arbitration in family laws of Ethiopia is compulsory or optional? It should be noted that arbitration under the civil code, unlike the RFC, is compulsory. Provided that; under RFC it is optional see art 82(2) Q. Why compulsory under the civil code of Ethiopia? The major justiﬁcations are; a) It is well established and respectable tradition worth preserving for purposes of solving family conﬂicts b) Arbitrators are more qualiﬁed to settle family issues more than judges of regular courts c) It reduce the burden of courts and the costs of the spouses. Q. What are the common features of arbitration under Ethiopian civil code? a) Compulsory b) It is not before full time arbitrators: can be by attendant of celebration of marriage, by court or appointed other arbitrator c) It speedy under certain circumstance d) Depends more on the substantive law rather than the agreement of spouses e) Reconciliation is the part and parcel of family arbitration Q. What is the effects of married persons live separately for a long period of time without divorce? Does it have on the pecuniary effect of marriage? There are two positions on this regard; i. Some advocate for strict interpretation of the law to the extent that the marriage will be considered to be still intact even if the spouses were actually separated for a long time and hence the property acquired after separation will still constitute common property ii. Others contend that, when the spouse have lived separately for a long period of time there will not be common property acquired after separation The decision of the cassation bench on the case of W/ro Shewaye Tesema vs. w/ro Sara Lenane, f ile no. 20938, holds that the fact that the spouses live separately for the long period off time will be a ground to presume that the marriage has been dissolved, even if the divorce is not pronounced by the court. Q. Can one of the spouse request divorce through proxy? The RFC does not give response for this directly. However as we can be seen from the divorce procedure it self, one of the obligation of the court is to speak to the spouse either separately or jointly. (i.e. personally) However, this does not mean whenever suf ficient or serious causes are existed separation by proxy is not possible. Provided that, the spouse may request and effect divorce through proxy in exceptional circumstances, as long as the cause of assigning the proxy shows the clear intention of the spouse for divorce (e.g. in one case the plaintiff is allowed for divorce by proxy by sending letter through ministry of foreign affair by stating his intention to divorce) Q. As we discuses before Ethiopian family law adopted non fault based approach of divorce, does it mean faults of the parties is irrelevant at all? NO! the fault of the reason for divorce is relevant to determine the amount of damage cause to one of the spouse due to the acts of the other spouse in division of their property. (see art 84) Q. Which forms of damages or compensation is covered under art 84? The type of compensation referred under art 84 is both material and moral. When the law provides or generally refers to damage instead of speciﬁcally providing its nature, it implies both types of damage are envisaged. Q. If so what should be the amount of compensation under art 84? There exist two positions; a) Since it is only refers to moral damage we shall apply only art 2116(3) of the civil code b) Others holds that discretion shall be provided to the court to determine the amount. Effects of Dissolution of marriage Effects of dissolution of marriage Child custody (art 113 of RFC cum art 36 of FDRE cons.) Liquidation of pecuniary - See also art 3 of UNCRC, art 5(b) & 16(1) (d) of CEDAW relations (art 86-89) Partition of common property (art - It should be a primary consideration, but not the sole 90-91) consideration in relation to other three principles of UNCRC - The short term and long term interest of the child shall be taken in to consideration -The view of the child shall be taken based on; -The age of the child and -The preference of the child - In case of divorce in principle spouses shall agree to the custody of their child, but if they fail to agree the court will determine (art Q. What does tender year principle in case of child custody? It is a principle that children under the age of ﬁve will be placed with their mother unless there is a reason for not doing so. The law in here give priority for mothers because children under the age of ﬁve years require the care and protection of their mother than their father. However, if there is any reason in which the mother should not be granted custody, the children may be placed with their father even if they are at the tender age. The causes for placing the custody child with his father even if at the tender age could be, if the mother suffer from a disease as a result of she cannot take care of the child. Q. What is the unique feature of adjudication of case of the best interest of the child from other form of adjudication? It has mainly two unique features; a) Person oriented: most legal rules require a determination of the fact relating to some event and are thus, act oriented. But child custody determination under the best interest of the child in contrast, are person oriented, making relevant, the attitudes, dispositions, capacities and short coming of each parent. b) Future and individual predictions: most adjudication require determination of the past acts and facts. However, child custody determination under the best interest of the child requires individualized predictions, with whom will this child be better off in the years to come. Chapter Six Irregular Union Preliminary introductions In Ethiopia, the beginning of irregular union is not a recent phenomenon, that is why the 1960 civil code, the RFC and regional family laws use the term irregular union. (see art 788-721), (art 18 of RFC) and 9relevant provisions of regional family laws. Q. What is irregular union? As black law dictionary deﬁnes; irregular union means to live together as husband and wife; the mutual assumption of those marital rights, durations and obligations which are usually manifested by married people, including, but not necessarily dependent on sexual relation. Q. If so, what are the essential deﬁnitional elements of irregular union? According to art 708 and 709 of the civil code as well as based on art 98 and 99 of RFC the major def in itional elements are; i. It is necessary and suf ficient in order to have irregular union that the behavior of the man and women be analogous to that of married women ii. They need not represent themselves to third parties as being married and iii. The mere fact that a man and women keep up sexual relation between them, even if repeatedly and notoriously, is not suﬃcient by itself to constitute irregular union. Q. But what are the reasons for persons living in irregular union without concluding marriage? The major cases are;  absence of knowledge on the legal consequence of such relations  Beliefs in the irregular union as marriage  No costly legal procedures to establish and terminate such relationship  Have less expenses for its celebration Q. Is there any similarity between irregular union and marriage? There are mainly two common features;  The actual domestic cohabitation based on love and affection  The running of a common household based on joint management, by taking in to consideration the common destiny of the cohabitant. Q. Why the law provide protection for irregular union? The major reasons are;  To protect public morality  For family security (e.g. common property)  Ensuring family obligation (e.g. joint management of the household)  Protection of the interest of the child born out of the irregular union (like paternity issue..) Q. As we seen before the law give protection for irregular union; is there essential requirements to valid irregular union formation under RFC? The RFC is silent on this issue. However, it is not possible to maintain that any one under any condition whatsoever can form irregular union, as she or he pleases, with another opposite sex. Provided that, the conditions that need to be satisﬁed in marriage must be satisﬁed or applicable in an irregular union. Thus, the major essential requirement for valid irregular union relation are;  Consent  Capacity  Prohibited degrees  Other impediments (like remarriage, when the beginning of the irregular union is deﬁnite and ascertainable and the issues of bigamy) Q, What are the legal effects of irregular union? The legal effects of irregular union Filiation (art 104) Absence of bond of aﬃnity (art 100) Debts of man and Community property a. There is no any bond of af fin ity Duty to contribute to the common women (102(3) (art 102(1) relations exists between the man expense(art 101) and the relative of the women and vice versa. a. Expenses to the interest of the partners of the household, but not b. Under Sub 2 the prohibition is for expense for one of the partners policy reason (see cum art 9) only Proof of irregular union Q. What is possession of status? What are the deﬁnitional element of possession of status in case of irregular union? Possession of status contain some three facts; i. Nomen: is the fact of having the name which indicates the status ii. Tractus: is the fact of being generally reputed as having the status by all persons with whom family or business relations took place and iii. Fama: is the fact of being generally recognized and treated by the public or the community as having the status Q. If so, what is possession of status in cases of irregular union under RFC? The RFC under art 106 provide the essential elements of possession of status; a) The fact that the man and women behaved as married people b) They are considered as married people by their families c) The fact that both are considered as married person by the community. Q. If so, What we needs to prove? The wetness needs to proof three essential facts; i. The person behaved like married people: they have to testify that the man and women conducted themselves and lives together like married people sharing the same house and exchanging love, loyalty and respect for each other. ii. Treated as married person by their family and relatives: e.g. when the witnessed testify they have seen the families of the partners visit them during holydays and in times of problem and iii. Persons lives as husband and wife openly like husband and wife: testify their recognition on such status by the community. Q. What is the difference between possession of status of spouse and possession of status of persons? Possession of status of spouse Possession of status of persons For married persons For irregular union You are expected to prove the mutual treatment of husband You have to prove only the act or the persons behave as of wife as wife and husband plus (cum) the mode of married person plus (cum) recognition of such status by the celebration of marriage. family and the community. It is applicable in default of certiﬁcate of marriage, thus it is Since there no marriage there is no certiﬁcate of marriage. not the primary modes of prooﬁng marriage. Thus, it is the primary mode of proof N.B. see art 105 on the issue of termination of irregular union. Chapter Seven Filiation A. Maternal ﬁliation The maternal ﬁliation is the basis for the whole consanguine relationship. Since the relation ship of kinship by blood emanates from this very relationship. Q. Why we needs to prove maternal ﬁliation? Maternal ﬁliation is essential for; (see art 740 of civil code and art 125(1) of RFC) i. Presumption of paternity: since it follows from maternal ﬁliation (art 125(1) ii. For establishment of paternity through judicial declaration( see art 143) iii. For establishment of paternity through acknowledgment Q. When maternal ﬁliation is said to be exist? According to art 124 of the RFC maternal ﬁliation results from the sole fact that the women has given birth to the child. Thus, a women who is not in a position of proving that she did give birth to a certain child will not be able to do it by other means such as acknowledgement. Q. Is there any different effects of child born in illegal manner or in lawful manner? The maternal f iliation is established from the sole fact of birth irrespective of the types of relationship that resulted in the conception of the child. Provided that, the fact that the child was born in an illicit relationship ( child born as a result of adultery or incest) cannot in anyway affect the establishment of maternal ﬁliation. Q. What elements must be fulﬁlled to say that, there exists the fact of birth for the establishment of maternal ﬁliation? Maternal ﬁliation is said to be established if it is proved that; i. The alleged mother has given birth to a child when the child in question was born and ii. it is this particular child whom the mother delivered to at that time. Q. How can the maternal f iliation is established in case of artif icial intimation? Who is the mother of the child whether the hostess or the contributor of the ovum? To start with birth is not def ined under Ethiopian law. Thus, we have to see the ordinary meaning of birth. Accordingly, birth means the complete excursion of a new born baby from the mothers womb. Thus, birth presuppose the carriage of the fetus in a womb of women for a longer of shorter period of time. We may accordingly maintain that in Ethiopia it is the one who bore the child that may be considered to be the mother. Therefore, we can speak of birth only in relation to the hostess. Q. Is it possible to avoid by agreement the establishment of ﬁliation? The rules on the establishment of f iliation can not be avoided by the agreement. According to art 123 o the RFC there is no provision that permits an agreement in derogation of the establishment of maternal ﬁliation. However, in cases of paternal f iliation, whereby the presumed fathers of the child are allowed to settle by agreement the possible conf lict of paternity or a father is allowed to assign his paternity to a person declaring to be the father (see art 146 cum 149). Contestation of maternal ﬁliation Maternal f iliation , the establishment of which requires the sole fact of birth, can be contested at any time by any interested person (see art 163). Q. If so, what are the essential elements that the petitioner is required to show? The petitioner must show that either of the elements necessary for the establishment of maternal f iliation is missing. They are two; a) That the women was not conﬁned at the time when the child was born and/or b) Even if the women was conﬁned at the time when the child was born, the child whom she delivered is not the one whose status is in question. The plaintiff may bring any evidence as no restriction is put as to the evidence that may be advised in connection with the action to contest maternity. N.B. the petitioner shall obtain the permission of the court for petition for the establishment of maternal f iliation. provided that such permission is granted in cases when there are presumptions or indications resulting from concreate facts enabling the court to grant permission. Paternal ﬁliation (art 7 of UNCRC) Q. What Are The Major Modes Of Ascertainment Of Paternity? There are three modes; i. Presumption of paternity ii. Acknowledgement iii. Judicial declaration A. Presumption of Paternity (art 12-30) Q. What are the major elements of presumption of paternity? The basic elements are; 1. The existence of legally prescribed union: paternal ﬁliation is established if at the time of conception or birth of the child the mother had relation proved by the law (marriage or irregular union) with a certain man. See art 126 cum 130 2. Born or conception within legally provided union (pate rest quem nuptiae demonstrate): the father is whom the marriage indicates. Thus, the child must be either born or conceived in wedlock. Q. Is there cohabitation and ﬁdelity obligation in an irregular union as in marriage? As far as cohabitation concerned, it is diﬃcult to maintain that there is irregular union without cohabitation. Since living together as husband and wife is the crux of irregular union. As far as the ﬁdelity concerned, the law no where states that partners in an irregular union are duty to bound observe the duty of ﬁdelity. Despite this, it may be maintained that the duty of ﬁdelity is imposed up on the partners in an irregular union by analogy. However, the analogy as regard to the duty of ﬁdelity become senseless when it is seen in light of the criminal code of Ethiopia.. Since art 652(1) of the code limits the criminal liabilities of person committed adultery only in marriage. It means persons in irregular union may not institute criminal action under this provision. Therefore, even though the presumption of paternity for children born or conceived in wedlock could predominantly be justif ied on the ground of the duty of f id elity, its application to irregular union must be traced through imposing sanction by the presumption of paternity. Acknowledgement of paternity Scope of acknowledgment It is applicable only when the father of the child could not be ascertained by applying the presumption of paternity (art 131) It is important fro children born or conceived out of the legally provided unions in Ethiopia. Literally, it refers to children conceived and born out of a legally provided union and exclude children that were conceived or born in wedlock or an irregular union. Apparently disowned children seem to have been excluded from the voluntary declaration of paternity. Q. Is it possible to acknowledge incestuous children? Acknowledgement of adulterine and incestuous children is not possible in some legal system. The rational behind are; i. To the protection and stability of the legitimate family relationship ii. Is considered as an assault to the legitimate family iii. Moral reasons iv. To hide the facts of adultery and incest so that scandal could be avoided Under the Ethiopian legal system as of the adoption of the 1960 civil code since there is no clear provision of law which prevents children born adulterous and incestuous relationship from being acknowledged. That, does not seem to be the policy of Ethiopia since Ethiopia is the signatory of international standards and governance based on democratic constitution. Form of acknowledgement A man may make acknowledgement of paternity by; a) A declaration made before an oﬃcer of civil status; it shall be reduced in to written from b) A will made in writing; by fulﬁlling the formality requirements, in particular holographic and public wills(cum art 889-891) and c) A document attested by a competent authority Acknowledgement to be made by whom As a matter of principle, provide that acknowledgement is to be made personally by the alleged father of the child. This must be done by the father even if the father is a minor. Acknowledgement ay be made by an agent when such agent is specially appointed fro this purpose by the special power of attorney, which must be approved by the court. Judicially interdicted person have the capacity to make acknowledgement personally Acknowledgement can also be made by representation up on the permission of the court. (art 134) When the father of the child is dead or is not in a position of manifesting his will acknowledgement may be made other person. Acceptance of acknowledgement by who made Non revocability of acknowledgment According to art 140 (2) of the RFC a minor who has acknowledged a child may revoke such acknowledgement for so long as he is incapable and within one year following the cessation of his incapacity, unless his guardian consented to the acknowledgement. Even in this case revocation is personal to the minor since the law provides that revocation may not be made by his legal representative nor by his heirs. Annulment of acknowledgment As a rule the ground of annulment is conﬁned only to the violence according to art 141(1), provided that acknowledgment 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 the acknowledgment. (art 141(2) Several acknowledgement According to art 142 naturally a child cannot be attributed to two or more persons for the child has only one biological father, that is why several acknowledgment is prohibited. Thus, no other acknowledgment of child by another man shall be permitted unless, the f irst acknowledgment has been annulled. Judicial declaration of paternity (art 143-145) Q. When this mode of proof of paternity is applicable? Under this mode of paternity, a child who does not have a father either through the operation of the presumption of paternity or by acknowledgment can have father only if the court declare a certain man to be the father The court makes such declaration where it is satisﬁed that one of the grounds of which justify judicial declaration of paternity is found (see art 143) N.B. the court shall declare the paternity after proof of the facts mentioned under art 143 even if the defendant was acquitted by the criminal court. Q. When the action for declaration of paternity to be instituted? According the civil code under art 752(2) the judicial declaration of paternity may not be instituted two years after the birth of the child or after the sentence of a criminal court in regard to abduction or rape. However, the RFC is silent in this regard. Regulation of conﬂict of paternity Q. On which mode of proof of paternity regulation of conﬂict may arise? the regulation of paternity is applicable only when a child is attributed to two or more persons by the presumption of paternity. But it does not applicable in case of judicial declaration or acknowledgment. Q. If so, when the conﬂict of paternity is said to be arisen? The conf lict arises when the mother has a relation (marriage or irregular union) provided by the law with two or more person and the child could simultaneously be attributed to the person in each relation. Q. If so , what are the options provided by RFC to regulate the conﬂict of paternity? There are two options are provided by the RFC; a) Agreement between fathers in conf lict; the person to whom paternity of the child is attributed may contractually agree to forfeit his paternity. Such agreement shall be attested by 3 witnesses and approved by the court and the mother must be heard in person except in cases of force majeure (see art 146 & 147) b) Legal presumption: (148) failing to regulate paternity by agreement, the legal presumption will be applicable. Q. Is it possible to revoke a conﬂict of paternity already regulated? According to art 152 of RFC the regulation of paternity, if validly made is irrevocable. This is done to keep o the status of the child undisturbed. Although, revocation of such agreement either unilaterally or by court order is prohibited by art 152 of the RFC with no exception, the agreement on the assignment of paternity may be annulled by the court on the ground of violence (art 153(1). The invalidation of the agreement has the effect of restoring the position that had before the conclusion of the agreement. N.B. invalidation of the agreement for regulating paternity on the ground of the error or fraud is stricter than in the general contract. Provided that fraud or error, unlike duress is not by itself suf ficient to invalidate the agreement, so he shall in addition decisively prove that the child was not conceived of him (art 153(2) So the decisive proof that the child was not conceived of either party will have the effect of annulling the agreement and no more. It will not go beyond that and operate to rebut the presumption laydown by the law. (see art 148) see art 151 cum 150 with regard to the formality requirement of agreement for regulation off paternity. Disowning Q. What is disowning? The term is applied to the act the purpose of which is to wipe out the presumption of paternity established against the husband, when he cannot be the child's father. It is an action by which the husband or the man in an irregular union tries to disclaim the presumption of paternity established against him, if he beliefs that he cannot be the father. Under Ethiopian family law there is no deﬁnition to the term. Q. What is the difference between disowning and other modes of contesting legitimacy? a. Suit of legitimacy: is a status of a child being born in a leally recognized union or within a competent time after its termination under circumstances that the presumptive father can be the father. And its contestation involves contesting that a certain child is not his, because its birth or conception of the child did not take place during the subsistence of a relationship that is legally recognized or because of non existence of such relationship at all. (e.g. contestation of maternity as per art 163-66) b. Suit of Disowning; one is specially contesting that the presumption of paternity taken against him is contrary to the truth. Here the person is contesting his paternity as it is the only ways of contesting paternity (see art 167). Thus, an action for disowning is brought to disclaim the legitimacy of the children who are under the protection of the legal presumption that they are the children of the person contesting. Q. What should be proved in order to contest the presumption that the child was born by a married women? It is based on the following three stages; a) A contestant may prove decisively that the mother did not have intercourse with him at the time of the child conception b) If the presumption of intercourse is not disproved the contestant may decisively prove that it is absolutely impossible for the child to have been produced by intercourse between the mother and him (art 170) c) The presumed father could produce any facts to disprove his paternity if the maternal ﬁliation is established by the action to claim the status. (art 168, 170, 176(2) Proof of ﬁliation Q. What is proof of ﬁliation? Proof of ﬁliation is not establishment of ﬁliation but it is rather proving the existence of such fact where such fact is contested by interested third parties. In this regard, proof of ﬁliation pertains to proving that a child is the son or daughter of certain man or women. Proof by record of birth and possession of status Proof of ﬁliation By record of birth (see art 154) it is the primary means of proof Possession of status in default of record of birth Q. Can an individual be allowed to prove ﬁliation by possession of status by the mere fact that s/he does not produce the record of birth? No! this cannot be the case. before one resorts to prove his case by possession of status, one should convince the court that the birth certiﬁcate was not issued from the outset or birth certiﬁcate was lost, destroyed or stolen. Q. What facts should be proved by the witnesses? Art 156 of the RFC provides that a person has the possession of status of a child when the child is treated by the community being the child of such man or women. In order to arrive at just result the witness should testify the identity of the mother and the father and the fact that a certain child was born to those individual when the parents were in a conjugal life or in or regular union or the child was born to these individual even out of such union. However, there is no consensus among our judges as regards to the nature of ﬁliation by possession of status. N.B. Art 157(1) of the RFC provides that where the possession of status of child is proved in accordance with the preceding article , the court shall take the presumption that the child is born od such man or women. This presumption is provided by the law for the interest of the child since the standard of proof is light. Chapter Eight Adoption Q. What is adoption? It is the creation of parent child relationship by judicial order between two parties who usually are unrelated. The Ethiopian civil code and RFC def ine adoption as a bond of f iliation created artif icially by a contract of adoption between the adopter and the adopted child. Essential Conditions And Effects Of Adoption Q. Which laws govern adoption of child in Ethiopia in general? Adoption in Ethiopia both in country and inter country is governed by international laws and conventions to which Ethiopia is the signatory and by its national laws particularly the RFC and regional family laws. Q. What are the essential conditions for establishing valid adoption? The essential conditions are; a. Capacity of the adopter: in which the civil code provided that only a person attain majority can adopt (art 797), however, under RFC the minimum age to adopt child is 25 years. At the vein if the adoption is take place by the spouse at least one of them shall be 25 years old. (art 184). b. Capacity of adopted child: With regard to the adopted child he/she shall not attain the age of majority. c. Adoption by the spouse; if the adopter is married the child is adopted by spouses jointly as per art 180 of RFC. But this does not apply where a person adopts the child of his spouse and one of the spouse is not in a position to manifest her will. d. Consent of the parent: see art 190-193, in which consent is mandatory. Q. Is there any effect on the adopted child as a result of children of the adopter? As per art 188 the existence of children of the adopter shall not constitute an obstacle for the adoption. however, the court shall take in to consideration even if the adoption is successfully completed, the potential effects of the existence of the adopter child on the well being and interest of the adopted child. (art 188(2) Q. Is it possible to give children fro adoption even if the original parent of the child has the capacity to rear the child? Under Ethiopian family law it is possible to conclude that adoption is possible even if the natural parents are capable of rearing the child. However, the UNCRC permits adoption if the child cannot be reared by his families or other alternative methods. It should be reconciled in accordance with the status of international law under FDRE constitution. N.B. in case of adoption the primary obligation of the court is to verify whether the adoption is to the best interest of the child before approving the agreement. (art 194(2) in addition before approving the agreement the court is required to take in to consideration conditions provides under art 194(4). The effects of adoption Effects of adoption Marriage Art 181 provides the adopted child for all Succession (art 836) cum art 183(3) of Right and obligation (see art 198) purposes be deemed to be the child of the RFC adopter, so cannot marry the prohibited degree Inter-country adoption and safeguards to the children Q. When the inter-country adoption is started in Ethiopia? In Ethiopia, the main cause for the start of inter country adoption as an alternative care for orphaned and abandoned children was the 1974/75 draught and famine that resulted in orphaned and abandoned children. Q. What does inter-country adoption means? It refers to an adoption in which the adopter s and the child do not have the same nationality as well as one in which the habitual residence of the adopter and the child country is different. Q. What are the common forms of inter-country adoptions? Nowadays in Ethiopia, there are two kinds of inter-country cases; A. Private inter-country adoption: it is when the biological mother voluntarily relinquishes her children for personal reasons. It may also by both parents and guardians for reason such as lack of means an support. B. Agency inter-country adoption: is the adoption of orphaned and abandoned children or children whose parents are ill and hence have no one else to act on their behalf. Thus, that is thee agency which acts on behalf of the child in case of adoption. Q. Where should be the placement of the child? The UNCRC recognized that inter-country adoption may be considered as an alternative means of the child care, if the child cannot in any suitable manner cared for in the country of origin. That is why art 21 (e) of the UNCRC provides the placement of the child in another country should be carried out by the competent authorities and must not result in ﬁnancial gain for the parties involve. The above principle is conﬁrmed by MoLSA in 1996, art 3 of the directive. Q. If so what are the criteria's in the selection of the adoptive parents? Children are adopted and expatriated where it is veriﬁed that; a) The would be adopters income will enable him to raise a child b) The adopter is healthy, that his social life is not tainted, that he is of a social mind and is not at all addicted to any dangerous drugs c) The adopter have never been convicted of a crime or of being engaged in an illegal activity and d) The written consent of the lawful spouse has been obtained with regard to the adoption Q. What are the major safeguards fro children in inter country adoption? The major safeguards are; i. Follow-up work: done by periodical visits by the expert from competent authority and asses the situation of adopted children in the child custody of residence. ii. The child right to identity and secrecy: (art 8) of UNCRC the right to know the original family of the adopted child vs. the keeping in secret for the adopters the child is adopted one) iii. Prevention of unlawful acts in inter country adoption: include the crime to offer or receive money or any valuable consideration for relinquishing or accepting a child for adoption. Since adoption based on the child need to have a family and not on the economic proﬁt of intermediaries. Q. Is it possible to revoke adoption? If an adoption is approved by the court, as a matter of rule, it is not revocable as clearly provided under art 195(1), however, as a matter of exception it is revocable on grounds provided under sub 2 of the same provision. (see also art 196(1) However the civil code under art 806 provide irrevocable nature of adoption for whatever reason. Unit Nine Obligation to Supply Maintenance Preliminary introduction Obligation emanate from 2 sources, law and contract. The obligation to supply maintenance is grouped under the former one. Thus, persons under such obligation shall perform it, even though they are not consented to that effect Demanding maintenance allowance is not absolute right , rather there are certain limitation provided by the law. Nor it is the obligation to provide for any person demanding it, unless persons listed under art 198. The rational behind such obligation is amoral duty that exist among family members. Q. What are the subject matters of obligations to supply maintenance? According to Art.197 of the RFC, the person who is obliged to supply maintenance is bound to supply to his creditor things that are necessary for the livelihood of the creditor. Which must be given to him based on the social conditions and local custom of the area in which the creditor lives Generally, things that are necessary for the livelihood of the creditor are; the means to feed, lodge, and clothe, to care for his health and education, depending on conditions of the creditor. Q. Who are obliged to supply maintenance and for whom? As provided in Art. 198 of the RFC, a person may be obliged to supply maintenance to his spouse, ascendants, and descendants, his brothers and sisters. Although it is not expressly provided in this article, a person is obliged to supply maintenance to his/her adoptee or adopter as the case may be. According to Art.201 the obligation to supply maintenance shall not exist unless the person who claims its fulﬁllment is in need and not in a state of earning his livelihood by his work. Q. How maintenance should be paid (discuss the mode of payment)? The obligation to supply maintenance shall, as a rule, be fulﬁlled by means of a maintenance allowance paid by the debtor to the creditor for maintenance. The payment could be in kind or in cash. (art 202 and 203) Q. Can a person attach or assign maintenance due to him? 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. Except the one who request previously provides maintenance that should be provided by the person obliged, the person entitled. (the one who previously provide maintenance for the ascendant of the person legally obliged to supply maintenance (like food or medicine), may claim the attachment or assignment of the maintenance) See art 206-207 Q. What if there are several person obliged to supply maintenance? Where several persons are liable to supply maintenance, the creditor may claim maintenance from any one of such persons. Particularly, when all of the debtors have similar relationship with the creditor, the creditor may claim the payment of maintenance from anyone of such debtors (Art. 208) However, the debtor who has paid the allowance shall have recourse against those who have not paid their shares (Art. 209). See also art 210-213) Q. What are the grounds of termination of the obligation to supply maintenance? The major grounds are; i. Agreement of the parties ii. The ability of the creditor to earn his/her livelihood iii. Inability of the debtor to discharge the obligation and iv. Condemnation of creditor (Art. 200 RFC) Chapter Ten Settlement of Disputes Preliminary introduction It is obvious that misunderstandings and disputes arise between spouses or partners in an irregular union. the main thing is resolving such disputes using various dispute settlement mechanisms. These mechanisms are generally divided into two: settlement of disputes by courts and settlement of disputes by out-of-court mechanisms (ADR). Settlement of Disputes by Court Although Art. 118 of the RFC provides that any dispute arising out of marriage or irregular union is to be decided except for deciding divorce, by arbitrators chosen by the spouses, if reconciliation becomes dif ficult to arbitrators or if one of the parties or both of them feel that the way the arbitrators handle the arbitration process is wrong then they may appeal to a court having jurisdiction. The court is duty-bound to give an order regarding the matters to be settled after divorce, i.e., regarding maintenance of the spouses, the custody and maintenance of their children and the management of their property (Read Art. 81 and 82 of the RFC). Q. How family disputes shall be entertained by the court? Therefore, according to Article 110 of RFC, the court sits in camera while consulting with the spouses either jointly or separately about these personal issues. By the same taken, according to Art.111 of the RFC, decision of the court should not incorporate the details of the case but only state the existence of suﬃcient causes for divorce which is meant to maintain reputation of the spouses. Q. Is it compulsory to take family issues to ADR? taking the dispute to arbitrators is not compulsory; rather it is voluntary. But according to some sources what practically observed in courts is that the parties are not asked whether they are willing to take their case to arbitrators or not rather the courts direct them to arbitrators without doing what the law prescribes which is clearly against the spirit of the law Settlement by Arbitration In the RFC, and other regional family laws, arbitration could only serve as an alternative mechanism of dispute settlement and the reason for this is that if arbitration outs regular courts for matters of family disputes then the rights of women would be at stake. This is because arbitrators, it is believed, in Ethiopia may not be qualif ied enough to resolve all family disputes including pronouncement of divorce. (see also art 119) Q. What should be the roles of the arbitrators? Article 121(1) provided that, the sole duty of the arbitrators is to make an exhaustive effort to reconcile the spouses. And article 119 orders the court to give the proper direction to the arbitrators as to how they help the spouses reach agreement. The result of the arbitration or attempt of reconciliation has to be submitted to the court within three moths. See also art 120 Q. What would the consequence if the arbitrators fail to submit reports in accordance with Art. 119? Art. 121 of RFC provides that the court is required by law to close the case (Art. 122(1) of RFC. This does not mean that the case is closed for good but if the spouses (or one of them) present their reasons to the court and petition for the reopening of their case then the court after examining their reason will reopen the case and give appropriate decision. By: Micky.D All things are the efforts of GOD no more in my hands, no more in my power…….

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