Jetu E. Chewaka
Oromia Law Journal [Vol 3, No. 1]
The practice of bigamous marriage in rural and urban Ethiopia is deeply rooted in religious and customary practices. According to the Ethiopian Demographic and Health Survey Report of 2011 (EDHS), eleven percent of married women in Ethiopia are in bigamous marriage, with nine percent having only one co-wife and two percent having two or more co-wives.1 Similarly, five percent among the married men in Ethiopia live as a bigamous marriage having two or more wives.2 Despite its prevalence, however, the practice of bigamy is prohibited under the Family and Criminal Code of Ethiopia.Though the prevalence of bigamous marriage in developed countries is defended on the basis of the right to religion and culture,3 the socioeconomic justification for its prevalence is stronger and more felt in developing countries such as Ethiopia. Particularly, given the low economic and educational status of women in rural area, the likelihood of contracting bigamous marriage would inevitably be high. Therefore, the idea that bigamous marriage is an affront to gender justice and equality hitherto remains a paradox. As such, an attempt to legally prohibit bigamous marriage has laid bare the legal status of women in bigamous family unit due to lack of specific regulatory option that would be contemplated to address matters that relates to dissolution and division of common property.The purpose of this paper is, therefore, to provide an insight into the legal principles that ought to be contemplated in regulating dissolution of bigamous marriage and the division of common property. Given the prevalence of bigamous marriage practice in Ethiopia, the paper argue that the regulation of dissolution of bigamous marriage and division of common property requires the weighing of the rebounding effects of either legalizing or prohibiting bigamous marriage on the rights of bigamous spouses. The paper further contends that bigamous mariage in Ethiopia, if remains unregulated, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior.
Against the above backdrops, this article intends to address the following two major questions. First, given the prevalence of bigamous marriage practice in Ethiopia, what will happen to the effects of a bigamous marriage where its practice is criminalized and its recognition denied on what so ever grounds?
Second, what additional steps are contemplated to fully regulate the effects of bigamous marriage in case where polygamy is criminalized but yet recognition is imposed for the purpose of granting relief? Alternatively, what appropriate and alterative legal principles could Ethiopian courts seek to address the puzzle of common property division in bigamous marriages absent specific and clear legal regime to be contemplated?
In order to address these questions and other interrelated legal issues, the paper is divided into six major parts. The first part provides general highlights on the meaning and rationalizations of bigamous marriage. Part two examines the legal aspects of bigamy in both human rights and Ethiopian legal contexts. Part three attempts to analyze rules that regulate dissolution of bigamous marriage. It investigates conventional family and general contract law principles including judicial decisions applicable to dissolution of bigamous marriage. Part four analyze appropriate principles and evaluates judicial practices governing the division of common property in case of dissolution bigamous marriage by one of the spouses. This part also looks into the principles enshrined in the conventional Ethiopian family laws and critically examines whether these principles would be applicable to common property division in bigamous marriage in case of its dissolution. Part five juxtapose the jurisprudence of Ethiopian Federal Supreme Court Cassation Division regarding the division of common property in bigamous marriage and the theoretical and legal principles analyzed in the preceding part. The final part provides concluding remarks.