(Source: Law of Family Teaching Material
Aschalew Ashagrie & Martha Belete)
The family in the Ethiopian Constitution is recognized as the natural and fundamental unit of a society and an important legal and social institution. As a result, it is given legal protection. One thing that should be noted here is that a marriage may be regarded as either a status or a contract. As Jonathan Herring noted20
Marriage could be regarded as either a status or a contract. In law a status is regarded as a relationship which has a set of legal consequences which flow automatically from that relationship, regardless of the intention of the parties. A status has been defined as ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities.’ So the status view of marriage would suggest that, if a couple marry, then they are subject to the law governing marriage, regardless of their intentions. The alternative approach would be to regard contract as governing marriage. The legal consequences of marriage would then flow from the intentions of the parties as set out in an agreement rather than any given rules set down by the law.
Marriage is perhaps best regarded as a mixture of the two. There are some legal consequences which flow automatically from marriage and other consequences which depend on the agreement of the parties. The law sets out: who can marry, when the relationship can be ended and what are the consequences for the parties of being married.
In Ethiopia, marriage is regarded in both the Civil Code. The Revised Family Code and the regional family codes as an institution, rather than a contract. However, when it comes to defining this institution, neither laws are helpful. Hence, to have a common understanding of the institution, it is necessary to resort to the definitions given by other foreign laws.
In the English legal system, marriage, as defined by Sir James Wilde in the land mark case of Hyde Vs Hyde, is the voluntary union for life of one man and one woman to the exclusion of all others. 22 This same definition is also upheld under the Australian Marriage Act of 1961. The definitional part as well as Section 46 of the Australian Marriage act defines marriage as the voluntary union of one man and one woman for life to the exclusion of others. This definition has been taken from the English definition of marriage. Both definitions contain three common elements. First, the marriage has to be concluded between a man and a woman, there is no legal marriage between same sex persons. Secondly, the institution of marriage is to be entered into with the absolute consent of the parties i.e., voluntarily. In addition, the marriage is expected to last for a life time, death being the only cause for dissolution.
The Philippines Family Code of 1987, on the other hand, defines marriage as a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. In addition to the elements that are present in the English and Australian definition of marriage, the Philippines family code considers the establishment of conjugal and family life as essential elements for marriage.
The definitions given by the different legal systems have their own shortcomings. All the documents tend to be ideal in the sense they expect the union to last for life, while in reality marriages breakdown for different reasons other than death. Moreover, the central aim of concluding marriage seems to be establishment of a family, while in reality, some couples conclude marriage knowing that they cannot have their own children.
Taking into account the insufficiency of the definitions given by many foreign laws, the Ethiopian legislature opted not to give any definition at all.