Wednesday, March 3, 2021

Modes of Conclusion of Marriage

(Source: Law of Family Teaching Material   

Aschalew Ashagrie & Martha Belete)

The Revised Federal Family Code as well as the Regional Family Codes recognized three modes of conclusion of marriage. These are: Civil Marriage, Religious Marriage and Customary Marriage. 

Civil Marriage (Marriage Concluded before an Officer of Civil Status)

For a marriage to be considered as being concluded before an officer of civil status, a man and a woman need to appear before the officer for the purpose of concluding marriage and give their respective consent to enter into marriage.[1]  Hence, the phrase civil marriage basically refers to the fact that the marriage has been solemnized in front of an officer who is empowered to accept the consent of parties wishing to enter into marriage.

The 1960 Ethiopian Civil Code provides for the establishment and the duties of the office of civil status. However, implementations of the provisions which deal with this office have been made to wait for the issuance of an Order to be published in the Negarit Gazeta, which has never come into life.[2] As a result, currently there is no established office of civil status. In municipal areas, the functions of the officer of civil status are assumed and performed by the municipalities. For instance in Addis Ababa the offices of the Kifle ketemas are the ones who oversee the performance of civil marriages. 

In order to conclude civil marriage, there are certain formalities and requirements which are stipulated by the RFC. The first formality is that of a residence. Pursuant to article 22 of the code, civil marriage is concluded before the officer of civil status of the place where one of the future spouses or one of the ascendants or close relatives of one of them has established a residence by continuously living there for not less than six months before the conclusion of the marriage. Hence, the solemnization of a civil marriage is to be conducted in the place in which one of the aforementioned has established a residence for a minimum of six months. Residence, on the other hand is defined by the Civil Code as the place where a person normally resides.[3] The code also tries to distinguish between residing in a place and a mere sojourn in a particular place. In determining existence of a residence, the notion of normality and intention of the person concerned are vital. In addition to this, article 175/2 requires staying in a particular place for a minimum of three months to constitute residence. ‘Although the code does not settle the point, it seems that the period of three months must be uninterrupted.’[4] However, when it is for the purpose of conclusion of marriage, this article of the Civil Code is qualified by virtue of article 22 of the RFC. As a result, those persons enumerated under article 22 of the RFC have to reside in the place for a continuous period of six months. This article also answers the question as to whether the period should be interrupted or uninterrupted one.

The other formality is that of giving notice. The RFC requires the future spouses to inform the officer of Civil Status of their intention to conclude marriage not less than a month before the celebration of the marriage.[5] The purpose of notifying the officer is to make sure that there are no impediments to the conclusion of marriage and to allow anyone who want to oppose to the marriage to do so in accordance with the law. This can be understood from the requirement on the part of the officer to publicize the notification stipulated under the same article as well as the subsequent articles of the Code. 

The process of notification and waiting period (or the formal requirements for conclusion of marriage before an officer of civil status) are available in other countries’ laws as well. For instance, all states in America prescribe some formalities for conclusion of marriage. And the regulations are categorized into two classes: licensure and solemnization.[6] As Ellman et al put it:

‘All states have marriage license laws. Applicants provide certain information to a governmental office concerning age, prior relationship by blood or marriage, previous marriage etc. This information helps in compiling vital statistics and could facilitate enforcement of substantive marriage regulations by permitting the clerk to screen out ineligible applicants. For example, if the application revealed the bride and groom were siblings, the license would be denied under laws prohibiting incestuous marriages. In practice, the license law does little to restrain intentional violation of substantive regulations, because little effort is made to confirm

the truth of the license application information.’[7]

On the issue of waiting period, the authors have noted that:

‘Most states impose a waiting period (of either 3 or 5 days), either between the application and issuance of the license or between issuance and performance of the ceremony. …the waiting period requirement as well as the entire licensing procedure is explained as impressing upon the parties the seriousness of the entry into marriage.’[8]

 

The 1949 Marriage Act of the UK also stipulates some formalities for conclusion of marriage. Under this law, the parties are required to give notice in prescribed form to their local superintendent registrar (in whose area they must have been resident for seven days preceding the giving of notice) of their intention to marry.[9] Here one should note the difference in the requirement to constitute a residence under the Marriage Act of the UK with that of the Ethiopian Revised Family Code. Under the 1949 Family Act of the UK, the requirement is only seven days while in the Ethiopian context, the parties have to reside in that particular area for a period not less than six months. In addition to the notice requirement, the parties are also expected to provide a declaration that there are believed to be no lawful impediments to the marriage.34

 

Once these preliminary formalities are fulfilled and the work of publicizing the intention of the parties to marry has been made by the civil status officer, the next step is the celebration (solemnization) of marriage. Celebration of marriage is to be made publicly in the presence of the future spouses and two witnesses for each of the future spouses.[10] One requirement stipulated under article 25 of the RFC is that the future spouses have to personally appear for the solemnization process. In connection to this requirement, the issue of proxy marriages can be raised. 

The question of whether marriage can be concluded by proxy is of little practical importance in modern times. However, there may be circumstances which would necessitate the use of representation for marriage. Historically, the late Roman law and the Canon law allowed in a clear manner celebration of marriage by proxy. In the words of Pomponius:[11]

A man who was away from home might marry a woman by letter or messenger, but marriage could not be contracted in this manner by a woman who was absent from the man's place of residence. The reason for this difference between the man and the woman resulted from the requirement of the Roman law that the wife be led to the husband's home.

 

The Code Napoleon, on the other, does not prohibit proxy marriage in express terms. It simply puts an obligation on the officer of civil status to read the parties the requirement of the law with respect to marriage and the mutual right and duties of the parties which emanates from the marriage.[12] In order to achieve this purpose, it seems that the parties need to personally be present at the ceremony. However, some French writers held the view that in the absence of express provision which made marriage concluded by proxy void, it should be considered as valid.[13]

 

Marriage by representation is necessary when one of the parties cannot be present for the ceremony. ‘While its most prominent use has been in wartime with one party on duty overseas, sometimes it is used by prisoners.’[14] The First World War was the main reason for many European countries to allow in their laws for the conclusion of marriage through representation. 

The French Law of April 4, 1915 authorized soldiers and sailors with the colors to marry for grave reasons by proxy with the permission of the minister of justice and of the minister of war or the minister of the navy…. Soldiers and sailors, employees of the Army and Navy, and persons in the service of the Army and Navy, were authorized in Italy to marry by proxy by a decree of June 24, 1915.[15]

 

Considering the need to conclude marriage by representation, the Civil Code of 1960 as well as the RFC allowed by way of exception for the conclusion of marriage through representation. One should note here that in principle each of the future spouses are required to appear personally and give their consent to the marriage at the time and place of celebration.[16] However, if one of the parties, for serious cause, could not be personally present, marriage by representation may be allowed by representation. Here one question that needs to be addressed is, what does it mean by ‘serious cause’? 

 

The RFC does not go beyond requiring the existence of a serious cause and the existence of consent of the represented person and define what a serious cause could be. We can attempt to identify what a serious cause is by looking into the laws of other countries and the reason for these countries to allow marriage by proxy. As discussed above, many countries allow marriage by proxy when one of the spouses are away on military work or in the navy and sometimes also for prisoners, among others. Hence, one can conclude that ‘serious cause’ in the Ethiopian Family Code will also be interpreted in light of these grounds.

The other formality incorporated under article 25 of the RFC is the obligation on the witnesses to declare, under oath, that the essential conditions for marriage are fulfilled.[17] As mentioned earlier, one purpose of imposing these formality requirements is to make sure that the substantive requirements for conclusion of marriage are fulfilled. One way of achieving this purpose is by requesting the witnesses to confirm under oath the fulfillment of these conditions. As can be grasped from the next sub-article, the taking of the oath has its own consequences, and the consequences should be explained to the witnesses by the Officer. 

The third formality requirement for celebration of civil marriages is that the future spouses need to declare openly that they have consented to enter into the marriage. Marriage is an institution which is to be entered into by the parties of their free will. The existence of their free will has to be openly communicated to the officer of civil status. Apart from the open communication of their will, the future spouses as well as the witnesses are required to sign in the register of the Civil Status.[18] 

After the fulfillment of all the above mentioned formalities, what is left is for the Officer of civil status to pronounce them united in marriage and issue a certificate of marriage.[19]



[1] article 2 of the RFC

[2] Article 3361 of the Civil Code

[3] article 174 civil code

[4] Vanderlinden, Law of Persons, 34

[5] article 23 of the RFC

[6] Ira mark Ellman, Family Law: cases, text, Problems, 56

[7] Ira Mrk Ellman, family law cases…, 56-57

[8] Ira mark Ellman, 57

[9] John Dewar, Law and the Family, (1992), 34 34 Section 28 of the marriage Act of 1949.

[10] Article 25/1 of RFC

[11] Digest XXIII as cited by Ernest G. Lorenzen, (1919), Marriage by proxy and the Conflict of

Laws, Harvard law Review, Vol 32, no.5, 473-474

[12] Ernest G. Lorenzen, (1919), Marriage by proxy and the Conflict of Laws, Harvard law Review, Vol 32, no.5, 477 see also article 75 of the Code Napoleon

[13] Ernest G. Lorenzen, (1919), Marriage by proxy and the Conflict of Laws, Harvard law Review, Vol 32, no.5,477

[14] Ira Mark Ellman, 58

[15] Lorenzen, 479

[16] Article 12/1 cum article 25/1 RFC

[17] Article 25/3. The essential conditions of marriage are discussed in detail in section….

[18] Article 25/5 of the RFC

[19] Article 25/6 of the RFC

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