Thursday, March 4, 2021

Betrothal Under Ethiopian Family Law

(Source: Law of Family Teaching Material   

Aschalew Ashagrie & Martha Belete)

In earlier times, before two persons conclude marriage, they would go through the process of betrothal. Mainly the betrothal was concluded between the parents of the future spouses. Betrothal is defined under article 560 of the civil code as a contract between the members of two families that a marriage shall take place between two persons, the fiancé and the fiancée, belonging to these two families. Hence, under the Civil Code, the betrothal contract is to be concluded between family members of the future spouses and more emphasis is given to the choice, consent and interest of these family members rather than the future spouses. Moreover, in many circumstances the practice shows that betrothal was concluded when the future spouses are underage and sometimes not yet born.[1] This means, the interest and choice of the future spouses was not considered at all. 

On the other hand, the Constitution of 1995 recognizes the right of individuals to form a family with their own free and full consent. As result, the provisions of the Civil Code dealing with betrothal were found to be contrary to this fundamental right of individuals. Hence, the RFC has excluded the concept of betrothal as a whole.

However, some regional family codes maintain the concept of betrothal with modification. The major modification made relates to the definition given to betrothal. All the regional laws which incorporated the concept of betrothal defined it as a pact between the fiancé and fiancée to conclude marriage sometime in the future.[2] This is unlike the definition given by the Civil Code which involves only the parents or guardians of the future spouses. 

The Family Code of the Amhara region requires the contract of betrothal to be made in a written form signed by four family witnesses, two from each side.[3] On the other hand, the family code of the Benishangul Gumuz region allows betrothal to be concluded pursuant to the custom of the area. This may be either in writing or orally, whichever is customarily practiced in the region. When we look into article 4 of the SNNP regional family code, both options are included.

The family codes have also provided a time framework for the duration of the betrothal. Article 6 of the SNNP family code leaves it open for the parties to determine the duration of betrothal. However, if the parties fail to mention the time for the conclusion of marriage, it requires them to tie the pact within a year after the conclusion of the betrothal contract. The family code of the Benishangul Gumuz, on the other hand, gives only six months after the conclusion of the betrothal contract. The time framework given under article 6 of the Amhara regional family code is two years. Hence, the marriage has to be concluded within two years following the betrothal contract.   

The family codes have also envisaged a situation for the invalidation of the betrothal contract. If one of the parties to the betrothal contract communicate their intention to invalidate the betrothal, or refuse to conclude marriage within the intended period or engaged in any act to impede the conclusion of marriage, the betrothal contract will be invalidated.[4] The consequences of breach of the contract are also illustrated in the subsequent articles. 

 



[1] ምምም ምምምም ምምምምምም ምምምምም ምም ምምምምምም ምምም ምምምምም ምምምምም ምምምምምም ምምምምምም ምምምምምምምምምም ምምምም ምም ምምምም ምምምም ምምምምምምምም 5

[2] See article 1 of the Family Code of Amhra and SNNP Regions, as well as article 8 of the Benishangul Gumuz region. 

[3] See article 5 of the Amhara regional family code

[4] see article 7of the Amhara regional family code, article 17 of the Benishangul Gumuz family code and article 7 of the SNNP region family code 20 Jonathan Herring, Family Law, (2001), 33

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