where spouses concluded marriage and have got two children,then one of the spouse without divorce
left his family for about eleven years
of period,then he claim to devolve the former property as common property of the spouses? please share answer with following address [email protected]
1 Answer from Attorneys
Yes the spouse can claim to devolve the former property as common property of the spouses. For further detail on this issue read our blog noted entitled “Be Careful of Defacto Divorces without Legalizing the Divorce in Court” at http://ethiopianlaw.com/blog/comments/97
Currently, marriage under Ethiopian law is an institution that is to be entered into with the free and full consent of the intending spouses. The spouses have equal rights during the entry of, the lifetime and dissolution of the marriage. So when a marriage is dissolved, for any of the legal reasons this legal principle entails various effects for spouses so intending that dictates adherence to legal procedure as the most convenient path to follow.
So what is divorce defacto? This occurs when partners in a marriage separate (be it through mutual agreement or one spouses abandons the other) and start leading their separate lives. Though not legally divorced, these people are “divorced” in fact and usually remarry, produce heirs and own property.
Such spouses do not approach the court for divorce unless other compelling factors arise. And by the time they do so, they have not carried out the duties required of each other for years nor have the contributed in any manner to the properties each owns at the present moment. Defacto Divorce, even if it seems inconsequential at the moment of separation then presents itself as a tricky situation that could work to the disadvantage of as such spouses.
Divorce defacto contravenes the constitutional assurance of equality of spouses by removing the only organ capable of ensuring that fact. Most cases that come to courts state that the spouses separated “under mutual consent and having settled their cases with family arbitrators” and that they believed it to be enough for Divorce.
But perhaps the most controversial point regarding such divorce is the issue of separation of property. According to the law, the problem arises because the law recognizes the community of property but does not provide for the situation where the spouses, having disregarded all duties arising out of marriage as provided, produce individual property without the others help. While the situation can be seen as a Godsend regarding abandoned spouses, it can be manipulated by a spouse in bad faith, who, after having agreed to such separation, sees an opportunity to obtain finances without much bother. Even though the law does not allow for individualization of property without the dissolution of marriage, it is clearly unfair to award a person half the property of another where there has been no cohabitation for years. (Cases presented have shown periods of 50 years or more) such person has already remarried or the spouse against whom such claim is based has a family or his/her own who could be greatly prejudiced thereof.
The topic has created inconsistency between courts. For instance, in a case brought to the first instance court, a couple who have remained separated for 38 years were denied divorce since the court believed that it was clear that the effects of this marriage on their personal and financial standing has long been severed. But the high court reversed the decision on this case stating that the reasons for dissolution have not been fulfilled under article 75 of the family code. While some are under the opinion that the marriage is null and void when the obligations are the spouses owe each other in its under taking have not been fulfilled and property separately produced should be individual and that it would be benefit derived from fault if after years of abandonment, a spouse is entitled to half of what the other independently earned.
But on the other hand it is valid to uphold that a marriage recognized by law deserves similar recognition in its end, the dissolution of marriage dictates legal supervision to ensure its fair conclusion, it would be unfair to a spouse who has been abandoned to declare private property, bigamy is a crime that adversely affects family emotionally and financially and being a civil law country, definite legal articles should not be dismissed. So while it is believed in some circles that accepting defecto divorce should be a legal consequence for not abiding by the obligations of support, assistance and fidelity, others feel that the sole power of the court to declare divorce serves as a guard especially against bigamy and abandonment. Opinions are so varied and confusing that once an appellate case brought before the high court involving a second marriage after a defecto divorce was declared in recognition of both the claimant and defendant as wives against article 11 of the family code and article 650 of the criminal code.
The cassation division of the Supreme Court, in response to this lacuna seems to favor the argument of individualization of property under such separation. In cases read by this writer, the court while recognizing the situations under which marriage is dissolved, finds it necessary to hold that a marriage is over even if these qualifications have not been fulfilled (by a long term separation, for example). It would, therefore seem unfair to grant all the effects of a divorce to a marriage hence existent. However, decisions rendered do not seem sufficient to a case of defacto divorce caused by the abandonment of one spouse by another.
Points of improvement
Accordingly, this writer believes that these suggestions could better the situation.
Media coverage should be given on the matter both to hasten an amendment to the law and inform the public the necessity of concluding divorce through the appropriate channels.
The amendment should be limited to pecuniary independence under defacto divorce so as not to enable its repeated occurrence and undesired consequences like bigamy. It should include a section about indemnities concerning defacto divorce that has occurred due to the abandonment of one spouse by another.
To the reader
If you are considering divorce, clearly the easiest and least controversial path to follow would be the one to the court house.