Divorce and Division of Common Property under Ethiopian Legal System
When a marriage is dissolved by divorce the issue of division of property will come to the scene. Property in this respect is divided in to two: personal and common property.
1. Personal property – Property possessed by the spouses on the day of their marriage or property they will come across, even after the marriage, through personal donation or succession shall be their personal property. Property they acquire through the exchange of their personal property (even if such property is money), or from money obtained from the sale of such property will continue to be their personal property if they inform the court and recognizes it as being personal.
2. Common property – The primary legal presumption is that all property is common property even if it is registered in the name of one of the spouses unless the spouse concerned can provide he is the only owner. Specifically, all income derived by the spouses, including income they obtain from their own efforts, from the common property they have acquired over the years, income derived from their personal property or donated to the spouses is considered common. And if property obtained by sale of personal property or its exchange if not declared to the court and decided upon, it well be on the moment of liquidation and division be considered common5.
In the allocation of assets, it can clearly be seen that the law prefers the community of property in the marriage. It seems that the code is acting in respect of the equality granted to spouses in or after a marriage for equal division of common property would seem to be the best legal way to ensure such fact. It could also be in accordance to widespread customary belief that every thing in a marriage should be shared, to individual and their respective interests, both personal and financial create one home. Practically it is also convenient and it creates financial strength. However, the law respects the desire of a couple to regulate, albeit fairly, the financial relations that exists between them. Spouses could, by their contract of marriage, alter the definitions provided in the law as regards their pecuniary interests. So supplementary documents, like prenuptials are allowed.
So, where a marriage is dissolved, the pecuniary relations between spouses could be resolved in either of one of the three ways.
1. Through the contract of marriage and additional contracts the spouses have entered into under the court’s supervision during the life time of the marriage.
2. A divorce agreement between the spouses which will divide the available property under the revision of the court.
3. According to the legal provisions under article 85 to 93 of the Revised Family Code of Ethiopia.
The law is the final resort as regards pecuniary liquidation and divisions and spouses are requested, before letting the court completely handle this issue, to sit with arbitrators and work out an arrangement that would suit both interests. In default of this:
1. Personal property, upon proof being provided, can be retaken by its owner. If personal property has been alienated, an equal sum in money is to be given from the common property.
2. All property considered as common property is to be divided equally between the spouses. As a rule such division should be made in kind and money may be used to set of any inequality in such divisions.
3. Only if the spouses could not reach in agreement regarding the division in kind can the common property be liquidated. Property may also be sold and proceeds equally divided if the spouses disagree into whose share it should go to.
4. The common abode may, by the discretion of the court and taking in to account factors like the interest of the children and the spouses who may be more affected by leaving it, be granted to either spouse and not be liquidated.
Debts are shared if they are incurred by one or both spouses or if they are incurred in the interest of the household. Where they are due before divisions of the common property, they are given priority over the partition. Where they are due after the completion of the liquidation, the couples are liable in proportion to their share of the common property.
Indemnities are also awarded to the prejudice of a spouse where the spouses vested with the power to administer the common property and had acted through bad faith, fraud, with out mandate and had adversely affected the interest of the aggrieved spouses or have enriched himself to the prejudice of his spouses’ personal property.
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