Customarily People in Ethiopia assume they can end their marriage by a simple agreement signed in front of family elders composed of the representatives of both parties or even by defacto divorce. In fact defacto divorces are much more commonly applied. However according to the Ethiopian Family Code legally acceptable divorce takes much more than having a defacto divorce or drafting an agreement by family elders, arbitrators or experts. Preparing an agreement in a valid manner requires something more than that.
The decision rendered by the cassation bench of Ethiopia February 2013, discuses what is required to prepare such agreements in a valid manner. This issue arose on the case between applicant W/ro Hamziya Shek Ebrahim and respondant Ato Abdi Usmael.
As per the claims of the applicant, the applicant and the respondent have terminated their marriage in 1985 and that they have signed a contract for separation of property in the presence of four elders. And as per the contract the applicant agreed to give birr 200,000.00 and in return kept the house that is now being claimed by the respondent.
The lower court that entertained the matter ordered the property to be split in half and ordered to execute on the remaining half of the property.
The applicant, being aggrieved by this decision appealed to the cassation bench.
The cassation bench framed the issue “can spouses agree on the terms and conditions of divorce with the presence of elders?”
Where the condition of marriage is agreed by the spouses the selves or by elders, it’s stipulated under article 83 (3) of the family code and article 110(05) of the Oromian Family Code that it can only be validated if it is approved by court.
Art 83(3) states that “The conditions of divorce agreed upon by the spouses or decided by arbitrators or experts shall be submitted to the court for approval.”
So, since the parties did not show that the agreement have not been approved by court, and since the law doesn’t extend protection to these kinds of agreements, the decisions of the lower courts have no error.
Giving the above illustrations, the bench confirmed the decisions of the lower courts.
So what can be derived from this decision of the cassation bench is that a divorce agreement consented upon by the spouses or decided by arbitrators or experts shall be submitted to the court for approval. Unless such approval of the pertinent Ethiopian court is acquired a divorce agreement, even though consented upon by the spouses or decided by arbitrators or experts, cannot be considered as a legally acceptable and/or binding document.
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Note: This guide provides vital information on Ethiopian Family law, especially Ethiopian divorce law and practice and is not intended to substitute professional advice given with full knowledge of the specific circumstances of each case and proficiency in the law of Ethiopia such as might be provided by a Family Law Attorney, Family Law lawyer in Ethiopia. Such information about Divorce in Ethiopia can be available from an Ethiopian Divorce Attorney.