Be Careful Of Defacto Divorces without Legalizing the Divorce in Court
In Ethiopia, marriage is a legally binding institution entered into with the free and full consent of the spouses. The Ethiopian Family Code ensures equal rights for both partners during the marriage, including its dissolution. However, the phenomenon of defacto divorces—where couples separate and live independently without formalizing the divorce through the courts—poses significant legal challenges. This article aims to shed light on defacto divorces, their implications, and the importance of legalizing divorce in court.
Understanding Defacto Divorce
Defacto divorce occurs when married partners separate and start living independent lives without legally dissolving their marriage. This can happen through mutual agreement or if one spouse abandons the other. Despite not being legally divorced, these individuals often remarry, have children, and acquire property separately.
Real-life Example: Consider a couple, Ato Abebe and W/ro Aster, who separated 20 years ago. Ato Abebe moved to another city, remarried, and started a new family, while W/ro Aster remained in their marital home. Neither approached the court for a formal divorce. Years later, disputes over property and inheritance rights arose, complicating their legal and familial situations.
Legal Implications of Defacto Divorce
The Ethiopian Family Code requires that any divorce and its terms be approved by the court. This legal oversight ensures fair distribution of property and protection of both parties’ rights, including those of any children involved. Defacto divorces bypass this legal framework, leading to several complications:
- Property Division: The law recognizes community property acquired during marriage. In defacto divorces, individuals might accumulate property independently, leading to disputes over rightful ownership when the separation is eventually formalized.
- Legal Protections: Without court involvement, abandoned spouses might not receive due support or fair division of assets, contravening the constitutional assurance of equality.
- Bigamy and Legal Confusion: Defacto divorces can lead to situations where one or both spouses enter new marriages without dissolving the previous one legally, resulting in bigamy, which is illegal in Ethiopia.
Real-life Example: In a case brought to the cassation bench, a couple had separated without formalizing their divorce. Decades later, property disputes arose, and the court had to decide on the validity of an agreement made in the presence of elders, ultimately ruling that only court-approved agreements are legally binding.
Court Inconsistencies and Challenges
The Ethiopian court system has shown inconsistencies in handling defacto divorce cases. For example, lower courts might deny divorce based on long-term separation, while higher courts could reverse such decisions, emphasizing the need to fulfill specific legal requirements under the Family Code.
Real-life Example: A couple separated for 38 years was initially denied divorce by the first instance court, which believed their personal and financial ties were long severed. However, the high court reversed this decision, highlighting that legal grounds for divorce were not met according to Article 75 of the Family Code (LawGuru).
Points of Improvement
To address the challenges posed by defacto divorces, the following improvements are suggested:
- Increased Awareness: Media campaigns and public education should highlight the importance of formalizing divorce through the courts, ensuring that couples understand the legal implications of defacto separations.
- Legal Amendments: Amend the Family Code to explicitly address the pecuniary independence of spouses in long-term separations and provide clear guidelines for property division in defacto divorce scenarios.
- Support Systems: Establish support systems for spouses abandoned without legal divorce, ensuring they receive necessary financial and emotional support.
Conclusion
For couples considering divorce, the most straightforward and least controversial path is to follow legal procedures and approach the courthouse. Legalizing divorce ensures fair treatment, protects individual rights, and prevents future complications related to property and personal status.
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