Majority of married couples in Ethiopia have a common misconception that they can automatically dissolve their marriage if due to a disagreement the spouses live separately for a significantly long period of time. Usually, this occurs when partners in a marriage separate, through mutual agreement or one of the spouses abandons the other for one or another reason, and start leading their life separately. Though not legally divorced, these people are “divorced” in fact and most of the time remarry, produce heirs and own property separately. Such spouses do not approach the court for divorce unless other compelling factors arise. By the time they do so the Defacto Divorce presents itself as a tricky situation that could work to the disadvantage of one of such spouses. However according to the Ethiopian Family Code legally acceptable divorce takes much more than having a defacto divorce or living separately for significantly long period of time.
The following case is a typical case that has arisen due to living separately for significantly long period of time, without a pertinent Ethiopian court’s pronouncement of divorce decision.
The matter was between the applicant W/ro Minya G/Silase and W/rit Meseret Alemayehu. The case started when the respondent claimed the decision rendered by the Federal Instance Court regarding the verification of the marriage between the respondent and the applicant’s father.
She claimed the applicant had been living outside the country for more than 18 years and hence the marriage has to be presumed terminated.
The Federal Instance Court that entertained the issue initially decided to reject the claim of the respondent stating, as per article 55 of the Revised Family Code of Ethiopia, the spouses can live separately for either a definite or an indefinite period of time.
But the appellate division of the Federal High Court reversed the lower’s court decision by referring to a cassation bench decision case no. 31891 which states that spouses living separately for a long period of time cannot be considered as being still married.
The case has reached the Cassation Bench.
The bench stated evidences showing that the spouses were in contact with each other throughout these years, were brought in the lower courts. It further mentioned a decision rendered by the cassation bench, according to proclamation 454/97, will only serve as precedent in lower courts if the matter presented has the similar issues of fact and issues of law only. But the case cited by the high court, as precedent, had different issues of fact and issues of law. In that case, the spouses had not had contact with each other for the past 12 years and that the wife had married another person.
Giving the above illustrations, the bench dismissed the appellate division of the Federal High Court’s decision and stated that the spouses will be considered married despite the fact that they have been living separately for the past 18 years.
So what can be derived from this decision of the cassation bench is that the existence or non existence of marriage should not be seen and decided by the fact of their mere separation alone. Thus, even though the spouses were living separately for number of years, if they have been contacting each other in a manner that gives an impression that their marriage has not been terminated, then the marriage should not be considered as terminated.
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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.