Is the need for evidence recent development?
No, it is not. It is possible to imagine that the need for evidence can be traced back to a time when people started to settle disputes before third parties. You can imagine how people settle disputes before elders of a certain locality.
The need for evidence was well known by ancient Greeks, Egyptians and Mesopotamians. Different concepts of evidence law such as relevancy of evidence, the duty to come up with evidence, proof by witnesses were practiced since ancient time even though they were not in such organized and comprehensive manner.
The present rules and principles of evidences are the outcome of the successive development, conducted in different stages of human civilization. In its very stage of progression, there was no any distinction on the rules of civil and criminal evidence Moreover, the means they use to prove a disputed fact may not be well founded to ensure the rational basis of decision making. In other words, the evidences which were applicable at that ancient time were irrational.
Generally, we can classify the ancient means of proof in to two: Proof by ordeals and Proof by oath
As we go back in history, the influence of religion is so strong that it is hardly possible to exclude religious notions. As a result, the above ancient means of proof had practiced for the past many years by using the psychological impacts of religious belief on the society.
In different parts of the world ordeals were used to identify the person who did wrong. Ordeal is about subjecting somebody to undergo a painful experience like walking on fire, holding glowing with heat, put hands in to boiling water etc..
The idea is that where a person who underwent the ordeals is not seriously affected like when the wound that resulted from the ordeal normally cures it is taken as a proof of innocence. If it, however, gets infection this is taken as proof of guilt.
Moreover, there was proof by battle. Here the victim and the accused required to fight to each other. And if the victim wins the accused, the accused will be considered as criminal and convicted. While if the accused wins the victim, the accused will be free.
Since proof by ordeal were extremely irrational and in human, relatively modern and human means of proof began to replace them immediately after 15th c. This was proof by oath in which the accused/ defendant lad required to take an oath before his testimony in his own case. As we known where religious beliefs are predominant, oath taking plays a great role to prove or disprove the alleged fact. However, this testimony of the accused/ defendant under oath was not sufficient alone. In addition to it, the court required the testimony of supporting witnesses (compurgators) for the purpose of confirming whether the words of the suspect under oath are true or not. However, such compurgators were not required to testify on the merit of the fact rather their testimony was limited in confirming to the court of law about the truthful nesses of the oath given by the suspect. So we can understand that how long the ancient proof by oath differs from the present one.
Gradually, the above ancient ways of proof had begun to replace by the new and modern concepts of evidence rules. The writing of different scholars, judicial decisions and different laws enacted at different times based on different legal traditions becomes instrumental for the then development of rules and principles of evidence.
Was there any traditional mechanism of proving alleged criminal acts in ancient
In a traditional highland
Later, this “ Leba shai” system becomes replaced by the institution called “ Afersata” or “ awchachigh”. This method involves the participation of the whole community. This seems that since the crime is against the community themselves, the member of the society may detect the crime and the criminal in secret manner, for instance by indicating the name of the criminal through poem.
However, the methods of proving in “Afersata” and “Leba shai” have their own basic deficiencies. Because, in the first place, the suspects do not have a chance to challenge the veracity or the truthfulness of the evidence in the case of “ Leba shai” .And also, in the case of “ Afersata”, assume haw bad it may be if in every case the whole people aced to be gathered which may hinder the people from doing their day to day activities.
1. Evidence Law defined
What is evidence law?
Before dealing with “evidence law”, it is important to discuss about the concept of “evidence” in general since evidence and law of evidence are two different things. The word “ evidence” is originated from a Latin term “evidentia” which means to show clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus, evidence is something, which serves to prove or disprove the existence or non-existence of an alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence.
However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence law. Rather, evidence is something presented before the court for the purpose of proving or disproving an issue under question. In other words, evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings.
Draft Evidence Rules (DER) defines evidence, as “ a means whereby any alleged matter of fact, the truth of which is submitted to investigation, is proved and includes statements by accused persons, admission, Judicial notice, presumptions of law, and observation by the court in its Judicial capacity”. This definition may be more than what you think to be evidence. However, even though the kinds of evidences enumerated under Rule 3 of DER are not exhaustive, it failed to cite “documentary evidence” which is considered as one of reliable evidences, especially in civil cases, as one types of evidence. This seems the result of poor drafts' man ship.
When we come to the meaning of evidence law, different writers defines it according to their own perceptions but with similar messages. The difference is one defines in amore elaborated way while others do not. For instance, Mc. Cormick defines evidence law as “… the system of rules and standards by which the admission of proof at the trial of a lawsuit is regulated” But this definition is not as such very helpful especially to a beginner, because, it fails to incorporate what things are going to be dealt with by the course.
The title of the course, is the law of evidence. That does not mean only the rules concerning whether a given piece of information is admissible or not, but also such questions as what happens if there is no evidence on a given point? How much evidence, if any must a party introduces to prevent a court from ruling against him on factual proposition? What are the roles of the judge in evaluating the evidence and the like. To this effect, Robert Arthur Melin [here after referred as Melin], have made an attempt to define evidence law in a more comprehensive way. He defined it as follows.
The law of evidence is the body of legal rules developed and enacted to govern:
- B.facts that may be considered in court? This is the issue of relevant evidence that one should adduce before the court to support his allegation.
- 1.Facts in issue
- 2.Facts relevant to facts in issue
- C.The methods of securing consideration of these facts
- 1.By proof
- i.Real (e.g. documentary, exhibits) evidence
- ii.Oral evidence
2. Certain facts, which need not be proved
- i.Judicial notice- Facts so notorious as tofacts in public knowledge ,capable of being verified by authoritative texts
- ii.Judicial admission (facts admitted in pleadings, at open court, in examination of parties, in testimony etc.)
C. The party that must secure consideration of what facts: This is about burden of proof and degree of proof required to win the case.
D. At the Appeal level evidence law can be said deal with the effect of failure to comply with rules in any of the above categories of evidence law (e.g. improper admission or rejection of evidence) Because the decision of the curt regarding the admissibility or non admissibility of evidence may form the subject of aground of appeal where an appeal is logged against conviction, discharge or acquittal [see Art 184(c of cr.p.c]. These errors on the admissibility or inadmissibility of evidence may be reversible or harmless error.
Here that one should ask is that “Does evidentiary errors constitute Reversible error? Most of the time, an evidentiary error alone is not very likely to induce an appellate court to term the error “ reversible” on the ground that the error affected a substantial right of a party. As a general matter, evidentiary reversal is perhaps most plausible, and most Justifiable, when the constitutional rights of a criminal defendant may be at stake or when it appeared to be out come determinative. Otherwise they are considered as harmless error, which was not prejudicial to the rights of the party, and for which; therefore, the court will not reverse the judgment.
When we come to our case, a decision of any court in
And even though there is no illustration of the implications “basic error of law” in general and on evidentiary errors in particular, the experience of the cassation division shows, among others, the cases depict that there is a basic error of law when any court renders a decision or makes ruling. (1) When false evidence is produced against the party (b) by framing an issue which the pleadings or oral arguments of the parties have not raised or (c) by failing to consider an issue the pleadings are oral arguments of the parties have raised and the like (“The cassation Division and the Requirements for Basic Error of law” Muradu Abdo WONBER” law Jour 2nd half-year, January 2008 at P 52-53
To finalize it, the law of evidence in the major legal systems/ i.e., in the common law, civil law or in countries that have a mixed legal system) is the body of legal rules developed or enacted to govern.
Ø What facts need to be proved and produced to the court
Ø Which of the parties have the burden of proof
Ø The required standards of proof to win the case
The admissibility, creditability, and weight of evidence and other procedural matters as to how the evidence shall be produced before the court of law.
2. Nature of Evidence law
Where is the place of evidence law in relation to other laws?
It is important to know the place of evidence law in relation to other laws. Laws may broadly be classified in to substantive and adjective. Adjective laws are concerned with the method of presenting cases to court proving them or generally enforcing the rights and duties provided under the substantive laws. While substantive laws, are those that defines rights and duties. This forms the greater part of the law, it would seem that it is more important part, since it defines what rights, privileges and duties one person may have against or owe another. However the rights, privileges and duties that exist under such law will mean nothing unless they can be enforced. This is why adjective law is just as important as the substantive law.
Law of evidence is categorized under adjective law together with procedural laws, both criminal and civil procedure. Of course some scholars suggested that there will not be any problem if we incorporate rules of evidence as one part of procedural law since they have similar purpose. However, the consensus has been reached in categorizing law of evidence as one part of adjective law for the sake of establishing more effective system of adjudication of cases before the court of law. Although one can see grains of evidence law in procedural laws, their main dealing is with how pleadings can be framed, investigation conducted, evidence collected etc… This does not necessarily make the law of evidence to be part of procedural law.
There are certain issues procedural laws never address and are left to evidence law. For instance, in the procedural law you did not study about the standard of proof, facts to be proved or need not be proved and the valve to be given to each term of evidence etc. These are left to evidence law therefore evidence law is not strictly speaking procedural law, but shares the commonality with procedural laws in the sense that both are means to the enforcement of the substantive law. Thus, evidence law suitably falls with in the general category of Adjective laws, which deal with the enforcement of the substantive law.
However, this does not mean that all nations have their own code of evidence, which can be considered as one sect of Adjective law. For instance, as you see later our country
Is law of evidence more of practical course?
Law of evidence has more of the smell of the courtroom than most law school classes and it offers the opportunity for some court- room type exercises. But it cannot hope to duplicate the reality of the court room. Because the process of proof involves many participants, and it is impossible to regulate each and every action of those participants by the law of evidence unless we interpret the rules in line with purpose of the law of evidence in general and the rational behind of the specific rule in particular.
One can understand more about the rules of evidence that he knows theoretically when he becomes a practitioner. For instance, it is the duty of the trial judge to ensure the defendant receives a fair trial. He can for example, limit the nature of questioning in cross-examination. And also he may exercise his discretion to exclude evidence if the prejudicial effect of which exceeds its probative value. Thus, the application of judge's discretion to secure the right to a fair trial may differ case to case bases.
Moreover, the rule of evidence are not applied independently from other factors and do not exist solely as a matter of academic interest and debate. They are a dynamic set of principles which interact with other essential factors in a case including the rule of substantive law, the rule of procedure and the substantive characteristics of many of the participants in the trial. The latter includes the judge's opinions and perception, the skill of the advocates, a party's or witness's demeanor in court, his credibility, criminal convictions and personality traits. All of these factors ultimately come together to provide the bases for the court's decision in the case.
Therefore, that is why we have said that the course will not try to teach you what you can better learn in practice or in clinical program. Rather, if you participate in a clinical program after your completion of this course you will probably report to your friends that you “learned more about evidence in two weeks in the clinic than in a whole semester in class”
3. Purpose or significance of Evidence law
Evidence is the “Key” which a court needs to render a decision. Without evidence there can be no proof. Evidence provides the court with information. Proving facts through the presentation of evidence means convincing court to accept a particular version of events. Of course, one can search truth even trough violating the constitutional rights of the parties. However, evidences obtained through unlawful means could not contribute for the maintenance of justice in the future. So the process of proof should be regulated by evidentiary rules and principles in order to achieve accelerated, fair and economic Justice.
In both criminal and civil proceedings, the law of evidence has a number of purposes. In short, the law of evidence regulates the process of proof. The rule of civil and criminal evidence, in conjunction with the rules of procedure, establish the frame work for the process of proof and the conduct of litigation, so that a lawyer advising his client or preparing his case for trial or presenting it to the court or tribunal will know what issues his client must prove in order to succeed.
The law of evidence also has amoral purpose by establishing and regulating the rules relating to the process of proof in proceedings in courts and tribunals. Whilst this moral dimension is important in civil proceedings, it has special currency in criminal cases as it reflects the powerful public interest in bringing the guilty to justice, whilst allowing the innocent to go free. In some cases the rules of evidence may actually prevent the truth from being discovered in the wider public interest.
Moreover, especially in criminal cases, law of evidence stands to protect the accussed's right to affair trial for instance, by containing many rules which excludes potentially relevant evidences like the general rule that evidence of the defendant's character and previous convictions will not be admitted at trial (see Art 138 of cr.p.c and Rule-145 of DER)
Is there a consensus on the importance of evidence law in regulating the questions of relevancy?
Even though there is a consensus on the significance of evidence law in shaping the process of proof, there is a dispute on the question whether the law of evidence shall determine which evidence should be produced and which are not i.e. on question of relevancy. Regarding this issue there are two approaches.
According to eminent legal thinkers like Jermy Bentham and William Twining the over all aim if the process of adjudication is the ''rectitude of decision making''. This is achieved by the correct application of substantive law to the true facts in the particular case .In this way; the aims of justice are served.
Bentham long espoused a utilitarian theory that the best way to arrive at the truth was through an application of “free proof”. It was his considered opinion that a judge could be trusted to reach a factually correct verdict provided all relevant evidence was adduced. In his view, too many rules of evidence and procedure lead to the exclusion of too much relevant evidence, there by diminishing the search for a factually correct truth. Thus he advocated abolition of all laws operating to exclude evidence. Recognizing the need for some restrictions, Bentham felt laws of evidence were needed only to the extent of preventing 'vexation, expense or delay' and not to hamper the judge from finding out the truth of matters by using different tactics and approaches.
However, the supporters of the second approach argued that it would obviously be undesirable and chaotic if a judge had unlimited discretion as to which evidence should be admitted in a case, and as such, there is clearly a need for there to be ground rules for the admission of evidence so that common standards are applied between all courts and tribunals dealing with the same type of case. Otherwise, the judges may loss their golden time which in return contributes for delay of justice. Therefore, they argued that, in order to give timely and effective justice the role of evidence rules which regulates the question of relevancy is unquestionable. However this does not mean that the judges have no any discretion. In some instances the rule provides for the mandatory exclusion of evidence. In other instances discretion is given to the judge to exclude relevant evidence in circumstances were fairness demands it. But there is no judicial discretion to include relevant evidence, which might nonetheless have a bearing on the search for the truth, but which has to be deemed inadmissible by applying a rule of evidence.
As we shall see a number of rules relating to admissibility and use of evidence are directed towards minimizing the risk of wrongful convictions. And the main risks of error stem largely from the admission of unreliable or prejudicial evidence. Thus this concept of free proof may allow the court to admit unreliable or prejudicial evidence, which lead it to a hasty conclusion.
The concept of free-proof also ignores the fundamental importance of procedural rights and the symbolic importance of trials. Verdicts of the court to have amoral legitimacy, trials must uphold basic human and constitutional rights. And Justice must not only be done but be seen to be done. That is why most trials are held in public. That means the public must have a faith in its criminal Justice system and the verdicts that are delivered by it and this can only be the case if the trial is perceived to be a fair one. And respect for procedural rights through evidence law is a key component of the right to a fair trial.
- Category: Family Law
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The law has provided for certain conditions which need to be fulfilled for the conclusion of a valid marriage. In addition to stipulating conditions, it also provides the chance for certain group of persons to oppose and therefore prevent the conclusion of marriage which does not fulfill the necessary conditions. However, what would happen to a marriage which was celebrated when one of the conditions is absent? In the forgoing discussions an attempt will be made to answer this question.
Before looking into the consequences of violation of each and every conditions, we have to first identify the difference between void and voidable marriages and if such a distinction exists under Ethiopian law.
Katherine O’Donovan had to say the following on this issue:-
The term void and ‘voidable’ are found in the common law system. They have their counterparts in the laws of continental European countries. In both legal systems he terms used lack a clearly defined meaning and the transposition of a term from one system to another is virtually impossible, in the Amharic version of the civil code there is no exact term to convey the concept ‘void’ or ‘voidable’. Nevertheless these terms will be used since they are the most apt terms available for elucidating the law.
A void act is an empty act. It does not achieve what it sets out to do so. It does not achieve its intended legal consequences. “quod nullum est, nullum producit effectum.” An act is void due to a defect therein which is so fundamental as to deprive the act of its very existence. ‘A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated, then the act is said to be void.” The conventional wisdom concerning the void act is that it has no legal effect, but this is not strictly so as the act may have effects unforeseen by the actor, such as those of criminal prosecution, because of the illegality of the act. The point about the void act is that it achieves no part of its intended legal consequences and in so far as these are concerned it has no effect and can be ignored.
A voidable act is an act which, although it contains a defect, has its intended legal effect. The defect in the voidable act is not so serious as to prevent it from coming into effect.
“An act that is incapable of taking effect according to its apparent purport is said to be void. One which may take effect but is liable to be deprived of effect at the option of some or one of the parties is said to be voidable.”
The defect contained in the voidable act is sufficiently serious to enable the act to be subsequently attacked by one of the parties and declared void by the courts. If, however, it is not avoided the act will take effect as a valid juristic act. One learned writer has suggested that the correct way to view the voidable act is as “an act which gives rise to the intend-ed legal consequences, but at the same time gives rise to a counteractive right which may neutralize those consequences in so far as one of the parties is concerned.”
A void marriage, if such exists in Ethiopian law, is one to which there is such a serious objection in law because of a grave defect that, should its existence be in question, it will be regarded as never having taken place and can be so treated by all affected or interested parties. Any court declaration made would merely have the purpose of affirming that the marriage never existed and of clarifying the status of of the parties as never having been married. Any person having an interest therein could petition for a declaration of non existence of the marriage at any time, even after the death of the parties. Since the parties never had the status of husband and wife none of the normal consequences of marriage would follow. ……
A voidable marriage is quite different from a void marriage. The marriage will be regarded as a valid subsisting marriage unless and until it is attacked. As to the effects of a voidable marriage, a distinction must be drawn between a marriage which, although voidable, is never attacked and therefore never avoided, and a marriage which is avoided. In the former case the marriage will be valid and all the normal legal consequences of marriage will follow. In the latter case, a further distinction must be made between those marriages which are given effect up to the day of avoidance. It is here that the use of the word “voidable” may be criticized. It fails to distinguish between the act which is not void ab initio but is declared void retroactively by a court, and the act which is deprived of all future effect by the court but which retains such effect as it has had up to avoidance.
Three categories then emerge. The marriage which is void ab initio, that is which never came into being or had any effect; the marriage which is void retroactively, (ex tunc), that is which came into being, would have been valid had it not been found out, but is not deprived of all effect: and the marriage which is void ex nunc, that is which is deprived of effect for the future but which holds good for the past. The only category into which the Ethiopian marriage law clearly falls is that of void ex nunc.
As we can see from the above discussion, unlike other legal systems the Ethiopian law recognizes only voidable marriages. A marriage which has been concluded when one or more of the essential conditions are lacking will be invalidated. That is to say, from the date of invalidation, the marriage will cease to exist, and the consequences of dissolution of marriage will follow. However, for the time being that the marriage was intact, it will be considered as a valid marriage.
The other very important thing that needs to be noted here is the change made by the RFC in respect of provisions dealing with punishment for violation of essential conditions. The Civil code, apart from providing for the civil consequences of violating essential conditions, also makes reference to the Penal Code for criminal punishment. However, the civil code did not show the exact punishments accompanying. As a result maintaining these provisions was not necessary. The RFC provide only the civil consequences and if one wants to know the criminal consequences, reference has to be made to the Criminal code.
In our subsequent discussion, we will look into the civil as well as criminal consequences of violating each essential condition.
As far as the consequence of violation of essential conditions is concerned, we may classify the conditions into three categories. The first one is the impediment to the celebration of the marriage which does not affect its subsequent validity, its purpose being only prohibitory. The first condition which falls under this category is period of widowhood. As discussed earlier, the purpose of this condition is to avoid conflict of paternity and to ensure the right of children to know their parents. If, however, marriage is concluded without the lapse of the 180 days stipulated by the law, the marriage will not be dissolved.
Civil marriages are to be concluded before an officer of civil status, who is competent enough to celebrate marriages, and by fulfilling certain formalities. However, the fact that the officer does not have competence to celebrate marriage will not be a ground to dissolve the marriage. Moreover, article 25/3 requires the officer to tell the future spouses and the witnesses the consequence of their declaration before taking an oath. The failure of the officer to inform this fact to the future spouses and the witnesses will not be a ground to dissolve the marriage. Another formality related to celebration of marriage, as incorporated under article 25/6 is, the requirement on the part of the officer to pronounce the parties united in marriage after they have fulfilled all the requirements and issue certificate of marriage. The failure to fulfill this requirement is also not considered as a ground for dissolution of marriage.
The other group of impediments relates to those which will prevent the marriage from taking place and make the marriage voidable if it takes place, but for reasons occurring after the marriage, the impediments cease to exist and the marriage becomes valid. ‘The distinguishing aspect of this group is that the marriage, although voidable after celebration and thus open to dissolution, can be subsequently validated. This means that the marriage which is voidable after its celebration due to a defect therein can subsequently become valid through the ex facto removal of the impediment or by the passage of time. This process is known as validation’
Those marriages which are voidable, but may be validated include underage marriages, bigamous marriages, marriages concluded by judicially interdicted persons, marriages concluded under the influence of violence, marriages concluded in the existence of fundamental error.
Underage marriages: - the RFC under article 31 states that marriages which are concluded by a man and a woman who have not attained the full age 18 years can be dissolved. The dissolution obviously is to be made by the court by application. As to who may apply for the dissolution of this marriage, article 31 states that any interested person and the public prosecutor may do so. The term ‘any interested person’ for purposes of application for dissolution should be construed in a similar manner as it is construed in article 18.
What makes this condition a relative condition is that the dissolution of the marriage may not be sought once the spouses have attained the minimum marriageable age. Hence, even if the marriage is voidable for non fulfillment of the required age, it may latter be validated as a result of attaining the required age.
The Criminal Code, on the other hand, attached criminal sanction on this voidable but validatable marriage. A person who concluded marriage with an underage, knowing that she has not attained the minimum marriageable age stipulated under the family law, will be subject to rigorous imprisonment for not more than three years. This is so if the victim is 13 years and above. However, if the victim is below 13 years, the punishment will be a rigorous imprisonment not more than seven years.
Bigamous Marriages: - the bigamous marriage also falls into the category of marriages which are voidable but validatable. Either spouses of the bigamous marriage and the public prosecutor are given the right to apply for the dissolution of the bigamous marriage. The application for dissolution may be made only as long as the former spouse of the bigamous marriage is alive. If however, the former wife dies, it can be validated. A presumption of validity is attached to bigamous marriages until avoided by dissolution. ‘Nevertheless the bigamous marriage is unique in that its validation does not come about automatically after a lapse of time; its validation occurs upon the death of the first spouse.’
Article 650 of the Criminal Code, on the other hand, stipulates the criminal consequence of concluding a bigamous marriage. The party who concluded a bigamous marriage will be sentenced to a simple imprisonment, but if he/she concluded the second marriage by concealing the truth and deceiving the new spouse, the punishment will be five years rigorous imprisonment. On the other hand, if the new spouse was aware of the previous marriage of the bigamous spouse, he/she will be sentenced to simple imprisonment. One thing that needs to be noted here is that bigamy is not always a punishable act. Bigamous marriages may be allowed in some religions and cultures. If the family law of a certain region allows the conclusion of a bigamous marriage, there is no reason for the criminal code to penalize those who concluded a bigamous marriage.
Defective Consent: - consent constitutes the basic element for the conclusion of marriage. There are various grounds which may vitiate the consent of a person. Articles 34-36 of the RFC deal with the fate a marriage which has been concluded in the absence of the consent of one or both of the parties. Whatever ground causes the defective consent, the marriage concluded in such manner will be dissolved. However, there is a difference in the time limit within which the application for dissolution may be made to the court.
In case of a judicially interdicted person, it is the judicially interdicted person and the guardian who are given the right to request the dissolution of the marriage. The JIP may not apply for dissolution six moths after the date of termination of his/her disability. And as for the guardian, the application has to be made within six month after the day on which the guardian becomes aware of the existence of marriage, and in any case after the disability has ceased. Here we arae dealing with two types of limitations. The first one is a relative limitation in that it depends on when the guardian becomes aware of the existence of the marriage. The second is an absolute limitation. In all the circumstance, unless an application is made within the specified time the marriage will be validated.
When the consent is vitiated as a result of an act of violence, the party who concluded the marriage under the influence may apply to the dissolution of marriage. However, the application cannot be made six months after the cessation of the violence. So, the party seeking for the dissolution of the marriage has to make application at the time when the violence is still intact or alternatively within six months after the cessation of the violence. There is also a two year absolute limitation which will be counted beginning from the date of conclusion of marriage. Once these time limitations have passed, the marriage becomes a valid one.
In case where the consent was vitiated by error, whosoever has concluded marriage due to fundamental error may apply for the dissolution of the marriage. The application has to be made within six months after the discovery of the error. Otherwise, the marriage will be valid. It also has a two year absolute period of limitation.
Apart from dissolution of marriage which suffers from a defect in consent, there is also a criminal sanction attached. The party who has concealed the existence of one or more conditions which will cause the dissolution of marriage will be punished by simple imprisonment not exceeding two years and a fine not exceeding five thousand birr.
One very important thing which needs to be noted here is it is not only those persons who concluded the voidable marriage who will be liable to criminal punishment. Rather the law also includes those persons who celebrated such marriages.
The third category of impediments is absolute impediments. Under this falls relationship by consanguinity and affinity. ‘These obstacles are so grave that they can never be cured and therefore the marriage can never be validated….if a couple are married despite this impediment their marriage remains voidable.’ That means it may be dissolved at any time. The public prosecutor and any other interested person are given the right to apply for the dissolution of such marriage.
As discussed earlier, marriage is an institution to be entered into with the full and free consent of the parties. This assertion suggests that it is primarily the parties themselves who will have a say on whether they should be joined by matrimony or not. However, from our discussion on chapter one, what we can also infer is that the society and the state also have interest in the marriage of the two individuals. The society and the state regulate and provide protection for the institution of marriage. The law, by way of regulating the relationship, has provided certain conditions which are essential for the validity of a marriage. The society as well as the executive organ of the government, on the other hand, has the obligation to oversee the observance of these essential conditions prior to the conclusion of the marriage.
In the following section the discussion will focus on as to who may bring an opposition for the conclusion of marriage, to whom this opposition may be made, when this opposition should be made and the form of the opposition.
Who may oppose?
Depending on the essential condition which is violated, the persons who may oppose to the conclusion of the marriage differ. When the condition violated is age, there are potentially three groups of persons who are given the right to oppose. The first one is the parents of the minor. If one of the future spouses have not attained the minimum marriageable age stipulated by the law i.e. 18 years, then the parents of that minor may oppose to the marriage. In many instances underage marriages are arranged by the parents of the minor themselves. In such situations obviously other persons should be given the right to oppose for the marriage. This is where the public prosecutor comes into picture. Apart from the fact the parents of the minor are involved in the planning of the marriage and hence not opposing to its conclusion; underage marriage is considered as a criminal act. Moreover, the state has also the obligation to see the respect for the essential conditions of marriage. Therefore, the law gives the public prosecutor the right to oppose the underage marriage. Last but very importantly, the law gives ‘any other interested person’ a right to oppose the underage marriage. Here, one very important question is as to who can this ‘any interested person’ be. Does it refer to any passerby or it has qualifications?
In civil suits persons who may by plaintiffs are qualified under article 33/2 of the Civil Procedure Code. This article requires a person to have a vested interest in the subject matter of the suit, to be qualified as a plaintiff. That is to say, the outcome of the suit has to affect the person either positively or negatively so that he can be the real party in the suit. Article 18/a of the RFC should also be construed in this manner even if we are not talking about court proceedings. As a result, when the law refers to ‘any other interested person’ it refers to those parties who may be directly or indirectly affected by the conclusion of the underage marriage. Under this group are included those NGOs which are working on the prevention of underage marriages. If they oppose the conclusion of an underage marriage, it means they are achieving one of the goals of their establishment, and hence making them an interested party.
When the essential condition violated is relationship by consanguinity or affinity, the right to oppose the marriage is given to the ascendants of both or one of the future spouses as well as their brothers and sisters who have attained the full age of 18 years. Apart from these persons, the public prosecutor, as the organ having the obligation to safeguard the interest of the society and the state, is given the right to oppose this marriage.
In cases of bigamous marriages, there are two persons who may oppose. The first one is the previous wife or husband of the bigamous spouse. Bigamy is considered under the criminal code of 2004 as a crime, unless it is justified by the religion or custom of the person. Hence, the public prosecutor has some interest in the prevention of conclusion of this kind of marriage. As a result, article 18 also provides the public prosecutor a right to oppose such marriages.
In the case of judicial interdiction, it is the guardian of the interdicted person and the public prosecutor who may oppose to the marriage.
As we can see from the above discussions, the persons who have the right to oppose conclusion of marriage is different with the difference in the type of condition violated, with the exception of the public prosecutor. One of the functions of the public prosecutor is to see that the peace, security and interest of the general public are fulfilled (respected). The public, on the other hand, has an interest in the marriages of individuals. Hence, the public prosecutor will have the duty to take action (by way of opposition) whenever essential conditions of marriage are to be violated.
The next question to be raised in relation to opposition is ‘to whom should it be made?’ this is answered by referring article 19 of the RFC. The Amharic version of this article provides that opposition is to be made to the marriage celebrating officer while the English version limits it to the officer of civil status. Following the English version will have its own dangers. First, it makes reference only to civil marriages because it makes only the officer of civil status the competent organ to receive complaints (oppositions). This means, if the marriage is either religious or customary marriage, there is no organ empowered to entertain the opposition, as the officer of civil status is not empowered to celebrate these marriages. Secondly, one of the rules of interpretation of laws as enshrined under article 2/4 of proclamation 3/95 (Federal Negarit Gazeta establishment Proclamation) states that in cases of discrepancy between the Amharic and English version of the negarit gazeta, the Amharic version prevails. Hence, for these two reasons we have to follow the Amharic version of the code.
Accordingly, opposition is to be made to the organ which has the power to celebrate the marriage. If the marriage to be celebrated is a civil marriage, opposition will be made t the officer of civil status. On the other hand if it is a religious or customary marriage, the opposition has to be made to either to religious fathers or to the elderly people celebrating the marriage, depending on the situation.
In order to show the seriousness of the case, the opposition is required to be made in a written form. Hence, there is no oral opposition to marriage. There is also a time limit attached. The opposition has to be made 15 days before the celebration of marriage. In civil marriages, there may not be that much of a problem in the time limit at least as far as the law is concerned. Article 23 of the RFC requires the future spouses to notify the officer of civil status of their intention to conclude marriage, a month before its celebration, and the latter has the obligation to publicize the same. The idea here is everyone will have access to the notification publicized by the officer of civil status and hence within two weeks those interested persons will make opposition. (there will be 2 weeks left prior to the conclusion of the marriage). However, when it comes to the other modes of conclusion of marriage, this kind of stipulation is not provided, making observance of article 19 somehow impractical. The law provided the maximum time within which the opposition has to be made. This limitation takes into account various societal values and the burden on the future spouses. Hence, the observance has to be strictly followed.
The other very important issue in relation to opposition is issue of appeal from the decision on opposition. The person to whom opposition is made has to make its decision within five days. If the celebrating officer rejects the opposition and decides to continue the celebration of the marriage, the decision will be final one. However, if the decision is to accept the opposition and suspended the celebration of the marriage, the future spouses or one of them may appeal to the court against the decision. This article shows the weight given to the right of the future spouses to form family.