A. Introduction

Family, the cornerstone of society, finds its foundation in marriage, a union cherished across cultures and supported by legal, cultural, religious and moral principles. This sacred bond fosters deep personal relations and establishes a shared financial/pecuniary framework for spouses. As couples build their lives together, they acquire assets, create financial responsibilities, and navigate the landscape of shared resources.

This blog explores and comprehensively summarizes Chapter 5 of the FDRE Revised Family Code (hereinafter “the Code”). Chapter 5 of the Code (Articles 85-93), entitled "Liquidation of Pecuniary Relations Between Spouses," provides the legal framework for liquidating pecuniary interest between the spouses, and ensures fairness and safeguards the interests of both spouses when navigating the complexities of dividing/liquidating shared assets and liabilities during divorce. The blog will examine the classification of property within marriage and, then, delve into Chapter 5 of the Code.

B. Classification of Property under Ethiopian Family Law

1. Personal Property

Under Article 57 of the Code, personal property includes assets owned before marriage or obtained through inheritance or gifts during the marriage. Such property remains with the individual after divorce unless voluntarily included in the common property. Specifically, it comprises assets possessed prior to marriage and those acquired by succession or donation thereafter. Article 57 states that these properties shall remain personal.

2. Common Property

The Code defines "common property" as all assets acquired by either spouse during their marriage, encompassing income from personal efforts, joint property, and gifts received by both partners. It presumes that all property obtained during the marriage is common unless proven otherwise. Key provisions include:

Article 62: All income from personal endeavors and property acquired through purchase or exchange during the marriage is considered common, unless specified as personal. Gifts or inheritances received jointly are also deemed common.

Article 63: The law presumes common ownership, placing the burden of proof on the spouse claiming exclusive ownership. Personal property claims cannot be asserted against third parties unless they were aware of the property's status.

C. Understanding Articles 85-93 of the FDRE Revised Family Code

The FDRE Revised Family Code, applicable in Addis Ababa and Diredawa, Ethiopia (while most regional states of Ethiopia have their own codes with slight variations), provides a comprehensive framework for the equitable division of assets and liabilities upon divorce. Articles 85-93 outline the specific legal provisions governing this process.

1. Contractual Agreements Take Precedence (Article 85)

Prenuptial or postnuptial agreements between spouses dictate asset division, unless superseded by specific provisions of the Code regarding compensation. In their absence, the Code's subsequent provisions govern the division.

2. Reclaiming Personal Property (Article 86)

Each spouse retains the right to reclaim personal property owned individually before the marriage, subject to proof of ownership. If personal property has been sold and proceeds incorporated into common property, the spouse can claim an equivalent value from the common property.

3. Indemnities for Mismanagement (Article 87)

This provision addresses situations where one spouse entrusted with managing either common or personal property acts in a way that harms the other spouse's interests. This includes unauthorized actions, mismanagement, or fraudulent activities. The aggrieved spouse can seek compensation for damages from the court, but claims for actions exceeding five years prior to dissolution are barred.

4. Unlawful Enrichment (Article 88)

This provision protects a spouse whose personal property has been unjustly enriched at the expense of the other spouse or common property. Unless stipulated otherwise by agreement, the court can order compensation to the aggrieved spouse.

5. Prioritizing Debt Repayment (Article 89)

Article 89 underscores the importance of settling debts before the division of assets. Both spouses are responsible for all debts incurred during the marriage, whether formally recognized by a court or acknowledged by both parties. This ensures that creditors are protected and prevents unfair distribution of property.

6. Equal Division of Common Property (Article 90)

The principle of equal division of common property, as outlined in Article 90, forms the foundation of property division in [Your Jurisdiction]. This article states that unless prior agreements or specific provisions dictate otherwise, each spouse will receive an equal share of assets acquired during the marriage.

7. Flexibility in Property Division & Addressing Difficult-to-Divide Assets (Article 91-92)

Article 91 addresses the practical challenges of dividing marital assets. The primary method is "division in kind," where each spouse receives a portion of the actual asset. However, if an equal division in kind is infeasible, the difference will be compensated through monetary payments. The court strives to ensure that each spouse receives assets that are most advantageous to them.

When assets are difficult or impossible to divide, Article 92 provides a solution. If spouses cannot agree on who should receive the asset, it will be sold and the proceeds divided equally. Should disagreement arise regarding the sale terms, an auction can be initiated at the request of either spouse.

8. Post-Dissolution Debt Liability (Article 93)

Article 93 clarifies responsibility for debts incurred after the marriage dissolution and property division. If the debt was to be paid from the common property, each spouse bears liability proportional to their share of the assets. If the debt was incurred by only one spouse, they are solely responsible for its repayment.

D. Conclusion

These provision, taken together, offer a comprehensive framework for the fair and equitable division of assets and liabilities upon the dissolution of a marriage in Ethiopia. They prioritize contractual agreements, protect the interests of both spouses, and ensure that debts are addressed before the division of assets. The overarching principle is to provide a fair and just resolution to the financial consequences of the marriage, considering the specific circumstances of each case.

Key Takeaways:

• The FDRE Revised Family Code emphasizes fairness and protection for both spouses during divorce proceedings.
• Contractual agreements play a significant role in determining asset division.
• The Code outlines specific provisions for reclaiming personal property, compensating for mismanagement, and addressing instances of unlawful enrichment.
• Priority is given for repayment of debts to creditors before any distribution of marital assets occurs
• Debts must be legally confirmed by a court or acknowledged by the spouses.
• Equal division of common property between spouses is mandated and is upheld unless there are prior agreements or provisions that dictate otherwise.
• The Code advocates for "in kind" division of common property, where each spouse receives actual assets.
• Clarifies liability for debts acquired after marriage dissolution and property division.
• Common property debts are shared proportionally based on asset shares.
• Individual debts incurred by one spouse are solely the responsibility of that spouse.

Keywords: Ethiopian Family Code, FDRE Revised Family Code, Divorce Law Ethiopia, Asset Division, Marriage Dissolution, Prenuptial Agreement, Postnuptial Agreement, Personal Property, Common Property, Mismanagement, Unlawful Enrichment, Addis Ababa, Diredawa, Ethiopian Law.

Links:

• Link for the FDRE Revised Family Code Proclamation No. 213/2000 (English Version) (Amharic Version)
• Link to minutes of parliamentary deliberations on the Revised Family Code Proclamation (Amharic Version)