Law of Family Notes

Chapter Two: Marriage

Betrothal

 In earlier times, before two persons conclude marriage, they would go through the process of
betrothal.
 Mainly the betrothal was concluded between the parents of the future spouses.
 Betrothal is defined under article 560 of the civil code as a contract between the members of
two families that a marriage shall take place between two persons, the fiancé and the fiancée,
belonging to these two families.
 in many circumstances the practice shows that betrothal was concluded when the future
spouses are underage and sometimes not yet born. This means, the interest and choice of the
future spouses was not considered at all. On the other hand, the Constitution of 1995
recognizes the right of individuals to form a family with their own free and full consent. As
result, the provisions of the Civil Code dealing with betrothal were found to be contrary to
this fundamental right of individuals. Hence, the RFC has excluded the concept of betrothal
as a whole.
 All the regional laws which incorporated the concept of betrothal defined it as a pact between
the fiancé and fiancée to conclude marriage sometime in the future.
 The Family Code of the Amhara region requires the contract of betrothal to be made in a
written form signed by four family witnesses, two from each side.
 The family code of the Benishangul Gumuz region allows betrothal to be concluded pursuant
to the custom of the area. This may be either in writing or orally, whichever is customarily
practiced in the region.
 The family codes have also provided a time framework for the duration of the betrothal.
Article 6 of the SNNP family code leaves it open for the parties to determine the duration of
betrothal. However, if the parties fail to mention the time for the conclusion of marriage, it
requires them to tie the pact within a year after the conclusion of the betrothal contract. The
family code of the Benishangul Gumuz, on the other hand, gives only six months after the
conclusion of the betrothal contract. The time framework given under article 6 of the Amhara
regional family code is two years..
 The family codes have also envisaged a situation for the invalidation of the betrothal contract.
If one of the parties to the betrothal contract communicate their intention to invalidate the
betrothal, or refuse to conclude marriage within the intended period or engaged in any act to
impede the conclusion of marriage, the betrothal contract will be invalidated.

Definition of Marriage

 In Ethiopia, marriage is regarded in both the Civil Code. The Revised Family Code and the
regional family codes as an institution, rather than a contract.
 In the English legal system, marriage, as defined by Sir James Wilde in the land mark case of
Hyde Vs Hyde, is the voluntary union for life of one man and one woman to the exclusion
of all others. Three elements. First, the marriage has to be concluded between a man and a
woman, there is no legal marriage between same sex persons. Secondly, the institution of
marriage is to be entered into with the absolute consent of the parties i.e., voluntarily. In
 addition, the marriage is expected to last for a life time, death being the only cause for
dissolution.
 The Philippines Family Code of 1987, on the other hand, defines marriage as a special
contract of permanent union between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life.

Modes of Conclusion of Marriage

 There are three modes of conclusion of marriage.

1. Civil Marriage (Marriage Concluded before an Officer of Civil Status):
 For a marriage to be considered as being concluded before an officer of civil status, a man
and a woman need to appear before the officer for the purpose of concluding marriage and
give their respective consent to enter into marriage. The phrase civil marriage basically refers
to the fact that the marriage has been solemnized in front of an officer who is empowered to
accept the consent of parties wishing to enter into marriage.
 In order to conclude civil marriage, there are certain formalities and requirements which are
stipulated by the RFC. The first formality is that of a residence. Pursuant to article 22 of the
code, civil marriage is concluded before the officer of civil status of the place where one of
the future spouses or one of the ascendants or close relatives of one of them has established a
residence by continuously living there for not less than six months before the conclusion of
the marriage. The other formality is that of giving notice. The RFC requires the future
spouses to inform the officer of Civil Status of their intention to conclude marriage not less
than a month before the celebration of the marriage. The purpose of notifying the officer is to
make sure that there are no impediments to the conclusion of marriage and to allow anyone
who want to oppose to the marriage to do so in accordance with the law.
 Once these preliminary formalities are fulfilled and the work of publicizing the intention of
the parties to marry has been made by the civil status officer, the next step is the celebration
(solemnization) of marriage. Celebration of marriage is to be made publicly in the presence
of the future spouses and two witnesses for each of the future spouses. One requirement
stipulated under article 25 of the RFC is that the future spouses have to personally appear for
the solemnization process. In connection to this requirement, the issue of proxy marriages can
be raised.
 The question of whether marriage can be concluded by proxy is of little practical importance
in modern times. However, there may be circumstances which would necessitate the use of
representation for marriage. Marriage by representation is necessary when one of the parties
cannot be present for the ceremony. ‘While its most prominent use has been in wartime with
one party on duty overseas, sometimes it is used by prisoners.’ Considering the need to
conclude marriage by representation, the Civil Code of 1960 as well as the RFC allowed by
way of exception for the conclusion of marriage through representation. One should note here
that in principle each of the future spouses are required to appear personally and give their
consent to the marriage at the time and place of celebration
 The other formality incorporated under article 25 of the RFC is the obligation on the
witnesses to declare, under oath, that the essential conditions for marriage are fulfilled
 The third formality requirement for celebration of civil marriages is that the future spouses
need to declare openly that they have consented to enter into the marriage.
2. Religious Marriage
 Pursuant to article 3 of the RFC, a religious marriage takes place when a man and a woman
have performed such acts or rites as deemed to constitute a valid marriage by their religion or
by the religion of one of them.
 The formal requirements for the conclusion of religious marriage are dictated by the religion
itself. The essential conditions that are stipulated by the RFC need to be observed whatever
the manner of celebration of marriage is.
3. Customary Marriage
 Pursuant to Article 4 of the RFC marriage according to custom takes place when a man and a
woman have performed such rites as deemed to constitute valid marriage by the custom of
the community in which they live or by the custom of the community to which they belong or
to which one of them belong.
4. Marriage Celebrated Abroad
 Article 5 of RFC provides for the recognition of marriages which are celebrated abroad as
valid in Ethiopia.
 The marriage whose recognition is sought in Ethiopia has to be concluded by fulfilling the
legal requirements of the place of celebration. Article 5 of the RFC provides for the
recognition of marriages celebrated abroad as far as doing so will not be contrary to public
morality.

Essential Conditions of Marriage

1. Consent
 Marriage is an institution which is to be entered into by the parties with their free and full
consent. The UN Convention on Consent to Marriage, Minimum age of Marriage and
Registration of marriage as well as the Recommendation of the UN General Assembly which
was adopted in 1965 provide consent as a prerequisite for the conclusion of marriage.
 Pursuant to article 1 of the UN Convention, no marriage shall be legally entered into without
the full and free consent of both parties.
 In some parts of Ethiopia, the culture does not require the consent of the future spouses for
conclusion of marriage; rather what really matters is the willingness of their parents to tie
their children in bond of marriage.
 When the international as well as domestic legal instruments require existence of consent as a
requirement for marriage, it implies that ‘there must be no duress or force inducing the
marriage or any misunderstanding as to the effect of the marriage ceremony.’
 The RFC recognizes some grounds which would vitiate the consent of the spouses.
o Fundamental Error: What the law considers to be fundamental errors are illustrated under
sub article 3 of article 13. These include:
1. Error on the identity of the spouse where it is not the person with whom a person intended to
conclude marriage: - here the mistake has to be as to identity rather than as to attribute. Cases
of impersonation can be considered as fundamental error falling under this category.
 However, if the error pertains to the attribute of the person like for instance if one party
mistakenly thought that the other was rich, it cannot be considered as a fundamental error as
per the requirement of the article and hence, will not be a ground to invalidate the marriage.
2. Error on the state of health of the spouse who is affected by a disease that does not heal or
can be genetically transmitted to descendants:-
3. Error on the bodily confirmation of the spouse who does not have the requisite sexual organ
for the consummation of the marriage
4. Error on the behavior of the spouse who has the habit of performing sexual acts with person
of the same sex.
o Violence (Duress)
 If the consent to marry was extracted by violence, it cannot be said that the party has freely
consented to the marriage. As a result, article 14 of the RFC considers a marriage concluded
when consent is extorted by violence as an invalid marriage. If the consent was given to
protect himself/herself or one of his/her ascendants or descendants or any other close relative
from a serious and imminent danger or thereat of danger, it can be said that the consent was
extorted by violence.
o Judicial Interdiction
 Judicial interdiction exists in the cases where a person is insane according to article 339 of
the Civil Code and where he has been interdicted by the court. The court orders interdiction
of the person because his health and his interest so requires or because his heirs’ interest so
require. As a result of the lessened capacity, an interdicted person may conclude marriage
only with the authorization of the court.
2. Age

 As discussed above, under Ethiopian law, marriage is an institution to be entered into by the
full and free consent of the parties. In order to freely consent to the marriage, the parties
should understand the consequences of their acts, and hence need to attain a certain age.

 The Convention on Consent to Marriage, Minimum age of Marriage and Registration of

Marriage under the preamble, by making cross reference to the Universal Declaration of
Human Rights provides that it is only those men and women who attained full age who can
enter into marriage. This being the requirement, the next question would be as to who could
be considered as being of full age. Specifying the minimum age for marriage is left for the
individual countries to govern through legislation. However, this power of the state is not
without any limitations.

 According to the RFC, the minimum marriageable age is 18 years for both sexes. Hence, any
person who has not attained the full age of 18 years may not conclude a valid marriage.
However, there are circumstances in which a valid marriage could be concluded without the
fulfillment of this requirement. If the Minister of Justice, for serious cause, grants for
dispensation, on application of the future spouses, or the parents or guardian of one of them,
marriage could be validly concluded. The dispensation, however, may not be more than two
years. This means, the maximum year that can be dispensed by the Minister is 2 years, and
hence, the lowest age of marriage can be 16 years.
Relationship
 The other essential condition for the conclusion of marriage is relationship, or rather the
existence of prohibited degrees.
 In many societies across the world there are laws which prohibit marriage between people
who are related. The restrictions under the RFC are based on two groups of relations: those
based on blood relationships i.e. consanguinity and those based on marriage, i.e. affinity. The
prohibited consanguinity restrictions involve marriage between persons related in the direct
line between ascendants and descendants. Hence, marriage between parent and child,
grandparent and grandchild is prohibited. On the collateral line, article 8/2 prohibits marriage
between a man and his sister or aunt and also a woman and her brother or uncle.
 There are different reasons given for prohibiting marriage between related persons. The first
argument is the fear of genetic danger involved in permitting procreation between close blood
relatives.
 Under the 1960 Civil Code, marriage between ascendants and descendants as well as
collaterals up to the 7th degree was prohibited.
 Marriage between persons who are related by affinity in the direct line is also prohibited
under the RFC article 9. On the collateral line, marriage between a man and the sister of his
wife, and a woman and the brother of her husband is also prohibited.
Bigamy
 The other essential condition for the conclusion of a valid marriage is the absence of prior
marriage. As stipulated under article 11 of the RFC, a person is not allowed to conclude
marriage when he is bound by the bonds of a preceding marriage. Many countries have laws
which prohibit bigamous marriages.
Period of Widowhood
 The concept introduced here by the legislature relates to the fact that a woman is under
prohibition to remarry within the next one hundred and eighty days following the dissolution
of her former marriage.
 The rationale for the limitation under article 16 is to respect the right of children enshrined in
the Constitution and other international human right instruments to which Ethiopia is a party.
Article 36/1/c of the 1995 FDRE Constitution provides that each child has the right to know
and be cared for by his/her parent or legal guardian. This principle is also enshrined under
article---- of the UN Convention on the Right of the Child (CRC) to which Ethiopia is a
party. In addition to this right, article 128 of the RFC provides a presumption as to the
duration of pregnancy. In order to respect the right of children and also to comply with the
presumption, it is necessary to avoid any circumstances which would create a doubt as to who
the father of that child is. Hence, by requiring the female to wait for a period of 180 days
following the dissolution of a previous marriage, the law tries to avoid any conflict of
paternity.
 The article also provides for some exceptional circumstances in which the 180 days
restriction need not be observed. The first of such exceptions is if the woman gives birth after
the dissolution of marriage and before the lapse of the 180 days. In such a situation, it is
 presumed that the child is born from the previous marriage and hence there will not be any
conflict on paternity. Hence, she may remarry even before the 180 days lapsed. Remarrying
the former husband will also avoid the conflict on paternity and hence if the woman is
marrying her previous husband, she may do so without waiting for the 180 days. In addition
to this, if she can prove by medical evidence that she is not pregnant, she need not wait for
the lapse of the specified time before concluding another marriage.
Opposition to Marriage
 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.
 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. 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.
 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.
 In the case of judicial interdiction, it is the guardian of the interdicted person and the public
prosecutor who may oppose to the marriage.
 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. For these two
reasons we have to follow the Amharic version of the code.
 the opposition is required to be made in a written form. The opposition has to be made 15
days before the celebration of marriage. 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 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.
Effects of Violation of Essential Conditions of Marriage
 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.
 The Civil code, apart from providing for the civil consequences of violating essential
conditions, also makes reference to the Penal Code for criminal punishment.
 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.
 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.
 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.
 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.
 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.
 Defective Consent: - consent constitutes the basic element for the conclusion of marriage.
There are various grounds which may vitiate the consent of a person. 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.
 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 couples 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.

Chapter Five: Dissolution of Marriage

Effects of Dissolution of Marriage

1. Child Custody
 When a marriage is dissolved through divorce, one of the questions which need to be
answered by the court is as to who should have custody of those minor children.
 Custody of a minor child encompasses various set of rights and obligations under it, like the
right to live with the child in a shared residence, authority over the discipline of the child and
education as well as medical treatment.
 The Civil Code under article 681 requires the court to determine issues of child custody
having regard solely to the interest of the children. The courts have to investigate what would
be best for the child at the time of deciding as to where the child will be placed after the
dissolution of the marriage. Children under five years of age will be placed with their
mother unless there is a reason for not doing so. It seems that the law gives priority for the
mother because children under five years require the care and protection of their mother than
their father. Causes for such disqualification of the mother could be, if the mother suffers
from a disease as a result of she cannot take care of the child.
 Article 113 of the RFC deals with the role of the court in determining custody of children
after the pronouncement of divorce. By virtue of this article, there are three questions to be
addressed by the court at the time of determining custody case. The first is who should have
custody of the child? The second question is in relation to the maintenance of the child, how
much should the non custodial parent give for the maintenance of the child? The third
important question is the right of the non custodial parent to visit the child. How often should
this visitation be? For how long can the non custodial parent stay with the child and other
related questions are to be given a response by the court.
 If the divorce is made by mutual consent, the parties are also expected to determine the
consequences of their divorce, including custody of their children, by their agreement.
However, in the case of any other divorce, article 221/2 gives the mandate to the court to
determine as to who should be the guardian or tutor of the child. In doing so, the court is
expected to observe the guidelines enumerated under article 113/2. These guidelines include
consideration of income, age, health and condition of living of spouses on the one hand and
the age and interest of the child on the other hand. However, care should be made not to
assume that the financially well to do parent is always in a position to provide the necessities
of the child. Bringing up a child involves nurturing the behavior of the child as a result of
with the living condition and also of the behaviors of the parent need to be considered. On top
of this, interpretation of the best interest of the child requires one to consider the view of the
child. If the child is in a position to manifest his wishes, the court should seek to find out.
However, care needs to be made at this time. ‘The court should ascertain that the child’s
choice was not a result of undue influence from the chosen parent, as there is a strong
possibility of the parent with interim custody to counsel the child to his or her choice.
 When seeking the opinion of the child, two factors need to be considered. The first one is
age of the child. The court has to be sure that the child has reached the age group in
which he can make a reasonable preference. On the other hand, other statutes instead of
limiting the age, provide for the child’s preference to be considered and given weight if it
reflects a level of mature judgment, the court is required to make its own assessment of the
preference of the child.
 The preference of the child is also to some degree influenced by the circumstances in which
he is interviewed. The second essential thing which needs to be considered is the
environment in which the child’s preference is to be obtained. The presence of the
parents may intimidate the child, and hence it is better if the court interviews the child
without the presence of the parents.
2. Liquidation of Pecuniary Relations
 Law has given discretion for the spouses to agree upon the management of their property.
This discretion is also extended in respect of the partition of property. If the parties have
addressed the issue of property in their contract of marriage as per article 83/3, then the
contract will be effected by the court. However, if there is no contract of marriage or if the
contract of marriage concluded is not valid, then the court has to decide on the right of the
parties in respect of the properties.
2. Partition of Common Property
 Once what constitutes common property has been ascertained, the next thing to do is to
decide on the manner of partitioning this common property between the spouses. The rule in
partition, as is reflected under article 90 RFC is that common property shall be divided
 equally between spouses. This is a reflection of the Constitutional provision which gives both
spouses equal right in respect of property at the time of entering, during and at the end of
marriage.
 The rule is that partition will be made in kind in such a way that each spouse receives some
property from the common property; any inequality will be set off by the payment of sums of
money. If the property is difficult or impossible to divide, or alternatively if the spouses do
not agree as to who should have the property, it will be sold and the proceeds will be divided
between them.
CHAPTER SEVEN: FILIATION
Maternal Filiation
 Maternal filiation is the basis for the whole consanguinal relationship since the relationship of
kinship by blood emanates from this very relationship. The family relationship consists of
three distinct statuses.
 The status of being brother and sister, father and child is established only after the
establishment of maternal filiation. Without it, a child can’t have the status of being a son or a
daughter within a family for he/she will neither have a father nor a mother.
 According to Art 740(1) of the 1960 Civil Code of Ethiopia and Art.125 (1) of the RFC, the
presumption of paternity flows from maternity. A person will be a father of a child because of
the presumption if such a man had relationship provided by law with the mother.
 The establishment of maternal filiation is crucial in cases of establishment of paternity
through judicial declarations. The court declares a defendant to be a father of a child if the
court is satisfied that the requirements provided under Art.143 of the RFC are fulfilled.
 According to Art.124 of the RFC maternal filiation results from the sole fact that the woman
has given birth to a child.
 Hence, the maternal filiation is established from the sole fact of birth irrespective of the type
of relationship that resulted in the conception of the child. Firstly, it is not a requirement that
a definite relationship provided by law should exist between the mother and someone at the
time of conception or birth of the child. The fact that the child was born in an illicit
relationship cannot in any way affect the establishment of maternal filiation.
 The establishment of maternity is the creation of the legal bond as a result of birth. Whereas
proof of maternal filiation, as the name indicates is a means by which a person purports to
prove an already established filiation. It is a means by which a claimant proves the fact of
birth by mere existence of which the maternal filiation is already established.
 Art.740 (1) of the Civil Code and Art.125 of the RFC, the mother of the child is the one who
gave birth to the child. Hence, in the case of artificial insemination, which of the two women
has given birth to a child, the woman from whom the ovum is taken or the one who actually
delivered the child ? ???
Contestation of Maternal Filiation (Arts.163-166 of RFC)
 Maternal filiation, the establishment of which requires the sole fact of birth, can be contested
at any time by any interested person (Art.163 of RFC). The action of the contestation of
status is intended to disprove a mere matter of fact. In order to obtain a judgment abolishing
 the already existing maternal filiation, the contestant must show to the court that it is not
based on the fact of birth. The petitioner must show that either of the elements necessary for
the establishment of maternal filiation is missing. Thus, he will have to show to the court
either (1) that the woman was not confined at the time when the child was born and/or
(2) even if the woman was confined at the time when the child was born, the child whom
she delivered is not the one whose status is in question.
Paternal Filiation
 Establishing both maternal and paternal filiation is important, among other things, to protect
the right of the child. Art.7 the convention on the Rights of Child (adopted in 1989) to which
Ethiopia is a party provides that:
1. The child shall, as far as possible, have the right to know and be cared for by his or her
parents.
2. State parties shall ensure the implementation of these rights in accordance with their national
laws.
 The Ethiopian family laws should implement the principles enshrined under the convention
and the constitution. Accordingly, the family laws have provided modes by which paternal
filiation is established. Generally, the modes of ascertainment of paternity are divided into
three.
1. Presumption of Paternity
 The first element of presumption of paternity is the existence of legally prescribed unions.
Accordingly, paternal filiation is established if at the time of conception or birth of the child
the mother had relations provided by law with a certain man. Only children born or conceived
within such relationships could benefit from the presumption of paternity.
 As far as children born in wedlock is concerned, there are strong reasons to justify the
presumption. Most of the time, it is possible to maintain that a child born in marriage is the
child of the husband because of the duties of cohabitation and fidelity. But the presumption in
Ethiopia equally applies to irregular union.
 The second element of presumption is birth or conception within the legally provided union.
Art.126 of the RFC provides that “a child conceived or born in wedlock has the husband as
father”. By the same taken, “a child conceived or born during an irregular union has as father
the man engaged in such union”, according to Art.130 of the same code.
2. Acknowledgment of Paternity
 Voluntary paternal acknowledgment is an important method by which the children conceived
or born out of a legally provided union may gain status vis-à-vis their fathers. This voluntary
declaration of paternity can be used to establish paternal filiation if paternity is not possible to
establish using the presumptions of paternity. This is clearly provided under Art.131 of the
RFC which stipulates that when the father of the child is not determined by applying the
provisions of the preceding articles, the paternal filiation of a child may be established by
acknowledgement of paternity. This seems to give acknowledgement a rather narrow scope
Form of Acknowledgment
 This requirement of writing was introduced with the promulgation of the Civil Code. Before
that, acknowledgment was effected without any requirement of writing. Under the pre-code
customary practices, a man was considered to have acknowledged the child, if he orally said
 that the child was his. And if the man later on denies that the child is his, testimony of
witnesses or the mother’s statement under an oath that the child is an issue of sexual
relationship with the man sufficed to prove it.
 Art.748 of the Ethiopian Civil Code states that an acknowledgment of paternity shall be of no
effect unless it is made in writing. Sub article two of the same article provides that except in
cases mentioned in Art.146 of this Code [the civil code] the acknowledgement may not be
proved by witnesses. The reason for this could be the fact that certain mothers may give their
children to a man who could not be the natural father. Coming to the RFC and other regional
family laws, it has been provided that an acknowledgement of paternity results from the
declaration made by a man before an officer of civil status or by a will he made in writing
or by a document attested by a competent authority that he is the father of the child.
 Because acknowledgement is a juridical act greatly attached to the man who makes the
acknowledgement, the law, as a matter of principle, provides that acknowledgement is to be
made personally by the alleged father of the child. This must be done by the father even if the
father has not attained the age of majority. However, acknowledgment may be made by an
agent when such agent is specially appointed for this purpose by special power of attorney
which must be approved by the court. As a matter of rule, judicially interdicted persons are
incapable to perform juridical acts. However, for the purpose of acknowledgement, the law
provides that they have the capacity to make acknowledgement personally. Despite this,
acknowledgement by representation is possible provided that the representative has obtained
permission from the court to this effect.
 The other situation whereby acknowledgement may be made by a person other than the
alleged father is where the father of the child is dead or is not in a position of manifesting his
will. In this case, the law permits that acknowledgment may be made in the name of the
deceased by one of his parents.
 Although acknowledgement, as defined under Art.132 of the RFC, is deemed to be made
when a certain man makes a declaration that he considers himself the father of a certain child
merely conceived or born, it is not a unilateral act of the father. This is because
acknowledgement cannot produce effect and cannot establish paternity unless the consent
of the mother or in certain exceptional circumstances the consent of the maternal
grandparents or the child to be acknowledged is obtained.
 According to Art.136 of the RFC, acknowledgement presupposes the admission by the
mother of the child or by the maternal grandfather or grandmother of the child if the mother
is dead or not in position to manifest her will. And in default of these, the acknowledgement
may be accepted by another maternal ascendant or by the guardian of the interdicted person.
Acknowledgement cannot be effective unless it is accepted by the child to be acknowledged
where such child is of age.
 If the mother is dead or not in a position to manifest her will, the persons allowed to act in her
stead may accept the declaration. Accepting declarations is quite different from
acknowledging the same as well-founded. The latter rules out the willingness of the mother
as requisite element for the effectiveness of acknowledgment. Here, it is not the consent of
the mother that is required. If she admits the declaration of the person as well founded she
does not have any discretion of obstructing the establishment of the juridical bond between
her child and the declaring person on the ground of her unwillingness.
 The other person involved in acceptance of acknowledgment is the child to be acknowledged.
As per Art.137 of the RFC, an acknowledgement of paternity shall be of no effect unless it
has been accepted by the child himself when it is made after the latter has attained majority.
However, the acknowledgement is deemed to have been accepted where such person (the
child) has not raised any protest against such acknowledgement within one month after he
come to know of it. (Art.138 RFC).
 Although acknowledgement is effective when the mother of the child admitted as well-
founded, acknowledgement of paternity may not be made after the death of the child.
(Art.139 RFC). The prime purpose of acknowledgement is to insure the right of children to
know their father and to be cared of such father. However, acknowledgement after the death
of the child is possible where the deceased has left descendants.
Non-revocability of Acknowledgement (Art.140 of RFC)-
 Normally, an individual does not make acknowledgement unless he has justifiable grounds to
do so. Hence, he makes acknowledgement when he is, as far as his understanding goes, sure
that he is the true father of the child. Once he has made an acknowledgement of his own free
(without any external influence or pressure), he is not allowed to revoke the
acknowledgement of paternity for allowing revocation of acknowledgement will result in
disturbing the status which has already been maintained. Here the principle Pacta Sunt
Servanda (gentleman’s word is his bond) works.
 However, revocation of acknowledgement may be allowed when the father who made the
acknowledgment is a minor. Art.140 (2) of the RFC provides that a minor who has
acknowledged a child may revoke such acknowledgement for so long as he is incapable and
within one year following the cessation of his incapacity, unless his guardian consented to the
acknowledgement. Even in this case, revocation of acknowledgement is strictly personal to
the minor since the law provides that revocation may not be made by his legal representatives
or by his heirs.
Annulment of Acknowledgement
 The consent of the person who makes acknowledgement must not be vitiated. If the consent
of the acknowledger is vitiated by a vice of consent, acknowledgement may be annulled
(invalidated). However, unlike the Ethiopian Law of contract wherein violence, mistake and
fraud are vices of consent resulting in invalidation of a contract, the family law as a rule has
confined the ground of annulment of acknowledgement only to violence as clearly stipulated
under Art.141(1) of the RFC. Sub-2 of this article, in black and white, provides that
acknowledgement may not be annulled on the ground of error or fraud unless it is decisively
proved that the child could not have been conceived of the person who made the
acknowledgement.
Several Acknowledgements Prohibited (Art.142 RFC)-
 Naturally, a child cannot be attributed to two or more persons for a child has only one
biological father. It is because of this that Art.142 of the RFC prohibits several
acknowledgements. According to this article, where an acknowledgement of paternity has
been made in regard to a child, no other acknowledgement of child by another man shall be
permitted unless the first acknowledgement has been annulled. Therefore, where the first
 acknowledgement is annulled on account of grounds of annulment provided under Art.141 of
the RFC, another acknowledgement may be validly made.

3. Judicial Declaration of Paternity (Arts.143-145 of the RFC)

 Under this mode of establishment of paternity, a child who does not have a father either
through the operation of the presumption of paternity or by acknowledgement can have a
father only if the court declares a certain man to be his father. The court makes such
declaration where it is satisfied that one of the grounds which justify judicial declaration of
paternity is found. According to Art.758 of the Civil Code the grounds which declaration of
paternity by the court was abduction and rape. However, the RFC and regional family laws
have added other grounds of judicial declaration. Art.143 of the RFC, for instance, provides
that: Where, after applying the preceding articles the father of the child is not ascertained, a
judicial declaration of paternity may be obtained under the following conditions:
a. In the case where the mother has been the victim of abduction or rape at the time of the
conception of the child.
b. In the case where at the time of the conception of the child, the mother has been the victim of
seduction accompanied by abuse of authority, promise of marriage, or any other similar act
of intentional deception.
c. In the case where there exists letters or other documents written by the claimed father which
unequivocally proves paternity.
d. In the case where the claimed father and mother of the child have lived together in
continuous sexual relation, without having a legally recognized union in the period regarded
by law as the period of pregnancy.
e. In the case where the person claimed to be the father of the child participated in the
maintenance, care and education of the child in the capacity of a father.
 Despite the above grounds of establishing paternity by judicial declaration, an action brought
for declaration of paternity shall be of no effect where the conditions enumerated under
Art.145 of the RFC are proved to exist.
a. In case where the mother of the child had sexual relationship with another man in the period
regarded by law as the period of pregnancy unless it is proved by medical or other reliable
evidence that such man is not the father of the child.
b. In case where the claimed person could not be the father of the child because he was absent
or has been a victim of accident during the period regarded by law as the period of
pregnancy.
c. In case where the person claimed to be the father of the child decisively proves by blood
examination or other reliable evidence that he could not be the father of the child.
 Art.759 of the Civil Code provides that the action for judicial declaration of paternity may be
instituted only by the mother of the child, or if she is dead or not in a position to manifest her
will by the guardian of the child.
 “The action for the judicial declaration of paternity may not be instituted two years after the
birth of the child or after the sentence of a criminal court in regard to the abduction or rape.”
Regulation of Conflict Paternity
 The time framework and scope within which the presumption of paternity applies may result
in attributing one child to two or more fathers. This is basically because it is operative if a
child is either conceived or born in wedlock or irregular union as the case may be. Both these
elements when seen separately or taken together can give rise to situations when the law can
attribute the same child to two or more fathers.
 The nature of the application of the modes of establishment of paternity itself excludes the
possibility of one child having two fathers by different modes of establishing paternity. Thus,
if a child has his mother’s husband as a father, he cannot have another father either through
acknowledgment or judicial declaration. Similarly, a child can have a father by judicial
declaration, if he has no father either by the presumption of law or by acknowledgment.
Therefore, there is no possibility where a child can have two fathers by operation of two
modes of establishing paternity in different “hierarchies”. Neither can a child have two
fathers by acknowledgment nor judicial declaration of paternity. A child cannot be validly
acknowledged by more than one person at the same time for stronger reason; the court cannot
declare two persons to be the fathers of the child.
 The conflict arises when the mother has a relation (marriage or irregular union) provided by
law with two or more persons and the child could simultaneously be attributed to the person
in each relation. The conflict of paternity arising because of the aforementioned reason has
two possible solutions as provided under the RFC and the regional family laws.
 The persons to whom paternity of the same child is attributed may contractually agree to
forfeit his paternity. Such an agreement is to be attested by three witnesses and approved by
the court and the mother must be heard in person except in cases of force majeure (Art.147 of
the RFC).
 Once the agreement is annulled or if the presumed fathers failed to reach an agreement the
conflict of paternity will be solved by application of the legal presumption as provided under
Art.148 of the RFC which states that “failing regulation of paternity, the following two
presumptions shall be applied successively where appropriate:
a. The child shall be attributed to the husband of the mother in preference to the man who has
an irregular union with the mother.
b. The child shall be attributed to the husband or the man with whom the mother is living at the
time of the birth, in preference to the husband or the man with whom she was living at the
time of the conception.
 Assignment of paternity by agreement by virtue of Art.149 of the RFC is possible where the
requirements provided there in are satisfied Art.149 of the RFC provides that:
1. Where the child is born within 210 days from the conclusion of marriage or the
commencement of the irregular union, the husband or the man who is living with the woman
may, by agreement, assign the paternity of the child to another person who declares that he
is the father of the child.
2. Where the child is born more than 210 days after the dissolution of the marriage or the
cessation of the irregular union, the husband or the man who lived with the mother shall
have the right provided in the preceding sub-article.
 As a matter of principle, the agreement of assignment of paternity must be concluded by the
interested parties themselves. This is so when the parties have attained the age of majority
and are not judicially interdicted. Where the parties to such agreement have not attained
 majority or are judicially interdicted, the agreement may be concluded by specially appointed
agents by a special power of attorney approved by the court (Art.151 of the RFC).

Disowning
 In the Ethiopian Civil Code and the new family laws, there is no provision expressly defining
what disowning is. When we read together the relevant provisions pertaining to disowning,
we can understand that it as an action by which the husband or the man in an irregular union
tries to disclaim the presumption of paternity established against him, if he believes that he
cannot be the father.
 Disowning shows that the presumed father owns the status of paternity. Persons other than
the presumptive father have nothing to disown. It is less accurate for the law to use the term
“disowning”, when after the presumed father death (or incapacitation), his heirs contest the
presumption of paternity established against him.
Disowning as Distinguished from Other Modes of Contesting Legitimacy
 Legitimacy is a status of a child being born in a legally recognized union or within a
competent time after its termination under circumstances that the presumptive father can be
the father. And its contestation involves contesting that a certain child is not his, because its
birth or conception did not take place during the subsistence of a relationship that is legally
recognized, or because no existence of such a relationship at all.
 Art.167 of the RFC states, disowning is the only means by which the paternity of person may
be contested. Therefore, action to disown is brought to disclaim the legitimacy of children
who are under the protection of the legal presumption that they are the children of the person
contesting.
 Unlike the other modes of contesting legitimacy, disowning is contestation of paternity.
 In Ethiopia, the presumption of paternity of a person conceived or born in wedlock or an
irregular union can be rebutted only by the person to whom the law attributes the paternity by
proving decisively that he could not have sexual intercourse with the mother during the
period between the 300th and 180th day before the birth of the child (Art.168 of the RFC). In
this regard, the law presumes that the spouses shall be deemed to have had no sexual
intercourse with one another during the time when they actually lived separately following a
petition for divorce made by one of them or in consequence of an agreement concluded
between them (Art.169(1). However, this is a rebutable presumption as provided under sub-
article two of the same article. This is one aspect of the protection of the presumption of
paternity.
 Art.177 of the RFC permits that where the person to whom the paternity of the child is
attributed by law dies or becomes incapacitated within the time fixed by law (i.e., Art.176 of
the same code) for instituting the action to disown, one of his descendants, in his stead, may
institute an action to disown. Art.177 (2) provides that in default of descendants, the right to
disown may be exercised by his father, mother or in their default, by one of his ascendants. In
 default of ascendants, it may be exercised by one of his brothers or sisters, to the exclusion of
any other heir or representative.
 This action brought to disown a child whose filiation is established by law is stringent both in
the mode and time for making it. In our law rebutting of the presumption that the child was
born by a married woman is that of the husband is divided into three steps. First, a contestant
may prove decisively that the mother did not have intercourse with him at the time of the
child’s conception. Second, if the presumption of intercourse is not disproved the contestant
may decisively prove that it is absolutely impossible for the child to have been produced by
intercourse between the mother and him. Third, the presumed father could produce any facts
to disprove his paternity if the maternal filiation is established by the action to claim status
(Read Arts.168, 170 and 176(2) of the RFC).
 In order to maintain the presumption of paternity strong, Art.174 (1) of the RFC stipulates
that the presumed father is the only person who can institute an action for disowning so long
as he is alive. No action to this effect can be brought by the mother or by a man who claim
the paternity of the child or by the public prosecutor (Art.174 (2) of the RFC. Even a
judicially interdicted person can bring such action when he gets permission from the court
although he may be represented by his guardian when the guardian obtains permission from
the court to do so in the name of the judicially interdicted person (Art.175 of the RFC). As
regards the person against whom the action to disown is brought Art.179 (1) of the RFC
provides that such action shall be brought against the child or where he/she is dead, against
his/her heirs and sub-2 of the same article makes it mandatory that the mother of the child is
joined in the suit. Where the child is a minor, obviously, he shall be represented by a tutor ad
hoc appointed for this purpose by the court.
 Art.176(1) of the RFC makes it clear that an action to disown shall be instituted by the man to
whom paternity of the child is attributed by law within 180 days following the day he knew
or should have known the birth of the child. Art176(2) provides that where the maternal
filiation is established by an action to claim status, the action to disown shall be instituted
within 180 days from the judgment deciding on the action to claim a status having become
final. Sub-article one of Art.176 of RFC has departed from Art.792(1) of the Civil Code
because in the Civil Code the lapse of 180 days is reckoned from the date of birth of the child
while in the RFC the lapse of 180 days is to be reckoned from time when the presumed father
knew or should have known the birth of the child.
Proof of Filiation
 In the modern world, the primary mode of proof of filiation is record of birth. Record of
birth, as provided under Art.99 of the Civil Code of Ethiopia, contains the day, month and
year of the birth, the sex of the child, the first names which are given to him or her, the
names, first names, dates and places of birth of this father and mother and where appropriate
the names, first names, date and place of birth of the person making the declaration.
1. Proof by Record of Birth and Possession of Status
 Record of birth both under the Civil Code and the current family laws is the primary means
of proof though not the only means. Despite this when it is not possible to prove filiation by
record of birth, it is not possible to switch to proof by possession of status. In this regard,
Art.155 of the RFC provides in default of certificate of birth, filiation is proved by the
possession of status of child.
 Before one resorts to prove his case by possession of status, one should convince the court
that birth certificate was not issued from the very out set or birth certificate was lost,
destroyed or stolen. Therefore, the court must not admit proof by possession of status without
convincing reasons that establish that proof by certificate of birth is impossible.
 Art.156 of the RFC provides that a person has the possession of status of child when the child
is treated by the community as being the child of such man or woman. If certain members of
a community appear in court and testify that they have reasonable belief that the child
belongs to a certain man or woman, that may be taken as sufficient proof. However, such
kind of testimony may not be sufficient because if the witnesses do not have enough
knowledge as to their relation, they may believe that the relationship between a relative and a
child may be a relationship of parent and child. However, in order to arrive at a just result the
witness should testify the identity of the mother and the father and the fact that a certain child
was born to those individual when the parents were in a conjugal life or in or irregular union
or the child was born to these individuals even out of such unions.
CHAPTER EIGHT: ADOPTION
 Black’s Law Dictionary defines adoption as: The creation of parent-child relationship by
judicial order between two parties who usually are unrelated.
 Planiol defines the concept as: A solemn contract which creates relation between two persons
analogous and those flowing from legitimate filiation
 The Ethiopian Civil Code of 1960 defines adoption as a bond of filiation created artificially
by a contract of adoption between the adopter and the adopted child (Art. 796(1) of the Civil).
The RFC provides the same thing as the Civil Code.
 In general, adoption is a way of home finding to children who have lost their natural parents
by death, desertion, or their misconduct, and in a secondary degree for children whose
parents are unable or unwilling to maintain them. And it is the practice of absorbing a child
into a family that a child is not born into and giving it the legal rights and duties of a child
that is naturally born to the adoptive parents.
Essential Conditions of adoption
 In the past, Art 797(1) of the Civil Code provides that any persons of age may adopt a child.”
When it says “any person of age” it is referring back to Art 198 of the Civil Code which sets
18 years as age when a person is no more considered as a minor. In case of adoption also a
person beyond the age of 18 years is capable of adopting a child unless such person is
declared incapable by the law. Unlike the Civil Code, Art. 184 of the RFC provide that “any
person whose age is not less than twenty five years may adopt. Where an adoption is made by
two spouses, it is sufficient that one of them be of full age of twenty five years.
 As regards the age of the adoptee, the RFC provides that any person who is less than 18 years
of age and under guardianship may be adopted. This means that once a person has attained
majority age, no purpose would be served by adopting that person since is he/she able to
maintain himself/herself. This is a clear departure the RFC has made from the 1960 Civil
Code since the latter did not say anything concerning the age of the adoptee. The Code has no
upper age limit because the purpose of adoption traditionally is to have someone as heir.
 If the adopter is married the child is adopted by spouses jointly as per Art.180 of the RFC.
But this doesn’t apply where a person adopts the child of his spouse and one of the spouses is
not in a position to manifest his/her will.
 Moreover, adoption by a couple is preferred, simply by reason of the likelihood that couples
will provide a more “normal” family environment that could be provided by a single adopter.
 Art 188 of the RFC states that, “the existence of children of the adopter shall not constitute an
obstacle for adoption.” However, by way of exception sub-article two of this article states
that although having children is not an obstacle to adoption the court must take into
consideration the effects of existence of children of the adopter on the well-being and interest
of the adopted child.
 pursuant to Art. 802(2) of the Ethiopia Civil Code for it says “If the child is under 15 years of
age the contract of adoption shall be between the adopter and the guardian of the adopted
child.” Therefore, in this case consent is given by the guardian. And when an institution of
assistance or an individual seeks to act as guardian of the child, the civil code requires a court
appointment. When an institution is to act as guardian, the management has to delegate one
of it members to exercise such functions, courts are directed to appoint relatives as guardians,
when possible and to appoint institutions only “where necessary”.
 For the establishment of valid adoption, the consent of parents of the adopted child is
mandatory. Accordingly, Art.190 (1) of the RFC provides that both the father and the mother
of the adopted child must give their consent to the adoption agreement where they are alive
and known. Sub-article two of this article provides that where one of them is dead, absent,
unknown or incapable to manifest his/her will, the other parent shall give his consent. Despite
the fact that the consent of both parents is necessary, one of the parents may not be willing to
give his/her consent to the adoption. In this case, the court may approve the adoption upon
hearing the opinion of the other parent and of the child where the child is ten and above years
of age. Sometimes, there may not be ascendants who may give their consent to the adoption
agreement. In this case, the court is empowered to approve such agreement by taking into
account the interest of the child (Art.191).
 In some circumstances, government or private orphanages may give any child under their
custody to adopters. When this is the case, such orphanages are required to provide sufficient
information to the government organ having authority to follow up the well-being of children,
as to the identity of the child, how the orphanage received him and about the personal, social
and economic position of the adopter. All the information must be given to the government
organ before the agreement of adoption is concluded. (Art.192 of the RFC)
 Where the adopter is a foreigner, the court may approve the adoption unless an authority
empowered to follow the well-being of children, after collecting and analyzing relevant
information on personal, social, and economic position of the adopter gives its opinion that
the adoption is beneficial to the child. (Art.193 (1)).
 Despite what is provided under Art.193(1) of the RFC, the court may disregard the opinion of
the authority and reject the agreement of adoption where the court thinks that the agreement
is not beneficial to the child. In other circumstances, where the court finds that the
information provided by the concerned authority is insufficient, it may order the authority to
conduct further investigation and submit additional information. The power of the court is
also extended to ordering other individuals or organizations to provide any relevant
information in their possession or to give testimony (Art.193 (3)).
 Before approving the agreement, the court is required to take into consideration:
 the opinion of the child about the adoption where the child is capable of giving opinion;
 the opinion of the guardian or the tutor of the child if he/she has not previously given his
consent;
 the capability of the adopter to raise and take care of the child;
 where the adopter is a foreigner, the absence of access to raise the child in Ethiopia;
 the availability of information which will enable the court to know that the adopter will
handle the adopted child as his own child and will not abuse him. (Art.194 of the RFC).
Effects of Adoption
 The conspicuous effects of adoption are marriage, succession, maintenance and the like.
1. Marriage
 Art. 181 of the RFC provides that an adopted child shall, for all purposes, be deemed to be
the child of the adopter. Therefore, relationship established by adoption may be an
impediment to marriage in accordance with the degrees that are provided by the family laws
of the respective regional family laws and the RFC.
2. Succession
 Because adoption establishes an artificial filiation, the provisions of the Civil Code dealing
with succession both intestate and testate do apply to the adopted child. However, there is no
provision under our law which permits or prohibits an adopted child from inheriting his
natural parents. But we can raise here two arguments. First the child is considered as a child
naturally born into the family of the adoptive parents, he forfeits the right of inheriting his
natural parents, for Art.836 says “adopted children shall be assimilated to the other children
in case of succession.” The other argument is, as the adopted child shall retain his bonds with
his family of origin, if so his right to inherit is not in jeopardy as his relation isn’t dissolved.
However, there is no a provision in the Civil Code which prohibits the adopted child from
inheriting his natural parents.
 With regard to the inheritance of the property of the adopted child, it is the family of adoption
that is the ascendants, descendants and collaterals of the adoptive parents who have the right
to inherit. Since Art. 183(3) of the RFC states that, ‘wherever a choice has to be made
between the family of adoption and the family of origin, the family of adoption shall prevail.”
3. Rights and Obligations as to Support and Care
 Adoptive parents are duty-bound to support and care for the adopted child. Since the adopted
child has an equal right as a naturally born child, it is also incorporated in both the FDRE
Constitution and UN Convention on the Rights of the Child that the child is entitled to
acquire care of his/her guardian.
 In return for support and care, a child who is capable, has reciprocal duty to give maintenance
to his adoptive parents. As expressly put under Art. 198 of the RFC an obligation to supply
and maintenance exists between relatives by consanguinity or affinity in the direct line and
between brothers and sisters. However, the adopted child, his spouse and his descendants
may not claim maintenance from the family of origin of the adopted child unless the adoptive
family isn’t in a position to supply such maintenance. They aren’t also bound to supply
maintenance to ascendants of the family of origin unless the latter can’t claim maintenance
from another member of their family. With regard to obligation to supply maintenance to
natural parents, there is no provision which obliges or prohibits. So it is at the discretion of
the parties to supply maintenance or not.
Inter-country Adoptions and Safeguards to Children
 In Ethiopia, the main cause for the start of inter-country adoption as an alternative care for
orphaned and abandoned children was the 1974/75 draught and famine that resulted in
orphaned and abandoned children. Because of this, the then Prime Minister’s office gave
directives to the Ministry of Labor and Social Affairs (MOLSA) to consider and work on
inter-country adoption for orphaned and abandoned children in late 1970s. The directive
established a committee for facilitation of adoption, as well as it provides the prerequisites for
selection of adoptive parents and documents required at that stage (
 The term inter-country adoption refers to an adoption in which adopters and child don’t have
the same nationality, as well as one in which the habitual residence of adopters and child is in
different countries. Nowadays in Ethiopia, there are two kinds of inter-country cases. The
first one is the biological mother voluntarily relinquishes her children for personal reasons. It
may also by both parents and guardians for reasons such as lack of means to support. We call
these private inter-country adoptions. They are arranged directly between the biological
parents and adoptive parents or their representatives or through an intermediary. The other is
adoption of orphaned or abandoned children or children whose parents are ill and hence have
no one else to act on their behalf. These are called agency inter-country adoptions for the
reason that it is the agency which acts on behalf of the child in case of adoption.
 Moreover, in the field of private international law, two aspects must be distinguished. One
concerns the choice of law; the other the exercise of jurisdiction.
 In general, adoptions shall be granted only if it will be in the best interests of the child. And
that the authority approving the adoption is to carry out a thorough inquiry relating to the
parties through the agency or the appropriate authorities, and as for as possible with the help
of experienced social workers and agencies qualified in the field of inter-country adoptions.
The making of the appropriate investigations preliminary to an adoption, is therefore, left to
the initiative of the forum state rather than to an internationally uniform procedure, and this is
each country’s courts are to apply forum law to all procedural matters.
Placement of the Child

 UN Convention on the Rights of the Child recognized that “Inter-country adoption may be
considered as an alternative means of child care, if the child can’t in any suitable manner be
cared for in the child’s country of origin” (Convention on the Rights of the child, (1989), Art.
21(c))). This principle also finds expression in a directive issued by the Ministry of Labor and
Social Affairs in 1996. Art. 3 of the directive provides that: A child can be adopted and
expatriated only when it has been proven that it cannot get proper care in Ethiopia because
foster parents or persons willing to adopt it could not be found and that there is no other way
it can be brought up properly here.”
 Nonetheless, in certain circumstances inter-country adoption “may offer the advantage of a
permanent family to a child for whom a suitable family can’t be found in his/her state of
origin.” This suggests that there are circumstances in which inter-country adoption may be
regarded as preferable for a child over institutional care in the country of origin.
 It is also obvious that the successful operation of this principle requires that the placing
agency in Ethiopia should have the capacity to explore the alternatives to inter-country
adoption. This implies a placement system which in some way is integrated into or at least
has ready access to information about the child-care services in Ethiopia. However, in inter-
country private adoption, i.e., in the sense of not being arranged through an approved agency,
 insufficient attention may be given to the possible alternatives to inter-country adoption. That
is why Art. 21(e) of the Convention in the Rights of the Child states that the placement of a
child in another country should be carried out by competent authorities and must not result in
financial gain for the parties involved.
Selection of Adoptive Parents
 In the total evaluation of the interest of the child, the examination of the personal qualities of
the adopter is of special significance. Each country has its own laws and procedures
regarding the selection and approval of prospective adoptive parents. In Ethiopia, Art.193 of
the RFC states that where the adopter is a foreigner, the court may not approve the adoption
unless an authority empowered to follow the well-being of children, after collecting and
analyzing relevant information about the personal, social and economic position of the
adopter, gives its opinion that adoption is beneficial to the child. However, the court may
reject the opinion of the authority and decline to approve the adoption where it (the court)
thinks that adoption is not beneficial to the child. According to the afore-mentioned directive
children are adopted and expatriated where it is verified that:
a. The would be adopter’s income will enable him to raise a child.
b. The adopter is healthy, that his social life is not tainted, that he is of a sound mind and is not
at all addicted to any dangerous drugs.
c. The adopter has never been convicted of a crime or of being engaged in an illegal activity;
and
d. The written consent of his lawful spouse has been obtained with regard to the adoption.
Safeguards for Children in Inter-country Adoption
1. Follow-up Work
 As regards inter-country adoptions, the Convention on the Rights of the Child calls for the
guarantee of being informed of the child’s condition after authorization of adoption and his
departure abroad. This enables the concerned authorities to ensure that the child’s rights are
respected and that the child is faring well. To this end, the competent authorities should
follow-up the adopted and expatriated children. This can be done by requesting concerned
governmental as well as nongovernmental organizations found in the child’s country of
residence. Follow-up, among other things, is done by periodical visits by experts from the
competent authority and assess the situation of adopted children in the child’s country of
residence. When it has been found out that the rights of the adopted and expatriated child
have been violated or that its welfare is not ensured, the competent authority shall take the
necessary measures to remedy the situation.
2. The Child’s Right to Identity and Secrecy

 In the adoption process three interests are involved i.e. the interest of the child, the parents
i.e. both adoptive and natural, and public interest.
 The child has an interest to know his identity.
 Security is a guarantee based in part of a desire to protect the parent from public
embarrassment. The adoptive parents are guaranteed the same anonymity as the biological
parents. The adoptive family needs to be protected from intrusion in order that a healthy and
stable relationship may be allowed to develop. Beyond this, the adoptive parent may feel
his/her parenthood be threatened by disclosure and by the unknown results of any possible
 reunion. They can’t easily put distance between themselves as parents and their child’s
personal need for identity.
 Adopted children unlike natural children don’t share ancestry, genetic heritage, or family
resemblance with their adoptive parents. They struggle with questions like ‘why was I placed
for adoption?”; “To whom do I belong?”, “who am I?”, “who are my natural parents?” As
they mature, they need acceptance, reassurance, and positive but realistic, responses to their
questions from their families and communities. They also need to understand that the
decision made by their natural parents was based on their own personal circumstances and
not on the child’s being bad or damaged.
 The longer an adoptive parent kept secret the fact of adoption from a child, the more serious
the consequences be when the fact is finally revealed. Similarly, the less information is
revealed about the adoptee’s origins, the greater the problems for the adoptee. Thus, generally
parental motivation and commitment, the adoptive parent’s openness in discussing adoption
issues with their child, the age of the child at the time of placement, and the child’s individual
temperament have an influence on adoption adjustment.
3. Prevention of Unlawful Acts in Inter-country Adoption
 The parent, guardian or foster parent may claim or accept money or other material goods, for
himself or somebody else, in exchange for a child’s adoption. A person may also obtain
improper financial gain through acting as an intermediary or facilitator in a child adoption.
But, in most states it is a crime to offer or receive money or any valuable consideration for
relinquishing or accepting a child for adoption since adoption is based on the child’s need to
have a family and not on the economic profit of intermediaries.
 Moreover, under the guise of adoption, certain people engage in child abuse such as
exploitation of children through pornography, prostitution, cheap labor, the removal and sale
of organs used in transplants and other forms of abuse, some beyond even the wildest stretch
of the imagination. To avoid this, Art.11 of the Convention on the Rights of the Child states
that parties shall take measures to combat the illicit transfer and non-return of children from
abroad. And Art.35 of same convention calls for the counteraction of abduction, sale, or
trafficking in children for any purpose or in any form. In addition, the Hague Conference on
Inter-country Adoptions calls for adoptions to be organized by authorized adoption agencies.
Therefore, although biological parents are often willing to make private arrangements for
adoptions, the government has to deter this by regulating and supervising adoptions to
eliminate illegal trafficking in children. And hence strong administrative screening and legal
supervision to avoid intermediaries from making profit in inter-country adoption is needed.

Revocation of Adoption

 Although adoptive filiation is established by the agreement of the adopter and the adoptee, it
cannot produce any legal effect unless it is approved by the court. The court, before giving
the decision of approval, conducts serious investigations and inquires to make sure that the
agreement of adoption is in the best interest of the child in all respects. If an adoption is
approved by the court, as a matter of rule, if is not revocable as clearly provided in Art.
195(1) of the RFC. Art. 195(2) of the RFC states that adoption may be revoked for the
reasons mentioned there under. According to this sub article, adoption may be revoked by the
court where the adopter, instead of looking after the adopted child, handles him as a slave, or
 in conditions resembling slavery, or makes him engage in immoral acts for his gain, or
handles him in any other manner that is detrimental to his future.
 The petition for revocation of adoption may be made by the child, a government organ
authorized to follow up the well-being of children or any other interested person (Art.
196(1)).When petition is submitted to the court the court shall determine whether the grounds
for petition are real and sufficient to warrant revocation. If the court is satisfied that the
petition is well founded, then it revokes the adoption.

CHAPTER NINE: OBLIGATION TO SUPPLY MAINTENANCE

Rationale behind the Obligation
 Obligation is a legal relation, which consists in the duty of one person (called the debtor) to
perform or not to perform something towards another person (named the creditor). Obligation
emanates from two sources-contractual obligations and legal obligations. The former is an
obligation created by the agreement of the creditor and the debtor while legal obligations,
however, emanate from the law itself. The obligation to supply maintenance is a typical
example of legal obligation.
 The rationale behind such obligation is a moral duty that exists among family members.
When a member of a family becomes needy, no one is nearer than the family members to
maintain such member.
Subject Matter of the Obligation
 According to Art.197 of the RFC, the person who is obliged to supply maintenance is bound
to supply to his creditor things that are necessary for the livelihood of the creditor.
 The things that are necessary for the well-being of the creditor must be given to him based on
the social conditions and local custom of the area in which the creditor lives.
 Generally, things that are necessary for the livelihood of the creditor are; the means to feed,
lodge, and clothe, to care for his health and education, depending on conditions of the
creditor.
Persons between Whom the Obligation Exists
 As provided in Art. 198 of the RFC, a person may be obliged to supply maintenance to his
spouse, ascendants, and descendants, his brothers and sisters. Although it is not expressly
provided in this article, a person is obliged to supply maintenance to his/her adoptee or
adopter as the case may be. This is because Art.181 of the RFC clearly provides that (without
prejudice to Art.182 of the same code) an adopted child for all purposes, be deemed to be the
child of the adopter.
 No person may be obliged to supply maintenance to his uncles, aunts, nephews, nieces and
other relatives.
 According to Art.201 of the RFC, the obligation to supply maintenance shall not exist unless
the person who claims its fulfillment is in need and not in a state of earning his livelihood by
his work.
 Generally, minors are in need of maintenance. Their parents are obliged to supply
maintenance to them. Moreover, persons who have no sufficient means to take care of
 themselves as a result of poverty may be considered to be needy if they are unable to work
and earn an income. Aged persons and those who are seriously sick are considered to be not
in a state of earning their livelihood by their work.
 The obligation to supply maintenance shall, as a rule, be fulfilled by means of a maintenance
allowance paid by the debtor to the creditor for maintenance.
 Maintenance may be reduced or increased proportionally, according to the reduction or
increase of the necessities of the creditor and the resources or means of the debtor to furnish
the same.
 As the maintenance allowance is believed to be extremely necessary for the survival of the
creditor, it cannot be attached nor can it be assigned.
 As per Art 207 of the RFC, in fulfilling his obligation of maintenance allowance, the debtor
may offer to discharge his obligation by taking the creditor for maintenance into his/her
house.
 Where several persons are liable to supply maintenance, the creditor may claim maintenance
from any one of such persons. Particularly, when all of the debtors have similar relationship
with the creditor, the creditor may claim the payment of maintenance from anyone of such
debtors (Art. 208) However, the debtor who has paid the allowance shall have recourse
against those who have not paid their shares (Art. 209). That is when the obligation to supply
maintenance falls upon two or more persons, the payment of the same shall be divided
between them in proportion to the resources of each. However, in case of urgent need and
special circumstances, only one of them may furnish the support provisionally, without
prejudice to his right to claim from the other obligors the share due from them.
 The debtors for maintenance may validly agree, as regards their reciprocal relations, that
maintenance shall be supplied to their common creditor by one of them. This agreement is
beneficial to the creditor, because he can pursue only against one debtor instead of many
debtors to get his maintenance allowance paid. In such conditions, the creditor may not make
a claim against the other debtors to obtain maintenance unless he has a serious reason for not
respecting such agreement (Art 211).
 The adopted child, his spouse and his descendants may claim maintenance from the family of
origin of the adopted child when the adoptive family is not in a position to supply such
maintenance. It is said that adopted child has two families. The family that has to take the
prior obligation to supply maintenance is the adoptive family. It is only when the adoptive
family is unable to supply maintenance that the family of origin is obliged to do so.
 The obligation of supply maintenance shall include the funeral expense of the creditor of the
maintenance For instance, if the neighbor of the creditor covers the funeral expense of the
creditor, the person who is obliged to supply maintenance for the deceased has to pay back
the funeral expense to the neighbor of the creditor (Art. 213 of the RFC).
Termination of the Obligation
 Although the Ethiopian Family laws have not fully incorporated the grounds of termination,
we can validly maintain that the following can be taken as the grounds of termination of the
obligation:
 Agreement of the parties:- The debtor and the creditor may agree to terminate such
relationship without affecting the mandatory provisions of the law. This is because under Art.
1975 of the Ethiopian Civil Code a contract is defined as an agreement whereby two or more
persons as between themselves create, vary, or extinguish obligations of proprietary nature.
 The ability of the creditor to earn his/her livelihood:- But when it is possible to show that
the creditor is in a position to earn his livelihood or has acquired enough means to sustain
his/her life, there is no reason that makes the obligation continue.
 Inability of the debtor to discharge the obligation:- the relationship that exists between the
debtor and the creditor does not suffice to entitle the creditor for maintenance allowance.
Rather the debtor must be able to provide maintenance. Hence, although debtor-creditor
relationship has been established between the parties, such relationship terminates when the
debtor is unable to discharge his obligation for various reasons.
 Condemnation of creditor (Art. 200 RFC):- The creditor loses his right of maintenance
where the commits or attempts to commit a criminal act against the debtor. The creditor may
also lose his right of maintenance where he has committed or attempted to commit a criminal
act on the life or property of the spouse, ascendants or descendants of the debtor.

CHAPTER TEN: SETTLEMENT OF DISPUTES

Settlement of Disputes Arising out of Marriage and Irregular Union
 There are a lot of causes for disputes that arise between a husband and a wife or between a
man and a woman living together in an irregular union. In order to resolve these disputes
between these persons effort is made by third parties. These third parties may include courts,
arbitrators, conciliators, mediators etc. Although courts are the ideal institutions to adjudicate
family disputes in almost all countries, using the alternative dispute settlement mechanisms
such as arbitration, conciliation or mediation is a common practice all over the world.
 In Ethiopian family laws, a solution is sought for disagreements between spouses or partners
to an irregular union either by adjudication or by using arbitration. The law has put in place
both the substantive and procedural provisions in order to help the disputants resolve their
problems by regular courts or arbitration. These are clearly incorporated under the RFC and
Regional Family Laws.
1. Settlement of Disputes by Court
 Although Art. 118 of the RFC provides that any dispute arising out of marriage or irregular
union is to be decided except for deciding divorce, by arbitrators chosen by the spouses, if
reconciliation becomes difficult to arbitrators or if one of the parties or both of them feel that
the way the arbitrators handle the arbitration process is wrong then they may appeal to a court
having jurisdiction.
 In the case of marriage, even though the spouses petitioned for divorce, the court does not
immediately give decision to divorce. As per Article 91 of RFC, when the spouses either
conjointly or one of them petition for divorce, the court speaks to the spouses separately or
jointly in order to make them renounce their intention to separate for good and Article 82(1)
of the RFC can be referred for this. Where this effort is not successful, it will direct the
parties to arbitrators to settle their disputes. A cooling period of up to three months is given to
the disputants where they did not agree to settle their dispute through arbitration (Refer to
article 82(3)). This time, after the court has exhausted all the means to bring the spouses into
an agreement in order to renounce their petition for divorce, the court according to article
82(4) of the RFC shall pronounce divorce within one month from the receipt of the reports of
arbitrators, or the end of the cooling period as the case may be (Arts. 81 and 82 of the RFC).
 However, under the Civil Code, failing the agreement between the parties, the family
arbitrators would pronounce the divorce within one year from the petition for divorce having
been made to them (see article 678(1) of the Civil Code).
 The departure of the RFC and regional family codes is that they have reduced the period from
one year to three months, if divorce related disputes are not decided by the courts within short
time, they will cause unnecessary suffering both to the parties themselves and to their
children.
 The court is duty-bound to give an order regarding the matters to be settled after divorce, i.e.,
regarding maintenance of the spouses, the custody and maintenance of their children and the
management of their property (Read Art. 81 and 82 of the RFC).
 In order to advance the best interest of children, Art 113 of the RFC gives direction to the
courts to treat the custody of children very carefully. Prior to the pronouncement of divorce,
it may encounter personal matters of the spouses that could not be displayed to the public.
Therefore, according to Article 110 of RFC, the court sits in camera while consulting with
the spouses either jointly or separately about these personal issues.

Problems reflected in the practice of courts

 If the spouses petition the court for divorce, the RFC requires the courts to discuss with the
parties patiently and give the parties a cooling period in order to calm down their anger. The
court directs the parties to arbitrators of their own choice so that they will end up their dispute
in reconciliation. Here you have to note taking the dispute to arbitrators is not compulsory;
rather it is voluntary. But according to some sources what practically observed in courts is
that the parties are not asked whether they are willing to take their case to arbitrators or not
rather the courts direct them to arbitrators without doing what the law prescribes which is
clearly against the spirit of the law.
 The problem, which was believed to be resolved by Article 82(5) of the RFC, is still without
solution. According to this sub article, court shall give appropriate order regarding the
maintenance of the spouses, the custody and maintenance of their children and the
management of their property and it shall take into consideration the interest of children and
the condition of the spouses who may be affected more by leaving their common abode. But
after the file has been opened these matters take a considerable long period of time resulting
in suffering of the parties particularly women.
 Among the issues that are to be regulated by courts, after the dissolution of the marriage by
divorce or termination of irregular union is child custody. Article 681 of the 1960 Civil Code
states that children under the age of five years are to be entrusted to their mother unless there
is a serious condition to do otherwise. However, according to Article 113(1) of RFC, the
court is expected to give an order as to which spouse shall have custody of the children, care
of their education, health, maintenance and the rights of the parents and the children to visit
each other. Most of the time, it is observed that spouses pray the court so that the decision
would be in favor of one of them. In such conditions, practically courts render decisions
without giving reasons as to why the custody of a child is entrusted to the father or the
mother. This is a problem, which is practically observed while the court is entraining child
custody issues. In most of the decided cases it, is shown that courts do not take into account
the requirements listed under article 113(2) of the RFC (income, age, health and condition of
living of the children) when deciding on child custody. The other practical problem observed
 in courts when they are adjudicating child custody issues is that, courts give decision only on
the interests of the children. Even though the law demands the courts to consider the interests
of the children, it does not suffice to give a decision only based on that, there must be
additional conditions that are to be taken into account by the courts.
 The other issue is that of property liquidation decisions. Courts after pronouncing divorce
close the file and there is another file to be opened for the partition of property of the spouses
because the court considers this case anew. As a result of this, the parties will be in difficulty
as they waste their time, energy and money
 Even if the petition for partition of property is brought by the parties to the court after the
very moment of divorce pronouncement, still the case take a prolonged time to be completed.
The grant of undue power to arbitrators is also another additional problem.
2. Settlement by Arbitration
 in certain part of Ethiopia, the persons with special qualities of personality and experience are
those who are traditionally called shimagiles in order to save a marriage from falling apart
and preserve the integrity of the family. Spouses whose marriage is in difficulty and as a
result of this who seek for a divorce pronouncement, first present their case to a local judge
who is traditionally known as “atbia dagna”. But prior to the ending up of the marriage in
divorce the parties as well, as the local judges should try their best to cool down the anger
and the disagreements created between the spouses. This was done through the process of
reconciliation. If the judges fail to bring the parties into an agreement they, will grant a
divorce in cases of non-serious cause of divorce.
 This method of settlement of family disputes out of court was retained by the 1960 Civil
Code of Ethiopia since the Civil Code incorporated provisions on arbitration.
 Although family arbitration was criticized for not treating women in equal footing with men,
the RFC and the regional family laws have retained this alternative dispute resolution
method.
 Arbitration is one of the traditional ways of avoiding disputes between conflicting parties
irrespective of the causes of disputes. It is one of dispute settling mechanisms most people
choose because of its simplicity and since it brings a solution to the conflict in the shortest
possible time.
 Arbitration is an out-of-court mechanism of settlement of disputes in which the parties
(disputants) take their cases before a tribunal of their own choice. The parties have the
freedom to limit the power of arbitrators and regulate how the tribunal performs throughout
the process.
 In the RFC, and other regional family laws, arbitration could only serve as an alternative
mechanism of dispute settlement and the reason for this is that if arbitration outs regular
courts for matters of family disputes then the rights of women would be at stake. This is
because arbitrators, it is believed, in Ethiopia may not be qualified enough to resolve all
family disputes including pronouncement of divorce.
 As regards appointment, Art. 119 of the RFC confer the power upon the disputants to appoint
the arbitrators and the number of the arbitrators is not limited under this same article. What it
simply puts is that their number can be one or more than that. Although the arbitrators are
appointed by the parties, arbitrators are under the control of the court. The court makes an
uninterrupted follow upon the arbitrators and gives direction as to how they entertain case.
 According to Article 119(1), the parties are expected to submit the names of the arbitrators
they have selected within fifteen days from the date they were told to do so.
 As it is clearly stated under Article 121(1) the same code, sole duty of the arbitrators is to
make an exhaustive effort to reconcile the spouses. And article 119 orders the court to give
the proper direction to the arbitrators as to how they help the spouses reach agreement. The
result of the arbitration or attempt of reconciliation has to be submitted to the court within
three months.
Settlement of Other Family Disputes
 There are two possible outcomes from the processes of dispute settlement be it by courts or
by alternative dispute settlement mechanisms, i.e., either the spouses be brought to
reconciliation or their contention end up in divorce. According to the law, the court has to
give its decisions on three very important post-divorce issues; namely, child custody,
maintenance allowance for the child and visitation rights of the child by the non-custodial
parent.
1. Child Custody
 The choice of determining the custody of a child lies either on the parents themselves or on
the court.
 The word custody pertains to whom the child is to live with, and which parent has the
responsibility to make major decisions about the life of the child. Child custody may be
understood as the right to retain a child at one’s home which at the same time empowers the
parent to control the child.
 As per Article 618 of the Civil Code, the governing principle regarding custody of children
above the age of five was the best interest of the child and this makes it “sex neutral”. The
“best-interest” standard was very wide and an indeterminate as it embraces so many things to
be taken into account by the judges in order to grant a decision on child custody issues. Thus,
this resulted in unlimited judicial authority. The movement from paternal custody to the
application of best interest of the child doctrine, is movement from “paternal patriarchy to
judicial patriarchy” which shifted child custody issues from the unlimited paternal authority
to unlimited judicial authority”
 “maternal preference” rule was reflected under article 681(2) of the 1960 Civil Code.
 As per Article 113(2) of the RFC, since the court has to take into consideration the income,
age, health, and condition of living of the spouses as well as the age and interests of the
children, it is felt unnecessary to retain the provision of the 1960 Civil Code (Art.681 (2)),
which entrusts children below the age of five to their mother.
 The aim of Article 113(2) of the RFC, is to avoid material preference to child custody
without a justified reason.
2. Maintenance Allowance
 According to Black’s Law Dictionary…maintenance is sustenance support assistance and
the furnishing by one person to another, for his or her support of the means of living, or food,
clothing, shelter, etc, particularly where the legal relation of the parties is such that one is
bound to support the other, as between father and child or husband and wife, the supplying
of the necessity of life. While the term similarly means food, clothing and shelter, it has also
been held to include such items as reasonable and necessary transportation or automobile
expenses, medical and drug expenses, and household expenses…
 Referring to Article 198 of the RFC, the person who is able to shoulder the responsibility of
maintenance is obliged to supply maintenance only to his proximate relatives by
consanguinity and affinity, and to his spouse.
 As per article 197 of the RFC, the obligation of the person who is ready to supply
maintenance is limited only to things that are necessary for the livelihood of the creditor. The
same article stipulates that the supply of maintenance be in decent manner having regard to
social conditions and local custom of the area in which the creditor lives. In some
jurisdictions, such rights of the creditor would extend even after he/she has attained his/her
majority age and he is able to work and earn his income although this kind of rule is absent in
our Revised Family Code and the regional family laws.
 As far as the maintenance of the children is concerned, once the marriage bond is dissolved
by divorce of the spouses, the obligation to supply maintenance to the wife ceases and the
execution proceedings taken after the divorce judgment would consequently have to be for
maintenance of the children only. According to Article 202 of the RFC, the spouse (debtor)
against whom the court passes its decision to maintain the children may fulfill the obligation
to supply maintenance in kind or in cash. But this should fundamentally be based on both the
needs of the person claiming it and the means of the person liable to pay maintenance.
 When the court is ready to decide on the payment of maintenance for the child it must take
into account factors like for how long and how much does the non-custodial parent pays the
maintenance to his child. Most of the time, the non-custodial parent is compelled to pay
maintenance until his/her child attains majority age (18 years of age). But the parents may
reach an agreement as to the additional time of payment of maintenance. As to the amount of
the maintenance to be paid, the court will take into account the earning of both parents and
the living condition of the family.
3. Visitation Right
 Visitation right is a right granted to non custodial parent. The other parent to whom the
custody right of a child is given must permit the other non-custodial parent to visit the child.
It is usually put in the decision of the court the manner and how often the non-custodian
parent visits his child. However, the visitation right should not go against the best interests of
the child. Courts put several restrictions on this right like frequency, length and location of
visitation and whether someone else or third party besides the non-custodial patent must be
present.
 According to Art. 113(2) of RFC, when the court provides its decision as to who would be
the custodial parent of the child and other related matters like maintenance payment, and
visitation right of the non- custodial parent, it has to take into account the income, age, health,
and condition of living of the spouses as well as the age and interest of the children. But there
are cases where by the court simply awards the child custody right and visitation right to
either of the parents based on the mere joint agreement of the parents. This would go in
contrary to what Article 113(2) puts as “the age and interests of the children.”