Mrs Almaz Leshe v. Mr Bekele Belachew, Federal Supreme Court Cassation Bench, File No. 102662, 15 Yekatit 2008 E.C (23 February 2016).

CASE SUMMARY

Mrs Almaz Leshe v. Mr Bekele Belachew, Federal Supreme Court Cassation Bench, File No. 102662, 15 Yekatit 2008 E.C (23 February 2016).

Court & type of bench: Federal Supreme Court of Ethiopia, Cassation Bench

Judges: Almaw Wole, Ali Mohammed, Teklit Yimesel, Enashaw Adane and Kena’a Kitata

Date of Judgement: Yekatit 15, 2008 E.C (February 23, 2016)

Appellant: W/ro Almaz Leshe with Legal Counsel Ermiyas Desta

Respondent: Ato Bekele Belachew, Represented by Tirfenesh Bekele

Facts of the Case

The case was first initiated at Debre Birhan Woreda Court under the Amhara Regional State by the appellant of this case (hereinafter appellant) requesting the dissolution of marriage between the appellant and the respondent of this case (hereinafter respondent) and division of joint property. The claim asserts that the appellant and the respondent were married under customary celebration of marriage and lived together for approximately 40 years. However, since Meskerem 2006 E.C. (September 2013), they have been unable to reconcile, and peace has not existed between them. However, the witnesses and other evidences ascertain that the appellant and the respondent are not living together since 1987 E.C (1995). Based on this fact the Debre Birhan Woreda Court ruled against the appellant saying that the marriage is dissolved by circumstances (de facto divorce) more than 10 years ago and the period of limitation to request division of joint property is lapsed. Then the appellant challenging the decision of the court has filed an appeal to the North Shewa Administration Zone High Court but the appeal is rejected. Following that, the appellant submitted a cassation complaint to the Amhara Regional Supreme Court’s Cassation Bench. Upon review, the bench closed the case saying that there is no fundamental error of law in the previous decisions of the lower court. Also, the current cassation compliant at the Federal Supreme Court Cassation Bench is over the same matter.

Issues Raised

• The case concerns whether a marriage can be considered legally dissolved due to circumstances,
• And the conditions under which a marriage may be deemed dissolved by circumstance, and 
• the legal implications of failing to file a property division claim within ten years from the time such dissolution is recognized.

Arguments of the Parties

The appellant argues that the marriage still existed hence, requires for dissolution of marriage and as a result of the dissolution claims division of joint property. The respondent, in response, does not deny the marital relationship but claims that the appellant left the home in 1987 E.C (1995) and they have lived separately since then. Thereby the defendant contends that the marriage was dissolved by circumstance and the case should be dismissed due to laps of period of limitation and lack of joint property. The appellant on the other hand argued that there is no de facto divorce because neither of the parties had entered another marriage and they are not separated until Meskerem 2006 E.C (September 2013) thereby denies that they lived independently since 1987 E.C (1995). Hence, the appellant challenging the decision rendered by the lower court as it was based on erroneous and irrelevant binding decision of this bench in relation to the substance of the case.

Judgment 

The Federal Supreme Court Cassation Bench affirmed the judgments rendered by the lower courts, concluding that the marriage between the parties had effectively dissolved by circumstance more than ten years prior to the filing of the claim. Given the prolonged separation and lack of cohabitation, the court recognized that the marital relationship had ceased to exist in practice (recognized the existence of de facto divorce). Consequently, the appellant’s request for division of joint property was dismissed on procedural grounds, as it was not submitted within the legally prescribed timeframe. Therefore, upon review, the Cassation Bench found no fundamental error of law in the decisions of the subordinate courts, thereby upholding their rulings in full.

Legal Reasoning 

The courts found that parties had ceased to live together since 1987 E.C (1995). so, the appellants denial of separation till Meskerem 2006 E.C (September 2013) is not acceptable by the cassation bench due to the non-existence of supporting evidence. 

According to the Amhara Regional Family Code the causes of dissolution of marriage shall be ordered by the court. However, as per the binding legal interpretations of this Federal Cassation Bench on the cases of Mrs Abebech Shewalul v Mrs Abebech Beyene, Mr Anley Enyew et al. v Mrs Merem Tuha and Mrs Shewaye Tesema v Mrs Sara Lingane et al. a marriage irrespective of  legal dissolution of marriage (de jure divorce) shall be considered as legally dissolved by circumstances when the spouses live separately for prolonged period of time and either or both of the spouse concluded another marriage with other person which implies the cessation of marital bond by fact. Art 60 and 61 of the Amhara Regional Family Code imposes a legal obligation over spouses to owe each other respect, support and assistance. Hence a separation enough to hinder the performance of these obligation constitutes dissolution of marriage by circumstances.

In this case, the prolonged separation, corroborated by witness testimony and the absence of marital interaction are sufficient grounds for a marriage to be considered as dissolved by circumstance as per the binding decisions of the cassation bench since Federal Courts Proclamation Reamendment Proclamation No. 454/1997 (2005) allows a legal interpretation of the law rendered by the cassation bench of federal supreme court with not less than five judges become binding in all levels both in the federal and regional. And also under this proclamation the binding precedent to be applied on other cases the fact and legal issue of both cases should be similar. 

While the fundamental facts are similar with the case of Mr Anley Enyew et al. v Mrs Merem Tuha, appellant’s argument by relaying on the mere fact that the appellant and the respondent have not entered into any other marital union thereby disregarding the binding legal interpretation provided under this precedent case law, which recognized the dissolution of marriage by circumstance, and instead relying on case Mrs Minya G/sillasie v Ms Meseret Alemayehu, in which the marital bond remained intact and decided in favor of the existence of marriage, contradicts the legal framework set under Article 2(1) of Proclamation No. 454/1997 (2005). Because under the case Mrs Minya G/sillasie v Ms Meseret Alemayehu there was evidences that shows the marital bond existed between the spouses irrespective of their separation of living. 

It held that courts do not have the mandate to re-dissolve a marriage that has already ended by circumstance. The appellant’s failure to file a property claim within ten years rendered the claim inadmissible under procedural law. Additionally, according to article 80 (3) (a) of the Federal Democratic Republic of Ethiopia Constitution the Federal Cassation Bench doesn’t have a jurisdiction over matters that doesn’t involve fundamental error of law. Since there is no fundamental error of law in the decision of lower court the petition of the appellant is not inline with the bench’s jurisdiction.

Conclusion 

In sum, this case reinforces the evolving interpretation of marital dissolution under Ethiopian family law, that dissolution of marriage by circumstance (de facto divorce) is legally recognized in Ethiopia when supported by factual separation and absence of marital obligations.

The courts, guided by binding precedents and statutory provisions, have reaffirmed that legal dissolution need not center solely on formal divorce proceedings but may arise from factual realities that render the marital bond defunct. And also, the appellant’s failure to act within the prescribed limitation period, coupled with the lack of marital cohabitation since 1987 E.C (1995), rendered the property claim procedurally inadmissible. 

Furthermore, the court applied Article 2(1) of Proclamation No. 454/1997 (2005), which allows recognition of dissolution of marriage by circumstance when spouses have lived separately for a long time and one has entered another marriage. However, this case shows that these conditions are grounds which imply the absence of marital obligation between the spouses rather than being a criterion for de facto marriage. This is evidenced from the two binding decisions of federal cassation bench. According to Mrs Minya G/sillasie v Ms Meseret Alemayehu case the mere living in separation is not enough to say the marriage is dissolved when there is marital interaction which means the performance of obligation imposed by the family code between the spouses. Other than this precedent law the Amhara Regional Family Code allow spouses to live separately by agreement as an exception for the provision that bound them to live together. On the other hand, this case highlights that not being in other marital relation after separation and non-fulfillment of marital obligations in previous marriage is not a necessary condition to constitute de facto divorce. 

This judgment not only reaffirms the authority of cassation precedent under Proclamation No. 454/1997 (2005) but also clarifies that the essence of marriage lies in its lived obligations not merely its ceremonial or legal status.

Bibliography

Cases

• Abebech Shewalul v Abebech Beyene (Federal Supreme Court Cassation Bench, File No 14290, 25 Megabit 1999 E.C (4 April 2007), unpublished)
• Almaz Leshe v Bekele Belachew (Federal Supreme Court Cassation Bench, File No 102662, 15 Yekatit 2008 E.C (23 February 2016), Vol 19)
• Anley Enyew et al v Merem Tuha (Federal Supreme Court Cassation Bench, File No 31891, 14 Miyazya 2000 E.C (22 April 2008), Vol 5)
• Minya G/sillasie v Meseret Alemayehu (Federal Supreme Court Cassation Bench, File No 67924, 26 Megabit 2004 E.C (5 April 2012), Vol 13)
• Shewaye Tesema v Sara Lingane et al (Federal Supreme Court Cassation Bench, File No 20938, 11 Miyazya 1999 E.C (19 April 2007), Vol 4)

Legislation

• Civil Procedure Code of Ethiopia, Proclamation No 52/1958, Federal Negarit Gazeta No 3, 28 Meskerem 1958 E.C (8 October 1965) 
• Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No 1/1987, Federal Negarit Gazeta, 15 Nehase 1987 E.C (21 August 1995)
• Federal Courts Proclamation (Re-amendment), Proclamation No 454/1997, 7 Sene 1997 E.C (14 June 2005), art 2(1)
• Amhara National Regional State Family Code, Proclamation No 79/1995, Zikre-Hig, 18 Sene 1995 E.C (25 June 2003), arts 64(1), 66(1), 86, 87