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    UncategorizedIs there division of property in polygamous marriage?

    Is there division of property in polygamous marriage?

    Date:

    Despite the prohibition and criminalization of polygamous marriage under the Ethiopian law, the practice is deep rooted in religious and customary practices. A 2011 health survey report reveals that eleven percent of married women in Ethiopia are in bigamous marriage, with nine percent having only one co-wife and two percent having two or more co-wives, writes Selam Gebretsion.

    Polygamy seriously affects women’s rights, as it affects the distribution of income and resources at the household level. Laws against polygamy are rarely enforced and have little effect. In fact, where polygamy is illegal, women may be more vulnerable; often second wives have no rights under formal law if polygamy is outlawed. Legal protections for first wives, even those who are formally married, are rare. In most instances the husband is not formally married to either wife, placing the first wife in serious economic jeopardy when her husband takes a second wife.

    Most of the international legal instruments have stated their concerns with regards to polygamous marriage. For instance, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its General Comment no. 28 obliges state parties to take appropriate steps to modify the social and cultural patterns of conduct of men and women in order to eliminate prejudice and customary practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women. As one of the customary practices that hinder the rights of women, according to CEDAW states are obliged to take all appropriate measures to prevent and manage the matter.

    The African Charter on Human and Peoples’ Rights on the Rights of Women  in  Africa  Protocol  “recognize  polygamous  marital  relationships as a compromise  which  takes  cultural  and  religious  diversity”  into  account. According to this Protocol, state parties are obligated to enact appropriate national legislative measures to guarantee the enjoyment of equal rights between women and men in marriage. However, though the protocol encourages monogamy as the preferred form of marriage, the rights of women in marriage and family, including that of polygamous marital relationships need to be protected. Though, this protocol may be criticized for its failure to reject polygamy out rightly, it is crucial to note that it has attempted to respond to the plights of women in polygamous marital relationships by obliging state to ensure the promotion and protection of their rights in such status quos.

    Ethiopia is has signed and ratified both the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and The African Charter on Human and Peoples’ Rights on the Rights of Women  in  Africa  Protocol. Hence, it is obliged to take all ‘necessary measures’ to protect and safeguard the rights of individuals in polygamous unions.

    One of the measures taken by the Ethiopian government in this regard is to prohibit and criminalize polygamous marriage. According to the FDRE Criminal Code, Article 650(1) polygamous marriage is generally regarded as an offence punishable by the law.  It reads as follows:

    Whoever, being tied by the bond of a valid marriage, intentionally contracts another marriage before the first union has been dissolved or annul led, is punishable with simple imprisonment, or, in grave cases, and especially where the criminal has knowingly misled his partner in the second union as to his true state, with rigorous imprisonment not exceeding five years.

    The exception clause of polygamous marriage is stated in the subsequent article that reads Article 651 “… shall not apply where bigamy is committed in conformity with religious and traditional practices recognized by law.

    Despite the prohibition and criminalization of polygamous marriage under the Ethiopian law, the practice is deep rooted in religious and customary practices. According to the Ethiopian Demographic and Health Survey Report of 2011 (EDHS), eleven percent of married women in Ethiopia are in bigamous marriage, with nine percent having only one co-wife and two percent having two or more co-wives. Similarly, five percent among the married men in Ethiopia live as a bigamous marriage having two or more wives.

    Rural  women  are  more  likely  to  be  in  polygamous marriage  (12  percent) than  urban  women  (five  percent). The regional distribution also shows substantial variation. The prevalence of polygamy is lowest in Tigray (one percent) and highest in Somali (27 percent).  Polygamy also is relatively common in Afar (22 percent), Gambella (20 percent), and Benishangul-Gumuz and Southern Regional State (both 18 percent).

    As per this national statistical report women in the lowest wealth quintile are the most likely to be in a polygamous marriage (16 percent), compared with just six percent of women in the highest wealth quintile.

    Several countries have attempted to legislate polygamous marriages and division of property.  Under Burkina Faso’s 1990 Family Code, if a couple is monogamous, their property is marital property, but if there is more than one wife, all property is separate property. On the other hand under Senegal family law obliges the husband in polygamous household to allocate a property for each marriage. Similarly, Lesotho has promulgated a property act that proposes for each wife in polygamous marriage to have a separate share of property. 

    According to the Ethiopian legal system matrimonial property is indivisible for the time being the marriage stayed intact. Division of property will come to picture when the marriage ends due to divorce or upon death of one of the partners. The Revised Family Code (RFC) incorporates numbers of provisions that discuss the right of spouses on personal and common property. These principles apply for spouses that are in monogamous unions and the law is silent about the property rights of individuals who are in polygamous marriage.

    For years, the Ethiopian justice system seems to have two conflicting position with regards to division of property in polygamous marriage;

    1. The first wife is legal and her rights should be protected. All marriages that follow from the first marriage are illegal and allocating share of property for them would amount as recognizing polygamous marriage. Hence, it is only the first wife, who is entitled to property upon division.
    2. Though, marriages that come afterwards are illegal and outlawed in our system, we cannot deny the fact that it exists in reality due to culture and religion. And often, these marriages are concluded upon the request or agreement of the first wife. Hence, it can be concluded that she has impliedly has agreed for the division of property among the subsequent wives.

    Recently the decision of the Federal Supreme Court of Cassation has passed imperative decision that is in conformity with the second point of argument. In the case of Aminat Ali vs. Fatuma Webet Cassation decision Vol. 13 File No. 45548 the Federal Supreme Court of Cassation stated that one cannot deny the existence of the marriage and the prevalence of polygamous marriage in the country. Hence, in order to protect the rights of women and children, each wife is entitled for equal right in the division of property that was acquired during the life of the marriage.

    As a signatory of the international instruments, the Ethiopian government is required to take all the ‘necessary measures’ include promulgating laws that prohibit polygamy, to have a strong system in place that checks the implementation and effectiveness of the laws and to draft laws that explicitly state how matters (including division of property) should be handled in polygamous unions. Nevertheless, there is still a big dilemma among lawyers, Ethiopian parliament and gender experts on how to allocate property for those who are in polygamous marriage.

    Given the high percentage of the population living in polygamous union, it is not wise to deny the reality on the ground and to be silent in our laws. Therefore, in order to safeguard the right of individuals; particularly women and children in polygamous marriage, the government of need to take all necessary measures in amending laws and strengthen it’s system with regards to polygamous union.

    Ed.’s Note: Selam Gebretsion is a lawyer and gender expert. She has extensively worked in gender and legal issues. The views expressed in this article do not necessarily reflect the views of The Reporter. She can be contacted at [email protected]

    Contributed by Selam Gebretsion

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