The institution of marriage is a crucial social pillar in any society. When it comes to spouses in a marriage they are supposed to respect, support and assist each other throughout their life in order to uphold this institution. In contemporary Ethiopia, a wife has a great role starting from providing care for her children and her husband. Besides, she is expected to do all the works in the house. In a nutshell, her over all contribution is so evident and cannot be estimated in terms of money.
Every thing works well until the marriage encounters problems and dissolved by divorce. A wife who took care of her husband for years will go through a lot in terms of financial problems following the divorce, whereas the husband keeps his salary. For the most part the wife’s contribution is left aside. This has been a prevalent fact among Ethiopia woman who are not well acquainted with their rights as a wife to share the common property, common property being any asset acquired or income earned by a married person while living with his or her spouse. Nevertheless, it has been observed that this right is not well implemented by Ethiopian courts.
The Federal Revised Family Code stipulates that all incomes derived by personal efforts of the spouses and their common or personal property shall be common property of the spouses during the marriage. One of the common property is income derived from salary of the spouse; inter alia a pension is closely linked to each individual’s income.
It is imperative to see the reason behind communality of the property during the marriage. As it can be understood the first aim of a marriage is to share the benefits, which is indicative of the fact that the success of one of the spouses is achieved by the contribution of the other. Accordingly, the law envisages the right to take their respective share from the common property in proportion to their contribution during the dissolution of marriage. So, the question is whether the pension payment should be considered as a common property of the spouse, which is a source of heated debate among legal professionals.
2. Case Analysis
In one case brought before the Supreme Court on appeal. The appellant and the respondent (husband and wife) lived together for 29 years and raised 7 children. In 1978 E.C, the marriage was dissolved by divorce and the court ordered the then family arbitrators’ to partition the common property. The arbitrators’ held that the pension fund payable to the husband by the government is derived from one of the common property (i.e. salary of the husband) because of this the wife is entitled to the moiety of the payment.
This decision was reversed by the High court on July 30, 1979 E.C, saying that the pension fund given to public servant is a private property and should not be given to the wife. The wife appealed to the Supreme Court, in which the Supreme Court held as follows:
“…በእኛ አስተያየት ወ/ሮ ….የወጣትነት ዘመናን ሁሉ ከባሏ ከአቶ….ጋር ስትደክም ኖራ ሩጣ በማታመልጥበት ሰርታ በማታፈራበት፣በመጦሪያዋ ዘመን በጋራ ካጠራቀመችው የደመወዝ ክምችት ድርሻዋን አታገኝም፣ባሏ ሲጠቀም እርሷ የበይ ተመልካች መሆን አለባት ብሎ የመንግስት ሠራተኞች የጡረታ አዋጁን መተርጎም ፍትህን የሚያዛባ ብቻም ሳይሆን ከህግም መንፈስ ጋር የሚቃረን ነው፡፡”
When it comes to the reason why the judges support this idea, it was explained that pension is not his or hers but just another asset which has to go into the divorce pot for fair and equitable distribution, the court has to look in to the benefit of sharing pension rights and this should be considered in light of the a married woman who has accumulated an interest in a pension, and we must bear in mind that they are under a vow, to share all the benefits and debt of the marriage. In the case mentioned above, if we cling to the notion that a husband should not share his pension with his wife during divorce this will tantamount to give freedom to the...