Marriage Bill: The hard questions

Picture this, you are about to say your marriage vows to the man of your dreams in a civil ceremony officiated by a registrar of marriages.

You have dreamt of this moment when he will finally be yours legally for a long time – but before the two of you say the binding words, he drops the bombshell.

He reveals that in a few years to come, he may want to marry another wife, and therefore wants you to promise him that should the need arise, you will not object to him bringing home another woman.

How would you react if faced with such a predicament? Saying ‘No’ would mean that there would be no marriage ceremony, while saying ‘yes’ would be like giving your husband-to-be the leeway to marry all the women he wishes to in future.

Does such a scenario sound like the stuff movies are made of? Granted, it may not play out exactly in this way, but should the Marriage Bill 2007, which is due for debate in parliament during this term, pass into law, couples will be given the power to choose the kind of marriage they want right from the beginning – whether monogamous of polygamous. And herein lies the controversy.

The Bill states that when you apply to the Registrar of Marriages to marry you, one of the things a couple will have to indicate in writing at that time whether the marriage is intended to be polygamous or monogamous.

Most of the people that Saturday interviewed felt that this was an unrealistic expectation since few people, at the time of getting married, have the intention of marrying another person.

“Most people get married because they are in love, and at that moment, they don’t foresee themselves falling out of love or bringing a third party into their lives,” newly married 30-year-old Salome Mueni said.

The issue of how many women would actually give their husband the green light to marry another woman in future also arises. Most women today are educated and aware of their rights and know that too many cooks spoil the broth.

“I would never allow my husband to marry another woman so that she can enjoy what we have both slaved for,” says Janet Kinyua, a 28-year-old accountant.

As for Pascal Mwalimu, a 45-year-old married woman, it all boiled down to human nature.

“We human beings are jealous by nature, and it would be difficult for us to pretend that we can willingly share our husbands or wives with others,” she said.

And then comes the million-dollar question, isn’t this outright infringement on the rights and position of the first wife?

As it is, stories of women, all claiming to be the legally married, battling with the legal wife over property left behind once a man dies are a common feature in our society. We read about it in the papers, watch the drama unfold on television or hear about it through the grapevine.

One case that stands out is the public battle for the property left behind by former Embakasi MP, Mugabe Were. After his death, three women, all claiming to be his widows, went to court to lay claim to his property.

The first suit was filed by two of the said widows, Maria Palma and Agnes Wairimu, while the second was filed by Diphrose Matengo and Mr Were’s siblings. Mr Were left behind eight children. The case is still in court.

In all of these cases, the first wife, who was probably led to believe that she was the only woman in her husband’s life, is left to fight a grueling battle alone when the other women crawl out of the wood works, children in tow.

How then is the first wife protected when the husband gets himself another wife later in the marriage?

Matrimonial Properties Bill

According to the Matrimonial Properties Bill contained within the Marriage Bill 2007, “only the husband and first wife can share the property they had together before the second wife came into the picture,” Judy Thongori points out, adding that the first wife is also entitled to the property her husband acquires with the second and third wife as well.

Thongori further explains that under the Bill, the man will also be expected to reveal whether he has another wife before the marriage ceremony commences. Only marriages contracted under customary or Islamic law will be considered polygamous or potentially polygamous without having to indicate intention.

Adds Thongori, “Where the husband-to-be is already married, he will have to indicate the name(s) of the existing wife or wives – I feel this is transparency at its best.”

Essentially, this means that the woman will be aware of the existence of co-wives if any, and will not be caught unawares, like usually happens, when the husband passes away.

Though this will not prevent other women not listed from laying claim to the man’s property once he dies, Thongori says that if passed, eventually this could become like a Will of sorts which favours the listed women.

The Bill further states that those married under monogamous marriages cannot go on to have a polygamous marriage. Further, a man who has chosen polygamy cannot convert to a monogamous marriage unless at the time of conversion he only has one wife.

Thongori explains that this is another way, in which the Bill seeks to protect the legal wife should the man be tempted to go against the original agreement.

Should the Bill be passed into law, polygamy will not only be recognised, but will also be eligible for registration. Currently, no marriage laws address polygamy and its existence, and it is only recognised by courts within customary marriages, under Islamic law and the Law of Succession Act.

Another provision that is bound to raise controversy is the one that states that a marriage is complete with or without payment of dowry. Should the Bill pass into law, dowry will no longer be mandatory.

“The Bill does not outlaw dowry, and those able and willing still have the space to continue with the practice,” Thongori says.

She further explains that unlike today when people file cases to recover dowry, should the Bill pass, dowry will no longer be recoverable.

“The concept of dowry has been misinterpreted to mean that a woman is a chattel because she was ‘bought’ for some tangible value like other chattels. Hopefully, the Bill will serve to break that yoke and allow for the recognition of marriage as a voluntary union that is intended for mutual benefit,” Thongori explains.

But there are some who are bound to disagree with her; given that dowry has been the most important characteristic of customary marriages.

“In my community, unless a man has paid dowry, he is not considered married and is said to be living with someone’s daughter illegally, even if they have been living together for over 10 years. You cannot change tradition,” argues Joseph Kanyi, a 48-year-old man who married through customary law 16 years ago.

Should you choose not to pay dowry and go through all the other legal process needed to make your marriage legal, the law will be on your side – but how can you protect yourself from hostile in-laws who refuse to recognise you and accuse you of disrespect for refusing to ‘honour’ the daughter they have so generously handed over to you?

How do you overturn age old tradition overnight? These are some of the sentiments that the Bill fails to address.

Dowry to lose importance

In answer to this, Thongori admits that though there is bound to be resistance initially, she foresees a time when dowry will begin to lose importance in our society.

“It is only fair for two people to feel secure that they’re in a legal union even when they don’t have the means to pay dowry,” she says.

Another clause that ruffled quite a few feathers is the one providing that where a couple separates, the spouse who is better of financially shall be expected to maintain the other. In the current laws, only the husband has a duty to maintain a needy wife, but not the other way round.

When this was reported in one of the local dailies last month, most of the women interviewed could not reconcile themselves to the fact that they would be required to support their men should they be financially better off than them.

Majority argued that should the Bill become law, there was a likelihood that some men would abuse the privilege the law gave them and shirk their responsibilities; since they were assured that their wives would be compelled to provide for all their needs and upkeep should they find themselves without an income.

Ticket to laziness

One woman was quoted saying that men had just been handed the ticket to become legally lazy.

“We all know that nowadays, women are the ones who provide for the home and educate the children, this will just encourage more men to abandon their responsibilities,” Rose Gitau, a single mother of two declared.

The men however welcomed the idea, and thought that it was about time women looked after them too, after all, they had been bringing the bread home for all those years, why then shouldn’t the women be expected to return the favour?

“It is a fact that there are some women who are content to sit back and allow their husbands to do all the hard work, yet men don’t complain – women keep asking for equality, this is their chance to embrace it,” Richard Onyango, a 32-year-old Nairobi lawyer argued.

Speaking at a recent forum to asses the Bill, Nancy Baraza, Deputy Chairperson Kenya Law Reform Commission, thought it was time, the law favoured both sexes equally.

“This provision has caused protest, but the fact is that we can’t talk of justice and equality between the sexes if the same rules don’t apply to both men and women,” she said, adding that if a woman really loved her husband, she would have no qualms about offering her support unreservedly when he was down.

It will be the responsibility of the court to determine the amount of maintenance payable depending on the earning capacity of the spouse.

But the question still persists, how will the Bill, if passed, protect spouses from exploiting the law and taking advantage of each another?

Enterprising businessman

Take the case of Julia Makui*, a 43 year old mother of three who has been married for 10 years. When she got married to her husband Simon, he was an enterprising businessman who took pride in taking care of her and later, ensuring that their children were well provided for.

With Julia’s salary as a high school teacher, the couple lived a comfortable life and could even afford to go on holiday once a year. Five years ago, Simon landed a particularly lucrative deal which brought with it an unexpected windfall. Unfortunately, with it came a new crop of friends who turned out to be a bad influence.

“He started drinking excessively, coming home in the wee hours of the morning and when I complained, he said that I was nagging and retorted that I had no right to complain since he provided for everything our children and I needed,” says Julia, who also suspected that her husband had started having affairs.

Buoyed by his success and good fortune, Simon invested his money in a business venture that turned out to be a con and ended up losing everything he had. From that point onwards, their life went on a downward spiral and has been spinning ever since.

“Today, I am the sole breadwinner after my husband’s business collapsed. He is not willing to start all over again and spends all his time in the house watching television,” she says.

She says he has even resisted going for counseling and seems content to rely on his wife for everything. Julia has had enough and is contemplating leaving her husband since he is only dragging her down and making their lives more difficult.

“If he was making an effort, I would not even think of leaving him, but he seems content to let me do everything,” she says.

Should the Bill pass into law, men like Simon might end up reaping where they did not sow.

cnjunge@nation.co.ke