Kenya marriages face drastic makeover

If the Marriage Bill 2007 to be debated in the current session of Parliament becomes law, the Kenyan marriage is in for radical changes.

The new amendments are bound to trigger protests, raise eyebrows, elicit sighs of relief or outright jubilation depending on how one interprets the proposed law.

Clauses likely to spark controversy are those that recognise polygamous marriages, outlaw mandatory payment of dowry and one that provides for either spouse to maintain the other in case of separation.

No marriage laws address polygamy and its existence is only recognised by courts within customary marriages and the Law of Succession Act. However, the Marriage Bill 2007 not only recognises polygamous unions, but also provides for their registration.

But those in monogamous unions cannot enter polygamous ones. Further, a man who has chosen polygamy cannot convert to a monogamy unless at the time of conversion, he only had one wife.

Speaking at a forum to discuss the Bill this week, family lawyer Judy Thongori explained that couples tying the knot at the Registrar of Marriages should indicate whether the marriage is intended to be polygamous or monogamous.

“This means that women, too, have a say on the kind of union they want. Where the intended husband is already married, he will have to indicate the names of the existing wife or wives,” Ms Thongori said.

The Bill also provides that one does not have to pay dowry, rendering a customary marriage complete irrespective whether a bride price has been paid or not.

“However, people will no longer be able to go to court to recover dowry as the Bill says it will not be recoverable,” she said.

The deputy chairperson of the Kenya Law Reform Commission, Ms Nancy Baraza, said currently the husband had a duty to support a needy wife but there was no duty for the wife to do the same.

“This provision has sparked protests, but we can’t talk of justice and equality between the sexes if the same rules don’t apply to men and women,” she said.

Some Kenyans will be pleased to know that the Bill also recognises marriages by cohabitation. Currently no Act of Parliament provides for this marriage.

Though the courts recognise such marriages, Ms Thongori observes that the standard of proof is very demanding because if your spouse disputes the marriage’s existence, you will be hard-pressed to find evidence to prove otherwise.

“You have to rely on family members, neighbours and photos to prove that you lived as husband and wife,” she said.

If the Bill becomes law, and if a couple has lived together openly as husband and wife for at least two years, they can obtain a certificate. The Bill also allows for the registration of customary marriages.

“Is it not strange that despite the fact that customary marriages have been with us since the beginning, there is no Act of Parliament that recognises them?” Ms Thongori asked.

So-called “come-we-stay” relationships are also recognised as long as the couple has lived together as man and wife for at least two years. “If it were up to me, it would be cut to six months,” she said.

Succession

The Bill also seeks to consolidate all the marriage laws into one. There are seven Acts of Parliament relating to Marriage — Marriage Act, African Christian Marriage and Divorce Act, Matrimonial Causes Act, Subordinate Courts (Separation and Maintenance Act), Mohammedan Marriage and Divorce Registration Act, Mohammedan Marriage Divorce and Succession Act and the Hindu Marriage and Divorce Act.

All marriages under the Bill will have the same legal status. Should Parliament pass the new Bill, common spectacles of women claiming to be the groom’s wife and trying to stop a marriage ceremony will be a thing of the past.

This is because the Bill gives the disgruntled woman the right to submit her objection in writing to the Registrar, who can stop the marriage until the objection is determined.