Men gang up as debate on Marriage Bill rages

The Marriage Bill 2013 which seeks to bring together various laws and customs regulating marriage continues to cause controversy with most of the negative reaction to the proposed law coming from men.

The Bill was tabled in Parliament on Tuesday and includes several contentious proposals including a provision that a man who promises to marry a woman must come through on the pledge.

Some men say the Bill will be used as a weapon to strengthen the wives’ position in marriage to the disadvantage of husbands.

Mr Nderitu Njoka, Maendeleo ya Wanaume Kenya chairman, said his organisation is “totally against” the Bill because “while having sinister motives, it is unfriendly, and discriminatory to the male gender”.

“Women will be given the upper hand to consent to polygamy,” he said. “But we believe and know that no woman would give consent to their husband getting another wife.”

The Marriage Bill 2013 lists proposals that give new protection to couples in marriages. If passed, spouses will have equal right to matrimonial property, polygamous marriages will be given legal recognition and customary marriages will have to be registered.

Courts may also order a person to pay maintenance to a spouse or a former spouse in the case of neglect of this duty. If the bill is passed as is, payment of dowry will become optional.

Having more than one husband, engaging in incest or being part of a same-sex union will be prohibited.

Yet perhaps the most divisive issue is that of marriage promises and what a promise to marry someone means.

Part 11 of the document deals with the effect of a promise to marry and the damages that may be recovered when a party refuses to honour the same. In section 76 (1), it states that a promise by a person to marry another person is not binding, while subsection 2 highlights that damages may be recoverable by a party that suffers a loss when the other party refuses to honour a promise to marry.

Ms Brenda Ogada, a family lawyer in Nairobi, told Sunday Nation that the promise doesn’t have to be in writing.

“It can be through word of mouth and the person will be expected to fulfil their pledge,” she said. Still, she noted, it has to be a mutual arrangement such that the one being proposed to has to accept. It can also be an implied promise – made through the giver’s conduct, for instance if they “share a life representative of moving towards marriage”.

“An example would include an act of sending elders to visit one’s partner’s family. This will have direct authority and will be valid,” Ms Ogada said.

In effect, Mr Njoka says, Marriage Bill 2013 has in a sense banned polygamy. According to him, men should be allowed to exercise their rights: “A man should not seek advice to get another wife. He should do so as long as he is able to take care of them”.

He also says the Bill puts much emphasis on property “yet marriage is not about property”. Mr Njoka said it is wrong for anyone to be prosecuted for not keeping their promises and worries that if the Bill is not amended, its provisions wil give rise to incidents of gender-based violence. “Before it is even debated, we should include the input of religious and social leaders first,” he said.

The Maendeleo ya Wanaume has already drafted a Marriage Contract Bill that it wants merged with Marriage Bill 2013 and intends to share with the public next week.

“It will be easy to implement because it takes into account concerns of both genders,” he said.

According to the Bill, marriage should be contract-based. “Marriage ought to have an exit point; it won’t last until ‘death do us part’,” Njoka said.

“Gender-based violence can ‘do us part’, or someone might realise they made the wrong decision and would want to part ways with their spouse.”