Sunday, March 29, 2009

New marriage Act will be good for the family

By JUDY THINGORI

TO THE BEST OF MY KNOWLEDGE, the Marriage Bill 2007 is one of those awaiting Cabinet approval before it can be introduced into the parliamentary processes.

This is a very important Bill for all Kenyans and we must find time to read and understand it. Marriage affects all of us at one time in life, whether it is our marriages, our parents’ marriages, or those of our children.

In any event, this would be our first home-grown Marriage Act; the existing Act commenced in 1902 and was revised in 1962. All the other Acts that relate to marriage are also almost as old with their commencement ranging from 1906 to 1929, all of them last revised in 1962!

I have a feeling that at least half the country’s population was not born in 1962.

So dear Kenyans, we have a unique opportunity to understand this proposed law and to participate in its passing even if it means introducing amendments that we feel will serve our families better. Our family values and experiences must enrich this law.

AMONG THE ISSUES THE BILL DEALS with include:

It proposes consolidating all the marriage laws into one. There are currently seven such Acts — The Marriage Act, The African Christian Marriage and Divorce Act, The Matrimonial Causes Act, the Subordinate Courts (Separation and Maintenance Act), The Mohammedan Marriage and Divorce Registration Act, The Mohammedan Marriage Divorce and Succession Act, and the Hindu Marriage and Divorce Act.

Currently, a person has to navigate through at least two Acts to understand their marriage status, rights and liabilities because while the formalities are contained in one Act, the rights and responsibilities are contained in the Matrimonial Causes Act.

If the Bill becomes law, you will need to look into only one Act in which the formalities, status, rights and liabilities of marriage are outlined.

The Bill recognises and allows for the registration of customary marriages. So, if this Bill becomes law, you too can get a marriage certificate and you do not have to rely on elders and other such witnesses to prove marriage as you do today.

Further, our customary marriages are provided for in an Act of Parliament. Is it not strange that though customary marriages have been with us since time immemorial, there is no Act of Parliament that recognises them? Only judges have recognised them.

The Bill recognises marriages by cohabitation and allows for their registration. But now you won’t have to rely on family members, neighbours and photographs to prove that you lived together as husband and wife, as you have to do now.

If the Bill passes into law, and if you have lived together openly as husband and wife for at least two years, do proceed and arm yourself with this certificate.

This Bill recognises both monogamous and polygamous marriages. However, those married under monogamous marriages cannot contract polygamous marriages. Further those brothers who have chosen polygamy cannot contract monogamous marriages.

When you apply to the Registrar of Marriages to marry you, you will have to indicate whether the marriage will be polygamous or monogamous. So women do have a say on what union they want.

Marriages contracted in a foreign country are also recognised provided they are carried out in accordance with the law of that other country.

THE BILL ALSO MAKES PROVISION FOR Islamic marriages and recognises marriages contracted in the manner recognised by Islam or by any school or sect of that faith. It also recognises Hindu marriages and marriages that are celebrated according to the rites of any faith the minister may authorise.

The Bill also sets out the rights responsibilities of marriage. From the media reports in the last two weeks, one of the sensitive responsibilities and rights the Bill covers is maintenance.

The Bill provides that where the parties are separated, either spouse shall maintain the other. In the current laws, the husband has a duty to maintain a needy wife but there is no corresponding duty for the wife to maintain a needy husband.

Ms Thongori is an advocate in Nairobi (judyt@wananchi.com)