Samuel Otieno And Dorothy Ruto
14 August 2007
Nairobi — The way Kenyans view marriages, dowry, divorce and come-we-stay relationships will change significantly if a proposed new law is enacted.
The place of dowry in society could be weakened considerably, as the Marriage Bill 2007 proposes that it should not affect the validity of marriage in any way, unlike in the present set up where dowry is seen as a binding factor.
And the Bill - which seeks to consolidate into one all the nine Kenyan laws regarding marriage - would bring a smile to the faces of those in 'come-we-stay' relationships: It would empower provincial administrators to register as man and wife those who have stayed together for at least two years.
The Bill would also make registration of marriages easier - by taking them to the grassroots - through designating a chief to be a registrar of marriage.
Among the laws to be consolidated under the umbrella of the new Bill are the Marriage Act, African Christian Marriage and Divorce Act, Hindu Marriage and Divorce Act and the Mohammedan Marriage, Divorce and Succession Act.
An interesting aspect of the proposed law is the section that gives a green light to polygamous marriages, so long as the man makes it clear before undertaking the first marriage that he would be polygamous.
Need to 'save' marriages
This, however, contradicts the Kenyan Constitution, which does not allow a person to get married twice before a divorce.
"Both monogamous and polygamous marriages are recognised, and provision is made for conversion from either with the consent of both parties," said lawyer Prof Githu Muigai.
The Bill, drafted for the Kenya Law Reform Commission by a team of experts led by Muigai, advocates for all marriages to be registable, regardless of form.
The preparation of the draft was preceded by consultations with Kenyans in all the country's eight provinces.
The Bill also seeks to reduce incidences of divorce - which have become a common feature- by introducing reconciliatory measures to solve differences among couples.
Muigai said in order to 'save' marriages and families, support services and non-judicial dispute resolution mechanisms should be used.
They include provision of support mechanisms to marriages, including conciliation, mediation or arbitration and simplification of marriage/divorce laws and proceedings.
Besides, a petition for divorce should not be heard unless the dispute has first been referred to a conciliatory body, and that body has failed to settle the dispute.
The law don said the only legitimate ground for divorce should be that a marriage has "irreparably broken down".
The chairman of the Kenya Law Reform Commission, Mr Kathurima M'Inoti, said laws on separation and divorce remained largely cast in stone.
"Sometimes they (laws) purport to offer remedies that are clearly outdated, if not downright unconstitutional and unenforceable - such as the remedy of restitution of conjugal rights," he said.
Muigai said the marriage laws in Kenya were characterised by complexity, conflict, uncertainty and unpredictability, hence the need to consolidate them under the new Bill.
"For many decades, Kenyans have been complaining about the inadequacies and shortcomings of these laws," said M'Inoti, adding that many people encountering them were baffled by the plethora of the marriage laws and the legal systems existing side by side.
Current law outdated
M'Inoti said provisions of the substantive law were outdated and out-of-tune with the needs and aspirations of present day Kenya.
"The family and the entire society have been seriously undermined by lack of coherent policies and law," said M'Inoti.
The Bill defines "dowry" as a means of any payment of stock, goods, moneys or other property made or promised in consideration of an intended marriage.
And the Bill goes on: "An agreement to give dowry, whether made before or after the commencement of this Part, shall not after the commencement of this Part, be enforceable as a contract and the breach of any such agreement shall not give rise to any remedies for breach of contract," a part of the Bill reads.
The Bill indicates that contracts to pay dowry are not enforceable, and also no action for return of dowry.
Said Muigai: "Default or part payment of bride price or dowry should not to be considered as a ground for invalidating a marriage".
On Monday, stakeholders drawn from the Kenya Law Reforms Commission, The Law Society of Kenya, the University of Nairobi, the Department of Law and the Judiciary debated the Bill at the Hilton Hotel, Nairobi.
Also present were Lady Justice Martha Koome, the acting Deputy Executive Director of the Kenya Human Rights Commission, Mr Dan Juma.
Koome said it was difficult for the Judiciary to serve Kenyans meaningfully with laws inherited from the colonial era.
The Bill, if enacted, will take a liberal view of marriage to enable couples choose the form of marriage they desire.
However, the Bill retains the right to religious forms of marriages, meaning that marriages may be celebrated in, among others, civil, customary, Islamic and Hindu form.
It also provides for equality of wives in a polygamous marriage.
However, it retains the minimum age of marriage to be established at 18 years for both parties in all forms of marriage.
In addition, free and voluntary consent of both parties would be essential for a marriage as well as standard proceedings and preliminary procedures prior to contracting all forms of marriages.
"The Bill will recognise the registability of any marriage including "come-we-stay" because we want to provide a system where it can be recognised," said Muigai.
Property issues
On the custody of children in case of a dispute, the Bill provides that the best interests of the child would be the primary consideration.
The draft law recognises equal parental responsibility for both parents.
It also seeks to direct the distribution of property among parties in case a marriage breaks down.
It proposes that spouses be considered to be married out of community of property, but courts should be required to order an equitable distribution of matrimonial property upon divorce.
M'Inoti said Kenyans had to rely on the Married Women Property Act of England of 1872 to determine the property rights of spouses, especially when marriages break down.
"The law itself has brought a lot of uncertainties in its application as different courts have tended to interpret and apply it rather differently," he said.
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