There is a raging debate in the country about the provisions of the Marriage Bill and in particular the issue of cohabitation.
For most women, the Bill seems to be that miracle they have been praying for while the men have not stopped scratching their heads since they saw the news headlines that Parliament is in the verge of passing the Marriage Bill which makes provisions for the extension of a legal status to those cohabitation relationships that have lasted for six months or longer.
However, in order to understand the provisions of this Bill, it is important to first examine the provisions of the existing marriage laws in order to determine the mischief that the Marriage Bill tends to cure. In Kenya, the only types of marriages recognised as legal are:
• Christian marriages
• Civil marriages
• Customary marriages
• Muslim marriages
• Hindu marriages
Therefore unless a couple contracted any of the above types of marriage, there is no binding legal obligation by or to any party with regard to property rights.
According to Section 29(c) of the Law of Succession Act, a woman is considered a beneficiary if she is a wife or wives or former wife or wives of the deceased person.
The status of being either a wife or husband can only be acquired upon conclusion of a marriage binding the two and thus conferring them the respective titles.
There have been instances where a man cohabits with a woman for a certain period of time without contracting any form of marriage then leaves her for another woman and subsequently formalises the union which then confers to her the title of a wife under the law, giving her the right to claim property in the event of her husband's demise to the exclusion of "the other woman" since no formal ceremony was conducted to solemnise their union.
Prior to the amendment of section 3 of Cap 160 (the Law of Succession Act), the provisions of Section 37 of the Marriage Act Cap 150 were relied on in determining whether or not a woman was entitled to a share of her husband's estate as a wife.
Section 37 made anyone married under the Act incapable during the continuance of such a marriage of contracting a valid marriage under any native law or custom. However, section 3(5) of the Law of Succession Act provide that "notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for purposes of this Act and in particular section 29 and 40 thereof and her children are accordingly children within the meaning of this Act".
This provision was intended to overcome the challenges brought about by the Marriage Act but it instead brought about more confusion making the courts arrive at different interpretations as to the intention of the legislature in amending the Law of Succession Act to introduce paragraph 5 thereof.
In view of the defects and conflicts in the current family laws coupled with the recent developments in the family unit where people prefer to live together without any binding authority in the name of marriage to 'test the waters' in these so called come we stay relationships, the Marriage Bill should be seen as the antidote to cure the ailments in all of these family laws by consolidating all the marriage laws into a single authoritative legal document to be the point of reference with regard to matters relating to marriage and bringing some form of sanity in marriage laws to regulate such unions and hence, Section 7 allows for the rebuttable presumption of marriage where it is proved that a man and woman having capacity to marry have lived together openly for at least six months in such circumstances as to have acquired the reputation of being husband and wife.
This section seems to remedy the provisions in the existing marriage laws that only seem to confer legal status and hence benefits to a woman who has undergone any of the aforementioned ceremonies of marriage .