16 November 2012

Kenya: Will the Bill to Recognise Cohabitation Put Marriage to Test?

The Kenyan cabinet has approved a bill that will recognise cohabiting after six months as legal marriage. Joyce Nyakato explores the bill's merits and demerits as well as comparisons with the Uganda Marriage and Divorce Bill

More and more young couples are increasingly cohabiting even in communities that once shunned the practice.

For many couples who choose to cohabit, convenience is cited as the main reason. That is, instead of having to pay separate bills for water, electricity and rent, the couple can just rent one house and share the bills.

They also claim they need to get to know more about a person before committing to them 'till death does us part". However, many people have walked away from such relationships more hurt than happy. In many cases, men have been known to walk out even after children have been born.

Women have also been left empty-handed when the partners they have been cohabiting with die and are left to raise their children single-handedly.

A Kenyan Marriage Bill, which is in its final stages, if enacted, will recognise any relationship where a couple has cohabited for more than six months as a marriage and registered as such. If the new bill is passed, it will give the local chiefs power to register relationships where couples have cohabited for more than six months as legal marriages.

This ensures that in the event of a break-up, the woman and any children born in that relationship receive the necessary support, especially financial.

The bill, cleared by the Commission for the Implementation of the Constitution, provides for court to compel whoever is reluctant to abide by this law to do so. However, the Kenyan cabinet has been quick to assure that Christian, Islamic, Hindu as well as marriages consummated under Civil and African Customary law will all be protected.

According to the Kenyan cabinet, the bill is intended to protect families, especially the children born out of such arrangements.

The Marriage Bill was originally proposed in 1981, but was condemned by politicians for granting women "too many rights". It was then revived in 2007 and thrown out over similar concerns. The bill was reintroduced in March 2009 and the debate has been on-going.

As expected, sections of the bill have been widely condemned by the Christian and Muslim religious leaders in the country. The bill, which also addresses bride price and widow inheritance, was approved by the cabinet. It will become law once passed by the parliament.

While many do not agree with cohabiting being accorded legal status, they perhaps reason that the bill will deter people from living together without any intention of getting married legally.

"It will legally protect children who are born under these arrangements," says Grace Wanjiru, a Kenyan.

She reasons that often, when these couples split, the child is raised in a single-parent home.

But then again, Wanjiru raises the concern that marriage will now be taken less seriously.

"Why would someone go through the fuss of marrying someone when they can just live with them and be recognised as their spouses six months later?" she asks.

Whereas the bill seems to have striking similarities with its Ugandan counterpart, the Kenyan one looks to recognise the relationships where the couples are cohabiting in a much shorter time, while the Ugandan one, which was shelved, is looking at two years.

Many Kenyan men have protested against the bill. They reason that the proposed bill is only looking out for the interests of women. Definitely the bigger losers will be the men, who want to cohabit, enjoy the benefits of marriage without having to legally commit to that partner. At the same time, this bill is also empowering some calculating women to fleece men of their property.

But then again, how is an unwilling man fleeced?

Sam Maina explains that cohabiting usually starts with a night-over, which may grow into a week-over and then a month-over.

"Before you know, it is six months already," he says. "She even insists on leaving her property behind."

So what does this tell the men who want to hold on to their property?

"If you are not sure about committing to her, you either don't live with her or if you do, you have to dump her before the six months elapse," he reasons.

Worryingly, we may see many break-ups as couples living together will not be willing to tolerate each other at the risk of being registered as married.

Men would also have to take a stand against some fleecing women, who intentionally leave their property in their homes. This also includes girlfriends who assign themselves marital tasks in a desperate attempt to trap their boyfriends into committing to them.


What happened to the Ugandan Marriage and Divorce Bill?

According to Sarah Achieng, the Tororo district Woman MP, the Marriage Bill has been pushed over to the ninth Parliament. However, there are still many controversial issues that have to be addressed before the Bill is passed into law.

Men are not happy with the bill because they think it favours the women. However, not all the women are favoured by this cohabiting arrangement. In a way, it favours polygamy, because it would allow a man to have as many other partners as he chooses. This puts the family at a disadvantage.

According to Alice Alaso, the Woman MP for Serere district, the Kenyan and Ugandan bills have striking similarities. Since Kenya and Uganda have similar cultures, the bills are meant to address similar issues. She suggests that as much as the laws are being made to improve the status of women in society, the feminists also have included components in the bill, which are meant to push their agendas.

"Allowing women to cohabit freely and be recognised as married is not right," Alaso says. "Much as the bill is aimed at building families, it is actually breaking them."

She has vowed to block it, should it come up for discussion in parliament.

The only fitting thing that could be done for women cohabiting is perhaps allow the couple to share the property equally in case of a split up. However, recognising them as married people is too much.

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