The Star (Nairobi)

Kenya: New Traffic Regulations Offend Marriage Vows

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Marriage: prenuptial agreements bill to be passed

According to Section 74 of the Marriage Bill, the imprisonment of your spouse for life or for a term of seven years may be evidence that a marriage has irretrievably broken down. The Bill provides that the court has to consider both the length of the sentence and the nature of the offence for which the punishment was imposed when assessing this. From a family law perspective, this provision is disturbing.

If the Marriage Bill becomes law, then the following offences whose punishment is seven years or more or life imprisonment shall be a threat to your marriage: murder, manslaughter, drug trafficking, defilement, rape etc.

A conviction for these offences is based on the fact that the prosecutor has to first prove that the accused person had prepared to commit the respective offence and that he/she had the intention to commit the offence which he/she then proceeded to commit.

For instance, under the Traffic Act as amended, causing death by careless driving is punishable with a life imprisonment.

To this extent, the new traffic regulations offend the marriage vows. On our wedding day, we declare that we shall remain together "till death do us part". If we allow life imprisonment to be a ground to prove that a marriage has irretrievably broken down, then we shall be violating and rendering our marriage vows a dead letter through traffic offences.

Many people who are convicted to serve long sentences are family men and women who love their spouses. Why should we watch and allow a long conviction deal a death blow to our marriage? Is this ground necessary in so far as they affect our marriage and divorce laws? The Marriage Bill has gone out of proportion on this one and we have to agitate for the marriage institution. It will be double tragedy for a spouse to be convicted to serve a ten-year imprisonment. How will he even challenge the divorce petition if, for example, he can't reach his witnesses? What about a convict who has lodged an appeal and his appeal is pending?

We have to relook at the ramifications of the Marriage Bill as read alongside the Amended Traffic Regulations from a family perspective. The provision goes against the much-hyped prison reforms that have been encouraging spouses to visit their imprisoned spouse regularly so as to protect and maintain the matrimonial fibre. The prison reforms lobby groups have been fighting for facilities in prisons for married couples to enjoy conjugal rights. The prison pastor has been preaching to the convict that the family is waiting for him and that he should wait upon the Lord to reunite with his family. These aspirations shall be no more. All the gains will be lost with a stroke of the pen.

This is more so given that they will not be able, for example, to be legally in a position where they can fight for custody of the children of the dissolved marriage. What will happen to the matrimonial property?

This means we shall be filing the divorce papers as soon as our spouse gets convicted for causing death by careless driving. This will be doable on an equal footing with a spouse who murders another with malice aforethought. Can we say these two married persons are going to talk of equality before the law. The married convict in cell number one gets divorce for causing death accidentally while another family man in cell number two, who is serving the sentence for murder, gets similar papers. This is clearly inequality. It offends Article 27 of our Constitution. This Section in the Marriage Act offends the Supreme law of the land.

Will the new ground promote and protect the marriage unit? The amendment is clearly going to generate a situation where there will be a set of competing rights. On one hand, there will be the right to seek a divorce on the ground of conviction while on the other side there will be the disadvantaged imprisoned spouse who can argue that the fact that his civil liberty rights have been taken away by the conviction should not be used as a ground to take away his family equality rights.

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