8 December 2012

Kenya: The Marriage Bill

Photo: Capital FM
Marriage: prenuptial agreements bill to be passed

There are two things in the proposed marriage bill that have given me pause. The first is the legalisation of polygamous marriages and the second is the designation of cohabiting for more than six months as marriage.

I get that the laws of this land have to represent the reality of the citizens that live here and I am fully in support of that. I am also fully aware that 'come we stay' leads to an enmeshment of so many aspects of two individual lives that few of us can say where marriage begins and a 'come we stay ends'; and the parties in these unions need to have opportunities for legal recourse should something go wrong regarding kids, property ownership etc.

I do however think that six months is too short a time for cohabitation to be branded 'marriage'. Yes the law is trying to make it more difficult for people to shuck responsibility when they have acted in a way that creates expectation in another, but come on, six months?

That is like a short internship. Can we at least say a year? Between a lack of water, matatus striking and KPLC power cuts, you could easily spend six months in someone's house without giving it much thought, especially if the sex is good and the fridge is always full.

The questions that come to mind with the legalisation of polygamy involve the changes that it will necessitate in law. Right now, if you find out that your husband is dating someone else, you can divorce him on the grounds of adultery.

Once we legalise polygamy, will adultery no longer be grounds for divorce? What happens when wife number three wants a divorce from her husband?

What is available to her in terms of property distribution and child maintenance? Will the income from wife number one and two be considered 'family wealth' so that it is available to her and her children?

As the law stands now, second and third wives do not have legal recourse and they are in fact not always called wives.

However, as we seek to acknowledge these polygamous unions in law, we must not forget monogamy. The inclusion of other women in your union opens you up to all manner of sexual, financial and emotional vulnerabilities.

If the monogamous marriage is devalued in the process of recognising the polygamous union, we will see a generation of women who opt out of a risky union in favour of single motherhood.

Given that family is the basic unit of society, this is not a desirable outcome. I suggest that our parliamentarians insist on two marriage certificates: One that creates a polygamous union and another that creates a monogamous one.

This way, the women of this country will be clear what they are getting into when they utter their marriage vows and marriage can remain attractive for those of us who are not interested in polygamous unions.

As for the 'come we stay' union, maybe that needs its own certificate or designation in law like 'the marital agnostic union' where indecision and commitment phobia get the gravitas they deserve.

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