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New marriage laws ready to be enacted at last

By - | Published Wed, November 28th 2012 at 00:00, Updated November 27th 2012 at 19:58 GMT +3

The Marriage Bill 2012 has recently been published and is likely to be debated in the last session of the 10th Parliament amongst other important Bills and hopefully parliamentarians will see it fit to give the matter serious thought.

Will the shackles of foreign and alien laws relating to marriage, divorce and property rights of couples be broken once and for all and an indigenous and universally applicable Kenyan statute put in place?

Since late 60’s Kenyans have made valiant but futile attempts to enact unified set of family laws applicable to all Kenyans of different faiths and racial and tribal extractions.

It is absurd that English laws of the fifties and in matters of matrimonial property, the Married Women’s Property Act 1882 are still applicable in Kenya.

Over the years there have been over six Marriage Bills, all rejected, and even a Commission of Inquiry could not resolve the varied issues, mainly due to the male dominated Parliament.

The proposed legislation is admirably well thought out and the Attorney General must be complimented for synchronizing different tribal, customary, religious and even modern gender and economic issues.

Maybe this time round, the objects and reasons stated in the Bill as “to provide and consolidate the various types of marriages and their regulation in Kenya and apply common standards for assessing gender justice within the family within the context of international laws and constitution of Kenya” will be achieved.

At their own election Kenyans will be able to “celebrate or contract” a marriage out of six kinds and it is left to individuals to decide which form to follow.

There is provision for a civil marriage, a Christian, marriage, African customary rites marriage relating to any of the communities in Kenya, Hindu and Islamic law marriages or a generic one in “accordance with the practice of any other faith or interest groups as may be designated by Notice in the Gazette”.

Breach of promise

Customary law and Islamic law marriages shall be presumed to be ‘polygamous or potentially polygamous’.

Marriage or even engagement under the age of 18 years is prohibited and will become a criminal offence.

Civil marriages at any of the Kenyan Embassy or Consulate will be provided for and foreign marriages will be recognised as civil marriages in Kenya.

An elaborate system of registration of marriages and declarations and rules is provided for and there appears a need to simplify the system bearing in mind the facilities available in rural Kenya.

Pre-divorce mediation is provided for and the High Court is divested from Jurisdiction with all matrimonial proceedings triable by the Resident Magistrates Court.

The role of Kadhis Court in Islamic divorces is unclear.

Divorce, mediation and separation are all dealt with under the heading “Matrimonial Disputes and Matrimonial Proceedings”.

The law of divorce stands to be changed completely and there is only one ground proposed, that of marriage having “irretrievably broken down” –  essentially on conventional grounds of cruelty, adultery, wilful neglect, separation, desertion for at least two years, a sentence of imprisonment, insanity, or other ground as may be deemed appropriate under the marriage system or faith professed”.

Wide powers are likely to be given to courts over maintenance and custody of children and monetary limitations of jurisdiction in lower courts will not come into play.

Mediation of disputes in customary marriages will be mandatory and divorce under Islamic Marriages “shall be governed by the Islamic law provided that such law is consistent with the constitution”.

There are interesting provisions on matters of breach of promise to marry, dowry and the establishment of customary law of each tribal community in the country.

There are many glaring and burning issues the Marriage Bill has failed to address and these factors will inevitably lead to emotional and partisan debates as in the previous instances.

The penal laws relating bigamy and sodomy need to be revised and the issue of same sex marriages and indeed homosexuality remain unaddressed.

The combined effect of the Sexual Offences Act and the proposed Marriage Bill is that all sexual intercourse before the age of 18 years will now be branded as an offence perhaps arguably an intrusion into the private life of the young.

Burial disputes

The risk of many proposed laws being declared unconstitutional is real – one Facebook user has contended that the laws should provide for polyandry i.e. one woman having more than one husband at any given time to bring women at par with men!

It is sad that the matter of burial disputes of a deceased spouse has not been addressed and the matters of conflict of laws as between tribes, races and different faiths also has been left dormant.

All Kenyans must study the 60-page Bill with 136 Sections and give their views and engage their Members of Parliament as there is dire need to put in place laws which will transform family laws into respected Kenyan values as envisaged in the Constitution.

The writer is a lawyer.

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