By Harold Ayodo
The Marriage Bill 2007, now waiting clearance from the Attorney General before debate in Parliament, is a fair piece of legislation that would resolve marital and inheritance disputes.
The Marriage Act Cap 150, Matrimonial Causes Act Cap 152 and the African Christian and Divorce Act Cap 151 are the current statutes governing marriage.
The African Christian and Divorce Act provide a simple procedure for the marriage of Christian Africans and conversion from customary to statutory marriage.
Mr William Musyoka in his book Law of Succession says the three different marriage statutes embody English Laws on Marriage and Divorce.
Existing laws are also silent on the division of matrimonial property in cases of divorce or separation, forcing courts to use their discretion.
Courts have borrowed hugely from the Married Women Property Act of 1882 in the United Kingdom to rule on division of matrimonial property.
Judges of the High Court have applied the Doctrines of Equity from England in the division of either joint accounts or property bought by couples in marriage. There are also cases like Michael Ireri vs Joyce Ireri (1993) Civil Case No. 106 of 1993 where the Court ruled that the wife was entitled to division of matrimonial property even without her financial contribution to acquire them.
Shared property
Michael told the court he bought the house solely while Joyce spent her salary on beauty, but the judge held that it was the duty of the husband to maintain his wife.
The Court of Appeal has held in the past that even housewives are entitled to marital property on divorce, arguing their contribution in marriage cannot be quantified.
The case of Mary Anne Kivuitu vs Samuel Kivuitu (1988) Civil Case No. 26 of 1988 is also a precedent on division of property on divorce or separation.
The late President Jomo Kenyatta appointed a commission under the chairmanship of then Justice Spry to establish a law to cure the marriage conflicts in on April 6, 1967.
The commission was to propose a legislation that would replace then existing African Customary, Islamic, and Hindu Laws on marriage and Acts of Parliament.
The Spry commission submitted its report to the Government in August 1968, and annexed a draft Bill of Marriage and Divorce to give effect to its recommendations.
The Bill was debated in Parliament in 1970, but defeated after the male dominated House disapproved provisions that made adultery and chastisement of wives an offence.
Sections that outlawed adultery and chastisement were later deleted and the Bill re-tabled and rejected by the same Parliament.
Legislators should therefore tread carefully on the Marriage Bill 2007, and not vote on gender lines, but on the social value of law. Offenders are yet to be punished for bigamy – an offence under Section 42 of the Marriage Act.
There is need for legislation on informal customary marriages like woman-to-woman marriage the High Court said was repugnant to justice and morality in 1981.
Justice Daniel Aganyanya ruled at the High Court, sitting in Kisii, in the case of Maria Gisese vs Marcella Nyomenda that a woman-to-woman marriage was immoral. Woman-to-woman marriage however still exists among the Abagusii, Kuria Taita, Kikuyu, Kamba and Meru.
Other types of informal customary marriages include widow inheritance, forcible marriages, child betrothals, elopement, levirate (widows forced to marry brothers of their late husbands), and surrogate unions.
Confusions propelled by the three Acts on marriage have made a woman considered a wife under the Laws of Succession Act, not a wife under the marriage statutes.
A woman married under customary law to a man in a subsisting marriage under statutes is not considered a wife under the three Acts, but is one under Laws of Succession.
The same conflicts existed on Laws of Succession during the colonial days when there were four different legislations on the same before 1981.
The present Law of Succession Act was effected, following a report compiled by a commission appointed Mzee Kenyatta in 1967.
