By Pravin Bowry

The Marriage Bill, 2007, is likely to be placed before Parliament once it reopens. The perplexing question is whether our Members of Parliament will see light and pass the Bill with or without amendments despite their political differences.

Male-dominated parliaments have over four decades repeatedly thwarted the enactment of realistic marriage laws.

In 1969, legislators were so riled by unmarried women applying for maintenance that they contrived the repeal of The Affiliation Act and the womenfolk did not make any meaningful objections.

And in the late 1970s, Parliament killed an earlier Marriage Bill, which was drafted after a painstaking review of marriage laws by the Cotran Commission.

Getting married in church or under customary law has legal consequences. Kenya still relies on laws that do not reflect the reality of marriage today. Photo: Martin Mukangu/Standard

Existing marriage laws are out of touch with the reality of today. Justice Kaplan Rawal recently viewed the laws as unfair, derogatory, discriminatory and unconstitutional and urged legislative intervention.

Obsolete legislation

The Marriage Act (Cap 150) was enacted in 1902. The African Christian Marriage and Divorce Act (Cap 151) in 1931 and the Matrimonial Causes Act (Cap 152) in 1941. There are other pieces of obsolete legislation dealing with separation, maintenance, Hindu and Mohammedan Marriage and Divorce. The height of Kenyan women’s plight is the application of the English Marriage Women’s Property Act 1882 to present day Kenya.

Sections 3(1) and (2) of the Judicature Act use the English law before the date of reception (12th August 1897) "so far only as circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary".

Further the courts are supposedly to be guided by African customary law in civil cases "if not repugnant to justice." However, in matters of personal laws where statutes exist, customary law has no relevance and has been relegated to insignificance.

It is regrettable to note that since independence, no meaningful change in personal laws of marriage has been made. Kenyan marriage laws are still based on English laws, most of which have been repealed and replaced in England. Kenyans are still shackled by laws enacted during the colonial era but did not consider African values, traditions and customs.

The Children Act, 2001, succeeded to protect the interests of the children in and out of marriage though the law has created many problems in its application.

Seventy-five years since the legislation of the Penal Code, men are waking up to the realisation that there is an offence called ‘bigamy’. They are being convicted for the offence and jailed.

Getting married in church, then under customary law as the personal climate changes, or vice versa, has legal consequences in the eyes of the law.

Weighty questions

There are very many weighty questions, which arise. Should polygamy be allowed? Should there be divorce by consent? Should the present grounds of divorce be repealed and a single ground, that of ‘irretrievable breakdown of marriage’ be enacted?

It is heartening to note that the property rights in marriage have been adequately addressed and customary law has received some respect. Still questions of dowry, same sex marriages and burial rights remain unanswered.

The Bill envisages many worthy changes and gives the subordinate courts jurisdiction and also provides for a conciliatory body prior to divorce.

Most Kenyans — young, old, married, unmarried, divorced and separated — will all find reading the Marriage Bill enlightening. If you have a point to underline, visit your MP.