Q: How does the law reconcile the position of one-man-one-wife as per the Marriage Laws with that of the Law of Succession, which recognises many wives?
A: The question of whether a man had another wife, or whether another woman was indeed a wife only becomes an issue after the death of the man, who was the provider for all his women.
At stake is normally how his property is to be distributed to ensure the beneficiaries continue to live as though he was still alive. This explains why there is such big connection between marriage laws and the law of succession.
Marriages in Kenya are governed by the Marriage Act, Cap 150 and the African Christian Marriage and Divorce Act, Cap 157. These laws define marriage as the voluntary union for life of one man and one woman, excluding others. Therefore, once someone has contracted a monogamous marriage under these laws, neither spouse shall contract another marriage so long as the original marriage subsists. Doing so shall consist of the offence of bigamy and is punishable, under Section 171 of the Penal Code, with five years imprisonment.
THE OTHER WOMAN: The Marriage Act prohibits polygamy but the Law of Succession allows concubines to inherit property. Photo/ Jenipher Wachie/Posed by models/ Standard |
Old laws
But lets take a look at the law of succession. It provides a mechanism by which property devolves from its owner to the people left behind after his death. In most societies, the right to inheritance is predetermined by the relationship between the inheritor and the deceased. The concept of family in Africa includes distant relations and not just close family members. The words ‘dependant’, ‘wife’ and ‘child’ amongst others have the tendency to acquire complex meaning.
Prior to the enactment of the Law of Succession in 1981, all the courts needed was to ask whether the deceased husband had a valid marriage under any of the Marriage Laws and particularly Section 37 of the Marriage Act to ascertain whether the deceased was incapable of contracting another marriage.
Where it was ascertained that he had a valid marriage under the law, any other woman claiming to have been married to the deceased was locked out as being ‘not a wife under the law’ and was not entitled to inherit.
Legitimising polygamy
However, due to the harsh, unfair and unjust effect of the strict interpretation of these laws on ‘the other woman’, Parliament amended the Law of Succession.
In effect, Parliament ended up legitimising polygamy, at least in so far as succession is concerned.
The saving grace for the ‘other woman’ came by virtue of subsection (5) to section 3 of the Law of Succession Act which reads: "Notwithstanding the provisions of any other written law, a woman married under a system of laws which permits polygamy is, where a husband has contracted a previous or subsequent marriage to another woman, nevertheless a wife for purposes of this Act and in particular sections 29 and 40 thereof, and her children are accordingly children within the meaning of this Act."
For the purposes of succession therefore, polygamy must be viewed as legitimate. This means that the statutory prohibition of polygamy has been effectively rendered superfluous and as such there is at the moment, quite a precipitous conflict between the Law of Succession and the Marriage Act.
It seems rather hard to strike a balance between the two inconsistent public policy considerations, on the one hand the need to protect the sanctity of the family through the practice of monogamy, and the case of protection of destitute widows.
