MPs oppose Bill on marriage dissolution

The Bill seeks to amend the current Act. MPs say Bill will allow fictitious marriages. [iStockphoto]

A Bill seeking to allow couples to annul their marriage within a year after wedding and by way of mutual consent has sparked heated debate in the National Assembly.

MPs from across the political divide voiced their dissent to the Bill that had been tabled for the first reading on Wednesday, claiming that it was out to kill marriages.

The Bill seeks to amend the current Act and make it legal for couples to endorse “mutual separation", meaning they have agreed to live separately as husband and wife whether they live under the same roof or not.

Grounds for a couple to seek decree of divorce, the Bill says include that the marriage has irretrievably broken down, parties have mutually separated for at least one year immediately preceding the date of presentation of the petition and that the parties have mutually agreed to dissolve the marriage.

“The court may grant a decree for the divorce if the petition is made after at least one year of the celebration of the marriage, the parties jointly present the petition, both parties freely give consent to the divorce in writing and both parties are present in person at the hearing of the petition,” reads the Bill.

The court may however, on the application of a party, nullify a decree of divorce on grounds that the consent was obtained by coercion, fraud, or undue influence.

The wife or husband in a marriage which has been annulled by decree absolute of the court shall be deemed never to have been married.

The decree shall, however, not render lawful, anything which was done unlawfully during the marriage or render unlawful anything that was done unlawfully under the marriage.

Parliament plenary, June 15, 2023. [Elvis Ogina, Standard]

The decree should also not affect the competence of either the parties as a witness in respect of anything done or omitted to be done, or any privilege in respect of communications between them during the marriage.

It should also not relieve either party of any debt properly incurred on behalf of the other during the marriage.

“The innocent party is entitled to damages where the court nullifies a decree of divorce,” adds the Bill sponsored by Suna West MP Peter Masara.

Laikipia Woman Representative Jane Kagiri however opposed the Bill, terming it unconstitutional.

"When you have a Marriage Amendment Bill that is going to allow for the dissolution of marriage after one year or based on mutual consent, I think that's an affront to our Constitution and something that we should not allow,” stated Kagiri.

“Should we adopt this into law, foreigners may take advantage of young Kenyan girls who they will use and dump. We will be supporting fictitious marriages which will be used by many as a means of gaining citizenship,” she added.

Majority Leader Kimani Ichung'wah called on the speaker to either suspend the Bill or for the mover to withdraw it and amendments made on the same.

“On the face of it, it’s clear that this Bill will go contrary to the provisions of Article 45 of the Constitution…I don’t know if this Bill even found its way to the plenary. This is a Bill that should not have gone through the Justice and Legal affairs committee,” he said.

Minority Leader Opiyo Wandayi said: “The speaker needs to give a considered ruling given the claims of the Bill being unconstitutional.”

Speaker Moses Wetang'ula is now expected to give a ruling on the Bill in a fortnight.