What proposed Bill states on conjugal rights and property

By Rawlings Otieno and Allan Kisia

Kenya: The proposed marriage legislation has provisions that if enacted into law, will compel a woman or a man who has withdrawn from the society to restore conjugal rights.

It states that if either the husband or wife has, without reasonable grounds, withdrawn from the society, the aggrieved party may make an application to the court for restitution of conjugal rights.

“Maintenance payable to a person under an order of the court shall not be assigned or transferred or liable to be attached, repossessed or levied upon for, or in respect of, any debt or claim,” reads part of the Bill.

The court may also order a person to pay maintenance to a spouse or a former spouse-if the person has refused or neglected to provide for the spouse or former spouse as required by this Act; or if the person has deserted the other spouse or former spouse, for as long as the desertion continues.

Moveable property

The Marriage Bill 2013 seeks to consolidate the various laws relating to marriage such as the Marriage Act, the Hindu Marriage and Divorce Act, the Mohammedan Marriage and Divorce Registration Act, African Christian Marriage and Divorce Act and the Subordinate Court (Separation and Maintenance) Act.

In another section, the court may order the payment of maintenance to a spouse or former spouse where a decree of separation, divorce or presumption of death is issued by a foreign court.

The Bill also states either spouse will have authority to convert movable property of the partner into money, and use it, so far as that credit or money is required or used for the purchase of their home necessities.

According to the proposed legislation, the court may revoke or vary a subsisting order for maintenance of any kind, if it is satisfied that the order was obtained as the result of any mistake of fact.

And ironically, the Bill places no limit on the number of polygamous marriages a man can enter into although the Bill states, “No married woman shall, while her marriage subsists, contract another marriage.”

If the spouses agree, a polygamous marriage can be altered to a monogamous marriage. The Bill bars those already in polygamous marriages from entering a monogamous marriage with just one wife.

It clearly states that marriage shall be a voluntary union between a man and woman and a couple interested in getting married shall give the Registrar 21 days-notice and indicate whether it will be a monogamous or polygamous marriage.

The Bill further states that unless the parties are legally separated or divorced, either spouse shall have the responsibility to provide the other with accommodation, clothing, food and other necessities.

Equal status

Members of the National Assembly are now expected to discuss the Matrimonial Bill, 2013 and might be passed in its current form.

The Bill places spouses in equal shares regardless of the contribution of either towards the acquisition of property. The Bill, which has been submitted to the Justice and Legal Affairs Committee by the Attorney General, seeks to cater for matrimonial property disputes.  It provides for the rights and responsibilities of spouses in relation to matrimonial property.

It states the general principles to be applied in matrimonial matters.  “These principles include equal legal status of men and women in marriage, the recognition of the capacity of either spouse to acquire separate property during the subsistence of the marriage,” it notes.

It further provides that persons professing the Islamic faith shall be governed by Islamic law in all matters relating to matrimonial property.

Where matrimonial property is acquired during marriage in the name of one spouse, the Bill states that there shall be a rebuttable presumption that the property is held in trust for the other partner.

It adds that if property is acquired in the names of spouses jointly, it will be assumed that their beneficial interests in the matrimonial property are equal.

“Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient,” it points out.

The Bill says a spouse is not liable, solely by reason of marriage, for any personal debt contracted by the other spouse prior to their marriage.

It names matrimonial property means the matrimonial home, household goods and effects in the matrimonial home, immovable property owned by either spouse which provides basic sustenance for the family and any other property acquired during the subsistence of the marriage.