Church, married women, pray Bill offers solutions to marriage woes

By LILIAN ALUANGA-DELVAUX 

Susan Anyango, a mother of two, is in a dilemma. Seven years ago Ms Anyango married the father of her children under customary law and settled down to a quiet life. A year ago Anyango expressed her desire to have the couple wed in church but her husband would hear none of it.

“There are times when I am not sure about my status as his wife. His refusal to wed in church tells me he might be planning to take another wife,” she says.

Elsewhere, Mary Wangari finds herself in a different predicament. Five years ago, Wangari, a businesswoman in Nairobi, met the father of her child through a mutual friend.

Although the two have been in a ‘committed’ relationship and have both been introduced to each other’s families they continue to maintain separate homes in the city.

“I don’t know how to define our relationship. I have never had reason to doubt he is single because I have questioned his family and friends. I have also made impromptu visits to his house and never found anything to make me suspicious. He takes care of all my bills and even talks about having another child. But whenever I talk about formalising the union he goes silent,” she says.

The above cases are among those proponents of the Marriage Bill are hoping will find solutions in law if the proposed legislation is passed. The Marriage Bill, which has drawn criticism from church leaders over some of its provisions, is among several Bills likely to be debated in Parliament upon resumption of its sittings next week.

The Bill, which has generated much public debate, makes provisions for Christian, Civil, Customary, Hindu and Islamic marriages, and seeks to consolidate all statutes governing marriage in the country.

Speaking at a forum last week dubbed ‘Unpackaging the Marriage Bill’, Nairobi Advocate Judy Thongori said there are misconceptions being peddled on the Bill that need to be corrected. “The Bill seeks to recognise and not to legalise polygamous marriages. The Bill isn’t making the law. It is simply codifying what already exists. One must realise for example that customary marriages are potentially polygamous and were in existence long before Christian and Civil marriages,” she says.

Existed alongside

“Though customary unions have not been provided for in the statutes, they have existed alongside monogamous unions and many Kenyans are spouses and/or children in such unions,” she adds.

Thongori argues that gaps in the law meant there was no legislation that reflected the existence of customary marriages and as a result the status of such unions was uncertain and only formally recognised in court judgements and rulings.

According to the lawyer an individual opens themselves up to a polygamous union based on the type of marriage they choose. “If you chose a Christian marriage then it remains strictly monogamous,” she says.

Part three of the Marriage Bill extensively covers provisions governing a Christian marriage. Grounds for divorce in such a union are adultery, cruelty (mental or physical) even against children, and desertion for at least three years.

Section 8 of the proposed law allows a couple married customarily (potentially polygamous) to convert into a Christian marriage provided each spouse voluntary declares their intent to make such a conversion.

Customary and Islamic marriages are by their very nature potentially polygamous that means that an individual opting for this type of marriage means they are entering into a union that could turn polygamous.

Civil marriages on the other hand, are monogamous unions where one can only petition for divorce or separation after three years. Grounds for dissolution of such a marriage, as proposed by the Bill, are adultery, cruelty, desertion, irretrievable breakdown of a marriage and exceptional depravity.

Thongori also discounts claims that consent is needed from the wife of an individual that seeks to marry another woman among those married under customary law. “No consent is required. One must however be informed of the intended union but this won’t stop the marriage from happening,” she says.

The lawyer clarifies that ‘a promise to marry’ as espoused in Section 76 is not binding. A party can however seek damages for loss occasioned as a result of a breach of promise to marry but the merits of such a claim will be determined on a case –by- case basis by the courts.

“There is a clear distinction in the Bill between Christian marriages and Civil marriages which has not quite been the case. Its also clear that other than the legal recognition of Islamic marriages, the details are left to the Islamic law,” says Thongori.

The Secretary General of the Kenya Episcopal Conference-Catholic Secretariat Fr Vincent Wambugu however maintains that the country ‘cannot afford to import foreign ideologies on marriage’. “The issue of taking marriage towards the direction of wealth sharing more than advocating for growth of the union is wrong. Within the Catholic Church marriage is a sacrament and is viewed as a lifelong commitment and not a contractual one, “says Wambugu.

Clause 3 of the Bill provides that marriage is ‘the voluntary union of a man and woman, whether in a monogamous or polygamous union registered in accordance with the Act’.

Thongori also discounts perceptions that the Marriage Bill addresses matrimonial property issues. “This issue is sought to be governed by the Matrimonial Property Bill,” she says.  Wambugu says the church is also concerned about ‘secular authorities’ determining marriage. “Within the Catholic Church marriage is considered a sacrament and if it is done say through a civil authority then we have nothing to do with it,” he says.

The National Council of Churches of Kenya (NCCK) has, also written to parliament and the attorney general making several proposals on the proposed marriage law.

For instance, the body argues that since ‘dowry’ applies to customary marriages the interpretation should be clarified in this regard to confine it to such marriages pursuant to Clause 42, which governs marriage under customary law.

Ambiguous interpretation

The document, signed by Secretary General Rev Canon Peter Karanja, also argues that the interpretation of a  ‘monogamous marriage’ in the Bill is ambiguous and should be clarified to recognise marriage as the foundation of society, intended to last a lifetime.  On the kinds of marriages registered under the Act, the church is pushing for deletion of Clause 6(f) that provides that ‘a marriage may be registered under the Act if it is celebrated in accordance with the practice of any other faith or group as may be designated by notice in the Gazette’.

This, according to church leaders, opens the window for other forms of marriage including same sex marriage. The church leaders also argue that the Bill should provide for mediation processes in the church before parties move to court. NCCK also proposes that the offence of bigamy for persons in monogamous marriages be provided in the Bill and argues that ‘errors’ that do not undermine the essence of the marriage should not make a marriage voidable, as proposed by the Bill.