What you need to know before you say ‘I do’

By Pravin Bowry

Kenya: The enactment of the Marriage Act, 2013 last week heralds a new era in matters relating to family law. For over 50 years, ten post-independence Parliaments had successfully thwarted all attempts to bring changes in the law of marriage.

A commission on marriage laws and seven futile Bills over five decades could not bring any change. Selfish, partisan and male dominated previous Parliaments were influenced to protect many highly placed and influential politicians who were in bigamous relationships.

The fact that various tribes and religious groups and ethnic communities have been able to codify marriage laws in one statute is a feather in the cap of the Attorney General and the present parliamentarians. It is time therefore to move forward in the climate of the new-found principles of constitutionalism, the gender equality phenomena, regimes of human rights and international treaties on equality. Of course, the legalistic journey is not going to be an easy one.

A cursory look at the new law reveals that the implementation is going to be legally complex with untold eventualities not provided and with some provisions being contentious, vague and contradictory.

Seven old Acts dealing with family law have been repealed and laws of all these cramped into one Statute with a few modern trends incorporated.

The law now recognizes six kinds of marriages: Christian, Civil, Customary, Hindu and Islamic and other recognised religious groups once gazetted.  

The High Court has been divested of jurisdiction and Resident Magistrates shall in future hear all matters relating to marriages. This means that the High Court family division is likely to be disbanded and parties are likely to get an additional forum to appeal.

Only marriages under Customary Law and Islamic law are presumed to be polygamous or potentially polygamous whilst others are monogamous.

Kenyan couples henceforth must make a firm and binding decision prior to entering the contract of marriage whether they desire their union to be polygamous or monogamous and this will be a personal choice of the parties to the marriage.

Customary law of various communities relating to dowry has now received Statutory approval with the proviso that full dowry need not be proved to constitute a marriage and only a “token amount of dowry shall be sufficient to prove a customary marriage.”

Cross-religion or cross-culture marriages are not provided for.  What will happen if a Christian marries a Muslim?  Which law will prevail?  Hindus are the only community not given an option of contracting polygamous marriage.  Is this constitutionally discriminatory?  Divorce by agreement or consent is not allowed. Some important issues have unfortunately not been dealt with and matters of pre-nuptial agreements and burial rights of deceased spouses being two of these.

On the other hand some intriguing interpretations of the law can arise: example, can a wife have more than two husbands, that is, is polyandry allowed? In all marriages other than Islamic ones under the Act the age-old grounds of divorce adultery and desertion for over three years have been retained together with cruelty but cruelty to children is now a new ground of divorce. 

Additionally, civil marriages have “exceptional depravity by other spouse” and “the irretrievable breakdown of the marriage” as grounds with “irretrievable breakdown” being defined in detail.  Divorce in Islamic marriages are governed by “Islamic Law” though variance of sects is not mentioned and Muslims appear to have an option to go either to the Kadhi’s Court or the Resident Magistrate’s Court for redress.

All forms of marriages must now be formally registered including the customary law and Islamic marriages and foreign contracted marriages by Kenyans can now be registered in Kenya.

The law has interestingly and tacitly left the window open for gay and same sex marriages – Section 57 states that the Cabinet Secretary   in consultation with relevant stakeholders make regulations for registration of “any other type of marriage not provided for under this Act”. These types of marriages are also not among those prohibited under section 10 of the Act. In-house reconciliation bodies in each set of marriages are provided for, but the legal effect and binding nature of the reconciliation remains a grey area.  Customary dispute resolution.

Elaborate provisions for maintenance of a spouse and children and modes of recovery of maintenance arrears have been enacted.

The property rights of spouses are now governed by the earlier enacted Matrimonial Property Act, 2013.

The law creates seven new criminal offences; marriage to a person under minimum age, marriage of persons within prohibited marriage relationship, coercion and fraud, performance of ceremony by an unauthorized person, absence of witnesses marriage and the Penal Code offence of bigamy remains untouched.

Though the Act is in force, until the Rules Committee established under the provisions of the Civil Procedure Act promulgates Rules regulating court practice or procedure under the Act,  the Marriage Act, it would appear, cannot be implemented. 

We must appreciate that the decision of getting married has intricate legal options and getting married, separated or divorced has life changing consequences. Acquainting oneself with the new personal laws must become a priority.

Mr Bowry is an Adovocate of the High Court of Kenya

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