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The good, bad and ugly of matrimonial law

By By PRAVIN BOWRY | November 27th 2013 at 00:00:00 GMT +0300

By PRAVIN BOWRY

KENYA: The new Matrimonial Property Bill is destined to become law soon when the President assents to it. There has been great public debate, I dare say, after the horse has bolted and it would have been more useful if all interested parties had given greater thought to the proposed laws.

The new law in reality will be half baked and Kenyans need to appreciate that marriage and divorce laws of the land still remain in the realm of antiquity.

Unrealistic

First the good news – let there be a legal celebration! By enacting the law, Kenyans will have broken historical shackles of reliance on out of date, obsolete, foreign and unrealistic legislation.

The law on matrimonial property hitherto was governed by Section17 of the English Married Women’s Property Act of 1882 which defined the role of the wife as a “feme covert” emphasising her subordination to her husband. Any personal property acquired by the wife during the marriage went automatically to the husband.

In Kenya under this law there exist intricate and contradictory court decisions relating to the rights of women in customary law marriages, joint properties, and land solely registered in the husband’s name when even the wife has contributed.

A wife (or even a husband) under the new law now has the option to ask for a declaration of rights to any property that is contested between a spouse and matters of contribution of the spouses means that to some extent the wife has equal rights.

It is generally believed that the new law will be fairer to the wives and gives powers for property rights to be determined even if the spouses are not engaged in litigation.

Bearing in mind the broad constitutional provisions and gender equality laws the courts will hopefully remedy the imbalance created by the amendments being complained of. It is worth noting that on 5th July 2013 two Bills were published, The Matrimonial Property Bill of 2013 which now stands passed.

The second one was the Marriage Bill of 2013 which matured for Parliamentary debate on 16th July 2013 and the first reading was on 16th July 2013 and is now, surprisingly, held in abeyance.

No clarity

Now comes the bad news! The substantive law on marriage, divorce and nullity are affected and based again on the old English laws and centuries — old Hindu scriptural laws. Since independence there has been a Commission on marriage laws and from memory over seven Bills which the Parliament has rejected time and again.

Family laws in Kenya are scattered in different statutes depending on the race and religion of a Kenyan and in one case the law has been held to be unconstitutional. Let the new law not throw dust into the eyes of Kenyans. The Matrimonial Causes Act of 1931, The Marriage Act of 1902, The Mohammedan Marriage Divorce and Succession Act of 1920, The Hindu Marriage and Divorce Act of 1960, The African Christian Marriage and Divorce Act of 1977, are still on the statute book, alive and kicking and in the process creating havoc in the matter of personal laws.

It is difficult to understand why the Parliament refuses to debate and pass new substantive laws of marriage having initiated the process on the very day the Matrimonial Property Bill was brought to the Parliament.

The Family Protection Bill, 2007 and the Protection Against Domestic Violence Bill, 2012 both died an unexplained death.

So, matters on grounds on which divorce and nullity can be obtained, polygamy, same sex marriage, abortion, pre-nuptial agreements, dowry, separation, significance of inter tribal and inter customary laws, burial laws, homosexuality and lesbianism, and many other facets remains unaddressed and pickled in history of inequity and foreign thinking. Rights of children out of wedlock too are uncertain.

And now the ugly. As long as the male dominated Parliamentarians do not change their attitude and look at the bigger picture, new family laws will not be enacted and the pending Marriage Bill will never see the light of day as in previous decades.

To have laws which are over 110 years old in this day and age is absurd. Politicians and generally the male population need to learn and appreciate that the institution of marriage and family requires to be strengthened and the earlier this is done the better.

Public debate

The penal laws on bigamy which are never invoked is yet another thorny issue where Parliamentarians deserve to venture into as is the case also in the matters of application of customary law to matrimonial matters.

Sooner or later the Marriage Bill will come up for final debate and most likely it will not be enacted as law.

What are citizens and various organisations doing to sensitise the challenges, carry a public debate, and engage the Members of Parliament and Senators?

The task of getting into place a new set of laws is a daunting one in a multi-ethnic and multi tribal community and with each tribe still adhering to its specific tribal customs.

Fifty years after independence, it behoves Kenyans to get the matter of family laws right.

But due to vested interests of Parliamentarians, the prospects remain bleak. 

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