The Kenyan Marriage Act 2014, Will it Survive the Courts of Law

R. Muko.
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marriage rings

 

On 28th April 2014 President Kenyatta signed the Marriage Bill into law. The  Marriage law had the intention of bringing together the various existing laws existing in the country into one coherent legal document. The law replaces various other laws which have been at the moment repealed they include: The Marriage Act (Cap 150 ), The African Christian Marriage And Divorce Act (Cap 151), The Matrimonial Causes Act (Cap 152), The Subordinate Court (Separation and Maintenance) Act (Cap 153), The Man Marriage And Divorce Registration Act (Cap 155),  The Mohammedan Marriage Divorce and Succession Act (Cap 156) and the The Hindu Marriage and Divorce Act (Cap 157).      

According to section 3(1) Marriage is defined as a  voluntary union between a man and a woman. Section 3(2) gives marriage partners equal rights. The age of consent is set at 18 for both man and woman. Any marriage must have two witnesses present excluding the person officiating it. The law recognises marriages under Christian tradition, civil tradition, customary law, Hindu tradition, Islamic tradition. All these marriages though recognized and must be registered (Sec 6(1)). Practices of other recognised groups or faiths may be notified in the Gazette (Sec 6(1)(f)). Accordingly Christian, Hindu or civil marriages are monogamous (Sec 6(2). Islamic and customary marriages on the other hand are potentially polygamous (Sec 6(3). Custody and maintenance of children remain under the Childrens Act.

Sections 86 to 87 of the new law describes a number of marital criminal offenses. They include giving false statement in the notice of intention to marry or notice of objection. According to the law in section 76 (1)  promises to marry are not binding as they do not constitute a contract. However section  76(2)  provides that a party may recover damages if he or she suffers a loss because one has refused to honour a promise to marry. Other offenses include Marriage to persons under 18 years,  Marriage of persons within prohibited marriage relationship.    Marrying someone without the person’s consent,  Unauthorized persons celebrating marriage relationship,  Marrying without witnesses, Celebrating marriage where one party is below 18 years; not giving a notice of intention to marry, or  a notice of objection to the intended marriage has been given and the objection has not been withdrawn, dismissed or determined. The law also prohibits marriages considered incentuous or where parties to the marriage have a close blood relationship.The offenses carry penalties of fines of Kshs 10,000 to Kshs. 1 million and 3 to five years imprisonment.

According to section 14 parties to civil marriages (only) can agree to live apart for one year (Sec 14(1). This agreement needs to be  filed in court, court can vary or set aside the agreement where circumstances have changed. Widowers may also elect to marry or stay un-married. The duration of the marriage may last until death, presumption of death, annulment, divorce within Kenya or abroad. In solving matrimonial disputes provisions are made in accordance with the various marital traditions for example Christians may seek for reconciliation, civil partners may petition a court, the customary partners may appeal to conciliation, Hindu partners may appeal for annulment. However in all situations the appeals are made to the courts. The courts may also order a spouse to maintain the other where there is presumption of neglect. 

The greatest weakness of the 2014 Marriage Act is that it allows men to marry multiple wives. Men are allowed to add other spouses without any due consent from their wives. This clause if not changed will cause untold harm to many families as various males will choose a second wife in order to constrain the women bargaining powers in the relationships. Others will do so while in essence they are not able to sustain the existing families; the law has infact admitted the abdication of marital responsibility from men. It has also made women more vulnerable to the partiachal machinations prevalent in the Kenyan society.

The major weakness of the law will in the long run contribute to its debunking. While therefore a good work has been done to consolidate the different marital structures within the country, the extra addition in the law allowing men to marry as many women they see fit while not taking into account their wives’ feelings, will certainly be defeated in the courts of law as it is against the rules of natural justice.

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