Marriage has always been deemed to be a matter of the heart. What most people don’t know is the fact that, when someone gets married, there are some acts that pertain to the marriage that can lead to one committing a criminal offence.
Marriage has been defined as a union between two people, who have attained the age of majority that creates rights and obligations between the spouses. In some countries, the marriage can be between persons of any gender, but in Kenya, the constitution only recognises marriage between adults of the opposite sex. Section 2 of the Matrimonial Causes Act, Chapter 152 of the Laws of Kenya defines marriage as “the voluntary union of one man and one woman for life to the exclusion of all others." The proposed Marriage Bill defines marriage as “the voluntary union of a man and a woman intended to last for their life time."
Marriage in Kenya can either be through statute, which is marriage conducted pursuant to the marriage laws of Kenya, customary law marriages which are guided by the customs of the Kenyan communities, or presumptions of marriage which are established by common law.
All statutory marriages are monogamous unions. Any attempt by any party to the marriage to engage in another marriage, will result to adultery, which is a ground for any of the parties to seek to have the marriage nullified. Some Kenyans, contract other marriages, even when they are already in existing statutory marriages. These marriages can come about when one of the spouses is dishonest about their marital status at the time they want to enter into the subsequent marriage. Most people are however not aware of the existence of a criminal offence in such actions.
Section 171 of the penal code provides for an offence called Bigamy. It provides that any person, who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of the husband or wife, is guilty of a felony and is liable to imprisonment for five years. It is however rare to see people being prosecuted of bigamy in Kenya. This is largely because of the ignorance of the law by most of the would be complainants. The persons who engage in this crime are also ignorant of the fact that the crime does indeed exist and that it does attract a heavy penalty.
According to the nature of the society that we live in today, in the African setting, polygamy is generally and widely accepted as part of our way of social life. Customary law marriages are potentially polygamous, as a matter of fact, most of our customs allow for polygamy in marriages. In this kind of a marriage, when the man marries another woman, this does not constitute bigamy, since the governing law allows for polygamy. When a couple married under customary law, subsequently convert their marriage into a statutory marriage, the marriage ceases to be a customary law marriage, and polygamy ceases to exist also. Any other marriage that will be conducted during the existence of the present marriage shall be null and void as the party will lack capacity, and will constitute bigamy.
A party before contracting another marriage should first ensure that the current marriage has been terminated or has ceased to exist. A marriage ceases to exist when it has been nullified by the court, or when one of the parties to the marriage has died. Section 171 of the penal code further provides that “this section shall not extend to any person whose marriage with the husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if the husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and has not been heard of by such person as being alive within that time.”
Section 172 of the penal code provides that any person, who dishonestly or with a fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married, is guilty of a felony and is liable to imprisonment for five years. This provision of the law is aimed at deterring people from being dishonest about their capacity to contract a marriage. The provision also seeks to prevent and punish those people who enter into marriages for fraudulent reasons, for example to get the country’s nationality.
From the above provisions of the law, it is clear that marriage is not about matters of the heart only, but one should be careful about what they do during the subsistence of a marriage and why they enter into marriages.