The Marriage Bill has elicited different reactions from men and women around the country.
The bill is seen as the tool that will revolutionalise the institution of marriage in Kenya and protect the rights of spouses. It seeks to introduce new concepts that did not exist in the previous legal regimes.
The bill has emphasized that a marriage is between a man and a woman. Section 3 (1) provides that marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with this act.
It further provides that parties to a marriage have equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
People often think that certain marriages have a stronger legal status than others eg church marriages vis a vis customary law marriages. The bill provides that all marriages registered under this act have the same legal status. None is superior to the other.
The new bill seeks to codify customary law marriages. Previously we did not have any legislation on customary law marriages, yet the same were recognised as valid marriages.
The Marriage Bill has recognised their existence and set down procedures to be followed when carrying out such marriages. The bill has empowered the director to make rules to govern the customary law marriages.
Section 43 of the bill provides that the parties to a customary marriage shall notify the director of such marriage within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned.
This is a departure from the previous regime where the director was not involved in any way in the conduct of customary marriages.
In case of a subsequent marriage, section 44 (4) provides that the notification shall also declare whether the current wife or wives has or have been informed of the intended marriage and whether she or they approve or disapprove of the intended marriage and her or their reasons for approving or disapproving. Consent of the other parties must therefore be obtained before another marriage is conducted.
In the previous regime, only marriages celebrated within the provisions of the legislation were entitled to the issuance of marriage certificates.
The bill seeks to introduce the issuance of certificates for customary law marriages as well. Section 54 provides for the process of registration and issuance of certificates in customary law marriages.
It provides that where the parties to a marriage have completed the necessary rituals for their union to be recognised as a marriage under the customary law of any of the parties, both shall apply to the director within six months of their marriage for a certificate and both shall appear in person before the director to be issued with the certificate of marriage.
Subsection (2) provides that where the director is satisfied that the parties to a marriage have complied with the provisions of this act, and the parties have appeared before him in person, the director shall register the marriage and issue the parties with a marriage certificate.
The Marriage Bill has also recognised polygamous unions. Polygamy has been defined as the state or practice of a man having more than one wife simultaneously.
From the reading of this definition, only a man is allowed to practise polygamy. Section 6(3) recognises that marriage celebrated under customary law, or Islamic law is presumed to be polygamous or potentially polygamous.
If parties contract a potentially polygamous marriage, they can convert it into a monogamous marriage. Section 8 of the bill provides that a marriage may be converted from being a potentially polygamous marriage to a monogamous marriage if each spouse voluntarily declares the intent to make such a conversion.
Section 9 provides that subject to section 8, a married person shall not while
a. In a monogamous marriage, contract another marriage; or
b. In a polygamous or potentially polygamous marriage, contract another marriage in a monogamous form
The bill provides for a promise to marry. It provides in Section 76 that a promise to marry is not binding, except as the bill may allow.
It further provides that damages may be recoverable by a party that suffers a loss when the other party refuses to honour a promise to marry. It however does not define what constitutes a promise to marry, or the nature of the loss contemplated.
The provisions of the bill seek to bring the laws on marriage within the ambit of the constitution. The constitution in Article 27 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. This bill emphasizes on the equality of the parties to the marriage.
Article 44 (1) provides that every person has the right to use the language, and to participate in the cultural life, of the person’s choice.
In embracing this, the bill has legislated on customary law marriages. Article 45 of the constitution provides for family issues. Sub Article (2) provides that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
Sub article (3) provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. (4) Parliament shall enact legislation that recognises—
(a) marriages concluded under any tradition, or system of religious, personal or family law; and
(b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion,
The Marriage Bill has promoted these principles established by the constitution. Not every one though is happy with the bill.