The debate on the Marriage Bill is still alive, with people questioning the good and the bad about it. It has introduced several principles and concepts that do not exist in the present legal regime.
One of the most fundamental, in my assessment, is the provision which seeks to legislate on customary law marriages. Even before the enactment of the existing pieces of legislation on marriage and divorce, Kenyans relied on customs to govern marriages.
The practice of customary law still exists today. The customary law marriages in the present regime are however not provided for in legislation. The effect is that such marriages cannot be registered. Even though such marriages are recognised like the statutory marriages, they are considered by many as a less robust system of marriage as opposed to statutory marriages.
When parties are alleging that the said marriage existed, they have to go to extraneous lengths to prove that the marriages were indeed conducted as per the customs, mainly because there is no documentation that is issued after the ceremony of marriage was conducted. The process of proving these marriages is cumbersome as it sometimes requires the calling of experts in the customary law relied on to prove that the marriage was indeed conducted.
Customary marriages are potentially polygamous unlike statutory marriages. There are couples who exercise what would be deemed to be a hybrid marriage, which combines both customary law marriage ceremonies and statutory marriage ceremonies. This is where the parties rely on both sets of laws to conduct their marriages.
The Marriage Bill seeks to legislate on matters relating to customary law marriages. Section 42 (1) of the Marriage Bill provides that a marriage under this part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.
Subsection (2) further provides that where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage. The Bill recognises the existence of customary law marriages, and its elements, eg dowry. Previously, there was no statutory notification required to be issued by parties intending to conduct a customary law marriage.
The process of notification was entirely left to the customs of the parties to the marriage. The Bill seeks to make it a mandatory requirement for anyone intending to conduct a customary law marriage to issue a notification to the director. Section 43 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.
In the conduct of customary law marriages, the customary law in question should not be inconsistent with any written law. If it is inconsistent with statute, the statute will supersede the customary law. If it is inconsistent to the constitution, Article 2(4) of the constitution provides that any law, including customary law, that is inconsistent with the constitution is void to the extent of the inconsistency, and any act or omission in contravention of the constitution is invalid.
There are customs that allow the conduct of marriages by children or marriage of members within a close degree of consanguinity. Section 44 of the Bill provides that among other things, the notification shall contain information specifying the customary law applied in the marriage of such parties. It shall also confirm that the parties to the marriage were 18 years of age at the time of the marriage that the marriage is between persons who are not within a prohibited marriage relationship that the parties freely consent to the marriage.
Where a party who has conducted a customary law marriage wishes to marry another spouse, the Bill requires that the first spouse be notified and gives consent to the subsequent marriage.
Section 43 (3) (d) provides that in the case of a second or subsequent marriage, that the current wife or wives has or have, as the case may be, been informed of the marriage. Section 43 (4) provides that despite subsections (l) and (2), if the marriage is a subsequent marriage, 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 their reasons for approving or disapproving of the intended marriage. The Bill is however silent on the consequences of disapproval by the wife/wives for the conduct of a subsequent marriage. Can one sue?