The fiasco in coastal Kenya where two men decided to enter into a wife sharing agreement with each other came as a shock, to a society where only the man is allowed to marry more than one wife. The men were portrayed as weak and going against the customs of society.
Polygamy and polyandry in our modern society have elicited varied reactions and perceptions. The practice of polygamy was common and widely accepted in ancient society, where society was governed by customary law. Modern society has opted for civil marriages in the codified statutes, and religious marriages. However, there are parties who still opt to conduct customary law marriages.
Most customs allow polygamous marriages. Customary law marriages are recognised in Kenya owing to the fact that there are currently 42 tribes in Kenya each with its own distinct customs and practices including how marriages are conducted. These unions are generally polygamous in nature and the parties, when entering into such marriages are well aware of this fact. Customary law marriages are regarded as binding among the parties to such unions and having the force of law just like statutory marriages.
The rights of parties under customary law are protected not only in statute but also under the Constitution as provided under Article 45(4) (a) which mandates parliament to enact laws that recognise marriages concluded under any tradition, or system of religious personal or family law.
Further section 3(5) of the Law of Succession Act recognizes a wife married under a system of law that permits polygamy as a wife for purposes of succession and her children as dependants of the deceased. In the same spirit, section 40 of the Act details the mode of distribution of the estate of the deceased person where he had contracted a customary law marriage and had more than one wife.
Statutory marriages are designed for monogamous unions. Any subsequent marriage after a statutory marriage is null and void. Any person who has contracted such a marriage, but proceeds to contract another marriage, while the first marriage is still subsisting commits a crime known as bigamy. Bigamy is defined as a crime of marrying when one is still legally married to another.
Section 171 of the Penal Code 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. Further, section 172 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.
If a party who has contracted a civil or statutory marriage, engages in another marriage, that will amount to an act of adultery, which is a ground of divorce under the Matrimonial Causes Act. The innocent party, when instituting proceedings for divorce under the Act, can seek to enjoin the person the spouse is engaging in acts of adultery with as a co-respondent. The petitioning party can seek for costs against the co-respondent. Section 24 of the Matrimonial Causes Act provides that a co-respondent may be ordered to pay the whole or any part of the costs of the proceedings if adultery, with the wife of the petitioner has been established against him:
Provided that he shall not be ordered to pay the costs of the petitioner-
(i) if at the time of the adultery he had no reason to believe the respondent to be a married woman; or
(ii) if the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prostitute.
It is therefore clear that currently there is no legal provision that actually advocates for polyandry and the same is true under customary law which seems to only allow for polygamy and not otherwise as evidenced by the shock on almost everyone’s face when the media publicly aired the controversial threesome union. There are some who feel that polyandry should be advocated for as part of the cry for equality between men and women and that there is no justification for preferring one over the other.
Is polyandry socially and morally right and or acceptable?