So our Parliament and president Uhuru Kenyatta have given us what my friend Shan Bartley has christened ‘The Male Marriage Bill’.
It is now legal for;
(a) Kenyan spouses to get a court order to demand ‘conjugal rights’ from their partners.
(b) A Kenyan husband who married his wife under customary law to continue dating in pursuit of other wives that he can marry without his first wife’s consent
(c) A woman to take only 30 per cent of matrimonial property upon the death of her spouse or divorce.
The spirit of marriage is one of trust and security. Whether your marriage is based on peer partnership or it was an arranged and customary marriage in which your man was supposed to provide for you and protect the family, women should be able to trust that their men are taking care of them and their offspring.
One of the main selling points of this bill was that Kenyans were finally going to recognise a type of marriage that was illegalised by our colonialists i.e. the polygamous marriage. For years, the women in these unions have had no legal recourse when looking for spousal support if their unions failed. I am in full support of that.
Where it failed was in the three clauses I mentioned in paragraph one. As I have said in previous articles, sex is a gift, not a right even within marriage and this makes wives more vulnerable to marital rape. Now that a man does not need permission from his wife or wives to bring new women and children into the family, women in customary unions will remain as financially and sexually vulnerable to bankruptcy and disease (respectively) as they were before this bill. The entitlement to only 30 per cent of matrimonial property unless women can prove otherwise will encourage us to hide money and property from our husbands.
Either inadvertently or by design, our laws have made marriage unattractive to women. Family is the basic unit of society and if the founders and ‘birthers’ of this basic unit remain financially and physically unprotected, our society will surely change.
So what if, like me, you still would like to get married? Or you are married but would like to protect you and yours from this bill? I am sure there are men who are not okay with the idea that their wife is only entitled to 30 er cent of the matrimonial property she has spent her life contributing to.
Well you and your partner can create your version of ‘The family marriage bill’. You can sit with a lawyer and create your marital contract such that it honours the kind of family you are creating. You can deal with questions on property, sex, death and inheritance and whatever else matters to you. A friend and her husband have a company that owns all their property and they have clearly assigned beneficiaries in case of death or incapacitation. I think we are about to see more pre- and post-nuptial agreements.
The sad thing is that once again it is the poor woman, the uneducated woman, the one who really needs the law’s protection who will suffer under this law. She is the one most likely to end up in a polygamous union without her own choosing and without much legal recourse if she tries to get divorced. That unhappy woman, in her now polygamous home is also likely to be forced into sex with a man whose disregard for her body and her opinion has been enshrined in law.
I am very disappointed by this bill and all who saw it come to fruition.