When spouses exchange marriage vows during a statutory marriage, they usually enter into legally overlapping contracts with each other. Rights arise and duties arise from the relationship that arises therefrom. The rights and obligations cannot be delegated to third parties given that the nature of the marriage is to the total exclusion of the whole world. This space is supposed and or intended to remain as such till the death of the parties to the marriage.
Matrimonial obligations can be direct and or indirect. They are usually implied and not written down anywhere. They vary from home to home. Some religions usually place unique duties and obligations on the shoulders of one spouse. The same obligations in one cultural set up would look ridiculous in another cultural background. Every family develops what is acceptable for them.
The most common obligation is consortium and conjugal rights. These rights are so basic and available to all marriages. When a couple gets married, they acquire the ticket to enjoy the exclusive bliss within the matrimonial bed with their spouse in the divine union. It is no wonder a marriage that is not consummated is deemed as a voidable marriage. It’s because of the divine position that the right is placed that it leads to the breakdown of many homes if it is threatened, eroded, violated and or shared with outsiders. Sharing this right with outsiders is eating forbidden fruit. It is forbidden under law in almost all countries. It is so gross to the extent that it is codified under the Marriage Act as a matrimonial offence. It is such a grave offence that it has the effect of converting itself into one of the grounds under which a divorce can be granted in Kenya.
When a spouse strays into eating the forbidden fruit, then that spouse ends up exposing their spouse to inhuman degrading treatment and loss of trust and dignity. The time meant for the other spouse is donated to the third party. At times the offending spouse openly displays lack of respect to the other spouse. Some even end up getting children out of wedlock without giving a damn what their spouse feels. This is happens in a society where the moral values have been thrown through the window.
The parties in a marriage are bound by Article 20 of the constitution. They have a duty to at all times ensure that their spouse attains and enjoys the highest standard of health which includes their reproductive health rights under Article 43 of the constitution. Obviously a spouse who is in extramarital affairs is exposing their spouse to deadly diseases like HIV/Aids and other venereal diseases. All these have an effect on the innocent children. How does one tame the errant spouse?
Can a spouse move to court to compel his/her straying spouse to come back home? Can a spouse move to court and obtain orders to restrain the straying spouse from dating another person? Can the court stop a husband from seeing another lady who he has fallen in love with? Can the court compel a spouse to stick within the marriage? This is not achievable in our jurisdiction. Granting such orders would have very fatal consequences. The court cannot force parties to cohabit or remain in love. The court cannot issue such orders since it would be next to impossible to enforce them. Orders cannot be issued in futility. Love is in the heart.
The only orders that can come close to the foregoing is what is known as ‘exclusion orders’ under the Children's Act which are used to restrain the offending spouse from coming near the matrimonial home or where the children are. This is basically tailor-made to protect the children from pain and emotional suffering as a result of exposure to the misconduct of a straying spouse. This will indirectly shut the errant spouse out of the matrimonial home. This will definitely mark the end of the marriage.
Every spouse has to uphold and promote morality and the rights of their spouse as guaranteed under Article 45 of the constitution .This is the aspiration that is echoed in the Preamble.
When one of the parties decides to walk out of the marriage unceremoniously and or selfishly, then they are deemed to be exercising the freedom of movement at the expense of their spouses. This is a choice that has consequences. It is a negative move. It is better to move to court to separate formally by one of the options available under the Marriage Act like, separation by the consent of the parties, judicial separation or by a divorce.
In a recent Judgment, in HDC. No. 120/10,RJW vs FMW, Nairobi, Justice Kimaru pointed out that "...the third ground for divorce which was presented by the petitioner is that of his constitutional right to associate with any one of his choice. This court notes that under Article 45 of the constitution the family is recognised as the foundation and fundamental unity of the society. It is in that regard that the constitution specifically provides that the family shall enjoy recognition and protection by the State.
However, where it is established that a spouse in the marriage is living in such condition of misery and unhappiness, the court is under obligation, nay, duty to uphold the aggrieved spouse’s right to freedom of association as provided under Article 36(1) of the constitution. The respondent cannot therefore compel the petitioner to associate with her when clearly the petitioner has no wish or desire to consort with her. It was clear from her statement that the respondent did not wish under any circumstances to be divorced from the petitioner.
This court cannot grant the respondent’s wish because to do so would amount to subjecting the petitioner to a relationship which he is categorical he does not desire or wish to be party to."
When the question of distributing matrimonial property under The Marriage Act arises in such situations, then the conduct of a straying spouse will haunt the spouse who has been spending all his time taking care of a third party at the expense of their marriage. This is a spouse who is obviously incapable of contributing indirectly to the children, business and family affairs as a whole. Such a spouse will lose out at the time of distribution of the property given that he has nothing to put on the take as indirect contribution.
Let us all protect the individual, the family, the society and our lovely nation.