Bravo MPs and the media for keeping family central

By Judy Thongori

judyt@thongori.home.co.ke

Parliament has passed the Marriage Bill and it is now upon the President to determine the way forward. As many people have experienced, matters of marriage in Kenya have been shrouded in vagueness mainly because the rights and responsibilities of persons in marriage have not been clearly set out.

Under the current laws, even people married in monogamous unions have not known which courts to go to.

Only last month, I had a colleague tell me that a magistrate in the Milimani Courts had declined to hear his client’s divorce case because the marriage was celebrated under the Marriage Act. The court was of the view that magistrates only hear disputes in respect of marriages celebrated under the African Christian Marriage and Divorce Act and that only the Judges in the High Court heard cases celebrated under the Marriage Act.

My colleague was distraught as his client had come from overseas and she needed to take the flight back that evening. After frantic discussions and tips from several lawyers, my colleague was armed with a good argument and he walked back into the Magistrate’s Court and the Magistrate luckily agreed to hear the matter.

If Judicial Officers are themselves in doubt about provisions of laws that have been in place since the 1930s what is the effect on you, the consumer? If the Bill becomes law, there will never be any doubt as to which court to file a matrimonial dispute. Except for Islamic marriage that can be filed at the Kadhi’s Courts, the other disputes will be filed in the same courts. There are many other shenanigans that lawyers and litigants face in the course of practice of family law, including whether there exists a marriage or not. Last week a colleague asked me how she could assist in a case where she had filed a case for division of matrimonial property

The parties had married under customary law two decades ago and acquired property.

The husband filed an objection saying she was not a wife and my colleague was wondering how to proceed. I said to her that she needed to have her client prove the marriage first, by having witnesses to the customary marriage testify.

But there was a problem because her clients’ parents were deceased and the client had no contact with elders who witnessed the marriage. We pondered over the matter for a couple of days and then agreed that the client had to look for the elders even if that meant she gets herself a private investigator.

Friends, it is difficult to prove a customary marriage during one’s lifetime. Imagine your children trying to prove that you were married to their father or mother after you have passed on? The Bill proposes that customary marriages be registerable too. All you need to do is to produce a certificate like in other cases.

The public debate on the Bill has been very engaged. There are those that have proposed open relationships, outlawing of polygamy. Yet others have even suggested polyandry to balance with polygamy.

Through such debate, we have become familiar with provisions of the Bill. If it becomes law, I doubt that anyone will go through a marriage ceremony without asking themselves what kind of marriage they are entering into; is it Christian, civil, Islamic, Hindu or customary? And people will know that if they enter into Christian, Civil and Hindu marriages, they have locked out other wives unless upon divorce or death because those are monogamous unions. Those who marry under certain Islamic marriage and customary unions will know that those marriages are either polygamous or potentially polygamous.

The wives will know that their husbands may marry other wives.

Friends, the above are but a few of the positive changes brought about by the Bill. My take is that it is a good place to start. May I take the liberty to thank the people of Kenya for their vibrant debate of the Bill. Thank you, honourable members for passing the Bill that no other House has dared get too close to in independent Kenya.

May I also thank the media for being the means of interaction and exchange of the many diverse views of the Bill.

Thank you, for keeping family central.