What you need to know about the Marriage Bill

By LILLIAN ALUANGA-DELVAUX

Kenya: Men that have gone into a party mood following provisions for polygamy in the Marriage Bill should hold their horses.

While the general perception that has been created this past week following passage of the Bill by Parliament is that men are free to marry as many wives as they want, the fact is that it only applies to customary marriages.

Should one be married under Christian, Civil or Hindu rites then the marriage remains and is recognised by law as a monogamous one.

“It should be clear that polygamy only applies to marriages conducted under customary law. Those married under monogamous unions like the

Christian, Civil or Hindu unions remain so unless one becomes widowed or divorced. Those, who in future, under the new marriage law enter into Christian, Civil or Hindu unions means they have chosen monogamous unions and will remain as such,” says lawyer Judy Thong’ori.

Provisions in the Marriage Bill that had earlier sought to have the husband inform the first wife of his intention to take another wife were defeated in the House, prompting a walk out by women MPs. 

While there has been no legislation in the past that reflected the existence of customary marriages, that now changes with the new Bill which also provides for their registration.

Below are some of the key elements of the Marriage Bill you need to be familiar with.

Definition of marriage

Clause 3 of the Marriage Bill recognises that marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with the Act.

TYPES OF MARRIAGES

Christian marriage

This is a monogamous union where a party to the marriage professes the Christian religion. Such marriages may be celebrated in any place, as permitted including places of public worship.

Grounds for dissolution of such a marriage are adultery, cruelty- whether mental or physical- inflicted on either spouse or on the children, and desertion by either spouse for at least three years.

Civil marriage

This is a monogamous marriage celebrated by the director of marriages or marriage officer. A party to such a marriage may not petition a court for separation unless three years have lapsed since celebration of the marriage.

Grounds for dissolution of such a marriage include adultery, cruelty, exceptional depravity by either spouse, desertion for at least three years, and an irretrievable breakdown of the marriage.

Courts may refer matrimonial disputes in such a union to a conciliatory process.

Customary marriage

This is a potentially polygamous union and is conducted in accordance with customs of the communities of one or both parties to the intended marriage.

Grounds for dissolution of such a union include adultery, cruelty, desertion, or any valid ground under the customary law of the petitioner.

Where payment of dowry is required, a token shall be sufficient to prove such a marriage.

Disputes in such marriages may be referred to a conciliatory process or customary dispute resolution before the court makes a determination on a petition for divorce.

Parties to a customary marriage shall register such a union within three years of coming to force of the Marriage Act.

Hindu marriage

This is a marriage conducted according to rites of the Hindu faith.

Grounds for divorce include irretrievable breakdown of a marriage, desertion of a spouse for at least three years, where the other party has converted to another religion and commission of rape, sodomy, bestiality or adultery by a spouse.

Islamic marriage

This is a potentially polygamous union and is conducted under Islamic law.

Grounds for dissolution of such marriages include failure to consummate the marriage, whether at the time of the marriage and without knowledge of either party one was in a prohibited relationship.

Other reasons that can lead to dissolution are where in the case of a monogamous marriage at the time of the marriage one of the parties was married to another person, a party to the marriage was absent at the time of celebration of the marriage, and if at the time of marriage and without knowledge of the husband, the wife is pregnant and that the husband isn’t responsible for the pregnancy.

Irretrievably broken down marriage

A marriage is considered to be irretrievably broken down if; a spouse commits adultery, a spouse is cruel to their partner or children, spouse wilfully neglects the other for at least two years, suffers from incurable insanity, or where one party to the marriage has been sentenced to life imprisonment or a prison sentence that is more than seven years.

Legal marriage age

The legal marriage age is 18 years

Converting marriage

A marriage may be converted from being a potentially polygamous marriage to a monogamous marriage if each spouse voluntarily declares the intent to make such a conversion. A polygamous marriage however may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife.

Declarations on conversion of a marriage shall be made before a marriage officer and recorded in writing and signed by each spouse.

On subsisting marriages, a married person shall not, while, in a monogamous marriage contract another marriage, or in a polygamous or potentially polygamous marriage contract another marriage in any monogamous form.

Prohibited relationships

Clause 10 states that a person shall not marry their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, great nephew, a person whom that person has adopted, or by whom that person has been adopted.

For purposes of this section a relationship of the half blood is also a bar to marriage.

Under Islamic marriages, cousins are not within prohibited degrees.

Officiating marriages

A marriage will be declared void if person officiating it wasn’t lawfully entitled to do so.

Spousal maintenance

A court may order one to maintain a spouse or former spouse.

Promise to marry

A promise to marry is not binding