Marriage Act does not promote polygamy, it regulates all unions

Since May 20, this year, we have had the Marriage Act in operation. In many recent conversations I have heard of references to polygamy; people saying since the Marriage Act came into force, men are free to marry many wives.

I have also been asked often times how polygamy fits in with the principle of equality in the Constitution.

I feel the need to clarify. The Marriage Act provides for both monogamous and polygamous unions. Those that are monogamous remain so to the end, which could be until death or divorce. They are Christian Marriages, Civil Marriages and Hindu Marriages.

Those that are polygamous or potentially polygamous are the customary and Islamic marriages. They allow the man to marry other wives. A customary marriage can be converted to a monogamous marriage but only if there is only one wife.

Friends, if you were in a monogamous union before the Act, you remain that way till death or divorce; one man one wife to the exclusion of all others.

Friends getting married now, you choose monogamy and you remain that way till divorce or death.

For those who have argued that polygamy is against the constitutionally recognised principle of equality, I hear you. I understand the ideal would be where we have one husband to one wife.

But hear this too: The Marriage Act was not intended to bring about new forms of marriage but to consolidate and document all the types of marriage existing in Kenya.

If you will remember some history, Kenyans were happily marrying under customary unions before the coloniser came.

The customary unions are potentially polygamous and as we all know, many families of the time were polygamous.

In 1902, the Marriage Act became law and provided for monogamous unions. We were later to have the African Christian Marriage & Divorce Act, which provided for monogamous unions among African Christians.

Despite lack of an Act of Parliament providing for customary marriages, they nevertheless existed side by side with the Civil and Christian marriages.

In fact many of us are spouses, children or grandchildren of such marriages. If you ask around your immediate space, whether you are in a church, an office or an estate, you will be surprised by the extent of customary marriages. As customary marriages are potentially polygamous, there are many polygamous unions around us.

The courts have in fact always recognised customary law marriages. Any codification of the marriage laws in Kenya could not be completed without including customary marriages.

Indeed one should try to imagine what would be the result of failure to recognise such marriages; those spouses, those children and grandchildren in those unions would not be protected by the law.

In my view, the person most affected would be the woman; you see almost all the times that a court is called upon to declare that a marriage was polygamous, it is when a woman and her children seek justice; can you imagine if the law said such people could not be assisted because polygamy is not recognised in Kenya? Can you imagine how many people would be unprotected by the law?

Perhaps future generations will find by the time they rewrite the marriage laws, polygamy will not be in existence among Kenyans. They may then have monogamous unions and whatever other forms of marriage that will be in place then.

For now, let us be content with the fact that we have given choice to our people; that most of our people can find expression in the Marriage Act and those who may have fallen below the threshold of the law, are now within it.