1.NAME OF THE BILL; MARRIAGE BILL 2013
2.HOUSE ; NATIONAL ASSEMBLY
3.LINKS ;
The links to the Bills are the Kenya Law Report website through http://www.kenyalaw.org/klr/index.php?id=98 ; Commission for the Implementation of the Constitution bill tracker link http://www.cickenya.org/index.php/legislation/bill-tracker and the Kenya Law Reform Commission link http://www.klrc.go.ke/index.php/bills.
4.THE STATUS OF THE BILL ;
Published. Awaiting parliamentary debate.
5.PURPOSE OF THE BILL ;
The Bill seeks to consolidate
all marriage laws in Kenya which include Islamic, Christian, Hindu, Civil and
Customary marriage under one Statute. The Bill seeks to unify
marriage laws to minimise the complexity, unpredictability and inefficiency
occasioned by the multiplicity of laws on the subject. The Bill also offers protection to civil, traditional
and religious forms of marriages.
6.BACKGROUND OF THE BILL;
Marriage laws in Kenya are currently
regulated by four different legal regimes, namely:
·
African customary laws of the various
cultural groups;
·
Hindu Marriage and Divorce Act (chapter
157), based on Hindu law and governing adherents of the Hindu faith;
·
Mohammedan Marriage and Divorce Act
(chapter 156), based on Islamic law and governing adherents of the Islamic
faith;
·
Marriage act (chapter 150) and the
African Christian Marriage and Divorce Act (chapter 151), governing people who
choose to marry under the formal law, regardless of their cultural or religious
background.
This laws need to be reformed and three things
dictate the marriage law reform agenda in Kenya. First, the need is based on
the idea of law reform, which demands that law be reviewed regularly to keep in
conformity with real life as expressed by ever changing social economic and
cultural trends. Over the years, the socio-economic order has changed, and so
have political and cultural trends, initiating adjustments in the institutions
of marriage and the family.[1]
The reform of marriage laws is thus aimed at
ensuring equality, nondiscrimination and justice in marriage upon dissolution
of marriage. Part of this enterprise is to respond to the developments in case
law as well as international law, human rights and broader global developments,
some of which demand incorporation in legislation.[2]
The third explanation responds to the historical
legacy of the colonial rule in Kenya. With the enactment of laws by the
colonial authorities, and the introduction of Christianity, the state was set
for the westernization of the marriage institution.[3]
The Marriage Bill, 2013 is an attempt to capture the
foregoing concerns within the marriage law regime in the country. The enactment
of the Marriage Bill will also be in line with Article 45(4) of the Constitution which provides that:-
“Parliament
shall enact legislation that recognises-
(a) marriages concluded under any tradition, or
system of religious, personal or family law; and
(b) any system of personal and family law under any
tradition, or adhered to by persons professing a particular religion, to the
extent that any such marriages or systems of law are consistent with this
Constitution.
Section 3(1) of the Bill defines marriage as the
voluntary union of a man and a woman whether in a monogamous or polygamous and
registered in accordance with the Act. This is further elaborated in Article 45(2) of the Constitution which
provides that “every adult has the right to marry a person of the opposite sex,
based on the free consent of the parties.”
Section 3(2) provides the parties to a marriage
have equal rights at the time of the marriage, during the marriage and at the
dissolution of the marriage. This is in line with Article 45(3) of the Constitution.
Section 3 provides that a person shall not marry unless that
person has attained the age of eighteen years. Thus the minimum age of marriage
has now been set at 18 years.
Section 6 of the Bill provides for kinds of
marriages which can be registered under the Act and be recognizable:
(a)
Christian
marriages;
(b)
Civil
marriages;
(c)
Customary
marriages;
(d)
Hindu marriages;
(e)
Islamic
marriages; and
(f)
Marriages
by other faiths or groups as may be designated by notice in the Gazette.
A
Christian, Hindu or civil marriage is considered monogamous under the Bill,
while marriage celebrated under customary law or Islamic law is presumed to be
polygamous or potentially polygamous.
All
marriages will be registered and a certificate of marriage shall be issued upon
registration.
Section 54 provides that registration of
customary marriages shall be done within
six months of the marriage after completion of the necessary rituals
for the union and both shall appear in person before the Director to be issued
with the certificate of marriage.
Section 8 provides that parties to a
potentially polygamous marriage can convert to monogamous marriage. However, a
polygamous marriage may not be converted to a monogamous marriage unless at the
time of the conversion the husband has only one wife.
Section 10 provides for prohibited marriage
relationships. Under the Bill, a person is not allowed to marry-
(a) that
person's grandparent, parent, child, grandchild, sister, brother, cousin, great
aunt,
great uncle, aunt, uncle, niece, nephew, great niece
or great nephew;
(b) the grandparent, parent, child or grandchild of
that person's spouse or former spouse;
(c) the grandparent, parent, child or grandchild of
that person's former spouse;
(d) a person whom that person has adopted or by whom
that person has been adopted;
(e) any other person where such marriages is
prohibited under customary law.
Section 11 on void marriages provides that a
union will not be recognized as a marriage if at the time of the making of the
union:-
(a)either
party is below the minimum age of
marriage which has been set at18 years;
(b)the parties are within the prohibited marriage relationship;
(c)either party is incompetent to marry by reason of a subsisting marriage;
(d)by order of the court under section 25 in regard to appeal proceedings relating to objections to the marriage;
(e)the consent of either party has not been freely given;
(f)either party is absent from the ceremony;
(g) both parties knowingly and wilfully permit a person who is not authorised to do so to celebrate the union;
(h)either party is mistaken about the identity of the other party; or
(i) either party knowingly or wilfully enters into the marriage for fraudulent purposes.
(b)the parties are within the prohibited marriage relationship;
(c)either party is incompetent to marry by reason of a subsisting marriage;
(d)by order of the court under section 25 in regard to appeal proceedings relating to objections to the marriage;
(e)the consent of either party has not been freely given;
(f)either party is absent from the ceremony;
(g) both parties knowingly and wilfully permit a person who is not authorised to do so to celebrate the union;
(h)either party is mistaken about the identity of the other party; or
(i) either party knowingly or wilfully enters into the marriage for fraudulent purposes.
Section
12, which is subject to Section 50, provides that a marriage is
voidable if:-
(a) at the
date of the marriage—
(i) either
party was and has ever since remained incapable of consummating it;
(ii) either party was and has ever since remained subject to recurrent attacks of insanity;
(ii) either party was and has ever since remained subject to recurrent attacks of insanity;
(b)there
was a failure to give notice of intention to marry under Section 19;
(c) notice of objection to the intended marriage having been given was not withdrawn or dismissed;
(d)a person officiating thereat was not lawfully entitled to do so.
(e) the fact that a person officiating the marriage was not lawfully entitled to officiate;
(f) a procedural error that does not undermine the essence of the marriage in question; or
(g) failure to register the marriage.
(c) notice of objection to the intended marriage having been given was not withdrawn or dismissed;
(d)a person officiating thereat was not lawfully entitled to do so.
(e) the fact that a person officiating the marriage was not lawfully entitled to officiate;
(f) a procedural error that does not undermine the essence of the marriage in question; or
(g) failure to register the marriage.
Section 42(2) on governing law for customary
marriages provides that where payment of dowry is required to prove a marriage,
the payment of a token amount of dowry shall be sufficient evidence of payment
of dowry in customary marriages.
Section 2 on Interpretation of the Bill
provides that dowry means any token of stock, goods, moneys, or other property
given or promised in consideration of an intended marriage.
However, the concept of dowry has been
misinterpreted to mean that a
woman is a
chattel for the reason that she was bought for some tangible value like other
chattels.
Section 65 provides for grounds of divorce
/dissolution for Christian marriages:
(a) one or more acts of adultery
committed by the other party;
(b) cruelty, whether mental or physical,
inflicted by the other party on the petitioner or on the children, if any,
of the marriage; or
(c) desertion by either party for at least three years
immediately preceding the date of presentation of the petition.
Section 66(1) provides that a
party to a marriage celebrated under Part IV may not petition the court for the
separation of the parties or for the dissolution of the marriage unless three years have eclipsed since
the celebration of the marriage.
Section
66(2) further states that a party to the marriage
celebrated under Part IV may only petition the court for the separation of the
parties or the dissolution of the marriage on the following grounds;- adultery,
cruelty, exceptional depravity, desertion by the other spouse for at least three years and
irretrievable breakdown of the marriage.
Section 68(1) provides that parties to marriage
celebrated under Part V may undergo
a process of conciliation or customary dispute resolution before the court may
determine a petition for the dissolution of the marriage. This has to comply
with the Constitution.
Section 69(1) provides for grounds for divorce of
customary marriages as: - adultery; cruelty; desertion; or any valid ground
under the customary law of the petitioner.
Section 70 provides for grounds of divorce for
Hindu marriages if:
(a)
the
marriage has irretrievably broken down;
(b)
the
other party has deserted the petitioner for at
least three years before the making of the petition;
(c)
the
other party has converted to another religion;
(d)
since
the celebration of the marriage, the other party has committed rape, sodomy,
bestiality or adultery.
Section 71 provides that the grounds of
divorce for Islamic marriages are to be governed by Islamic law.
other party may be recoverable against the party who refuses to honour a promise to marry.
Section 77 provides that the court may order a
person to pay maintenance to a spouse or a former spouse:-
(a) if the
person has refused or neglected to provide for the spouse or former spouse as
required by the Act;
(b) if the person has deserted the other spouse or former spouse, for as long as the desertion continues;
(c) during the course of any matrimonial proceedings;
(d) when granting or after granting a decree of separation or divorce; or
(e) if, after making a decree of presumption of death, the spouse or former is found to be alive.
(b) if the person has deserted the other spouse or former spouse, for as long as the desertion continues;
(c) during the course of any matrimonial proceedings;
(d) when granting or after granting a decree of separation or divorce; or
(e) if, after making a decree of presumption of death, the spouse or former is found to be alive.
8.KEY PROVISIONS ;OFFENCES AND PENALTIES
- False statement of notice of intention to marry or notice of objection (Section 86(1));the penalty is imprisonment for a term not exceeding five years or fine not exceeding one million shillings or to both.
- Marriage to a person under minimum age- 18 years(Section 87);the penalty is imprisonment for a term not exceeding five years or a fine not exceeding one million shillings or to both.
- Marriage of persons within the prohibited marriage relationships (Section 88(1));the penalty is imprisonment for a term not exceeding five years or a fine not exceeding three hundred thousand shillings or to both.
- Inducing consent by coercion or fraud (Section 89);the penalty is imprisonment for a term not exceeding three (3) years or a fine of three hundred thousand shillings or to both.
- Celebrating marriage by unauthorized person (Section 90);the penalty is imprisonment for a term not exceeding three years or a fine of three hundred thousand shillings or to both.
- Celebrating a marriage in the absence of witnesses(Section 91);the penalty is imprisonment for a term not exceeding three months or a fine not exceeding ten thousand shillings or to both.
- Offence relating to the celebration or witnessing of a union(Section 92);the penalty is imprisonment for a term not exceeding six months or a fine not exceeding fifty thousand shillings or both.
9.CONCLUDING COMMENTS;
The Bill provides for
registration of customary marriages and recognition of polygamous marriages.
The bill provides for a certificate to be issued when such marriages take
place, reducing the chances of women being neglected by their spouses or
excluded from an inheritance because they had no proof of marriage. This is in
line with Article 45(4) (a) of the
Constitution.
The Bill should be
clear on what amounts to a promise to marry under Section 76.
The rebuttable
presumption of marriage for couples who have cohabited for two or more years
without any formalization of marriage should be part of the Bill. Even though
the courts recognize such marriages, the standard of proof is very high. If one
spouse disputes the marriage, the other spouse has to prove the marriage. Thus
a clause should be added to the Bill on rebuttable presumption of marriage.
Some of the factors that a court should take into account when deciding whether
to apply the presumption to a particular case includes:
·
Duration of cohabitation. Although there
is no fixed period that will automatically give rise to a presumption of
marriage, long cohabitation often gives rise to a presumption of marriage in
favour of the party asserting it.[4]
·
Whether there are children resulting
from the relationship.[5]
·
Whether the parties ever intended to get
married officially.
·
Whether they were reputed to be married.
This factor is arguably based on the notion that marriage is a (public) matter
of status (rather than contract) and therefore marriage has just as much to do
with external perceptions as with the internal intentions of the parties.
Once the court decides
to apply the presumption of marriage, the burden then is on the party denying
the existence of the marriage to rebut the presumption. Thus it should be
provided for out rightly.
Finally, the Bill is line with the Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW)[6] to
which Kenya is a signatory and was bound to affect the law on marriage. Article 16 of the Convention provides;-
“1.
State Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations and in particular shall ensure, on a basis of equality of men and
women:
(a)
The same right to enter into marriage;
(b)
The same right freely to choose a spouse and to enter into marriage only with
their free and full consent;
(c)
The same rights and responsibilities during marriage and at its dissolution;
2.
The betrothal and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify a minimum
age for marriage and to make the registration of marriages in an
official registry compulsory.”
[1]See generally the Report on the Review
and analysis of the Marriage Bill 1993, The Matrimonial Property Bill (FIDA
& ICJ Drafts). The Equality Bill 2002 and The domestic Violence (Family
Protection) Bill 2002 by Mohammed Muigai, Advocates, Consultants for the Kenya
Law Reform Commission, 2007
[2]See generally the Report on the Review
and analysis of the Marriage Bill 1993, The Matrimonial Property Bill (FIDA
& ICJ Drafts). The Equality Bill 2002 and The domestic Violence (Family
Protection) Bill 2002 by Mohammed Muigai, Advocates, Consultants for the Kenya
Law Reform Commission, 2007
[3]See generally H.F. Morris,” The
Development of Statutory Marriage Law in Twentieth Century British Colonial Africa,”23(2) Journal of African Law 37-64(1979)
[4]See Mary Njoki v. John Kinyanjui, Kenya Court of Appeal, Civil Appeal No.71 of 1984.In this particular case, however, despite 6 years of cohabitation, the court declined to apply the presumption of marriage in favour of the woman.
[5]It is clear that this is often a
factor, even though Madan J, in the Mary
Njoki case, observed,”[A]lthough a child or children would be an important
factor in giving rise to a presumption of marriage, it is not a must[emphasis in original] in order to
give rise to it” (at 16).
[6] United Nations adopted and opened the Convention
for signature, ratification and accession by General Assembly Resolution 34/180
of 18th December 1979.The Convention entered into force on 3rd
September 1981,in accordance with Article 27(1)
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