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(May 02, 2014) On April 29, 2014, President Uhuru Kenyatta of Kenya signed into law the Marriage Bill, 2014, a comprehensive law consolidating various laws governing religious, customary, and civil marriages and divorces in the country. (President Kenyatta Assents to Marriage and Heroes Bills, The Presidency website (Apr. 29, 2014).)

The legislation, adopted by the country's Parliament in March 2014, repealed and replaced the following statutes that governed the formation and dissolution of different forms of marriage:

Definition of Marriage and Rights of Parties

In order to accommodate the different existing traditions in the country, the legislation adopts a broad definition of marriage as "the voluntary union of a man and a woman whether in a monogamous or polygamous union … ." (Marriage Bill, 2014, § 3.) This makes polygamous marriages (customary and Islamic marriages) and monogamous marriages (Christian, Hindu, and civil marriages) equally valid if registered under the provisions of the legislation. (Id. §§ 3 & 6.) While a monogamous marriage cannot be converted into a polygamous marriage, a polygamous form of marriage may be converted into a monogamous marriage, if both parties to the marriage agree and the husband only has one wife at the time of the conversion. (Id. §§ 8 & 9.)

The legislation affords parties to any form of marriage equal rights, stating "[p]arties to a marriage have equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage." (Id. § 3.)

Void and Voidable Marriages

The legislation provides certain substantive and procedural requirements applicable to all forms of marriage, the violation of any of which would render a marriage contract void. Key among these are the violation of the minimum age of marriage, which is set at 18 for both parties; absence of either party to the marriage during the ceremony (contracting a marriage by proxy); mistaken identity; fraud; or lack of consent. (Id. §§ 3 & 11.)

In addition, the legislation puts in place certain requirements applicable to all forms of marriage, the violation of which renders a marriage contract voidable. Among other actions, failure to register a marriage contract would render it voidable. (Id. § 12.) The marriage contract would also be rendered voidable if the officiating person lacked proper authorization, if either party lacked the ability to consummate the marriage or suffered from a recurring mental issue, or if the parties violated a nonessential procedural requirement. (Id.)

Customary Marriages

The legislation introduces key changes to the way in which customary marriages are contracted. As noted above, it requires that parties to all customary marriages be at least 18 years of age and makes registration of customary marriages mandatory. (Id. §§ 3, 11, & 54.) These are major changes, given that the process for contracting customary marriages was until now by and large free of any regulatory impediments. (See Goitom, supra.)

The legislation recognizes and codifies polygamy as part of customary marriages. (Marriage Bill, 2014, § 6.) In addition, while the legislation does include language recognizing a widow's right to remarry or not to remarry (id. § 15), it potentially allows the practices of levirate union and widow inheritance to continue. None of the customary laws in Kenya, including those of the Kikuyu, Luhya, Marakwet, and Masai tribes, expressly force women into those practices. (EUGENE COTRAN, RESTATEMENT OF AFRICAN LAW: KENYA: 1 THE LAW OF MARRIAGE AND DIVORCE 13, 50, 128 & 159 (1968).) After the death of a husband, however, a widow may be pressured into one of the two arrangements with a threat of eviction from her husband's land. (Empowering Women with Rights to Inheritance — A Report on Amendments to the Law of Succession Act Necessary to Ensure Women's Human Rights: A Human Rights Report and Proposed Legislation, 40 GEORGETOWN JOURNAL OF INTERNATIONAL LAW 127, 140 (2009).) The legislation appears to allow levirate union and widow inheritance to continue as it does not address the lack of property rights of women married under customary law.

Levirate union is a practice in which a widow would remain in her deceased husband's home and engage in sexual acts with his brother or other close relation to produce children in the late husband's name. (COTRAN, supra at 13.) Widow inheritance refers to a practice in which a childless widow is inherited by the deceased husband's brother and any children resulting from the relationship belong to the inheritor. (Id.)

Although, as noted above, the legislation states that parties to a marriage have equal rights, including during and after the existence of the marriage, it does not expressly ban the practices of levirate unions or widow inheritance or contain any provisions that give women automatic rights to property at the dissolution of a marriage. A recently enacted law on matrimonial property gives women the right to an equal share only of property acquired during the existence of the marriage. (Matrimonial Property Act, No. 49 of 2013, § 6, Kenya National Council for Law website.)

The legislation also appears to do little to reduce the importance of dowry in contracting customary marriages, which is considered to create incentives for violation of women's rights. (See Goitom, supra.)

Dissolution

As noted above, the legislation establishes some key uniform rules applicable across different forms of marriage, particularly with regard to the questions of minimum marriageable age and registration of marriages; however, it appears to leave the dissolution process somewhat fragmented. For instance, while it requires that parties to a civil marriage wait at least three years from the date of their marriage before they can petition for divorce, this requirement does not apply to any other form of marriage. (Marriage Bill, 2014, §§ 65-72.) Although a party to a civil, Hindu, or Christian marriage seeking a divorce for desertion must wait at least three years from the date of desertion before instituting a petition for divorce, none of these requirements apply to customary or Islamic marriages. (Id. §§ 65-72.)

Similarly, while the legislation enumerates a specific, limited list of grounds for divorce for civil (adultery, cruelty, exceptional depravity, desertion, or irretrievable breakdown), Christian (adultery, cruelty, or desertion), and Hindu (irretrievable breakdown, desertion, conversion to a different religion, adultery, rape, sodomy, or bestiality) marriages, when it comes to customary or Islamic marriages, it permits the use of any reason accepted under the applicable customary and Islamic rites. (Id.)

For instance, under the Kikuyu rites, the following are accepted as valid grounds for divorce: refusal to have sexual intercourse without just cause (such causes include during a menstrual cycle, before and after giving birth, and instances in which sexual intercourse is considered taboo), witchcraft, habitual theft, willful desertion, incest, physical cruelty (because the husband has the right to physically punish his wife, only excessive forms of physical cruelty constitute grounds for divorce), failure of the husband to maintain his wife and children, failure of the wife to perform her duties (cultivating fields she is assigned, cooking, maintaining the household, and bearing and caring for children), adultery on the part of the wife, and impotence or infertility of the husband. (COTRAN, supra at 20.)

Child Custody and Maintenance

The legislation provides that matters regarding child custody and maintenance are to be governed under the Children Act regardless of the form of marriage in question. (Marriage Bill, 2014, § 85; Children Act of 2001, Cap. 141, Part VII, LAWS OF KENYA.)

Author: Hanibal Goitom More by this author
Topic: Child custody More on this topic
 Divorce More on this topic
 Marriage and family status More on this topic
 Polygamy More on this topic
Jurisdiction: Kenya More about this jurisdiction

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Last updated: 05/02/2014