NAIROBI, Kenya, December 14 – The Kenya Law Review Commission is calling on the Cabinet to adopt the draft Marriage Bill 2007 and Matrimonial Property Bill set to be presented before it this month.
Deputy Chairperson Nancy Baraza said on Monday that the current marriage laws do not take into account African customs and traditions.
She said that some of the provisions in the law are vague on how to resolve disputes between spouses.
“The old archaic English law is procedural. It never gave us substantive law for example to define what matrimonial property is, so the draft Matrimonial Property Bill 2007 kills that deficiency,” she stated.
The draft Family Bills which also include the Domestic Violence (Family Protection Bill) 2007 were set aside by the Cabinet a month ago to facilitate debate on contentious clauses.
“We would want to adopt it for purposes of introduction to Parliament. It is an important starting point,” said Judy Thongori, a family lawyer.
“It was presented to Cabinet before, like about a month ago and they felt that they needed a few changes made,” she stated.
“It was returned to the Minister of Gender and now she is ready to present it to Cabinet again and we are hoping that the voices of people across the country will be heard.”
If the Bill is enacted, a couple cohabiting together will considered to be legally married after two years.
Mrs Thongori however said that an individual laying claim of such a union needs to provide evidence of cohabitation.
Under the current marriage law, cohabitation is not recognized and many people live in uncertainty in such unions.
“Now we have a two year limit. If you live together as husband and wife for two years, the law will assume that there is a marriage,” she said.
However, there is permission to bring evidence to rebut that presumption. That would entail writing a note as you enter the union that we do not intend our stay to result in a marriage,” she added.
Mrs Thongori further pointed out that polygamy is recognised under the new law.
“There is recognition of polygamous marriages. The important thing is that at the beginning, one has to declare whether it is polygamous or potentially polygamous,” she said.
If the Marriage Bill becomes law, the institution of marriage in Kenya will undergo radical changes.
The new amendments are bound to trigger protests, raise eyebrows and elicit sighs of relief or outright jubilation depending on how one interprets the proposed law.
Clauses likely to spark controversy are those that recognises polygamous marriages, outlaw mandatory payment of dowry and one that provides for either spouse to maintain the other in case of separation.
No marriage laws address polygamy and its existence is only recognised by courts within customary marriages and the Law of Succession Act.
The Marriage Bill 2007 not only recognises polygamous unions but also provides for their registration.
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