30 April 2014

Kenya's Marriage Bill

The Kenya Law Reports website has a useful summary of the new marriage bill here.

Assuming that this is correct:

  • Christian, Hindu and civil marriages are monogamous. Only Muslim and traditional marriages are polygamous. First/prior wives must be informed, and can register objection, but can't halt the marriage.
  • Divorce is still difficult - I think it's still not possible to just decide to part ways, and one party has to be at fault. But a monogamous marriage can be annulled if one party was already married (this would apparently also void the marriage).
  • Penalties are interesting - I wonder how enforceable those criminal offenses will be? (which, of course, does not mean that they should not exist).
  • Curious: 'Court may order a party to refrain from molesting a spouse or former spouse' (why thanks) but: 'No proceedings may be brought to compel one spouse to cohabit with the other Sec 84(2). However court may order restitution of conjugal rights Sec 84(3).' So the whole concept of marital rape hasn’t gotten much traction yet.

Can I now have several husbands? The law speaks of polygamy, not polyandry. I think someone should challenge this in court. Asking mostly as a matter of principle, though, as even one Kenyan husband seems to require more work than I'm willing to put in, what with their inability to look after themselves like a normal grown up.

On reflection, I might rather have a wife. Friends assured me that this was possible under traditional marriages, so I guess I’ll have to wait until my ovaries kick it completely, and then argue continuation of my family line and preservation of property. There’s an old Merc to be had, ladies!

A couple of other thoughts, mostly drawn from Facebook discussions:

I have no issues with polygamy – as long as it’s between consenting partners. This is a flaw in the bill. Someone argued that this didn’t really matter, and that in the west, men didn’t seek consent for a string of mistresses and girlfriends either. Not that it’s really of any importance what the west does or doesn’t (bit of a red herring argument), but the whole concept of marriage (as legislated by the state, or regulated by other institutions) is that it has implications. In this case, mostly to do with property and inheritance.

That’s a substantial issue, and you cannot assume that people are ‘wealthy and wise’ (as proposed by that Facebook commenter) nor, in fact, that they leave a will, let alone a reasonable one - see plenty of court battles just in Kenya, and corpses being perma-frosted in the morgue because they can’t be buried. It is not fair to a partner in marriage who builds family wealth jointly with his/her partner to then have to split this with a second family who was taken on without consent. I think most men would be reluctant, too, if their wife took a second husband who then, in the event of her death, claimed part of the property that he put years and lots of effort into creating with her.

The marriage bill does not actually give blanket authorisation to polygamous marriages - Christian, Hindu and civil marriages are still monogamous. So from a property perspective, apart from making sure that her property rights are clearly documented, it makes sense for a woman to insist on one of those. You can't really legislate for the emotional hurt of finding out that your partner plays away, but as far as property etc are concerned, the marriage bill allows women to avoid the implications of being in a polygamous marriage by choosing a marriage form that is monogamous.

Having said that, I think even children born to a girlfriend/mistress/lover are entitled to a share of the man's property, and to maintenance (and, from the perspective of the child, that's fair). So there's that. I guess for women the main risk really is to have no own income, no own assets, and/or to not have proper documentation of co-owned assets.

Stephen Partington also notes the difficulties of context and transition:

‘A customary marriage, for example, is polygamous (no problem there to a great extent) unless the couple agree to it being monogamous and get a certificate asserting that they agreed that it would be monogamous, as far as I read it. But that ‘paperwork’, that ‘certificate’. It would work if women were all fantastically educated with regard to this law and its requirements, and weren’t, prior to marriage, in situations of relative poverty and other circumstances of inequality. Unfortunately, in Kenya women in the vast majority ARE in these categories, meaning that they can be exploited in all manner of ways, and you and I know how many men work: certificates will be denied them by their husbands, meaning more court cases and trouble for often uneducated women; certain disadvantaged women (and most polygamous marriages will involve this group) will not be made aware of the provisions of the law until a second wife is obtained; a man can just get a second wife without the first’s consent (even if he knows, by word of mouth, that the first didn’t want to be in a polygamous relationship) if he works quickly or claims that he never knew her wishes; and so on. The law provides that poor and uneducated women will be disproportionately held captive and abused, and as such is a class/inequality crime as a much as a gender crime. This ‘opt in’ to monogamy in a customary marriage is a huge problem.’

Legal eagles – any thoughts?

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