Proposed Kenya’s Marriage Bill 2011

Nairobi, July 11th 2011 – Proposals in the new Marriage Bill released by the Commission for Implementation of the Constitution seeks to introduce sweeping changes in the institution of marriage. If passed as drafted, payment of dowry will be optional while polygamy will be legalized.

The Bill also sets to legalize ‘come-we-stay’ arrangements.  “Where it is proved that a man and woman having capacity to marry have lived together openly for at least two years in such circumstances as to have acquired the reputation of being husband and wife, there shall be a ______________________________________________________________________________________________

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rebuttable presumption that they were duly married,” says the Bill. Thousands of people live together as married couples, especially in urban areas. If passed, this proposal will greatly assist those women and children who have in the past been disinherited on the death of their husbands and fathers because there had been no formal marriage.

And for prospective in-laws, the Bill provides that there will be no legal provisions for a family or anyone to demand payment.

The proposed law defines dowry as “any payment of stock, goods, money or other property made or promised in consideration of an intended marriage.” It therefore applies both to payment of bride price, and to the dowry brought by a bride to a new husband.

On polygamy, the Bill provides that if you are in a monogamous marriage, the status quo should remain. Men presently in a recognized monogamous marriage cannot convert to polygamous status. However, unmarried men have the option of entering a monogamous or polygamous marriage. At the time of marrying, the groom can indicate that the marriage could be potentially polygamous which would give him a right to get married to other women.

No limit is placed on the number of polygamous marriages a man can enter into although the Bill states, “No married woman shall, while her marriage subsists, contract another marriage.” If the spouses agree, a polygamous marriage can be altered to a monogamous marriage. The Bill bars those already in polygamous marriages from dumping or entering a monogamous marriage with just one wife.

The Marriage Bill  seeks to consolidate the various laws relating to marriage such as the Marriage Act, the Hindu Marriage and Divorce Act, the Mohammedan Marriage and Divorce Registration Act, African Christian Marriage and Divorce Act and the Subordinate Court (Separation and Maintenance) Act.

It clearly states that marriage shall be between a man and woman. A couple interested in getting married shall give the Registrar 21 days notice and indicate whether it will be a monogamous or potentially polygamous marriage.  Where the intended husband is already married, the names of existing wives should be indicated in the notice. A marriage may be contracted in civil form, under customary law, Islamic form, Hindu ceremonies or Christian rites.

Those marrying will have to sign three marriage certificates—one for the district registrar or Kadhi, one for the husband and one for the wife. Presently, couples sign two copies, one of which is left with the registrar.

The Bill further states that unless the parties are legally separated or divorced, either spouse shall have the responsibility to provide the other with accommodation, clothing, food and other necessities. Either spouse will have authority to pledge the other spouse‘s credit, to borrow money in his or her name, or to use any of his or her money which is in his or her possession or under his or her control.

Either spouse will have authority to convert movable property of the partner into money, and use it, so far as that credit or money is required or used for the purchase of necessities for himself or herself and any children of the marriage. In doing so, the spouse is required to have regard to the other spouse‘s means and way of life. Penalties for infringing this Act include being imprisoned for five years, or a Sh20,000 fine, or both.