Members of EACLJ were on 13th October 2011 were invited to give legal aid in Kahawa area at an ongoing conference. There were approximately 50 people in attendance, both men and women.
The Director, Joy Mdivo did the presentation, and as requested, she tackled issues concerning Marriage, Matrimonial property and also the children Act.
Discussion
Marriages
Joy started by explaining that in the new constitution, marriage is not tackled as most of the people were thinking, but instead there is a Marriage Act that has been prepared to handle all marriage issues. The Act spells out the types of marriages in Kenya and what they contain.
She mentioned that in the customary marriage, all the traditional steps have to be followed to the latter according to customs. She also added a warning that most of the traditional marriages have the potential of being polygamous at some point; therefore one has to be careful and alert when in such a marriage.
Joy also explained that the commonly referred to as ‘come-we-stay’ type of marriage can only be presumed to be legal if a couple can be proved to have lived together for a minimum two years continuously, there should be a certificate of marriage since children only do not prove existence of a marriage.
She warned that although a man and woman may be presumed to be married just because they have lived together for a minimum of two years, it is rebuttable if there is evidence contrary to the presumption. One should also be aware that if their current spouse was once married and a divorce certificate was never accorded, then no matter how long they live together, they may not be considered married under the law.
Crimes in marriage
In marriage, marital rape is considered as a crime that is punishable. However Joy made note that there has to be proof of violence involved, or it will not be considered as rape. She warned that incase of wrongful accusation, one is liable to face punishment of equal measure to that which was meant for the actual offence.
Assault in marriage (under the penal code) is also considered a crime. This also applies to children who are brutally punished by their parents or guardians.
The lack of, or even delayed remitting of monthly support is considered a crime that is also punishable by law. The financial support must be adhered to. It is the only dept that is seriously considered to the extent that one’s pension may be attached to it, to ensure that children are fully taken care of as agreed in court by both involved parties.
Children Act
Joy explained to the group that children are presumed to be a family as long as they are born in a marriage or any other supposed union. She also made note that children born out of wedlock but of the same father have equal inheritance right as the supposed ‘legitimate’ children. She however also noted that in law there are no ‘legitimate or illegitimate’ children apart from in the Muslim laws where children born out of wedlock are considered ‘illegitimate’ and may not inherit from their father.
Children Rights
Joy outlined that children have the right to live with their family and learn their culture. In cases of separation between the parents, the children have the right to visit the other parent, to know them better. This is important since in case of death of the parent they live with, the other parent who is alive has the right to take care of the child, and it would be fair if they were familiar to each other.
Succession Act
From this Act Joy explained the importance of having a Will. She advised the people to write their wills while they were still alive to avoid any problems that may arise following their demise.
She noted that there are some people who are superstitious and consider writing of the will as ‘calling death’ to themselves, but there are other ways of doing it. She advised the people to ensure that their properties are registered in two names, their own and that of the person they would like to leave it to when they pass on.
Questions
- When there is division of property in cases of separation between spouses, are the children also divided and are their names changed?
Response: Joy answered that the court always takes into account what works best for the involved children. There are times the older children may be allowed to move with their father and the young ones to stay with the mother, but in most cases they are all kept together. However, once a child is 18 years old, they have the right to choose with which parent they would rather live with.
She explained that changing of names is not an easy thing once one has already received a birth certificate.
- Must dowry be paid in order to prove marriage in the ‘come-we-stay’ kind of union?
Response: Joy stated that it is not mandatory, but having a certificate is important in addition to the two years that are used to prove it. She also added that dowry is just a form of appreciation to the family of the lady being married.
- Must a lady add her husband’s name to her official documents once they get married?
Response: Mungai Kimani answered this and explained that it was not mandatory. It is just a way of honoring the husband, but he went ahead to advise that in case the issue caused any arguments in the family, the wife may chose to be wise and just add it for the sake of peace.
- What happens when property is left under one name and yet there could be more siblings from the same family?
Response: Ken Mbaabu answered this question. He advised the people that the first thing to do is for one of the immediate family members to acquire a letter of administration. This is important to help in the operation of business on behalf of the deceased person.
In case the person holding the property in trust on behalf of underage siblings refuses to give them their share, the matter is taken to court for decision n to be made.
NB: Joy informed the people that succession and cases involving children have been made easier to handle. There are forms that are availed in the court registry that anyone can fill to explain the kind of help they need from court if they are not able to pay for a lawyer.
- What is the validity period of a will?
Response: Joy explained to the people for a Will to be valid, the owner must be sane at the time of writing; there must be witnesses who are not beneficiaries of the will being written; one must sign or at least put a thumb print on every page of the Will, to prove the authenticity of the document.
She explained that there are times when an aural Will is used. In most cases the person must be dead in 3months otherwise if he or she gets well in case of a disease, then the aural will becomes invalid. However in such, she explained that there may be as many witnesses as possible, including the beneficiaries. The importance of the witnesses is to ensure no detail of the aural will is changed.
- What happens when a foreigner want to get married to a Kenyan
Response: Joy explained that the foreigner is required to get a document from the registrar of marriages in the country of origin, to prove that they are not married by anyone else back in their country.
- What if there was no Will written by the time a husband dies?
Response: the people were advised that the wife should claim the property on behalf of the children, rather than for herself. Joy explained that in Kenya, the issue of women not inheriting property is always customary; therefore it is better if the woman fights for the rights of her children. She noted that property cannot be given to a woman unless she acquired it on her on. The only thing that a woman may keep is the man’s name even in case of divorce or death.
Conclusion
From the discussions and the questions that were raised in this forum, it was evident that many people wanted to know their rights as well as how to exercise them. It is not enough to rely on hearsay; getting the facts right is what’s most important. Like it is said ‘information is power’ and the people at Kahawa were given just that by EACLJ; the power to exercise their rights in the best way, through the right channels.
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