The introduction of the 'Marriage Bill 2013' is an attempt to consolidate the various marriage regimes In Kenya. The current regimes which include Customary, Christian, Civil, Hindu and Islamic marriages are set to be codified.
The Bill makes provisions that regulate various aspects within a marital union. For Instance, although polygamy has been given legal recognition, there are conditions attached to it. In a potentially polygamous marriage, spousal consent will be required before marrying another wife. However, Polyandry as well as same-sex marriages have not been given legal recognition under the Bill. Spouses under customary marriages may apply and obtain certificate for registration of the same unlike before when there was no such provision.
The Bill also provides that there will be a rebuttable presumption that properly is held in trust for the other spouse where matrimonial property acquired during marriage is in the name of one spouse, which basically means that even though property may be registered under one of the spouses, the other one also has a right to claim it. This is a safeguard that protects spouses against the loss of matrimonial property. Where such property is jointly held, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal. If the parties in a polygamous marriage divorce matrimonially acquired property between the man and the first wife shall be retained by the man and the first wife only.
Payment of dowry has also been made optional under the Bill. A spouse who has withdrawn from society may be compelled to provide conjugal rights under the Bill. The aggrieved party may make an application to court for restitution of the same.
Breach of a promise to marry may also earn compensation to the aggrieved party upon proof of the same. However this does not mean that every promise will earn a party compensation as stated in section 76(1) of the Marriage Bill.
The benefits vis-à-vis the disadvantages of passing the said laws need to be carefully examined so as to ensure that we pass laws that have a beneficial interest that is sustainable. They should seek to uphold the society and not necessarily draw it apart, especially the family unit. Any Bill which has a draconian effect to the population and the nation should not be legislated.