What you need to know:
- The weakness of customary law comes out clearly during divorce proceedings or death of the man in a polygamous marriage.
- Determination of contribution to the marriage in what is known in adversarial legal system as ‘consideration’ will be problematic in haphazard divorces.
- The rules in the Marriage Act need to be uniform to offer clarity and security to both parties in a relationship.
As I write this article, another case has hit our courts pitting two women fighting for the right to bury a ‘husband’.
Before that, there was the matter of an Embu school principal whose three wives moved to court to stop one another from burying him.
The dead eventually got a 30-minute funeral away from the disputed compound.
I cannot think of anything as tasteless and lacking in dignity as the litigious funerals. Disputes over dead husbands have been a spectacle in our society for decades.
But this is a problem of our own making by legislating a family law with conflicting rules.
The Marriage Act is split in many ways — between customary, Sharia, civil, Hindu and Christian laws. These competing rules have led to tension in law.
The government recognising only one wife to offer a diplomatic passport and hospital cover proves the mess!
Customary law for instance had a place in society centuries ago, but it serves no purpose in modern Kenya.
Our grandfathers and great-grandfathers had decorum and a sense of honesty.
But that is lacking in today’s men, who only use the law to expand a ‘legitimised harem’ in the name of polygamous marriage. It also contributes a lot to abuse of women.
The older generation of men married several wives to expand their families as a sign of wealth.
Having more children, especially boys, meant the family had enough hands to till the land.
But modern men in favour of polygamous marriage prefer customary law for sexual reasons. In many recent cases of polygamous families, the children and first wives tend to be neglected.
The man can trawl through legal systems replacing the wives at a whim, thanks to the customary and Sharia laws.
Where early marriages still take place, albeit secretly, they exacerbate the problem and interfere with the schooling of girls. These laws serve to benefit the man and nothing is more patriarchy-led.
The weakness of customary law comes out clearly during divorce proceedings or death of the man in a polygamous marriage.
Previously, it perhaps took citing the mugumo tree where the marriage was conducted and witnesses as proof.
This is challenging in a divorce case 50-60 years later as trees could be cut down and witnesses probably dying out.
India’s Parliament recently approved a bill that outlawed the archaic ‘instant’ divorce of Muslim women.
According to Islamic rules, it only took a man to utter the word ‘talaq’ three times to divorce his wife. In recent times, men have sent ‘talaq’ via email or text!
The practice is still common in Kenyan Muslim households. But the rule cannot be justified when it comes to division of property.
Determination of contribution to the marriage in what is known in adversarial legal system as ‘consideration’ will be problematic in haphazard divorces.
Modern Muslim women are no longer sitting back and waiting to be looked after, but are economically empowered to be able to contribute to the family, not just emotionally, but financially as well.
Sadly, these women cannot rely on the Kadhi’s Court for division of matrimonial property during divorce, as Sharia law has not kept up with the times that Muslim women can be economically empowered.
The rules in the Marriage Act need to be uniform to offer clarity and security to both parties in a relationship.
The Constitution is, indeed, supreme and offers arbitration once other rules in family law fail.
But I believe it would be less ambiguous if all marriages were conducted under the umbrella of the Constitution in the first place and registered accordingly.
Digitising the marriage register will go a long way in helping in burial and divorce disputes.
The Attorney-General’s office came up with a rule that all marriages be registered.
It is hard to tell to what extent the rule is being adhered to, though it is one that must be strictly enforced. Saying a union came about because a couple was witnessed sharing food or a bed is not enough.
Customary and Sharia laws need a rethink to protect women. Domestic abuse does not only comprise physical abuse; the neglect that comes of abandonment of women and their children is part of it too.
We need to move away from misogynistic thinking around marriage to reverse abuse of women. The emphasis should be on socio-economic empowerment of women and girls.
The burial of husbands could also be determined independently of the property in question.
This is an individual whose rights to dignified burial are being trampled on but he has no voice to raise such concerns.
The law should, therefore, step in to uphold the rights of the dead during family disputes over matrimonial property.
Reform of the Marriage Act is overdue; it ought to keep abreast with societal changes.
Ms Guyo is a legal researcher. [email protected] @kdiguyo