When he proposes every Valentine’s, for the last 3 years

Hi Eric

My sister keeps complaining about her boyfriend's constant promises of marriage, which happens almost every Valentine's Day. The man also showers her with gifts. It is now three years with no marriage in sight. Can this be legally addressed?

Loving Brother

Dear Loving Brother,

While the law of love is in people's hearts rather than statutes, imagining an authentic, intimate relationship with less gifting and exchanging allegiances would be foolhardy.  In the dating scene, it is almost apparent that promises of love forever and marriage are made. Against that backdrop, does the law recognise promises of marriage?

First, Article 27 Clause 1 of the Constitution treats everyone equally and provides equal benefits and protection. Therefore, the Marriage Act of 2014 is meant to create an environment where spinsters and bachelors thrive, whether for marriage or not. Second, this Act defines the five types of marriages recognised in Kenya.

According to Article 45 Clause 2 of the Constitution Section 3, marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union.

Generally, the law rejects marriage promises as obligating and creates no offense, according to Section 76 of the Act. It states except as provided in Part XI of the Marriage Act, that a promise by a person to marry another is not binding. However, suppose there is a breach of the promise made under Section 25 of the Marriage Act, what happens?

 In that case, the person for whom the hurt has been occasioned holds the right to take legal action, as stipulated in Section 86, found in Part XIII, on a false statement in the notice of intention to marry or notice of objection.

The statement, which both potential bride and groom must sign, could be false only when one party or both lie about their entanglement in prohibited relationships, such as an existing marriage within monogamous restrictions, failure to declare their proper age, places of residence, names and residences of their parents if alive, besides claiming widow or widowerhood without supporting evidence amongst others.

Should this be the case, the person who makes the false statement commits an offense that could attract a term of two years imprisonment or a fine not exceeding Sh2 million.

As the Act provides, such an offense could sometimes attract both forms of punishment, served simultaneously. Such imprisonment could also be served through the Community Service Orders, under the Act.

In Kariuki vs Ngaruchi and two others, both the lower and high courts rejected and dismissed a petition and an appeal, seeking damages from the defendants, on a claim of breach of promise and loss of marriage, and in which he affirmed payment of dowry.

On this, the honourable magistrate and Judge responded by saying although certain acts and omissions were harmful, they were not wrongful in the eyes of the law and, therefore, gave no right of action to the injured party, dismissing what the plaintiff had presented as a justiciable claim.

This position is further emphasised if the contemplated marriage is monogamous in structure and intent.  You have not mentioned your religion nor your sister’s but I presume you are African.

 This provides a context in which a breach of promise to marry is unfounded when the potential marriage is polygamous, common in African and Islamic societies, within the confines of customary unions and religion.

As couples celebrate Valentine's Day, they should understand that promises to marriage hold no legal threshold to make claims of damages, as was in the case of Muinde vs Muindi, where the plaintiff moved the court claiming wounded pride, loss of marriage, aggravated and exemplary damages.

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