I have been married for 3 years but...

Dear Vivian,

I have been married for three years, but my husband has not paid the bride price. We are blessed with twins who turned two last year. I am a housewife although I served as a secretary to my husband, a businessman.

We have a contract prescribing my roles and salary. However, he recently told me he is no longer interested in our marriage. He’s given me a week to vacate the house yet we bought it together alongside a car and other household items. None of them is in my name. What should I do?

Pauline Nguyayi,

Nairobi

Dear Pauline,

Your union is categorised as cohabitation. This is when couples choose to stay together without any form of ceremony.

The Marriage Act recognises only five kinds of marriages; unfortunately, cohabitation is not one of them even if couples stay together for many years. When cohabiting couples separate, the property they acquired will not be treated as matrimonial property.

Often times, women in similar positions have been forced to produce receipts to prove their contribution since the commencement of the union.

In your case, you have a recourse if you have the receipts, bank statements or mobile transfer confirmations. If not, I suggest you work around ensuring the children are well catered for upon your separation.

A visit to the Children’s office next to you is the best place to begin. The issues to be discussed at the office will be on custody and maintenance. One of you will be asked to have visiting rights as the other maintains custody of the children.

Either way, your contribution on maintenance and custody will be on an equal basis. Should this process fail, the children’s court will be the next course of action.

On a separate note, you mention that you had an employment contract. This should be treated as a separate issue because he is identified as an employer, according to the Employment Act.

The Act recognises an employer to include an individual who has entered into a contract of service. Compared to the matrimonial issue, your best solution for redress will be anchored in the Employment Law.

This is because the termination of the contract should be in writing having been given one month notice and in addition, service pay for every year worked.

Since you have not been given a months’ notice, you are entitled to an additional one month’s salary, what is known as payment in lieu of notice.

Failure of this payment, you have two options, you can schedule for a mediation session with a certified mediator (a neutral party) and will lead your negotiations and ensure you document the agreement.

Mediation is cost effective and takes a shorter period as compared to the court process. However, there is a catch since both of you have to agree to proceed with the process.

Should he agree, I suggest you use the sessions to introduce all the issues of employment, custody and maintenance and come up with one agreement cutting across all your concerns.

The agreement is, however, a risk since you have to rely on the goodwill of the other party to meet their end of the bargain and they cannot be found in contempt for failing to do so.

Your second option is to proceed to court stating to be unfairly terminated, which the courts can award monetary compensation.

Vivian

Vivian Mwende Wambua is an Advocate of the High Court of Kenya. [email protected]