Men and women whose partners promise marriage but fail to deliver will be entitled to compensation if a proposed Bill is enacted.
However, they will have to convince a court that the promise was made and that they had suffered damages as a result of it not being fulfilled.
The Marriage Bill, which is set for formal introduction in the National Assembly Tuesday afternoon, seeks to consolidate the seven current laws on the institution.
It also recognises polygamy, the payment of bride price for customary marriages and also provides for the various grounds on which a couple can seek divorce.
It regulates Christian, civil, customary and Hindu marriages, which were previously under separate laws.
The Bill says in Section 74 that even though a promise by a person to marry another person is not legally binding, the partners who feel they have suffered as a result of a broken promise can seek compensation.
Human rights lawyer Grace Maingi told the Nation this is not as harsh as it looks because a court would have to determine whether damages are due.
“If someone just promises today, it would not be binding unless the person who says they have been wronged takes the matter to court and has to prove beyond reasonable doubt to the court,” she said.
“That’s a protection or a safeguard in itself because the court looks at it in terms of whether or not there was a real promise and a real damage.”
The Bill, however, does not state in its clause on interpretation what a “promise to marry” is, meaning courts would have to determine that.
Ms Maingi said that could possibly be done when amendments are introduced to the Bill in the National Assembly.
Amendments later
The online free dictionary defines a promise of marriage as “a contract mutually entered into by a man and a woman capable of contracting matrimony, that they will marry each other.”
Overall, said the lawyer, the Bill is important and ought to be passed, with amendments introduced to correct offensive clauses.
“This Bill has been pending for way too long at the expense of the institution of marriage. Therefore, this is a great opportunity to ensure protection for all within the institution and growing from the Constitution,” she said.
Ms Ruth Aura, who chairs the Kenyan chapter of the International Federation of Women Lawyers, told the Nation the Bill protects widows from harassment by their in-laws.
This is because it stipulates that certificates of marriage would be required for all types of unions, spelling the end of the common come-we-stay arrangements.
The Bill’s provision that every wife in a polygamous marriage would have a certificate is particularly good as each would live confident that they are legally married to the shared husband, Ms Aura added.
The Bill is also clear that marriage is a union between two adults of the opposite gender. This will disappoint those who would have hoped that there could be a way to legalise same-sex marriages.
“Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this (law),” it states right at the beginning.
It also criminalises incest by prohibiting marriage to a person’s grandparent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, nephew, great niece or great nephew.
This would be punishable by imprisonment for a maximum five years or a fine not more than Sh300,000 or both.
The Bill provides for a couple to decide and register their marriage as monogamous, meaning any attempts to make it polygamous would be illegal.
It also secures polygamous marriage by stating that it may not be converted to a monogamous one unless the husband has only one wife.
This would mean that a man who neglects his wives and pretends to be monogamous would be breaking the law.
Men who secretly marry additional wives could also be in trouble as the Bill states that before a man is allowed to take another wife, the current wife or wives will be required to give their approval.
The notification of that marriage to the Director of Marriages is required to indicate whether the current wife or wives have been informed, whether they approve or disapprove and their reasons for approving or disapproving the marriage.
The proposed law requires those who are married in the customary way to notify the Director of Marriages of their marriage within three months after the rituals of their union are finished.
The draft had dropped a clause that caused jitters when the Commission for the Implementation of the Constitution suggested that what is commonly known as a come-we-stay union would be considered a marriage after two years.
That draft had done away with the payment of dowry, but the current Bill recognises the prevalence of the traditional practice in many African communities.
It says: “Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.”-nation.co.ke
