Commentary: Will Marriage Law Amendment Bill 2023 restore the family unit?

Hands with marriage rings. In Kenya, divorce has been at a high rate. Would amending the Marriage Law change the situation or offer a wider gate for the menace? PHOTO/Shutterstock.

By Samuel Barongo

  • Families are a product of marriages.
  • The main reason for the amendment of this Act is to provide for the dissolution of marriages by mutual consent. 
  • The Amendment Bill has been seen by many as being in violation of Article 45 of the Constitution.

Families form the foundation of any society. In fact, the Constitution of Kenya 2010 recognizes this fact by stating that a family is the basic and natural unit of our society. 

Families are a product of marriages; children are the tangible fruits and the continuation of the human race. 

It follows that it is imperative that the laws of the land safeguard families and marriages. Since such laws define who we are as a society, such laws must reflect our aspirations, values and principles.

Kenya has commendably endeavored to achieve this through the promulgation of the Marriage Act (No. 4 of 2014), the main Law governing marriages in Kenya. 

The rationale behind the amendment of a new law on marriage in 2014 was to amend and consolidate various laws relating to marriage and divorce in Kenya and make them more comprehensive and responsive to the prevailing norms in our Kenyan society.

The Marriage Act 2014, to a large extent, comprehensively regulates marriages in Kenya. 

First, the Act gives a clear and unambiguous definition of what constitutes a valid marriage: “A marriage is a voluntary union of a man and a woman….” 

Secondly, it highlights the types of marriages legally recognized in Kenya. 

These include Christian, civil, Hindu, customary and Islamic marriages. 

Thirdly, the Act strongly safeguards the institution of marriage by laying down several procedural and substantive safeguards. 

A safeguard more prominent is the Divorce Mechanism. The Act applies tight qualifications that must be met before a marriage is dissolved. 

First, a divorce can only be granted via an Order issued by a Court of Law. 

Secondly, the court has to be convinced that the grounds contained in a divorce petition are legal. The Act proceeds to enumerate the only legally recognizable grounds for dissolution.

Nine years later, a year short of a decade, a Bill was tabled in Parliament on August 4, 2023, to amend the Marriage Act 2014. 

The main reason for the amendment of this Act is to provide for the dissolution of marriages by mutual consent. 

This essentially means that instead of filing for a divorce petition, married partners can mutually agree to end their marriage and file a consent in court. 

This, in effect, renders null and void the safeguards under the current Law. In the eyes of many, it has been seen as cheapening and downgrading the sanctity and value of the marriage institution.

It is believed that good laws ought to reflect the aspirations and values of the society. In this vein, Kenyan society has been witnessing an alarming number of divorce cases in recent years. 

Could this be the real motivation behind the drafting of this Bill? Hard questions arise as a consequence.

First, if the problem currently facing Kenyan society is the booming number of divorce cases, how can simplifying the divorce process solve this problem? 

Won’t it, instead, double or triple the number of divorce cases? And, what is the essence of a law on marriage if people can get into marriage today and come out tomorrow at whims? 

What will such a law seek to safeguard or protect? Does this Bill reflect the shifting values of our Kenyan society? Are we developing or under-developing our society? 

As to whether this Bill will be passed into Law depends on the views and convictions of our representatives in Parliament. 

The members of the National Assembly, on paper, reflect the prevalent views of the common citizen, for we are a representative democracy. 

Thus, it is safe to say that Parliament ought not to be criticized for its actions, for it represents our views, values and convictions. 

Be that as it may, our recent history paints a different picture; Parliament has, at times, acted in a manner that offends our collective consciousness. 

Is this one of these moments? Only time will tell. 

Additionally, the Bill faces a number of hurdles. First, it has been seen by many as being in violation of Article 45 of the Constitution. 

This is a substantive hurdle bearing the potential of rendering the Bill unconstitutional if a petition is presented in court to challenge its validity. 

Secondly, the Bill must be subjected to a mandatory process of Public Participation. This process allows the citizenry to present their views and recommendations on a Bill or any other proposed agenda by the government. 

The only drawback of this process is that there is no legal tool for forcing Parliament to incorporate views collected during the Public Participation process; it enjoys enormous discretion on this matter.

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This Bill affords the citizenry a good opportunity to figure out if, indeed, their democratically elected representatives reflect their views, values and aspirations or not. 

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