The Kenyan cabinet is planning on introducing a bill that will seek to set the record straight when it comes to marriages. People who cohabit under come-we-stay arrangements for up to two years will be considered married under the law. Forced wife inheritance will be outlawed. Marriage while under the age of 18 will be considered illegal. The breadwinner of the family will be obligated under the law to take care of the spouse earning less.
Other positives include the fact that both spouses will own property 50-50. Husbands (or wives) cannot kick their spouses out of the house without a court order. And second wives/mistresses are not entitled to any property they found their man with. In most respects the bill seems like a step in the right direction.
But I have (for now at least) two problems with it. Firstly, by allowing for come we stay arrangements, the bill does not go far enough in strengthening the institution of marriage. It would have been better if it had some incentive (a tax break for instance or less maternity costs for those that don’t pay taxes – and there are loads of them) for people who want to live together to register their marriage. They don’t have to go to church or anything (although this would my preferred way of doing things because of the added advantage of social monitoring of church marriages), just register with the DC or something.This way Kenyan women will have the law on their side against cheating husbands who do not want to fulfill their obligations and it makes it a lot easier to keep records for households for planning purposes.
Secondly, the section on customary polygamy should be thrown out. I think that Kenyan men have for far too long exploited this loophole to give women a raw deal. The requirement that women consent in writing to polygamy will not change anything. As long as they are financially dependent on their husbands women will have no choice but to consent to polygamy – for their sake and perhaps more importantly, for the sake of their children. Plus this provision will be exploited by men who want to have extra-marital affairs – which is contributing a great deal to the spread of HIV among married couples. Infidelity should be outlawed, with very stiff penalties (too bad the Kenyan parliament is male-dominated).
I am a believer in the truism that laws should incremental and a reflection of the culture of the people at any given time. At the same time however I think that the government should have a normative bias towards registered monogamous marriages among non-Muslim Kenyans.