INTRODUCTION
1.
Family as an institution
2.
History of the Family as an
Institution
3.
Historical Backgrounds of
Family law in Kenya
Family as an Institution:
In one social context a family may refer
to a man and a woman who share a common household. In another, it is defined as all persons who
share blood relations. In others, it is
defined as all persons who share a household. In others still it means all the
members of a household, including parents and children with perhaps other relations,
lodgers and even servants.
Legally, the term family is a restricted concept. There are certain formal pre-requisites that
have to be met and the main one is a marriage ceremony. In law a family is created when families
enter into a legally recognised marriage.
The law also restricts the right to terminate that legal status. The family is registered because it serves a
number of purposes in society.
1.
It is the basic component of a
society organisation; Article 16 of the Universal Declaration of Human Rights.
2.
It is the basic economic unit
of society that is most productive activities take place within the family set
up .
3.
The family setup provides for a
framework for the parties to have satisfactory sexual expression.
4.
It guarantees perpetuation of
society through the receiving of offspring.
5.
It provides a framework for
companionship between the members of that family.
THE OBJECTS OF FAMILY LAW
1.
It seeks to define status
between the parties in that family i.e. it defines what rights a member of the
family can claim over the other or over the other’s property. Altering the status of parties in the family.
2.
A remedial role; that is it
serves to protect certain weaker members of that family e.g. children. On termination of a family relationship there
are certain members who may need protection especially economic
protection. Note. The trend now is that
not all family relationships are created by marriage ceremonies such as
cohabitation, single parents. The law
has developed to recognise some of these relationships.
Major functions of family law
HISTORY OF THE FAMILY AS AN INSTITUTION.
The trend now is that not all family relationships are actually
created inside a marriage relationship.
Some of the developments in law have been to deal with these issues,
under common law and equity there is recognition given to cohabitees. Children born out of marriage also acquire.
Family law as an institution also has a history.
Engels: The origins
of the family, Private Property and the state.
In this book the author states that the institution of the family has
not existed for all times and they say that relating to the institution of the
family there was an ancient primitive stage of promiscuity where there were no
restrictions as regarding sexual relations and it was a free for all. The authors have met criticism for alleging
this fact but this points to an earlier stage when there was no family
existing. They then say that the family
developed along four main stages
1.
Consanguine Family;
2.
Punuluan Family
3.
Pairing Family
4.
Monogamous Family
Consanguine and Punuluan Families are based on group marriages and
the pairing and monogamous family and at this stage the society tries to
disassociate itself from group marriages.
Engels says that marriage groups were separated according to
generations so that you find that one generation consisted of husbands and
wives who could relate so long as they belonged to the same generation. Parents and child could not relate. Remnants of this type of marriage at the time
he was writing in the early 19th Century could still be found among
some Hawaiian tribes.
In the Punuluan stage brother and sister were excluded from sexual
relations. In the consanguine family so
long as you belonged to the same generation you could have sexual
relations. The Punuluan type of society
was found among Indian tribe called the Punulua.
These forms of group marriage it was uncertain as to who the father
of any particular child was but it was certain who the mother was so that group
marriages were the origin of tracing descent through the mother’s line so that
we have matriarchy being the form of tracing descent. The author again says that societies that are
matriarchal originated from here.
PAIRING FAMILY
The essence of the pairing family is that
one man lives with one woman but the relationship is such that polygamy and
occasional infidelity on the part of the man is permissible. However the woman is required to be strictly
faithful and adultery on her part is strictly punished. To some people this is where subjugation of
women starts.
Restrictions on sexual relations are extended so that there is a
progressive stage within which conjugal relations can take place. In the pairing family conjugal relations are
more restricted and women are restricted only to their husbands who cannot be
their brother.
MONOGAMOUS FAMILY
This is different from the pairing family in two ways
1.
There is a much greater stress
that is given to the marriage institution, in the pairing family dissolution of
marriage is relatively easy but in a monogamous family a marriage cannot be
dissolved unless some formalities are followed.
The rights to conjugal relations are extended to the wife because it is
not only the wife who has to be faithful but the man as well. The authors of this text say that the main
purpose of the rise of the monogamous family is to produce children of
undisputed paternity and this is important for purposes of inheritance. That is the linkage that the authors make in
the rise of family and private property ownership. Those who then own property become the rulers
and that is the link between family, property ownership and the state.
The main reason that this history becomes relevant is when we look
at the conflicts that, it is argued that when we came into contact with the
Europeans, our predominant form of family was Pairing Family. In some societies we still were in the
Punuluan. That means that the Europeans
found us at pairing and imposed laws which were applicable to the monogamous
family and therefore we find tension existing between the two different systems
of law right from the very beginning because they were at different levels of
development, they reflected different values.
Those tensions have existed and that is the reason why harmonisation of
the different family law situations appears to be difficult.
HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA
The studying point in family law is the 1897 East Africa Order in
Council which applied certain Indian and British Acts of Parliament to the East
African Protectorate. It also applied
the common law of England
As a result of this power, the commissioner made the native court
regulations of 1897 and what these regulations provided was that in matters
affecting the personal status of natives, then the law of their caste or tribe
insofar as it could be ascertained and insofar as it was not repugnant to
national morality could be applied. For
those natives who were Muslims, Islamic law would apply to them and this was
with regard to matters affecting personal status.
This same formulation is what we basically find in our judicature
Act insofar as the application of customary law is concerned. The provisions were further modified but the
origins are Native Courts Regulations.
There were also two other communities in Kenya at the time, the
British Colonisers and the Indians who had been brought in as labour and the
issue here was whether for those groups they applied Indian Act or British Laws
and common law rules were applied. The
Indian Law was basically British law that had been passed in India Kenya
For example the Indian Succession Act of 1865, this was one of the
Indian applied Acts under the 1897 Order in Council. In India
it had been expressly stated that that particular Act did not apply to
succession matters of Hindus in which case in India Kenya
As early as 1898 we have all these laws
governing different peoples. In 1902 we
got the East Africa Order in Council of 1902 whose main purpose was to clarify
further when customary law applied. It
was stated that in all cases whether civil or criminal in which natives were
parties, the courts would be guided by native law in so far as it was
applicable and not repugnant to justice and morality or inconsistent with any
law made in the protectorate. This
formulation of the Order in Council is the same formulation that we have in
Section 3 of our Judicature Act insofar as application of customary law is
concerned. In areas of family law for
those natives who still practice customary law are still governed by African
Customary Law. Muslims still continue to
be governed by Muslim Law but with Hindus a number of developments occurred
which made the Hindus to adopt laws that were similar to those found in the
statues.
The 1902 Order in Council gave the
commissioner power to make laws which would apply in the protectorate and one
of the first laws that was made in 1902 was the Marriage Ordinance. This Ordinance was a law of general
application in the sense that it was not limited by race or religion and was
meant to apply to all residents in the protectorate. It provided for basically a Christian form of
marriage which was strictly monogamous and made it an offence for a person
married under customary law to contract a marriage under the ordinance or vice
versa. It was also meant to provide an
avenue for the converted natives to contract the Christian type of marriage and
for the settlers to contract marriage.
What was important is that any African who married under the Marriage
Ordinance was supposed to have embraced the Christian way of life and therefore
distanced herself from their customary way of life. Please look at Cole v. Cole the ruling
in this case exemplified the situation of what happened if one contracted a
marriage outside the ordinance. A
Nigerian couple got married according to Christian rites under the Nigerian
Marriage Ordinance. They had a son who
was mentally incapacitated and after a while the husband died. The issue then arose as to who was to succeed
the man or who was entitled to the man’s property and the man’s brother argued
that under Customary Law he was the one entitled to inherit the man’s property. The wife argued that since they had married
under the Marriage Ordinance they had distanced themselves from the African way
of life therefore African customary law did not apply and instead the English
Law of Succession applied and that under that English Law of Succession she was
the one entitled to inherit in her own right and as guardian of her son. The court upheld her argument basically
stating that since they had married under the marriage ordinance the African
customary law no longer applied to them.
This was basically the same approach that
was taken by the Kenyan colonial court and you will find this stated in many of
the cases that were decided in that period
R v. Amkeyo
R v. Mwakio
Robin v. Rex
Most of these cases were actually dealing
with issue of admissibility of evidence given by the wives arguing that they
are in a privileged position and therefore could not testify against their
husbands in Mwakio the Judge said that “it
is unfortunate that the word wife and marriage have been applied in this
connection. If only the woman party had
been described as a concubine or something of the sort, the question could
never have arisen.” That illustrated
the colonial courts attitude to women who were married according to customary
law. They did not deserve to be termed
wives as per the colonialists and the wife evidence was going to be admissible
because they were married under customary law.
THE NATIVE CHRISTIAN MARRIAGE
ORDINANCE IN 1904
The Native Christian Marriage Ordinance
applied only to the marriage of Christian applicants. It was supposed to supplement the marriage
ordinance and was intended to relieve the Africans of the need to comply with
the formalities laid down in the marriage ordinance. It only applied to Africans who professed
Christianity and just like marriage ordinance marriage under this Act was
strictly monogamous.
This Act also provided some protection to
widows in the sense that widows who had been married under the ordinance were
protected from being inherited as was the case in customary law. That is they could refuse to subject
themselves to the subject of widows inheritance. The marriage had to be celebrated by a church
minister and before the church minister did this he had to satisfy himself that
the parties were Christians.
The native marriage Christian ordinance
was replaced in 1891 with the African Christian Marriage and Divorce Act, Cap
151 of the laws of Kenya
THE ENACTMENT OF THE DIVORCE ORDINANCE
This was based on the Indian Divorce Act
of 1869 which was one of the Acts applied by the 1897 Order in Council. It provided or afforded relief only in
respect to monogamous marriages. This is
still the position to the present day. It
was replaced by the matrimonial Causes Act in 1941.
In 1928 we also have additional relieve
being accorded by the separation Courts (Separation & Maintenance
Ordinance) which was limited to monogamous marriages. It still exists under the same name in our
laws and its Cap 153. The purpose was to
provide parties with judicial separation other than divorce and also to provide
parties in a monogamous marriage to seek maintenance while the marriage is
still subsisting.
In 1906 the Mohammedan Marriage &
Divorce Registration Ordinance was introduced to provide for registration
of Islamic Marriages and Divorces.
Please note that it only provides for registration of marriage or
divorce. The Act is basically procedural
and not substantive.
In 1946 we have the Hindu Marriage
Divorce and Succession Ordinance being enacted. This is where Hindus parted way with Hindu
Customary Law, the Act provided that in future all Hindu Marriages were
required to be monogamous and the Act extended to Hindus the reliefs that are
available under the Matrimonial Act and under the subordinate Courts separation
and maintenance Act. Under orthodox Hindus marriages can be polygamous.
The
constitutional basis for application of different law systems.
One of the arguments which was put
forward very strongly by Dr. Gibson Kamau Kuria when he was teaching family law
was that the Marriage Bill of 1976 was unconstitutional and for that reason
could not be upheld. The Bill sought to
harmonise different family law systems by introducing one law. He gave two reasons why the bill was
unconstitutional
1.
Historically it could not stand
because it assumed that sociologically and politically the Kenyan people were
one entity which they were not and his historical argument is the argument of
the different law systems which was along racial lines and Kenya was still a
very racially divided society;
2.
The Kenyan constitution
guarantees a right to freedom of conscience and this includes freedom of
religion and worship. Part of that
freedom and worship is found in our different family laws. He argues that the statutory law is found on
Christian norms and therefore it is the Christian’s choice to marry under
Christian law, Muslims choice to marry under the Muslim Law likewise Africans
were free to practice their customs under their customs and that to legislate
under one uniform law for all would be unconstitutional.
Under the Draft Bill to alter the
Constitution this argument is put forward under article 38 clause 5 the Bill
provides that Parliament enacts legislation that will recognise marriages
concluded under any tradition or under any system of religious, personal or
family law. If the Bill is accepted then
we are looking at the continued multiplicity of family laws in Kenya
REPORT OF THE COMMISSION ON THE LAW OF
MARRIAGE AND DIVORCE
There is an appendix of a Marriage Bill
proposed in 1996 which sought to harmonise all family laws in Kenya
SOME PROBLEMS OCCASSIONED BY MULTIPLICITY
OF FAMILY LAWS
1.
Continued application of
English Family Law;
2.
Change of Family law;
3.
Conflicts – internal conflicts
between different family law systems.
CONTINUED APPLICATION OF ENGLISH
FAMILY LAW
This is an anomaly given that we are
almost 40 years into independence and yet we still apply English Laws and
English Statutes particular in areas of family law. This is in 3 ways
a.
Continued application of common
law in form of common law presumptions which still apply to Kenya Kenya
The presumption is that when a wife
acquires goods on credit, she is deemed to be acting as the husband’s agent and
the husband will be liable to pay.
In Ramji Dass it was stated that
this presumption existed even when the wife and husband were not living
together.
b. Presumption of
Advancement: This normally arises in
a family relationship when a family member transfers property to another by way
of a gift. The issue arises as to
whether the beneficial interest in that property has been transferred to the
other person which is what is known as the advancement when the property has
been wholly transferred to the other person or whether that other person holds
the property in trust for the person who has given it. Is there an advancement resulting in a
trust? In common law the presumption
does exist if it can be shown that the intention was to transfer the beneficial
interest then there is advancement.
There is authority to the effect that the
presumption applies in Kenya
In the case of Wanjiku v. Mutiso
[1988] Wanjiku and Mutiso were husband and wife. In 1967, during the course of their marriage,
Mutiso acquired a farm through two loans, both of which were secured by charges
on the farm. Mutiso was a Member of
Parliament but was jailed for 9 and a half years in 1971 for sedition. Mutiso fell into arrears in mortgage payments. Mutiso made out a power of attorney in favour
of the wife but he was subsequently obliged to transfer the farm into her sole
name. He executed a deed of gift to that
effect. Subsequently the parties grew apart and when Mutiso was released they
were unable to resume their married life together. Mutiso therefore filed suit claiming that his
wife held the property as his trustee and she should transfer the same
back. The issues that arose for
consideration were (1) whether the deed of gift was void; (2) whether there was
an express trust in favour of the husband; (3) whether, in the absence of an
express trust, a resulting trust could be applied.
The court ruled
in favour of Mutiso and the wife appealed.
It was held
1.
While the husband did not
clearly plead resulting trust, the facts of the case and the plea of ‘trust’
effectively referred to a resulting trust.
2.
There was no express trust in
this case because the transfer was specific and expressly by way of gift.
3.
Where property is transferred
to another as a gift with the intention that the latter hold it as trustee for
the former, a resulting trust may be implied.
4.
The presumption of advancement
should only be made so as to accord with the social conditions in Kenya
The Appeal was dismissed.
c. Presumption of
Marriage: This arises where a
man and woman cohabit and call themselves out as man and wife. Under this presumption they will be deemed to
be married even if they have not undergone any formal marriage ceremony. Family
law is also trying to incorporate certain situations which do not fall within
the family threshold and this is one of them.
Where parties have not met legal requisites to be called man and wife. This presumption has been applied to the Kenyan
situation with regard to this assumption the Kenyan courts have stated that
this presumption existed under African Customary Law.
Wanjiku Yawe
v. Public Trustee,
Peter Hinga
v. Mary Wanjiku and
R. V Peter
s/o Mikhayo
Charles
Manjani v. Rosemary Moraa
In Wanjiku Yawe the court found
that this presumption can also be found under African Customary Law in R v.
Peter s/o Mikhayo the interesting issue was that of the period of
cohabitation, for how long should you cohabit for this presumption to come into
place? Is it one year or 10 months?
In Peter s/o Mikhayo, the accused
cohabited with a lady for a period of between 4 and 8 months, then one day he
found his lady performing a sexual act in the bush with a man and proceeded to
kill the man. In his defence on charge
of murder, he said that the lady was his wife and he had been provoked to kill
the man. The court had to consider
whether that period of cohabitation was long enough to trigger a presumption of
marriage. Again this is one of the case
relied on customary law and it held that under Customary law, that period was
enough and in fact stated that under customary law, the moment you start
cohabiting the presumption is triggered.
In Charles Manjani v Rosemary
Moraa the presumption was said to apply even where the wife had previously
been married to another man, it was held that the presumption would apply and
the first marriage was dissolved during cohabitation but by the time
cohabitation started it had not been legally resolved.
MARRIED WOMEN’S PROPERTY ACT OF 1882
An English Act that still applies in Kenya Antony
In I v I [1970] this is the first reported decision of the
Kenyan High Court where the Married Women’s Property Act (MWPA) of England was
held to apply in Kenya. The court also
considered various English authorities and made a finding on the presumption of
advancement.
The husband in this case had acquired a
property in England Kenya
The question before the court was whether
the Married Women’s Property Act of 1882 of England (MWPA) would apply in Kenya
Held:
1.
The MWPA was a statute of
general application in England Kenya so far as the
circumstances of Kenya
2.
The presumption of advancement
may be rebutted where property was acquired for the joint use of the
spouses. The presumption that the
property was conveyed to the wife for her own use is however not rebutted if
the transfer was effected to defeat creditors.
3.
In this case, there was a
post-nuptial settlement between the parties in relation to the property of the
marriage. The word ‘settlement’ should
be given a wide construction. Hence, the
court has power under section 28 of the Matrimonial Causes Act (K), which is
applicable in this case.
4.
The husband in this case had
not shown any reason for variation of the prenuptial settlement between the
spouses.
In Karanja v. Karanja during the
course of their marriage, the parties acquired several properties which were
all registered in the name of the husband.
One property was acquired from money supplied by the wife while the
other properties were acquired with her direct or indirect contribution. The court considered whether customary law
would operate to disqualify any imputation of trust in favour of a married
woman, especially one in salaried employment.
Held:
1.
The Married Women’s Property
Act is applicable to Kenya
2.
Even without power to transfer
property, the court has power under the MWPA to grant declarations of ownership
of property. In cases where the property
was acquired as a joint venture, it will be regarded as belonging to the
spouses jointly no matter in whose name the property stands.
3.
The absence of an agreement or
intention that the contributing spouse share beneficially in the property does
not exclude the imputation of such an intention. This will depend on the law of trust, which
will not distinguish between direct and indirect contribution.
4.
Where an African husband and
wife are in salaried employment, the imputation of a trust cannot be rejected
outright. This implication would arise
where the wife is contributing indirectly through payments for household and
other expenses which the husband would otherwise have had to pay.
5.
In this case, the husband held
the immovable properties in dispute in trust for himself and his wife in
proportions of two to one respectively.
However, it would not be equitable to order sale or possession of the
Karen property since the husband was residing there with his new family.
The final decision of the court to award
one-third beneficial interest in the properties to the wife is commendable.
The Act provides that a married woman is
capable of acquiring, owning and disposing of property as her own separate
property and the history to this Act is that under English Law women could not
hold separate property. This act
liberated married women who can now own and dispose off their own property.
Registration by Reference
1.
Under the Matrimonial Causes
Act Section 3 it provides that the law that is to be applied in Matrimonial
proceedings is that which applies in the High Court of Justice of England England
2.
Section 35 of the Marriage
Act which provides that no marriage will be valid
if the parties are within prohibited degrees of affinity according to the law
of England
A major problem is what happens when a
law undergoes subsequent changes, do we adopt the changes wholesale? The perfect example is in divorce law, the
divorce law underwent major reform in 1970 e.g. when it comes to divorce you
find that to obtain a divorce you have to prove that the other party has been
guilty of a fault. In 1970 in England Kenya
K v K HCCC No. 123 of 1975 where it was held that any amendments which are contrary to our own
laws would not be applicable in our own situation.
PROBLEM OF CHANGING ONE’S FAMILY LAW FROM ONE SYSTEM TO ANOTHER
The issue is whether one can change from one system of family law to
another e.g. can one change from English Statutory Law to Customary Law or vice
versa? Theoretically it looks possible
because under S. 76 of the Constitution it is provided that freedom of
religious belief is protected and guaranteed and following from this
constitutional guarantee it follows that the moment you change from your
religion, your family law will automatically change as ones family law is
determined by ones religious beliefs.
However it has not been that simple and the position is that while one
can easily change from customary, Hindu or Islamic family law to statutory law,
you have to have changed your religion.
It is not easy to convert from statutory to Islamic or Customary just by
the act of change of faith. Statutory
law still insists on a number of formalities before one can change from one
system to another.
English law started with a situation of non-tolerance of other
family law systems other than their own family law system and you find cases
like
Hyde v. Hyde
This case concerned the marriage in 1858 of two Mormons in Salt Lake City
Re Bethel
In this case an English man married a Botswana Woman under Botswana customary law and they had a child, the
husband died and left property in England England
Ex Parte Mir- Anwarrudin (1917)
Had a similar ruling with Re Bethel
The attitude of the English courts not recognizing any other law was
also found in Kenya in colonial times Re Amkeyo the courts termed the wives in those
marriages as concubines and refused to recognize them as wives,
From 1940 the English Courts started to change their attitude and
started recognizing other family law systems for purposes of entertaining
matrimonial causes arising from those systems.
Note that this recognition was not for purposes of validating them but
for purposes of facilitating the change from those systems to statutory family
law systems so that they would recognize another family law system for purposes
of invalidating it or purposes of facilitating change from that system to the
English law system.
During 1940s up through to the present day, courts now do recognize
other family law systems and recognize that you can change from one system to
another
Bandail v. Bandail
A Hindu polygamous marriage was recognized for purposes of
nullifying in England
Sowa v. Sowa
In this case, a polygamous marriage was celebrated in Ghana Ghana
The English courts also made rulings as to what acts could change a
polygamous marriage to a monogamous marriage.
The first act was a change of religious belief of faith which then
affected the parties legal status was the first act to be recognized.
BY CHANGE OF RELIGION
Sinha Peearage Case [1946] 1 All E.R. 263 P.C
The parties changed their Hindu Sect from one practicing polygamous
marriage to one practicing monogamous marriage.
It was held that changing their religious beliefs changed their marital
status and the polygamous marriage was changed to a monogamous one.
A.G Of Ceylon
Local Legislation is one recognized way with the aim of changing the
character of ones family law system.
BY STATUTE
Parkasho v. Singh [1967] 1 All E.R.
A statute converted Sikh marriage from being polygamous marriage to
monogamous marriage and it was held that it was out of these religion changes
that family law of Sikhs was changed.
The legislation must be full legislation that deals with all marriages
in that category.
Under our own Christian Marriages Act it is your religion that
determines whether you can change your category of marriage.
Where there is a second ceremony of marriage that is designed to
change one status from polygamous to monogamous union. This is the kind of situation which would
obtain under the African Marriage and Divorce Act
Ohochuku V. Ohochuku [1960] 1 All E.R. 253
The parties had been married under Nigerian Customary Law and then
underwent a Christian Marriage. Under English law which created a monogamous
marriage
BY CHANGE OF DOMICILE
Ali v. Ali
This case provides authority for the proposition that, if a husband
changes his domicile from a country that permits polygamy to one which does
not, this change of domicile renders the marriage monogamous.
Change of Domicile
Domicile is essentially ones permanent home or the place that one
intends to set up their permanent residence and in this case the parties had
contracted a polygamous marriage in India England
The English accepted in two phases gradually recognizing other
family law systems for the purposes of nullifying those unions or converting
them into English systems, but never vice versa.
The Kenyan situation is very much like the English one. Kenya
Section 9 of the African Christian Marriage and Divorce Act
provided for parties who are married under customary law to marry under the Act
if they wish to do so and there are a number of parties that
The Islamic law under section 5 (6) also in any way does provide of
conversion of customary law marriages to Islamic marriages, though not
directly. The section makes it an
offence for one to convert to Islamic marriage from other marriages unless
there is a divorce.
In our situation one can change ones family law
Case Law
Ayoob v. (1968) E.A. 72
Estate of Ruenji
Re Ogolla’s Estate
In Ayoob case the parties were Muslims and they got married
under the Marriage Act as the statutory law marriage. On the same day they were married under
Muslim Law. Subsequently the husband
divorced the wife by way of tarak a Muslim form of divorce. He then went to
court seeking a declaration that his marriage had been lawfully resolved. It
was held that the husband by performing the taraq was able to divorce the
Muslim marriage but if he wanted to divorce the statutory law marriage he would
have to file for divorce under the Matrimonial Causes Act. The court is saying that the act of contract
of a Muslim marriage after the statutory law marriage does not convert the
statutory law marriage so that the statutory law marriage was still persisting
and had to be divorced by following court procedures
Ruenji and Ogola – facts are similar
Estate of Ruenji
The deceased a Kikuyu by tribe and domiciled in Kenya
In both Ruenji and Ogola a man married his first wife under statutory
law and then contracted second marriage under customary law. The man died and the question arose whether
both wives could benefit from the husband Estate. The court held that the second wives were not
recognized under Statutory law because the man did not have capacity to
contract a second marriage and they therefore they and their children could not
inherit from the man’s estate. The court
is saying that the man could not convert from a statutory way of life that he
had committed himself to. The second
wives were not recognized.
These two cases were instrumental in leading to Succession Law and
in our Law of Succession Act whilst even under customary law wives can
inherit irrespective of the fact that the husbands could have married
previously under statutory law.
The current bill to amend the constitution addresses this issue by
giving equal recognition to all the systems under the constitution. Family law system will be protected and once
one changes their religion as a result that change will be recognized and
guaranteed. What is remaining is to
recognize and bring all the system under one system and give them
constitutional protection.
Other ways in which family law might be changed
1.
Where one marries someone
practicing another family law system:
for example if a person practicing a customary law system marries a
person practicing Islamic law normally the implication is that that marriage
will bestow upon the parties a new family law system and normally the operating
law system will be that of the man. Ours is a patriarchal society.
2.
one can also acquire a new
family law system by change of Domicile
Ali bhai a family was allowed to change their family
law system after settling at the Kenya
Coast
Change of Family Law in other jurisdiction - cited under conflict of
marriage laws
Manjany v Ndongo (1967) JAL 13
Mokhotu v. Manyaapelo - Lesotho
Onwudinjo v. Onwudinjo [1962] J.A.L 49-52 - Nigerian
Bakari v. Kichunda (1973)
L.R.T Tanzania
Rattansey v. Rattansey (1960) E.A. - Tanzania
These cases dealt with change of family law system,
These cases - most of commonwealth jurisdiction have basically
adopted the Kenya
Onwundinjo v. Onwundinjo was a
succession matter, the other wife could not inherit because the husband had
contracted an earlier statutory law marriage.
In Manyaapelo a second customary law marriage between the parties
was declared null and void because at the time of contracting the husband had
not validly divorced the first wife who he had married under statutory law.
In the Gambia
In Ayoob the facts are similar to Manjany but the courts ruled
differently.
In Ayoob, the appellant a Sunni Muslim, and the respondent, a Shiite
Muslim, were married in accordance with the Marriage Act (Cap 150). A marriage under this Act is monogamous. Subsequently they went through a ceremony of
marriage according to Mohammedan Law, the respondent by then having adopted the
doctrines of her husband’s sect. The
appellant later purported to divorce the respondent by pronouncing talak. The Appellant then, by petition to the High
Court, sought a declaration that his marriage to the respondent was lawfully
dissolved. The learned judge held that a
marriage under the Marriage Act was not a Mohammedan marriage and that it could
only be dissolved during the joint lifetime of the spouses by a valid judgment
of divorce pronounced under the Matrimonial Causes Act (Cap 152) and he
accordingly dismissed the petition.
In Rattansey the facts were similar but the courts held that the
talak terminated the statutory law marriage earlier contracted.
Gambia and Tanzania – these can be distinguished from other
commonwealth countries in the sense that they have made an attempt to recognize
their own family laws and Islamic Law and Statutory Law in Gambia are equal.
CONFLICTS THAT ARISE
The conflicts that arise are in 3 main respects
1.
Conflict between statutory and
other systems of family law because of the reluctance by the court to recognize
that one change from statutory to other family laws. E.g. parties will get married under statutory
law and continue to live their customary way of life and in the process contract
customary law marriages and the issue is to what extent will that customary law
apply to people married under statutory law?
There are situations such as Re Ogola arising
or stories of people having gotten married under statutory law and then getting
married under customary law and later to realize that they have committed an
offence.
2.
Different Customary Law systems
especially African customary law system.
This problem is exacerbated by the fact that the Kenyan population is
becoming urbanized and when we say that the Kenya
3.
Statutes – two examples will be
between the Marriage Act and the Law of Succession Act whereby under the
Marriage Act marriages are strictly monogamous and it is an offence to conduct
a second marriage but the Law of Succession gives recognition to potentially
polygamous marriage and that they can inherit under this law. Under the Matrimonial Causes Act there is no
provision for application of customary law in determining the fate of the
children. Under the children’s act the
act provides that in matters determining custody of children one of the matters
to be taken into account are the customs affecting that child. So in an attempt to accommodate African
system of law the children are brought in a concept not present in other
Acts. Unless there is a total overhaul
of the statutes in the family law arena where they are harmonized and put on
the same wavelength we shall continue having these conflicts of four different
family law systems.
SUBSTANTIVE LAW
FOUR DIFFERENT SYSTEMS OF FAMILY LAW
STATUTORY LAW
HINDU LAW
MUSLIM LAW
CUSTOMARY
1.
MARRIAGE
What is a marriage - a marriage will be a union between one man and
one woman who intend to live together as husband and wife. What happens in polygamous marriages? The man will contract separate marriages with
each woman so for each it is a union between one man and one woman. Marriage therefore is basically a consensual
contract and is a social contract between the parties involved. Before there can be a marriage there must be
the agreement to marry, and the first take in any marriage relationship
includes an agreement to marry.
LEGAL INCIDENCE OF AGREEMENT TO MARRY
Not every agreement to marry
will result in a marriage.
Statutory Position
Basically under statutory law an agreement to marry is said to exist
under common law when parties decide to get married and act in a manner that
shows their intention to marry. Under
common law, agreements to marry amounted to contracts that were legally
enforceable provided it could be shown that the parties involved intended to
enter into a legal relationship so that a party who withdrew from such an
agreement without any legal justification could be sued for breach of contract
and the injured parties could claim damages.
Being essentially a contractual relationship, all the usual
contractual requirements must apply i.e. requirements as to capacity to enter
into that contract, consent, intention to create legal relations etc. All these must be met before one can allege
that there has been a breach of that contract.
Shaw v. Shaw (1954) 2 Q 3
The Plaintiff had cohabited with a man she regarded as a husband for
14 years and they lived together as husband and wife and at one point even
celebrated their marriage. Upon his
death, the plaintiff discovered that for 10 years of their marriage the man had
been married to another woman who died 2 years before him and that it was
therefore in those two years that he had capacity to marry the plaintiff. i.e.
he was only single for 2 years of their cohabitation and only in those 2 years
that he should have been legally been married to her. She sued in the States for breach of warranty
and that warranty was that he was single and had capacity to marry and he had
therefore breached his promise to marry her.
The court awarded her damages for breach of that warranty.
Other than general damages, when there is a breach of agreement to
marry under common law normally gifts given in contemplation of that marriage
will also be required to be returned by the guilty party.
Cohen v. Seller (1926) 1 K.B. 536
The gift in question was a diamond engagement ring that had been
given to the lady and the issue was whether she should return the ring when the
engagement was broken and it was held that if it was the man who was guilty, or
responsible for the breach, then he could not demand the return of the
engagement ring but if it was the woman who had refused to fulfill the
conditions of the agreement then she was required to fulfill the conditions of
the ring. It was found that it was the
man who had refused to carry out his promise and the woman was awarded general
damages and the lady allowed to keep the engagement ring.
Larok v. Obwoga (Ugandan Case)
The lady who was the Respondent and the Appellant were friends when
the lady was a pupil at college she became pregnant and as a result was
expelled from the college. The man then
wrote to the lady promising to marry her by the end of April. This was in
1968. In October he again wrote to the
lady indicating that he was no longer keen to marry her. The lady then went to court and sued for
breach of promise to marry and the lower court held that the man had committed
a breach of the promise and awarded the lady 2000 as damages. The court based its computation on two
grounds that the chances of getting married had been impaired and secondly the
injury posed to her feelings. The man
appealed but his appeal was dismissed and the sum of 2000 shillings was to be
paid.
In England
MUINDE V. MUINDE
Please note provisions of Section 170 of the Penal Code which states
that any person who willfully and by fraud causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to cohabit
and have sexual intercourse in that belief is guilty of a felony and is liable
to imprisonment for 10 years.
AGREEMENT TO MARRY
Under Islamic law agreements to marry are entered into between the
parents of the intended spouses. Which
means that until the contract to marry and the actual marriage takes place; no
contractual obligations arise as between the intended spouses. Therefore no suit for breach of agreement to
marry can be instituted. However, where gifts or ornaments have been exchanged
between the two families, then these can be returned if the agreement to marry
is broken. This was the issue in
FAZALDIN V. DIN MOHAMMED
The girl’s father entered into a betrothal agreement without her
consent and she later refused to marry the prospective suitor. The prospective suitor brought an action
where he claimed damages for breach of agreement to marry and in the
alternative he also sought an injunction to restrain her from marrying any
other man until he had recovered all his damages and the gifts he had given.
The court held that he could only recover the presents and the ornaments he had
given but could not recover any damages.
The same position obtains under Hindu Law where agreements to marry
are made between the parents of respective spouses and a betrothal in respect
of a boy and a girl can be done when they are still infants. In
Dhanji v. Ruda
The betrothal agreement was made when the parties were still
children and the parents exchanged ornaments, clothing and other gifts. When the girl became of age, she indicated
that she had no intention of getting married to the boy and the engagement was
eventually broken. The parents of the
boy instituted proceedings for damages for the breach of contract. Court held that no damages were recoverable
because a contract where a person is forced against her will is contrary to
public notice and morality and the parents could only recover their gifts and
ornaments.
Agreement to marry under customary law
Under customary law agreement to marry normally take the form of
betrothals and the nature of the betrothal will differ between the different
communities whereby for some communities it is quite an elaborate formal
ceremony while for others it is a family affair with a few witnesses, therefore the agreement under African
customary law takes place between the families of the parties and not the
parties themselves. The effects of a
betrothal under customary law is that on part of the woman she loses her sexual
freedom and cannot have any sexual or any relationship with any other man and
on the part of the man he is under an obligation to pay the bride price ..
On the part of the family, the family of the girl is bound to give
away their daughter and are under an obligation to keep her chastity while the
family of the boy is under an obligation to pay the bride price. In the event of a breach occurring, it has
been held that under African customary law an action of breach of promise to
marry will not lie. This was held in muinde
v. muinde There are other remedies
provided for under the Magistrates Act which include actions for damages for
seduction, and also actions for pregnancy compensation.
Muinde Muinde
It stated that if the Agreement to marry is made under statutory
law, the action will lie because the action is part of the deceased family law
but it will not lie in customary law because the remedies provided for in
customary law are listed and they had been awarded in the past.
Beda Maina v. Matheno
W. Ndegwa v. Edward Wandurwa
MARRIAGES
1.
Conditions for valid marriages
2.
Rights and duties during
marriage
MARRIAGES UNDER STATUTORY LAW
Marriages under statutory law are celebrated under the Marriage
Act and the African Christian Marriage and Divorce Act. These two
Acts reflect the inherited English law provisions and are strictly
monogamous. Under the Acts polygamy is
prohibited and Section 11 (1) (d) of the Marriage Act and Section 35, 49
and 50 of the Marriage Act, these are the Sections that make polygamy
illegally.
Under Section 171 of Penal Code the offence of bigamy is provided
for. Bigamy is defined as going through
a ceremony of marriage when having another husband or wife living and the first
marriage has not been rendered void by a court of law. The offence of Bigamy is punishable by 5
years imprisonment.
Case Law both English and Kenyan case – the cases reiterate that
these marriages are required to be Monogamous
Hyde v. Hyde (1886) L.R. 130
The case provides the classic definition of marriage –
Marriage under Christendom is the voluntary union for life of one
man and one woman to the exclusion of all others.
The Kenyan cases of K v. K
In 1970 the petitioner went through a form or ceremony of marriage
with the respondent, at the District Commissioner’s office, Nairobi
The court held that only a monogamous marriage could be created by a
ceremony under the Marriage Act and as the husband was already married, the
ceremony was valid and created no marriage status. Therefore the respondent had committed
adultery with the co-respondent. And
Decree nisi was granted.
There were rulings that where a person is already married they
cannot contract a statutory marriage. In
both cases the men had married under Kenyan Customary Law and it was held that
they had no capacity to contract a marriage under statutory law.
CONDITIONS RELATING TO CAPACITY
The first condition is that the parties must be biologically man and
woman. This is found under common law as a requirement and in
Corbett v. Corbett (1970) 2 All E.R. 33
In this particular case the parties went through a ceremony of
marriage at the time of the marriage the petitioner knew that the respondent
had been registered at birth as being of the male sex and had undergone a sex
change operation and since that operation had lived as a woman. After 14 days of marriage the petitioner
filed a petition for a declaration that that marriage was null and void on the
ground that the respondent was a person of the male sex or alternatively for a
decree of nullity on a decree of non consummation of marriage. It was held among other things that marriage
is essentially a relationship between a man and a woman the respondent having
been a biological male from birth rendered the so called marriage void. It was held that the Respondent was incapable
of consummating the marriage and that it was
a nullity.
Right now there is a lot of controversy on the issue of definition
of marriage with some states allowing gay marriages. Our draft bill to amend
the constitution has also gotten into trouble with this issue because it
implies that there can be same sex marriages and they have decided to amend it
to read marriage as a union between man and woman.
Capacity
Gender
single
The parties must be single meaning they can be single, divorced or
widowed.
LK v. CK
K V K
Section 3 of the Marriage Act and the other sections that outlaw
bigamy.
3. AGE
Parties must be of Age to contract a marriage. Under our current laws the parties must be at
least 16 years of age that is the minimum age of marriage under statutory
law. There are however still some
conditions when it comes to age but minimum age is 16. the authority on age is
Pugh V. Pugh (1951)
A man of age over 16 years married a girl aged 15 years and it was
held that that marriage was void and in his ruling the judge gave the reasons
why requirement as to age is provided for by stating that
It is considered socially and morally wrong that a person of an age
at which we believe them to be immature should have the stresses,
responsibilities and sexual freedom of marriage and the physical strain of
childbirth.
4. PROHIBITED DECREES
OF RELATIONSHIPS
Relationship by way of consanguinity or affinity.
Relationship by consanguinity is where you have blood relationships
and affinity is relationship by way of marriage. These marriages are regarded as incestuous
and are prohibited for health reasons and inbreeding. Inbreeding gives one imperfect stock and that
is why these marriages are prohibited.
Section 35 of the Marriage Act refers us to English Law as related
to the prohibited decrees. This English
Law is found in the first schedule of the UK Marriage Act of 1945. This schedule gives a list of what are the
prohibited relationships and in that list a man may not marry his mother,
including step mother and mother in laws or adopted mothers, his daughter,
including step daughters, daughters in law and adopted daughters. He cannot marry his sisters including step
sisters, grandmother including step grandmother, he cannot marry his
granddaughter including step granddaughters, he cannot marry his aunts or his
nieces.
The woman likewise may not marry her father, step father, father
inlaw and adopted father, son, step son, son in law, grandfather, grandson,
uncles and nephews all these include step and adopted.
Under English law the list does not prohibit marriage between
cousins.
REQUIREMENTS AS TO FORMALITIES
There are a number of formalities to be followed if one is getting
married under statutory law. The African
all requirements as to formalities will apply
under the African Christian Marriage and Divorce Act.
The first formality is that of notice,
1. NOTICE
Parties who seek to get married under statutory law must give notice
of their intention to get married and this is provided for under Section 8
of the Marriage Act. This notice is
given at the office of the registrar of marriages in the District where the
parties reside. Always saving that
notice the registrar then enters it in a marriage notice book that he or she
maintains and he is also required to
publish that notice by affixing a copy of the notice outside his office and the
notice stays there for a maximum period of 3 months or until the marriage
certificate is issued to the parties.
This requirement mainly arises from the fact that in evolution of
marriage under common law it was demanded that a marriage be a public act and
should not be celebrated in private but in a public place.
When giving notice the parties must attach an affidavit stating the
following
(a)
that at least one of the
parties has been resident within that district for at least 15 days;
(b)
that the parties have attained
the age of 21 years but if the parties range between 16 and 21 years they must
attach a consent in writing from their parents or guardians.
(c)
That they are not related in
any way i.e by blood or marriage
(d)
That they are not married to
any other person under any law at the time of issuing such notice.
These requirements are found in Section 11 of the Marriage Act.
Under Section 15 - if any
person is dissatisfied with that notice, he or she either places a caveat in
the marriage notice book giving his or her reasons for challenging the intended
marriage and this caveat is placed by entering the word FORBIDDEN opposite the
entry of the notice. The person who
places the caveat then appears before a judge or a magistrate whereby he or she
is then required to show why the marriage should not take place and the
decision of the court in this regard is final.
Matter of the marriage of Alfred Nderi & Charity Kamweru
EF & EC
The facts in these two cases are very similar but the rulings were
quite different. In both cases the man
gave notice of his intention to marry a lady and a caveat was then placed by
the Respondent in both cases claiming that the man was already married to the
Respondent and therefore had no capacity to contract the intended
marriage. In Nderi’s case it was
actually 2 caveats and it was held that the common knowledge that Nderi had in
fact been married to both women under Kikuyu Customary Law while one of the
marriages had been dissolved the other one had not. It was held that the registrar should
therefore not issue the certificate of marriage because Nderi did not have
capacity to marry under statutory law.
In the matter between EL AND EC the caveator claimed that she had
eloped with a man and therefore he had no capacity to marry another woman. In this case it was found that the
formalities under customary to contract a marriage had not been met and
especially the consent of her family to that marriage had not been given and
therefore she could not invalidate the intended marriage because she did not
have a marriage with the man and the caveat was thus removed from the notice
book.
if the registrar is however satisfied with the notice and is
satisfied that no caveat has been registered, then he may issue a certificate
of compliance and in that certificate indicate that a marriage should take
place within three months of the notice being given. If the marriage does not take place within
the 3 months, then the notice and all proceedings consequent to that notice
shall be void and if the parties still intend to get married, fresh notice must
be given.
The role of the registrar is sometimes performed by church ministers
whereby rather than give notice at the registrar’s office the church minister
announces in the church which the parties attend that the parties intend to get
married better known as bans of marriage and this is a recognise and valid way
of publishing the notice to get married..
B. CONSENT
If below 21 years consent in writing from parents or guardian is
required.
Re Bennet (1974) 45 DL.R 409
H v H (1954)Probate Report 158
In Re Bennet a 16 year old girl sought an order to dispense with her
parental consent to her intended marriage and the court refused to give that
order insisting that consent must be given for the marriage to proceed.
c. CELEBRATION OF THE
MARRIAGE
The requirements about celebrations are found in Sections 23 – 25 of
the Marriage Act. The Marriage must be
celebrated by a licensed by a licensed person either a registrar of marriages
or a church minister. The marriage
should also be celebrated in a licensed place.
Again this is the registrar’s office or in a church though there are
certain exceptions. The marriage should
take place between 8 am and 6 p.m in public and in the presence of two
witnesses. However if the marriage is
being celebrated in the registrar’s office it should take place between 8 am
and 4 p.m.
Section 24 provides that if the person celebrating that marriage
knows of an impediment in respect to that marriage then he shall not celebrate
the marriage.
Under Section 31 of the Marriage Act, the Minister incharge of
Marriages may authorise a marriage to be celebrated in a different place upon
request and he or she has to authorise a licensed person to celebrate that
marriage.
D. REGISTRATION
After compliance with all the requirements the parties then register
their marriage and they are issued with a marriage certificate. They are required to sign the marriage
certificate in duplicate and their signatures must be witnessed by two
witnesses.
MATRIMONIAL RIGHTS & DUTIES UNDER STATUTORY LAW
These are duties that arise once parties are statutorily married
1. The right to
consortium – a consortium is the right to the company society and affection of
a spouse in any matrimonial relationship.
Under the old common law rules it was the husband who had a right to the
wife’s consortium but the wife had no such right to her husband’s
consortium. What she had was a duty to
offer her companionship and services to the husband. Under the old common law rules the husband also
had the right to chastise his wife if she failed in her duties including confining
her within the house.
Republic v. Jackson
In this case, the wife had gone to live with relations whilst her
husband was absent in New
Zealand
Republic v Reid
The two cases established that the current position is that though
spouses have the right to the others consortium, they cannot use extra judicial
means to enforce them. In one of the
cases the husband locked the wife in the house and refused anyone to see her the
cause was being difficult to live with.
In Nanda v. Nanda (1968)
The husband deserted the wife and went to live with another
woman. The woman installed herself in
the flat where they were living and refused to move. The husband applied for an injunction to
restrain the wife from moving to the flat where he was living with another
woman. In granting the injunction the
court stated that a wife or a husband cannot force a husband/wife to live with
a spouse who has rejected them. In other
words while the law recognises there is consortium, they cannot enforce it and
neither can one use extra judicial means to employ it.
The Matrimonial Causes Act provides for restitution of conjugal
rights but if the other party is not willing, no court can force an order for
restitution of conjugal rights. Where
consortium is lost, a husband cannot insist on conjugal rights. One cannot force an order for restitution of
conjugal rights if the other party is not willing. One has an option to go to court for divorce.
R V. Kadhi EX PARTE NASRREN (1973) E.A. 153
This case is important for the position that whatever system of
family law is applied, they must be constitutional or they are declared null
and void.
There are a number of other various rights that accrue from
consortium.
(a)
Right of the wife to use her
husband’s name; in the Kenyan case to acquire her husband citizenship. In Kenya
(b)
Both spouses have a duty to
cohabit together in their matrimonial home, however the decision as to where
that matrimonial home will be cannot be specifically made by a specific spouse
and it has to be a joint decision and this was the ruling in Dunn v. Dunn
(1949)98 in this case the husband
petitioned for divorce on the ground of desertion alleging that when he had
returned from working overseas (he was a sailor) he had requested his wife to
go and live with him at a sea port where he was stationed and that she had refused and persisted in her
refusal for his request. His argument
was that the husband has the right to decide where the spouses should live and
that by refusing to join him she was therefore guilty of desertion. It was held
that it is not a proposition of law, it is not the law that a husband has the
right to say where the matrimonial home should be. It is simply a matter of ordinary good sense
arising from the fact that the husband is usually the wage earner and has to
live near his place of work. It is the
duty of the spouses to decide by agreement as to what their matrimonial home
should be. Therefore the wife was not
guilty of desertion in this particular case.
The court is saying that it is not the law that the husband should
decide where they are going to live.
(c)
The spouses have the right to
sexual intercourse with one another and this plight commences with consummation
of marriage and continues even after the marriage has been consummated. Consummation is the act of sexual intercourse
after the celebration of the marriage.
However the right to sexual intercourse continues even after
consummation. However this does not mean
that a spouse should submit to unreasonable demands of sexual intercourse AB
V CD 28 K.L,R, 210 The court held
that the wife had the right to refuse to submit to unreasonable demands for
sexual intercourse. It amounts to
cruelty and can be a ground for divorce.
On the issue of marital rape, it has been held that a man cannot be
guilty of raping his wife unless they are separated or divorced. This is judicial separation. If a man insists on sexual intercourse when
they are judicially separated, he will be guilty of rape as was the case in R
v. Clarke also R v. Miller.
Is the use of contraceptives against the wishes of the other spouse a
contravention of marriage. It has been
held that it does not affect the right to sexual intercourse but it can however
give rise to divorce if it is shown to have injured the other party whether
emotionally or physically it can be cruelty.
Right to Matrimonial Confidence within the spouses.
This is the basis for privilege position of spouses in the law of
marriage. The law will protect any
matrimonial confidence that is entered into during the subsistence of
marriage. Even in the event of a
marriage break down the law will seek to protect a spouse from disclosure of
such confidences.
Argyll v. Argyll
(a)
Name/citizenship
(b)
Right to cohabit
(c)
Right to sexual intercourse
(d)
Matrimonial confidence all this
arise from the right of consortium.
2. RIGHT
OF MAINTENANCE:
Under common law, the obligation to support a
spouse applied to both spouses. Therefore a man was under an obligation to
support his wife and vice versa.
However this was modified by statutes whereby now under statue the wife
is the one who has the right to maintenance by her husband where she is
financially dependent of him and that scope of maintenance is in accordance
with the husband’s financial standing and his standard of living. The husband is also under a duty to maintain
his children during a marriage and even after a marriage. This maintenance arises under (a) the
Matrimonial Causes Act Sections 25 and 26 and under the subordinates Courts
Separation and Maintenance Act Section 10.
please note that the right to maintenance accrues during marriage and
even after the marriage has ended.
When claiming for maintenance the wife has to
indicate her needs and her children’s needs, her own income as well as her
husband’s income. There is no hard and
fast rule as to the amount of maintenance that a court may order, however there
are certain guidelines which apply.
In the case of Alimony Pendente tite which is
alimony or maintenance paid to a wife pending determination of a divorce
case. In those cases it is provided for
that that alimony may not exceed one fifth of the husband’s average net income
for the preceding 3 years. That is only
in relation to cases of alimony pending suit.
In other cases of maintenance the courts follow the common law
practice of awarding an amount that will make the wife’s income one third of
the aggregate income of both husband and wife.
This is just a guide offered and courts will depart from it where the
facts of a particular case warrant it.
Under section 32 of the matrimonial Causes Act the court can vary a
maintenance order where circumstances arise warranting that variation.
N v N (1973) KHD 40
In common law the right to maintenance stops as soon as cohabitation
ceases but under statutory law the right continues even after
cohabitation. Under customary law the
right to maintenance cease once cohabitation ceases.
OTHER SYSTEMS OF LAW INSOFAR AS MARRIAGE IS CONCERNED
1. MARRIAGE UNDER
CUSTOMARY LAW
There are different forms of marriages that exist under Customary
Law
(i)
A monogamous marriage which is
a marriage between one man and one woman;
(ii)
Polygamy – whereby a man can
celebrate marriage with many women at different times.
(iii)
Leviratic Marriages – these
arise where the husband predeceases the wife and a relative or brother of the
deceased husband assumes the role of the deceased. Any children born out of this union are
regarded as children of the deceased.
This is common among the Meru Kamba Kikuyu Kuria Kisii and Nandi tribes.
(iv)
Sororate Unions – where the
wife dies before the husband. Her family may offer her younger sister as
replacement and the younger sister assumes the role of the deceased wife. This may also arise where the family is
unable to return the bride price and offer their daughter as a substitute. Sorarate unions also take place where a wife
is not able to have children and she may invite her sister to come and get
married by the husband for the purpose of getting children this is common among
the Luo.
(v)
Widow Inheritance: - this is
where the husband predeceases the wife and the wife is inherited by one of the
husband’s brothers and for all purposes becomes his wife. It is different from the Leviratic in the
sense that any children born out of that union are regarded as children of the
brother and not children of the deceased.
Luo, Luhya Kalenjin tribes and the Masai.
(vi)
Woman to Woman marriages –
these arise where a woman is barren and she then marries another woman for the
sole purpose of having children and those children become the children of the
barren woman who is the husband in the relation. This marriage can take place whether the
husband of the barren woman is alive or dead.
If the husband is alive the other woman is allowed to have sexual
relations with the husband for the purpose of having children. Any children out of this relationship will be
regarded as the children of the barren woman.
Where the husband is dead she must select a man from the husband’s
family or leave the decision to the woman to select whom she wants to have
children with. This is common among the
Kisii, Taita and Kuria tribes.
(vii)
Forcible Marriages – These
arise in a family where there are only daughters and the last daughter is not
entitled to get married. She remains at
home to beget children especially male children with a man of her choice and
these children belong to her father’s family.
Nandis and Kipsigis practice this.
(viii)
Child Marriages – this is where
children are betrothed to each other when they are still young and dowry is
paid when they are still young and on reaching the age of maturity the bride is
then taken to her husband’s home. This
was normally done where prominent families wanted to see their friendship or
during times of famine. It was common
among the Kisii, Kuria, the Kalenjin tribes the Pokot and the Teso.
Can some of these forms be practised in the light of the Judicature
Act which is to the effect that customary law will apply insofar as it is not
repugnant to justice and morality like child marriages, widow inheritance can
be contested as well as the Leveratic unions.
During the colonial times Leviratic marriage arose during the
colonial times
Ocharo d/o Oigo v. Ombego Mogoi - is the first case in relation to custom
marriages
In this case the Applicant’s husband with whom she had one child
died in 1953 and upon his death the Applicant was inherited against her will by
the respondent who was a brother of her deceased husband. The union was an unhappy one and the
applicant then sought a divorce. The
Applicant’s father consented to the divorce and also to her marriage with
another man whom she claimed was the father of her second child. The father was also willing to repay the
bride price he had received from the deceased husband to the Respondent.
It was held that it was repugnant to natural justice to refuse a
divorce to a woman who had been inherited against her will. Custody of the child of her first marriage
was given to the Respondent but with regard to the second child the custody was
given to the Applicant.
CONDITIONS THAT APPLY WHEN CONTRACTING A CUSTOMARY LAW MARRIAGE.
1. Capacity:
Insofar as the age of the parties is concerned, the parties need not
be of a specific age. Under Customary
law what matters is not the age but whether the parties have gone through an
initiation ceremony. These initiation
ceremonies differ among the communities, for some communities initiation
ceremonies is circumcision and other communities have different initiation
ceremonies. The age will depend upon the
age when the initiation ceremony takes place ranging from 10 to 16 or 17 years.
Insofar as the marital state of marriage is concerned, for a man he
may be single or married since customary law allows for polygamy. However women are required to be single and
for most African communities, single here means unmarried, if you have been
married widowed or divorced you are not considered as single, under customary
law marriage is coincided with the marriage of the woman so that once you are
married you are considered forever married whether you are divorced or widowed.
Insofar as consent is concerned under customary law consent is
required both from the spouses and their families so that the families’ consent
is essential in a customary law marriage and there are stages and ways in which
this consent is given by the family.
However the parties must also consent to the marriage and this was
stated in
Mwagiru v. Mumbi
Omondi v. Chum Nyafula
In Mwagiru the Plaintiff sought a declaration that there was a valid
subsisting marriage between himself and the defendant under Kikuyu Customary
Law. The Defendant alleged that no such
marriage existed because she had not given her consent and had not even been
present at the essential ceremony. She
admitted that she had lived with the Plaintiff for a short time but claimed
that she had been forced into doing so by her father. And she also claimed that she had gone
through a civil marriage ceremony with another man after she escaped from the
Plaintiff and that she was in fact married to this man and not to the
Plaintiff.
It was held by the Court that the signifying of consent by the bride
is necessary at two ceremonies, which are vital in Kikuyu customary marriages
and on the evidence, the Defendant was not present and consenting at any of
these ceremonies and the Plaintiff had therefore failed to prove his case.
Finally insofar as capacity is concerned the parties should not
marry within the confined degrees of consanguinity and affinity but the degrees
differ from community to community and some communities will allow marriage
between blood relatives while others will not.
For example among the Luhya and Luo a man may marry his wife’s sister
even when the wife is still alive, a Teso may take over his father’s wife in a
polygamous household while in other communities this is a taboo. So the prohibited degrees vary from community
to community.
FORMALITIES IN A CUSTOMARY LAW MARRIAGE
1.
The parties have to undergo a
betrothal ceremony. And the nature of the ceremony depends on the customs of
the parties, for some communities it is a single event for others it is done in
stages. For some it is a simple ceremony
for others it is a very elaborate affair.
Essentially during the betrothal, the intention to get married is
expressed and an agreement to that marriage is secured. During the betrothal there may also be
exchange of gifts but this is distinguished from dowry. It is just an exchange of gifts.
2.
You have the payment of dowry
after the betrothal, for a customary law to be valid dowry must be paid and the
amount will differ among the communities.
For some it is a standard rate for others it is the prevailing
commercial rate. For example among the
Taveta they have a fixed dowry of one cow, three female goats, two bulls and a
home for the bride’s father. The Kisii
it depends on how educated the woman is and this determines the rate you
pay. It is also dependant on the
families involved where you find that if you marry from prominent families the
likelihood of paying a higher bride-price exists.
Amulan Ogwang v. Edward Ojok
Deals with bride price the ruling was that under Customary Law there
is no marriage until full bride price is paid and in this case the father was
entitled to pregnancy compensation because the man had made his daughter
pregnant while he had not paid the full bride price.
The institution of bride price has been criticised and cases are
also recognised that it may be subject to abuse however initially bride
price was paid as a token of mutual appreciation for the bride. It was a way of thanking the parents of the
girl for not only bringing up the girl but also for allowing the boy’s family
to take her away and it was also compensation in the sense that they were being
compensated for the progeny that would go to the boys family with the daughter.
Children are closely tied with the bride price and the return of bride price is
determined by who will have custody of the children.
Momanyi Nyaberi v. Onwonga Nyaboga
Onchoke vs. Kerebi
These cases deal with the issue of dowry and the courts did
recognise that this institution can be abused.
In Momanyi Nyaberi the Applicant applied for a declaration
that he was entitled to a woman and the children which he had with her. The woman had been married under Kisii
Customary law to the Respondent but could not get any children with him. And
under Kisii Customary Law any children which are gotten by a woman with a man
other than her husband belong to the husband and the husband refused to divorce
the wife insisting that she must stay with him and that the children are his.
It was held that the practice whereby a husband refuses to divorce
his wife on the grounds that bride price had not been repaid to him so as to
claim the children that she may have was an abuse of customary law and
repugnant to natural justice.
In Onchoke Kerebi similar facts .
in this case the husband was very forthright and he said that he was
claiming the children that his wife had with another man for the bride price
that he might expect to receive from the marriage of those children. Infact in this case the man said that he was
only interested in the children and not the wife so that he was the one to
receive the bride price for those children.
The final formality after payment of dowry is the celebration of the
marriage itself and under Customary Law this can be in 3 ways
1.
The marriage can be celebrated
through a formal ceremony according to the recognised practices and customs of
the community;
2.
Through cohabitation so that
once the parties start cohabiting the marriage is deemed to have been
celebrated
3.
by way of elopement or capture.
WHAT MATRIMONIAL RIGHTS AND DUTIES ARISE UNDER CUSTOMARY LAW
Normally both parties have the right to consortium however the
rights that arise from this consortium will vary between the husband and the
wife. On the part of the man, he has a duty to provide shelter for his wife and
children. The man must have a house.
Secondly the man is also the guardian of his wife and children. He is the one to sue or be sued on their
behalf and is the one who will represent them in any formal ceremonies. Hence the custom in customary law that wife
and children are to be seen and not to be heard.
The husband has the sole right to sexual intercourse with his wife
and can claim compensation from a man who commits adultery with his wife. The person who pays the compensation differs
from community to community, it could be the adulterer or the father of the
woman who commits the adultery.
Among the Maasai the husband may allow the wife to have sexual
intercourse with members of his age group but he reserves the right to object
to any member of that age group.
The husband has the duty to maintain his family and to ensure that
they have adequate food and clothing
Muli v. Githuka
The husband reserves the right to chastise his wife where she has
wronged him however excessive beating is not allowed in customary law. What is unjustified excessive beating? Can any beating ever be justified?
On the part of the wife her duties include cultivating any fields
given to her b y the husband.
Maintaining the household including preparing the food for her
family and bearing and looking after her children.
In the event of a divorce, the husband’s duty to maintain the wife
ceases because once the divorce, she returns to the parents and is now the
parents responsibility and no longer the husband’s.
MARRIAGE UNDER ISLAMIC LAW
There are 3 aspects to a marriage under Muslim Law
1.
Legal Aspect;
2.
Social Aspect;
3.
Religious Aspect.
Legally a Muslim marriage is a contract which provides for certain
requirements as regards consent and also provides for provisions for its
breach. One can enforce a Muslim
marriage judicially and it provides for specific terms.
The Social aspect of Muslim marriages is that they normally provide
for higher status to women in society and there are also restrictions placed in
Muslim marriages on polygamy in that word polygamy is allowed though limited to
a certain extent.
Insofar as the religious aspect is concerned, marriage in Muslim law
is considered to be a sacred covenant and it is said that the Prophet Mohammed
encouraged it.
There are 3 forms of marriages under Muslim Law and the
classification is based on their legality.
1. SAHIH MARRIAGE
(VALID)
This is basically a marriage which has conformed with all the laid
down requirements.
2. BATIL MARRIAGE
(VOID)
This is in fact a void marriage either by reason of some blood
relationship between the parties or some other incapacity to contract the
marriages. There are 2 consequences of
this marriage as in children born out of this marriage are considered
illegitimate and no mutual rights or obligations arise as between the parties
who are married.
3. FASID (IRREGULAR)
This is where either:
1.
No witnesses to that marriage.
2.
Woman was undergoing the period
of Iddat.
3.
Marriage is with a person from
a different religion.
4.
A man purports to marry a fifth
wife.
The effect of an irregular
marriage is that as between the parties it does not confer any rights; however
children born out of this union are considered legitimate.
Under Muslim Law marriages arising out of cohabitation are not
permitted. One has to comply with all
the requirements of marriage.
CONDITIONS RELATING TO CAPACITY
1.
Farties must be biologically a
man and a woman;
2.
The parties must have reached
the age of puberty;
3.
Insofar as marital status is
concerned, on the part of the man he can be single or married so long as he
marries only four wives and even so a man may not marry two wives at the same
time and can only marry one wife at a time and if he marries two wives at the same
time, the marriage is considered as being irregular. In the case of the woman, she has to be
single and single includes widowed or divorced.
Where she has been widowed or divorced, she has to wait for a period of
about 4 months before she can contract another marriage. This waiting period is what is known as the
‘Iddat’ period and its purpose is to determine whether or not she is expectant
before she can contract another marriage.
4.
Parties should not be within
prohibited degrees of consanguinity and affinity. These are not provided for under the Law and
the applicable law is the Mohammedan Law.
The Act provides that marriages should be contracted under the
Mohammedan Law and scholars on Muslim law have stated that under Islamic law, a
man may not marry his mother, grandmother, sister, niece, grandchild, aunt or
the ascendants or descendants of the wife.
Prohibition is not only on grounds of consanguinity but also of
affinity.
Mulla: Principles of Mohamedan Law
5.
Consent of the parties is very
important and in some instances consent of legal guardians may also be
required. Refer to the case of
Ockba v. Ockba (1957) E.A 675
In this particular case the Plaintiff was the father of the
Defendant and he sought a declaration that he was entitled to her guardianship
and custody until she was married. He
also sought an injunction to restrain her from marrying without his consent.
The Defendant wished to marry an Ethiopian who was a Christian. It was held that the Plaintiff was entitled
to the injunction restraining her from marrying without his consent and that
the proposed marriage would not only be invalid for lack of consent of the
father but also for the reason of the religion of the proposed bridegroom
because a Muslim woman cannot validly marry a non-Muslim man.
Mohammed v. Salim 6 KL.R 91
A woman should marry a man within her station in life or within the
same social status and this is because under Muslim law the husband is required
to maintain his wife according to the standards she is used to.
Bibi v. Bibi 8 E.A.L.R. 200
In this particular case the petitioner was seeking to have her
niece’s marriage on grounds that she had married a man of lower status and bad
character without the consent of her guardian.
The court granted her those prayers.
There are requirements as to the parties’ religion. Under some Muslim sects a Muslim man may
marry a non-muslim woman as long as the woman belongs to a religion which has a
divine or holy book. In some other sects
marriages between Muslims and none Muslims is not permitted at all however
among all Muslim sects a Muslim woman cannot get married to a non-Muslim man.
FORMALITIES TO CONTRACT A MUSLIM MARRIAGE
1.
An offer and acceptance must be
entered into by the parties or their guardians.
The following procedures should be met:
(a)
A declaration or offer firstly
made by one party and the other party must accept;
(b)
The words in the declaration or
offer must show a clear intention to contract a marriage;
(c)
This declaration and acceptance
should be made in the presence of sufficient witnesses;
(d)
The declaration and acceptance
should be made in one meeting or in the same meeting.
2.
The man is required to pay some
form of compensation known as ‘Mahir’.
This is payable to the wife and becomes part and parcel of her
Estate. Unlike dowry in African
customary law which is payable to the family Mahir is paid to the wife herself
and can be paid either before parties enter into conjugal cohabitation, during
the course of the marriage or even after the dissolution of the marriage. The
amount payable is not fixed however it will depend on the different Muslim
sects and it is normally fixed according to the social status of the wife’s
family.
3.
Registration: Under Section 9 of Mohamedan Marrriage and
Divorce Registration Act it is required that once a Muslim marriage has been
contracted, it should be registered within 7 days and this should be done at
the office of the registrar of Islamic marriages. The registrar must be satisfied before registering
the marriage as to the identity of the parties, the capacity of the parties and
that the marriage did actually take place.
Once the marriage has been registered the parties and two witnesses who
witnessed the marriage are required to sign the register. However Section 24 of the same Act says that
the fact that parties omit to register their marriage does not invalidate that
marriage and where marriage is invalid, registration will not validate it. Public Trustee v. Terro Vol. K.L.R 129
EFFECTS OF AN ISLAMIC MARRIAGE – RIGHTS &
DUTIES WHICH ARE BESTOWED
- Wife is
entitled to a dowry and she may choose to recover it if it is not paid in
full.
- The
husband is under a legal obligation to maintain his wife to the standards
that she is used to. Refer to Saliha
Binti Baraka v. Tiabit Bin Salim 2 E.A.L.R. 131 Saliha case deals with recovery of
dowry and the other one as to maintenance.
- Each
spouse has a right to the others consortium and to enforce performance of
the other spouses marital duties.
- The
husband has the right to restrain the wife’s activities and to exercise
marital authority over her and the children.
- Where the
man has married more than one wife Muslim Law obligates him to treat each
wife with kindness and equality.
HINDU MARRIAGES
These are governed by the Hindu Marriage and Divorce Act and
the first thing about Hindu Marriages is that they are strictly
monogamous. Until 1960 Hindu Marriages
were potentially polygamous but upon enactment of the Hindu Marriages and
Divorce Act it was expressly provided that after enactment of the Act Hindu
Marriages were to be monogamous and this is provided in Section 27 (2) of the
Hindu Marriage and Divorce Act which also provides that Hindu Marriages have
got the same definition as the definition within the Matrimonial Causes Act
which means that they must be strictly Monogamous Marriages. The Section to look at is Section 171 of the
Penal Code on Marriages that are contracted under the Act and that is the
Section relating to the offence of Bigamy.
Section 5 of the Act provides that Hindu marriages shall be
solemnised according to the customary rules and ceremonies of the party and
that Section thereby imports Hindu Customary Law into the celebration of Hindu
Marriages. There are two forms of marriages
under Hindu Customary Law
1.
Brahma Marriage: No marriage consideration is paid by the
bride’s father.
2.
Asura Marriage consideration is
paid by the bride’s father
In both marriages dowry is paid by the bride’s family.
CONDITIONS WHEN CONTRACTING A HINDU MARRIAGE
Insofar as capacity is concerned, it is provided for under Section 3
and 4 of the Hindu Marriage and Divorce Act which provides that
1.
firstly neither party should be
married to another person so both parties must be single and
2.
secondly the parties should be
of sound mind at the time of contracting the marriage and
3.
thirdly the man must have
attained the age of 18 years and the woman should be at least 16 years of
age. Where the woman is aged between 16
and 18, consent of her legal guardian is required.
4.
Fourthly the parties should not be within the
forbidden degrees of consanguinity and affinity. Section 3(2) of the Hindu Marriage and
Divorce Act lists the persons who are within prohibited degrees of
consanguinity.
5.
Fifthly consent where required
must be given and again Section 4 of the Act subsection lists down the
guardians who may give consent in order of priority where it is required.
FORMALITIES
The Act provides for two ceremonies which may be performed when a
Hindu marriage is being celebrated.
Section 5(2), (3)
1.
The Saptapadi ceremony: Under this ceremony the bride and the
bridegroom go round a sacred fire seven times and on the seventh round the
marriage is deemed to have been celebrated.
2.
The Anand Karaj ceremony: Here
parties go round their holy book known as the Granth Sahib four times and on
the fourth round the marriage is deemed to be complete and binding.
The Act also provides for registration of Hindu Marriages and the
issuance of a marriage certificate.
However it is also provided that non-registration will not invalidate a
marriage neither will registration validate an invalid marriage. This is provided for under Section 6 of the
Act.
MATRIMONIAL RIGHTS AND DUTIES OF HINDU MARRIAGES
They are generally that the parties have a right to consortium and
the right to consortium is similar to that that arises under statutory
law. The wife has a right to maintenance
in Section 7(2) of Hindu Marriage and Divorce Act applies the Matrimonial
Causes Act to marriages that are contracted under the Hindu Act. So by applying the Matrimonial Causes Act
means that the maintenance conditions under this Act will also apply to Hindu
Marriages.
Under Hindu Customary Law the wife has a duty to cohabit with her
husband and to submit herself to his authority.
So in many respect Hindu Marriages are similar to marriages under
statutory law.
NULL & VOID MARRIAGES
These are provided for under Section 14 of the Matrimonial Causes
Act so by reason of being in this Act means that they only apply to statutory
and Hindu marriages. Statutory marriages
because it is provided that marriages under this Act are those contracted under
the Marriage Act or Christian Marriages and Divorce Act.
Difference between nullity and
divorce
In effect when one goes to court to ask marriage to be declared null
and void you essentially saying that there was never a marriage but when you
seek divorce you acknowledge the marriage and seek to annul it. Grounds for nullity are different from
grounds for divorce.
GROUNDS OF NULLITY
1.
Where the husband is impotent
where the parties are physically incapable or consummating the marriage.
Consummation is the sexual intercourse between the parties after the marriage
is solemnised and in D.E. V. AG 163 E.R it was stated that in order to
amount to consummation the sexual intercourse must be ordinary and complete
sexual intercourse. In this case the wife had a physical deformity that made
full penetration impossible and it was held that this amounted to physical
incapacity to consummate the marriage and it was declared null and void.
Physical deformities which make consummation difficult must be those which
cannot be corrected. If they can be
corrected, courts are reluctant to declare such a marriage null and void. Refer to S. V. S (1956) P 1 .
The use of contraceptives will not affect a marriage and this was the
case in Cowen v. Cowen (1945) 2 II E.R. 1946
Baxter v. Baxter
The fact that a husband or wife is sterile
will not affect consummation of marriage
R V. R (1952) ITLR 1201
2.
Wilful refusal to consummate the
marriage: This is where a party refused
to consent to any sexual intercourse and that refusal must be steadfast and
determined.
S
V. S this case dealt with both physical incapacity as well as wilful
refusal to consummate. In this case the
consummation of the marriage was prevented by a physical defect in the wife
which was curable. The husband suggested
to the wife that she should consult a doctor but the wife delayed in consulting
the doctor.
The husband then petitioned for nullity of
the marriage on the grounds that of incapacity and wilful refusal to
consummate. Upon service of the petition
the wife expressed a willingness to undergo the necessary operation which she
underwent and which removed the defects.
It was held that the husband had not proved that failure of the wife to
see the doctor amounted to wilful refusal.
Her conduct was merely a state of indecision and mere neglect to comply
with the husband’s request was not necessarily the same as refusal.
The petition therefore failed on the ground
of wilful refusal and it also failed on the ground of incapacity on the ground
that consummation of the marriage was not practically impossible
especially since the result of the
operation was to remove any impediment in consummation. When it comes to wilful refusal, it need not
be contractual as it was stated in Jodla
v. Jodla and Kaur v. Singh.
The facts in both cases are very similar and
in both cases the husbands were supposed to organise on their marriage
ceremonies. In Jodla the marriage was
supposed to be a church ceremony while in Kaur it was a Hindu ceremony and in
both cases the husbands failed to organise for the ceremony as a result of
which the wives refused to consummate the marriages on religious grounds. It was held that wilful refusal was on the
part of the husbands and not on the wives because they had failed in a crucial
consummation exercise which was crucial.
DOCTRINE OF APPROBATION
What this doctrine provides is that where parties have stayed
together for a long time with this deformity or where they have accepted the
wilful refusal, then courts will not declare that marriage null and void on the
basis that the parties by staying so long together have assumed that deformity
and accepted it. Normally this period ranges between 10 and 20 years.
In Harthan v. Harthan (1948) 2 All E.R
The husband sought a declaration of nullity on a claim of his own
impotence and claimed that in their 20 years marriage he had been unable to
engage in any sexual intercourse and the court declined to grant him the decree
citing this doctrine of approbation.
G V. M (1885) 10 A.C. 71
3.
Where parties are related to
one another within the prohibited degrees of affinity and consanguinity.
4.
Where either spouse is married
to another person and that other marriage is still subsisting.
5.
Where the consent of the
parties was obtained through fraud or duress.
In Buckland v. Buckland - the petitioner was seeking nullity was
accused of defiling a girl of 15 years and although he was protesting his innocence,
he was advised that unless he married the girl he would go to prison. He
contracted the marriage and later filed for annulity on the grounds of consent
and the court granted him the petition.
6.
Where a party to a marriage is
at the time of contracting that marriage of unsound mind, drunk, insane or
suffers from epileptic fits, this will be a ground for nullity of that
marriage. This only affects the marriage
if it happens at the time of contracting the marriage. The grounds ensure that the parties are
capable of knowing what they are entering into.
7.
Mistake – however this will
only be a ground in two circumstances only
(a)
where the party relying on
mistake proves that he/she was mistaken as to the identity of the other
party. i.e. he/she did not marry the
person they intended to marry. This is
usually difficult to prove when the person you are marrying is in front of you
and only happens where marriages by proxy or mail order are allowed. In Singh v. Singh the woman married
the man on the mistaken belief that he was a famous boxer. The man shared a name with the famous boxer
and even told her that he had won various championships. She petitioned for divorce on grounds of mistake
but the court held that she had married the man that she intended to marry and
was only mistaken as to his qualifications.
(b)
Where a party is mistaken as to
the nature of the ceremony and do not appreciate that he/she is contracting a
marriage. This was the case in Kelly
v. Kelly, Mehta v. Mehta in Mehta a woman got in into a marriage thinking
that she was celebrating becoming a Hindu but she was later to discover that
she had gotten married to a potentially polygamous marriage and she petitioned
for divorce.
8.
Where a spouse is suffering
from a venereal disease in a communicable form:
9.
If at the time of contracting
the marriage the woman is pregnant by some other person other than her
husband. Poulet Peerage Case - the wife was three months pregnant at the
time of contracting the marriage and the husband gave evidence that he had not
had any sexual intercourse with her before the marriage and was granted a
petition for nullity on this ground.
Sometimes the issue arises with issue to nullity about what are sham
marriages and whether these marriages are null and void. Sham marriages are those where parties enter
into a marriage merely for purposes of representing themselves as married but
have no intention of cohabiting. This
are normally conducted for purposes of acquiring citizenship and acquiring jobs
or just to legitimise children. It has
been held that such a marriage is perfectly valid provided the parties have
freely consented to it. This was the
ruling in Silver v. Silver (1955)
in this particular case a German woman married an English man so that
she could be allowed to reside in England England
In such cases the option available in sham marriages is divorce.
VERVAEK V. SMITH (1983) 1 A.C. 45 the
marriage was entered into to avoid a wife being deported (she was a prostitute)
from England
Szechter v. Szechter (1971) P. 286 - in this particular one the marriage was
declared null and void on the ground that the parties had not consented. They had entered into the marriage out of
fear that the woman would be killed.
This was a marriage which was not really consented to by the parties.
Rosemary Moraa v. Charles Kizito
The woman in this case entered into a marriage for purposes of
legitimising a child and cohabited with another man. It was held that the later marriage was a
legal marriage, the one arising out of cohabitation.
EFFECTS OF A DECREE OF NULLITY
At common law that marriage had some fatal consequences. Where marriage was declared void any children
of that marriage were declared to be illegitimate and no legal consequences
could flow from that relationship e.g man was under no obligation to maintain
the wife or children born of that relationship and neither could they inherit
from his estate. However this position
was changed by statutory law both in England
and in Kenya
Note that there is a proviso under Section 14 that a marriage will
still remain void if under the law it is void irrespective of the fact that a
decree of nullity has not been granted.
The fact that somebody does not go to court to declare the marriage null
and void, it still remains void.
In the case where ground for nullity is either that at the time of
contracting the parties were of unsound mind or where the ground is that one of
the party’s was suffering from a venereal disease or that the woman was
pregnant. In those 3 grounds, there are certain conditions which must be proved
by the petitioner.
1.
The petitioner has to show that
at the time of contracting the marriage, he/she was ignorant of the facts
alleged;
2.
The proceedings must be
instituted within one year of the marriage being contracted.
3.
The petitioner must show that
no sexual intercourse has taken place between the parties after the petitioner
discovers the existences of those facts he alleges.
RECOGNITION OF FOREIGN MARRIAGES
A marriage will have a connection with a foreign law in a number of
ways
1.
It may have been celebrated
abroad but the issue of validity arises in a Kenyan court or
2.
One or both parties to the
marriage may be domiciled or resident in a foreign country;
The question which arises on the validity of these marriages is
which law will determine whether a valid marriage has been contracted? Is it Kenyan law or is it some foreign law?
The applicable law for purposes of determining the validity of such
a foreign marriage (marriage with links with foreign Law) is dependant on two
aspects
(i)
Formal validity of that
marriage;
(j)
Essential validity of the
marriage.
Generally the law governing the formal validity of that marriage
will be the law of the country where the marriage was celebrated. This is known as the Lex Loci Celebrationis.
When it comes to essential validity as in issues related to
capacity, the law that governs is the law of the parties domicile – lex
domicili
So for a foreign marriage to be valid in Kenya it must comply with
the formal requirements under the laws of the country where it was celebrated
and must fulfil the issues as to capacity and the law of the parties domicile
and if it is formally and essentially valid under the applicable laws then it
will be applicable in Kenya.
FORMAL VALIDITY
Here so long as the parties comply with the formal requirements of
the law of the place of celebration then that marriage will be recognised as
formally valid in Kenya
Simonin v. Mallac
In this case the parties came to England
to get married so that they could escape the condition as to parental consent
which prevailed in France England
Berthiaume v. Dastous [1930]
In this case the spouses were domiciled in Canada and they were married in a Roman Catholic
Church in France
The court held that that marriage was void even though under the law
of Quebec
FORMAL VALIDITY
This refers to the rules that relate to formalities of contracting a
marriage. This will normally be rules
relating to the preliminaries to marriage e.g. requirements as to notice and so
forth. Also rules relating to the actual
ceremony act itself such as time, place, nature of the ceremony, requirements
as to witnesses and in Apt v. Apt a rule which permitted marriage by way
of proxy was classified as a formality and such a marriage in a country where
marriages by proxy are permitted was held to be valid and recognised by the
English Courts. The marriage took place
in a country where they permitted marriages by proxy.
EXCEPTIONS THAT APPLY TO THE RULE THAT FORMAL VALIDITY IS GOVERNED
BY THE LAW OF THE PLACE WHERE THE MARRIAGE TOOK PLACE
Under statute the marriage Act under S. 5(2) and S.38A(which is an
amendment) under these two sections,
marriages can be contracted under Kenyan law before a Kenyan consular or other
public officer in any foreign country where at least one party to that wedding
is a Kenyan citizen. Essentially they
are saying that where Kenyans marry in Kenyan embassy the applicable rule will
be the Kenyan law. Such marriages must
be solemnised at the official residence of the marriage officer between the
hours of 8 am and 6pm and in the presence of two or more witnesses. Once it has
been contracted that marriage will be formally valid in Kenya
The two common goal exceptions are
1.
Marriages in situations where
compliance with the local law is impossible for example when you get married in
a place where no laws apply or in an uninhabited region.
2.
Where the marriage occurs in a
country under hostile occupation and at least one of the parties to that
marriage is a member of the occupying forces.
In these two exception the law that will then apply is the common
law as to formalities of marriage. That
marriage will be valid so long as the formal requirements under common law are
met.
1.
they should take each other as
man and wife in the presence of each other and that an ordained priest should
perform the ceremony.
Preston v. Preston
Taczanowska v. Taczanowski
Two Polish nationals, domiciled in Poland
were married in Italy Italy
The parties moved to England
ESSENTIAL VALIDITY
This is concerned with issues of capacity and the applicable law is
the law of the parties domicile. The
problem that arises to the application of this rule is what test is to be
applied to determine the parties’ domicile.
You may find parties domiciled in different countries at the time of
contracting the marriage or they may even intend to acquire a different
domicile after they get married. So
which law applies.
The traditional theory which has been used is the dual domicile
test. Under this theory it is stated
that capacity to marry will be governed by the law of the parties and
ante-nuptial domicile i.e. each party must have capacity according to the law
of his/her domicile at the time of the ceremony to marry. This has been applied in a number of cases
Pugh v. Pugh
A British officer, domiciled in England
but stationed in Austria ,
married a Hungarian girl in Austria Austria
By Austrian law the marriage was valid, and by Hungarian law it had
become valid in that it had not been avoided before she had attained the age of
seventeen.
The wife submitted that the marriage was void for want of capacity,
first because the husband was a British subject with an English domicil and
therefore bound by the 1929 Act.
Secondly and alternatively because the essential validity of the
marriage was determinable by English law as being either the law of he
husband’s domicil or the law of the country of the proposed matrimonial
home. Pearce J granted a decree of
nullity, holding that the wife was entitled to succeed on both submissions.
Republic v. Brentwood Registrar of
Marriages
Intended Matrimonial Home Test
Under this test parties should have capacity to marry as determined
by the law of their intended matrimonial domicile. This test has been criticised mainly because
it tends to invalidate marriages such that if parties don’t have capacity,
still the marriage will be declared null and void.
While it has been supported by social grounds
Cases which apply to the test include
De Reneville v. De Reneville
Kenward v. Kenward
Radwani v. Radwani
Cheni v. Cheni – prohibited degrees of
relationships.
Mohamed v. Knott (1969) 1 Q.B - it can apply to us in Kenya England with the bride and the marriage was
recognised in England
The Sinha Peerage Case
Mohammed v. Knott.
Three exceptions to this rule on essential validity
1.
The rule in Sottomayor v. De
Barros – this case decided which was an exception that the validity of a
marriage celebrated in England between persons of whom one has an English and
the other a foreign domicile is not affected by any incapacity which though
existing under the law of such foreign domicile does not exist under English
law.(Kenyan Law). This exception was a way
of going round the test of dual domicile test.
In Sottomayer the wife and husband were first cousins the husband in England and wife in Portugal Portugal
but allowed in the UK UK
2.
Where the law of the place of
celebration is also the law where that issue as to validity is being
heard. It is the law of forum deciding
the issue of validity. In that case one
applies the law of the place of celebration to determine issues of essential
validity. That is because if you apply
another law you will be asking a forum to apply law which is inconsistent with
its own laws. Remember if the Lex fori
is the same as Lex loci celebrationiis.
3.
If the foreign domicile law
that governs the issue of capacity is repugnant to public policy, it will not
be recognised. Therefore courts will not
recognise a foreign incapacity which is of a penal or discriminatory
nature. For example incapacity which is
based on grounds of race, religion or any other classification which
discriminates or penalises a particular section of the population.
Chetti v. Chett (1909) P 67
DIVORCE CONTINUED
BARS TO DIVORCE UNDER STATUTORY LAW
The petitioner has to prove that he has not connived with the
commission of matrimonial offence.
There are two bars to divorce if proved to exist divorce will not be
granted.
1.
Absolute Bars
2.
Discretionary Bars.
ABSOLUTE BARS
If an absolute bar is found to exist then the court has no choice
but to refuse to grant the divorce where a discretionary bar is proved the
court may or may not grant the petition.
1.
Connivance is the first
absolute bar – connivance is where the adultery of one spouse has been caused
or has been knowingly or recklessly permitted by the other spouse. In such case the other spouse is an accessory
to the adultery. If the court is
satisfied of the evidence that the petitioner has been an accessory or has
connived at the adultery then it has to dismiss the petition. The principles as to what constitutes
connivance were laid down in Churchman v. Churchman (1945) P 44 it was
stated as follows:
It is the essence of connivance that it
precedes the event and generally speaking the material event is the inception
of the adultery and not its reputation although connivance at the continuous of
an adulterous association may show that the party conniving must be taken to
have done so at the first. In this case
it was stated that the material event is the inception of the adultery, that is when the petitioner first knew of the
adulterous association, he must have connived for the adultery to happen.
Godfrey V. Godfrey & Wall (1965)
In this case the court held that a husband
petitioner was guilty of connivance at his wife’s adultery. The wife told the husband that she was going
to live with the co-respondent i.e. Wall.
The co-respondent then came to stay at the matrimonial home. The husband one day after a drink or two came
home and found the wife and co-respondent embracing each other. He then told them
“if you two want to go to bed together then
why the hell don’t you”
which
is exactly what the wife and Wall proceeded to do. The next day the petitioner turned the
co-respondent out and chased him out of the home but the wife and the
co-respondent continued with the association and eventually the wife moved out
to live with the co-respondent. When the
husband petitioned for divorce on grounds of adultery the court in refusing to
grant him the decree held that he had not shown that his initial connivance was
not the effective cause of the subsequent adultery.
2. Condonation: This is
the forgiveness of a marital offence and reconciliation between the parties
with full knowledge of all the material circumstances. Under Section 10(3) adultery shall not be
deemed to have been condoned unless and until conjugal cohabitation shall have
resumed.
Henderson v. Henderson the court stated that where
the wife had committed adultery, the essence of condonation is that the husband
with the knowledge of the wife’s offence should forgive her and should confirm
his forgiveness by reinstating her as his wife.
The issue is whether this re-instatement included sexual intercourse or
conjugal cohabitation as provided for under Section 10 (3) and in this
particular case at the time the matter was in court, such intercourse had not
taken place. However the court pointed
out the decision in Cramp v. Cramp (1920) P. 158 the decision in this case was that a husband
who has sexual intercourse with his wife after knowledge of her adultery must
be conclusively presumed to have condoned the offence. Mere forgiveness does not amount to
condonation. For condonation to exist
the forgiveness must be followed by cohabitation and the restoring of the
offending party to their former position as husband or wife. Crocker v. Crocker (1921) P. 25
where a soldier who was serving overseas during the war wrote to his wife
offering to forgive her for having committed adultery when he was away. The wife accepted the offer but on his return
home he changed his mind and petitioned for divorce. It was held that there was no condonation
because there was no reinstatement.
Commission of a further marital offence will revive
condoned adultery or cruelty. That is
where the respondent has committed adultery and cruelty which is condoned by
the petitioner if the respondent commits another offence then the condoned
offence will revive and the petitioner will be entitled to a divorce on the
ground of the condoned act. Beard v.
Beard (1945) 2 All ER and Bertram
v. Bertram (1944) P. 59
3. COLLUSION: This
is the presenting of a divorce petition by way of a bargain or agreement
between the parties. The reason why this
is a bar to divorce is that true facts will be hidden from the court and in
some case marital offence will be procured or pretended for the purposes of
securing a divorce. Churchward v.
Churchward the petitioner declined to divorce his wife who wanted to marry
the co-respondent until she had made a settlement in favour of the children of
the marriage and she agreed to do so since she wanted to be released from the
marriage, deposited some amount and the petitioner then filed his
petition. It was held that this amounted
to collusion.
DISCRETIONARY BARS
1. Unreasonable Delay: Delay that is unexplained may be
fatal to a petitioner’s relief and in Johnson v. Johnson (1903) it was
stated that the reason why courts insist on steps being taken promptly are that
it is a terrible thing that people should go around and about neither married
nor unmarried possibly liable to contract fresh and illegal matrimony and
certainly exposed to the temptation to commit adultery. The court is saying that once a marital
offence has been committed then parties are in a state of limbo, they do not
discharge their usual marital obligations and the temptation to commit adultery
is there and that is why the court wants them to take steps promptly. In this case the fact that the respondent
wife had become insane and had been in an asylum for many years and that the
husband had been expecting release by her death was held to be a sufficient
answer to a plea of unreasonable delay.
In this case the wife just simply refused to die.
In Binney v. Binney the husband took no steps for divorce until
his wife had been living with another man for 20 years and even so only
petitioned for the purpose of freeing himself to marry another woman. It was held that there had been culpable
delay and the petition was dismissed.
2. Conducing Conduct: This
is conduct which conduces the commission of a marital offence. Therefore cruelty, neglect, desertion or
other misconduct towards a spouse who afterwards as a result commits a marital
offence may bar the petitioner from obtaining a divorce. Lander v. Lander (1890) and Dixon v. Dixon
3. Petitioner’s own Adultery: This
receives some special treatment because in most cases the petitioner’s own
adultery is a consequence of the respondent’s conduct therefore the courts will
look at the circumstances to gauge whether that adultery will bar the
petitioner’s petition. In Blunt v.
Blunt the court laid down the considerations that will be taken into
account in exercising its discretion when a petitioner is guilty of adultery as
follows:
(a)
The position and interest of
any children of the marriage;
(b)
The question whether if the
marriage is not dissolved there is a prospect of reconciliation between husband
and wife;
(c)
The interest of the petitioner
and in particular the interests that the petitioner should be able to remarry
and live respectably;
(d)
The interests of the party with
whom the petitioner has been guilty of misconduct with special regard to the
prospects of future marriage;
(e)
The interests of the community
at large to be judged by maintaining a balance between the sanctity of marriage
and maintenance of a union which has utterly broken down.
Under Rule 28 of the Matrimonial Causes rules the
And a full statement of the facts upon which the petitioner relies
for the exercise of the court’s discretion should also be lodged in court with
the petition. Once the petitioner has
proved his ground for divorce and none of the bars has been proved then the
court should grant the divorce decree.
Under Section 15 of the MCA every decree for divorce is in
the first instance a decree nisi which is not to be made absolute until after
the expiration of six months after the pronouncement of the decree. However an application can be made to
expedite the decree absolute within a shorter time when reasonable grounds are
shown. For example where it is shown
that a child will be born illegitimate or for purposes of making financial
provisions for children of the marriage.
The main reason why we have an intervening period of 6 months is to
enable unsuccessful respondents to appeal against the granting of the decree
nisi or for any other person to intervene to show cause why the decree should
not be made absolute.
As soon as the decree nisi is made absolute either spouse is then
free to remarry which is not the case under the decree nisi and under Section
16 of MCA if a party remarries before a decree nisi is made absolute, then that
marriage will be void.
DIVORCE UNDER HINDU LAW
Divorce under Hindu law is basically as provided for under the
Matrimonial Causes Act and all that is stated will apply to Hindu.
Section 10 of the Hindu Marriage and Divorce Act and the grounds for
divorce are
1.
Adultery;
2.
Cruelty;
3.
Desertion for a period of 3
years;
4.
Unsoundness of mind where the Respondent has
been under medical care for a period of five years
5.
Where husband is guilty of
bestiality sodomy or rape
Consideration that will avail for all these grounds are the same as
under statutory law. there are other
grounds for divorce under Hindu Law
1.
Where the Respondent has ceased
to be a Hindu;
2.
Where the Respondent joins a
religious order which requires him/her to renounce the world and remains in
that position for a period of at least 3 years.
Monasteries, Hermits and so on.
3.
Where there is a decree of
judicial separation and the decree has been in force for a period of 2 years
and the parties have not resumed cohabitation.
4.
Where the husband is married to
another woman at the time of celebration of the marriage. This can be both for annulity of a marriage
and divorce as well.
DIVORCE UNDER ISLAMIC LAW
There are two forms of divorce under Islamic Law
1.
Extra Judicial Divorces
2.
Judicial Divorces.
Extra Judicial Divorce: There
has been misconception about this form of divorce with some people feeling that
it is very easy to divorce extra judicially under Islamic Law. however under
Islamic Law divorce is discouraged and will only be allowed if the conditions
are grave and weighty and even so divorce will be the last resort and
reconciliation between the parties is encouraged. This reconciliation is provided for and where
the conflict originates from the wife, her husband has the right to judge her,
consider the wrong she has committed and make a decision. The husband is also supposed to guide her and
show her that what she has done is wrong, and that she should not repeat
it. If she repeats her actions, he may
then resort to disciplinary action which is in 3 phases,
1.
He may start by kind
exhortations or reprimands where he denies her a few necessities;
2.
He may then withdraw from the
matrimonial bed however this should be of a temporary nature; and if this fails
3.
He may undertake some symbolic
beating but this should not be severe.
At this stage he has the right to abstain from sex until the wife
reforms.
When in conflict from the husband, the wife has to try and make
peace with the husband and try to settle their differences. If all these fail two arbitrators from both
sides are appointed to review the situation and to try and settle the
dispute. It is only after this that the
parties can then resort to divorce if the arbitration fails.
There are a number of extra judicial divorces that the parties can
undertake
1.
Talak which is dissolution of
the marriage by the unilateral acts of the husband; there are certain conditions to be fulfilled
in order to make this divorce complete and valid
a.
The husband must be of age;
b.
He must be seen conscious alert
and should not be angry;
c.
He should not be intoxicated;
d.
He should be free from external
pressures;
e.
His intention to terminate the
marriage must be clear.
On the part of the wife
a.
She should be of age;
b.
Must be in a healthy state of
mind;
c.
Must be in a state of purity by
which is meant that she should not have had any sexual relations with her
husband and should not be menstruating.
If these conditions are met, the husband may then pronounce the
first talak, either in written or oral form and by talak he merely says I
divorce thee’. He may revoke this
pronouncement, forgive his wife and they may resume conjugal cohabitation. If however 40 days have passed and the
husband has not revoked his pronouncement and the conditions the he stated
still applied, he may then pronounce the second talak, he still has the option
of revoking this pronouncement but if he does not and 40 days elapse and the
conditions remaining constant he may then pronounce the 3rd
talak. The effect of the 3rd
talak is to make the divorce complete and valid and the wife has the option of
remarrying. All the time that the talaks
are being pronounced she is still in the matrimonial home.
Before the wife remarries she has to wait for the period of 4 months
or Iddat period and she cannot remarry her ex husband until she has been
married by another man or divorced or widowed.
This condition is there so as to ensure that the husbands do not divorce
their wives recklessly.
2.
Ila Divorce: this is a form of constructive divorce which
is effected by abstinence from sexual
relations for a period of not less than 4 months. If reconciliation is impossible then the
marriage is dissolved.
3.
Zihar – this divorce arises
where the husband continuously compares his wife with another female or his
mother and the wife may refuse to have
any sexual intercourse with him unless he changes and if this fails the
marriage is deemed to have been dissolved.
4.
Lian Divorce: this is where a husband suspects that his
wife is committing adultery but does not have any evidence. He then testifies or swears that he is
telling the truth and he does so four times and on the fifth times he swears
that he be cursed if he is lying. The
wife on the other hand swears four times that she is telling the truth and the
fifth time that she be cursed if she is lying and after this the marriage is
dissolved.
5.
Khula: initiated by the wife if she feels that she
is unhappy with the marriage, she then returns the mahil to the husband and any
other marriage gifts that he had given her and the divorce will only be valid
where the husband grants her the divorce although he may waive the need for her
to return the compensation.
6.
Mubarat; divorce by mutual agreement where both
parties desire the divorce. It can be
initiated by either party and the wife loses any right she had to her dowry but
the husband remains liable to maintain the children.
7.
Apostasy: where either spouse abandons the Islamic
religion.
Section 3 of the Mohamedan Marriage and Divorce Act grants the High Court the jurisdiction to a hear and determine
matrimonial causes under Islamic Law where the Petitioner is resident in
Kenya. Kadhi’s courts can also hear and
determine matrimonial causes where both parties are Muslims. Both Acts do not provide the grounds for
divorce but refer to the principles of Islamic Law and under Islamic Law,
according to scholars grounds for divorce include
a.
Desertion by the husband for a
period of 5 years;
b.
Failure of the husband to
provide maintenance for a period of two years;
c.
Imprisonment of the husband for
a period of 7 years.
d.
Failure of either spouse to
perform marital obligations.
e.
Where the husband is either
insane, cruel, impotent, suffering from leprosy or a venereal disease or where
he is captured by war enemies.
f.
In cases of extreme or severe
poverty.
Under Judicial divorce, when the divorce has been pronounced by
court, both spouses are required to register under the Mohamedan Marriage and
Divorce Registration act and this should be done within 7 days of the
pronouncement of the divorce. However
failure to register will not invalidate a valid divorce or vice versa.
DIVORCE UNDER CUSTOMARY LAW
Divorce under Customary law can be both judicial or extra judicial
and just like Islamic Law before the parties are divorced there is a
reconciliation process whereby the elders seek to reconcile the parties. It is only after reconciliation has failed
that the elders may dissolve the marriage.
Not all Kenyan communities practice divorce. There are some communities that do not recognise
divorce at all for example the Kuria community to a certain extent the Kisii
community as well.
EXTRA JUDICIAL DIVORCE
This may be initiated by the Husband or the wife or even by the
wife’s family. The husband initiates it
by chasing away his wife by telling her to return to her parents home. He is also required to inform her parents
that he intends to be separated or divorced from their daughter.
The wife may also initiate divorce by voluntarily leaving her
husband’s home and returning to her parents while the wife’s family can also
initiate divorce especially where the husband has refused to pay the full bride
price and they go and get their daughter.
Under customary law, return of the bride prices symbolises a valid
divorce but this will depend on whether there are any children of that
marriage. If the husband retains custody
of the children no refund of the bride price is due. Where the mother seeks to retain custody of
the children, then the bride price returned will depend on the number and
gender of the children.
Where the wife initiates the divorce, the full bride price is
due. And among some communities where
the husband has initiated the divorce and the wife remarries then her new
husband refunds him the bride price.
In order for the elders to dissolve a marriage, they have to be
satisfied that certain factors have taken place which are sufficient enough for
a party to seek divorce. This include
1.
Refusal to have sexual
relations for no good reasons;
2.
Witchcraft;
3.
Wilful desertion;
4.
Habitual theft;
5.
Incest;
6.
Excessive physical cruelty;
7.
Failure of the husband to
maintain his wife and children
8.
Adultery on the part of the
wife
9.
Impotence on the part of the
husband although some communities allow an impotent man to allow his close
relatives or friends to have sexual relations with his wife (barrenness of the
wife is not a ground for divorce this is because African Customary Law allows
for polygamy)
JUDICIAL DIVORCES
A Judicial divorce will only take place where a party has refused to
comply with an extra judicial divorce e.g. where the husband refused to accept
return of the bride price or where the wife refuses to leave her matrimonial
home.
All the grounds listed in the extra judicial will be used and under
Section 9 of the Magistrates Court Act
the court is entitled to hear claims arising out of marriage or divorce
under customary law and the courts are required to determine the cases before
them in accordance with the Customary Law of the parties. Normally the courts will insist on reconciliation
procedures and it is only after prove that reconciliation has failed will the
courts proceed to hear the divorce and grant it.
Divorce Cases arising under Customary Law in Cotran’s Book
1.
Leonita Salume V. Captan
Nyongesa
It was claimed that the husband had failed to maintain the wife and
the children. In
Isaiya Bedi vs. Ether Munyasia
The claim was the wife’s cruelty and the husband brought evidence to
show that the wife had arranged for members of the public to give him a
thorough beating and on top of that she had borne a child with another man.
Okutoyi v. Nyongesa
Habitual theft of chicken.
The wife stated that in addition to the husband being cruel every time
he came home with chicken which had been unlawfully obtained.
MATRIMONIAL PROPERTY RIGHTS
We are concerned with the rights that spouses have over property
that they acquire before, during and on the break down of marriage. We are not concerned with the property rights
on the death of a spouse this is for the Law of Succession.
There are two systems which obtain on matrimonial property rights
1. Community of
Property;
this is based on the assumption that marriage is an equal
partnership which has both a social as well as an economic dimension and that
system recognises that each party to the marriage performs an important role in
that social and economic unit even though their roles may be far in type or in
quality. This system assumes an equality
in matrimonial property with each party having an equal right to the assets of
the marriage. In a pure community of
interest system, legal ownership of the matrimonial asset is joint from the
time of cohabitation or marriage. Therefore
under the pure community of interest approach at the celebration of the
marriage all the properties that are owned by either spouse are pooled together
and deemed to be jointly owned and this
will include any property that was owned before the marriage by the spouses.
In some legal systems you have a deferred community of property
approach and the joint ownership of property is deferr3ed until the
relationship breaksdown. Therefore under
this approach during the currency of the marriage either spouse may own their
own property and use it in any manner that they wish or dispose of it but in
the event of the marriage breakdown all the property they own is then put
together and deemed to be joint property.
In the community of property system in the event of the marriage
breaking down entitlement to that property is regarded as an incident of
marriage , it is regarded as one of those facts arising out of the marriage
itself and that property is then divided equally between the spouses.
This system is common in civil law countries, it is also practised
in south African countries like Lesotho
and Botswana
THE SEPARATE OWNERSHIP APPROACH
This approach presupposes that during the subsistence of the
marriage, either spouse may own separate property. However this has not always been the case in
the common law tradition and in fact under common law husband and wife were
regarded as one (doctrine of unity under common law).
According to Lord Denning the common law regarded husband and wife
as one and the husband was that one.
This was in a case of William & Glyns Bank vs. Boland (1979) Ch.
In the 18th and 19th century England Kenya
However, the paradox was that this system of separate ownership
which was created to protect married women’s rights became a serious injustice
especially when determining matrimonial property rights during marriage
breakdown. At the system of separation
failed to deal adequately with the economic realities of married life and this
is because this system insists that entitlement to matrimonial property be
based on evidence of contribution to the acquisition of that property. Given the different roles of husband and wife
in married life, it meant that especially women’s or wives roles were not
legally recognised ie. Their roles in contributing to acquisition of
matrimonial property. It therefore had
the fatal disadvantage of not giving recognition to a wife’s contribution by
way of her services in the home as opposed to those of the husband as the bread
winner.
Basically this is because contribution that was required to be shown
had to be direct or financial contribution and not indirect contribution.
How have courts responded to matrimonial property rights
There are two main ways that courts have used
1.
Married Women’s Property Act;
2.
Presuming certain equitable
interests in the matrimonial property
Section 17 of the MWPA this section
provides that in any question between husband and wife as to the title to or
possession of property either party may apply for an order to the court and the
Judge may make such order with respect to the property in dispute as he thinks
fit. It was at one time thought that the
power given to a judge in this section to make such orders as he thinks fit
provided statutory justification for doing what was thought to be just between
the parties without having regard to the technicalities of property law.
However this changed in 1965 before 1965 courts would rely on
section 17 to vary property rights in matrimonial property but after 1965 in
the National Provincial Bank v. Ainsworth the House of Lords was of the opinion that
Section 17 only provides a method or a summary procedure for determining
proprietary rights between spouses but the courts cannot vary those rights
using Section 17, courts cannot confer rights which were previously not
there. In this case the husband had
deserted the wife and it was conceded that she had a right to be provided with
housing by her husband under what was known as the deserted wife’s equity. It was also conceded that she could have
obtained an injunction from the court to stop the husband from interfering with
her rights to housing. However, the
husband had mortgaged the house without her knowledge and he subsequently
became insolvent. The House of Lords
held that her right to housing was not a proprietary right within the meaning
of section 17 and therefore was incapable of binding the bank to whom the house
had been mortgaged. In other words the
wife was relying on section 17 to fight the bank interst in the house but it
was held that her rights could not qualify.
This was followed in later cases
Gissing v. Gissing
Pettit v Pettit
Falconer v. Falconer
Heseltine v. Heseltine
IN Pettit v Pettit the wife purchased the matrimonial home and it
was regisgtered in her name alone.
During the cause of the marriage the husband during his free time
undertook to decorate the home and due to this decorations the value of the
house increased. On the marriage
breakdown the husband claimed an interest in that property under Section 17 of
the MWPA. The court held that despite
the fact that he had decorated the house which led to an increase in its value
this did not confer upon him a beneficial interest in that house and this is
because it had no jurisdiction to vary the title of the House under Section 17.
Lord Reid stated as follows the meaning of he Section (17) cannot have
altered since it was passed in 1882. at
that time the uncertainty and security of rights in property were generally regarded as of paramount
importance and I find it incredible that any parliament of that era could have
intended to put a spouse’s property at the hazard of he unfettered discretion
of a Judge if the other spouse raised a dispute about it.
In other words he was stating the position that courts could not
vary property rights under Section 17.
As a result of this the law in England was changed in 1970 under the
Proceedings under the Matrimonial Property and Proceedings Act of 1970 under Section 37 it is provided that where a
husband or wife contributes in money or money’s worth to the improvement of
real or personal property in which either or both of them have a beneficial
interest the husband or wife so contributing shall if the contribution is of a
substantial nature be treated as having then acquired by virtue of his/her
contribution a share or an enlarged share as the case may be in that beneficial
interest. The important thing is that
this section recognises indirect contributions to the property.
Kenyan courts in response to the inequity caused by this approach is
that they have been able to interpret section 17 to enable them control the way
that property is used without departing from the principle that they cannot
alter title. They have been able to give
orders as to the way the property is to be used without necessarily altering
title. In most cases they have ordered
that the property be sold and directed on how the proceeds of the sales are to
be divided. The court’s position has
evolved over time in Kenya
Section 17 was first substantively disccused in Karanja v.
Karanja. In this case the wife brought
an action under section 17 and she alleged that she had made financial
contributions towards the purchasing of the matrimonial property. Tehj husband on the other hand maintained
that even if that was the case under Kikuyu Customary law a woman was not
permitted to own property and therefore his wife’s claim could not stand. The couple had married under the African
Christian Marriage and Divorce Act and throughout the cause of the marriage the
wife made substantial contributions to the running of the household. She also assisted her husband in paying
school fees for the children and at one time when the husband was away for 5
years studying abroad she was the one who was running the home. In support of her claim of financial
contribution she brought evicdence to show that every month her salary went to
her husband’s account who would then withdraw money for her personal use. The property in dispute was a farm in Karen
where the matrimonial home was also situated and the wife claimed that she was
a joint owner of this property. The
husband met another woman chased away his wife who was forced to live in the
servants quarter. Although the couple
had other properties the wife claimed that she was entitled to remain in Karen
since she is the one who had developed it.
The court then undertook to
determine the amount of financial contribution that had been made by the wife
towards accumulation of the entire matrimonial property and found that her
contribution amounted to one third of the entire value of the matrimonial
property. The matrimonial property was
valued at 900,000 shillings and she was awarded 300,000 shillings because of
her one third financial contribution.
The husband was advised to sell one of his other properties and give
the proceeds to the wife. The court was
not varying any existing title and only determined what her contribution was
and then give her that contribution.
Kivuitu v. Kivuitu
The marriage in this case was a statutory marriage and the husband
and wife both made financial and indirect contributions to the acquisition of
the matrimonial home which was registered in their joint names. On the institution of divorce proceedings the
wife applied that the matrimonial home be sold and the proceeds be shared out
equally. The court held that on the
basis of the wife’s contribution, the parties were entitled to the property in
equal shares and ordered that the property be independently valued and the
husband pays to the wife as sum equal to half of that valuation.
The court is not varying any title but determining the interests of
spouses in the property.
In these two cases, two issues were not addressed
Did section 17 of MWPA apply to marriages under other systems of
family law? did it apply to marriages
under Islamic or Customary Law?
It did not address the question whether indirect contributions alone
can suffice for orders under Section 17.
These issues have been addressed in two recent cases
Fatia Essa v. Mohamed Alibhai
Tabitha Wangeci Nderitu v. Nderitu
Fatia Essa was a Muslim marriage, the
wife went to court asking for an equal share in the matrimonial property to
which she had contributed. She proved
her financial contribution and the court awarded her 50% of that property. This is the authority for the position that
Section 17 applies to Islamic Marriage.
In Tabitha, this was a customary law marriage and the wife’s
contribution was indirect, and she was awarded 50% of the Matrimonial Property.
They stand by actual valuation of ones contribution so that ones
interest is proportional to the contributions that one has made. There is a
presumption of equality of shares when a contribution is as such. In Nderitu it was an appeal where the court
of appeal held that she was entitled to an equal share. We are at the stage where spouses are now
entitled to an equal share of the property.
Muthembwa v. Muthembwa Civil Appeal No. 74 of 2001
In this case it was held that a spouse who has contributed to the increase in value to property that is
inherited by or gifted to the other spouse before the marriage will be entitled
to a share of the increased value under Section 17 of the MWPA. The wife claimed that one of the properties
she was claiming was a property that the man had inherited from the father
before they got married. Wife claimed
she had increased the value of that land by improving it and it was held that
she was entitled to 50% of the value of the improvement of that property.
The other method that can be used to determine matrimonial property
is by suing equity by way of two presumptions
1. Presumption of a
resulting trust;
a spouse who provides all or part of the purchase money towards
acquisition of property will be entitled to a share of that property even if he
or she is not the registered owner and this will be proportionate to the
contribution that he or she has provided.
This presumption firstly presupposes financial contribution and does not
hold where there is indirect contribution, one has to show contribution to the
purchase. It is easier to apply when
there is an outright purchase of property.
So when there is purchase or acquisition of property for example by way
of mortgage then it becomes more difficult to assess the parties contribution
to that acquisition. However this
particular presumption was applied in Rimmer v. Rimmer (1953) here the wife was able to show that she paid
the deposit for the matrimonial home and also continued to make marriage
repayments when the husband was away at war and it was held that she had
another equal share on the property even though it was held in her husband’s
name.
2. Advancement
under this presumption, if a husband or wife makes payment for or
puts property in the name of the other spouse, the equitable rule is that he
intends to make an advancement to her.
That is that property was intended to be a gift to the other
spouse. This presumption normally arises
when there is a special relationship between the parties, like husband/wife and
parent/child it is intended that
transfer of property is a gift. However
both presumptions are rebuttable. One
can bring evidence to show that transfer
of beneficial interest was never intended.
However evidence will not be admissible if it involves an improper or
fraudulent motive e.g. if a person registers property in the spouses name to
prote4ct it from creditors, then one cannot use this evidence to rebut the
presumption of resulting trust or advancement.
Sarah Wanjiku Mutiso v. Gideon Mutiso
In this case the Respondent who was the husband bought a farm
through a loan in 1967. in 1971 he was
jailed for sedition for a period of 9 and a half years. That left the Appellant who was the wife to
look after the family and to manage the matrimonial property. During the cause of the jail time, the wife
was unable to meet the loan repayments and she was also unable to secure a loan
using her husband’s property. She then
requested the husband to transfer the property into her name so that she could
be able to secure a loan and the husband reluctantly transferred the property
into her name. the husband was
subsequently released from prison but soon thereafgter the appellant left him
taking with her or the moveable property and also claimed that she was the sole
owner of the property which had been transferred to her name. she claimed that the transfer was a gift made
to her by her husband and as such he had no claim to the property.
It was held that the transfer of the property into her name was
solely for the purpose of enabling the wife to carry out the husband’s business
while he was in jail and this rebutted the presumption of advancement.
RIGHTS AND DUTIES OF CHILDREN
PARENTAL RIGHTS AND DUTIES OVER CHILDREN
Under common Law a parent was under an obligation to take care of
his child during marriage and this obligation was only on the part of the
father. In the event of marriage
break-down the father always had a right to custody unless he forfeited it
through immoral or cruel conduct. This
was so stated in
Re Agar Ellis [1883] 24 Ch.
The position under common law was changed by statute which have
watered down the exclusive rights of fathers over children. One finds that common law started from a
position of paternal preference when it came to rights and responsibilities
over children. The factors which
weakened this paternal preference included an increased focus in children’s
welfare as the primary consideration and also with the effects of the
industrial revolution fathers increasingly sought work outside the home while
the mothers remained at home as the primary caretakers. The resultant division of family
responsibilities influenced custody decision and the paternal preference was
gradually replaced by a maternal preference.
This maternal preference was based on the tender years doctrine
which was intended to apply to children under the age of six years and was
invoked to give mothers custody of children of tender years. The assumption here was that in the interest
of the welfare of children mothers were better suited to nurture and raise
children of tender years.
This particular maternal preference also obtained in Kenya for a
while and this was under the Guardianship of Infants Act which has also been
repealed it provided that a court in awarding custody had to ensure that the
child’s welfare was of paramount consideration and if that child was of tender
years, then custody was given to the mother to protect the child’s welfare and
for this position
Karanu v. Karanu
Githunguri v. Githunguri
The maternal presumption of custody remained in place for many years
and has only recently been substituted by the standard of the best interests of
the child.
3. Best Interests of
the Child
under this standard, custody decision are now based on
considerations of the child’s needs and interests rather than based simply on
the gender of the parent.
Children Act is the one that repealed
Under common law parental custodial rights include the power to
control a child’s education, the power to control the discipline of the child,
the power to determine the child’s religion, the power to control any property
belonging to the child until the child attains majority age, the right to be
the child’s legal representative if a suit is brought against or on behalf of
the child and the right to decide on the type of medical treatment to be given
to the child including the right to consent to such medical treatment. Those were the parental rights that obtained
under Common Law.
The leading case on custody in common law is
J v. C (1970) A.C.
In this case the parents of a child were unable to look after him
and offered him for foster parenthood.
After sometime their financial situation improved and they sought to
have the child returned to them. It was
held that in deciding custody of children certain factors are taken into
account in common law.
Firstly the court has to have regard to the wishes of the natural
parents that is the biological parents,
Secondly the court stated that where custody is being claimed by
both natural parents i.e. in the event of a divorce then the court has to
consider the conduct of both parents and determine firstly whether they live an
immoral life. Secondly whether their
conduct is cruel and thirdly whether the parents will have enough time to look
after the child. The final consideration
is that the courts in awarding custody prefer that all children go to one
parent and they are hesitant to divide the children among the parents. Common Law does not encourage split custody.
Under Common Law parental custodial rights ceased to exist once a
child has attained the age of discretion which was 18 years for girls and 15
years for boys.
DUTIES UNDER STATUTORY LAW
The main statue is the Children’s Act although we have provisions in
other Acts including the Penal Code which touch on custody. In the Matrimonial Causes Act Section 30
empowers the court to make decisions as to custody of children in divorce
proceedings and also as to maintenance and education of children and under
Section 3 of the Subordinate Court and Separation of Maintenance Act a married
woman applying for a separation order can also be given orders as to legal
custody of the children of the marriage.
However these two acts don’t give details as to how custody is to be
determined.
The Penal Code also has provisions in to custody in that it creates
certain offences arising from interference with custody under Section 143 where
it is an offence for anybody to unlawfully take away an unmarried girl aged
below 16 years from the custody or protection of their parents. Section 174 makes it an offence for a person
to deprive a parent or guardian of the custody of the child aged under 14
years. This is referred to as child
stealing.
CHILDREN’S ACT
This Act was enacted to consolidate all legislation that affects
children and to give effect to certain international instruments which Kenya
The Act provides for certain concepts which touch on rights and
duties of parents over children
(a)
Under Section 23, the Act
provides for parental responsibility and it defines parental responsibility to
mean all the duties, rights, powers, responsibilities and authority which by
law a parent of a child has in relation to the child and the child’s property. It further expounds on the duties and
rights. On duties it includes the duty
to maintain the child and in particular to provide him with an adequate diet,
shelter, clothing, medical care and education and guidance. There is also a duty to protect the child from
neglect, discrimination and abuse.
(b)
The rights on the part on the
parent include the right to give parental guidance in religious, moral, social
cultural and other values. The right to
determine the name of the child, the right to appoint a guardian in respect of
the child, the right to receive administer or otherwise deal with the property
of the child for the benefit of and in the best interests of the child. The right to arrange or restrict the
immigration of the child from Kenya
Section 90 -101 of Children’s Act - the presumption is that
maintenance and the presumption is that maintenance of children is the joint
responsibility of both parents and maintenance orders under the Act can be made
whether or not matrimonial proceedings have been filed.
Read sections especially Section 94 which provides for
considerations that the court will take into account in determining
maintenance.
Insofar as custody is concerned the Act recognises 3 different types
of custody Under section 81
1. It provides for legal custody and under the custody legal
custody is said to mean those rights and duties in relation to the possession
of a child which are conferred upon a person by a custody order; in effect what legal custody does is to
confer upon a person the right to make major decision about the child’s health,
education and welfare. All these duties
and rights are given under legal custody.
3.
It also recognises actual custody
and this means the actual possession of a child.
4.
Joint Custody – Joint physical
custody because the Act state4s that the actual physical custody of a child can
be shared with one or more persons. Also
implied in that section is sole custody because it is quite possible under the
Act for one person to have both the legal and actual custody of a child.
5.
Care and control of a child –
this is in respect of a person who is in actual possession of a child but who
does not have custody over that child.
The Act imposes an obligation on that person who has care and control to
safeguard the interests and welfare of that child.
In addition to custody the court can make certain orders under the
Act
ACCESS ORDERS
RESIDENT ORDERS Section 114
orders
An Access Order requires a person with whom a child is residing to
allow the child to visit or to stay periodically with a person named in the
order or to allow such person to have some other contact with the child. This is what is referred to as visitation
rights in other jurisdictions. One
proviso in the Act is that an access order shall not be made in relation to a
child in respect of whom there is already a care order in place.
Care orders are given under Section 132 and what they basically do
is to entrust the care and possession of a child to a person who is not the
parent, guardian or custodian of the child or to an institution which is
appointed by the court. This is usually
for the protection of the child especially for those children who are in need
of care and protection e.g. if they have been exposed to domestic violence,
subject to female genital mutilation and so forth.
Residence orders are given to a person and shall require the child
to reside with that person and also provide for arrangements to be made to
facilitate the residence of the child with that person. Such an order will impose certain conditions
and define the duration of residence and so forth.
