Come We Stay: Times Court Has Changed Course Of Kenyan Marriages
With different married couples moving to court on the basis of being unhappy with their marriages and seeking their share of property following divorces...
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Over the years, the Kenyan Judiciary has altered a series of policies regarding marriages in the country through court rulings regarding unions and sharing of property.
With different married couples moving to court on the basis of being unhappy with their marriages and seeking their share of property following divorces, the courts have had to make multiple changes to such policies.
For instance, the latest landmark ruling saw long cohabitation be classified as proof of marriage in case a dispute arises over the wealth of your spouse.
The High Court’s Family Division, sitting in Mombasa declared on Wednesday, December 28 that a woman is entitled to a share of her deceased husband’s estate for cohabitating with him for over five years, even though it failed to prove the existence of marriage under Kamba customary law.
A court gavel. /PIXABAY
Justice John Onyiego declared in his ruling that the woman was a beneficiary under Section 3(5) of the Law of Succession Act and, therefore, is entitled to a share of the estate as his wife.
“From the evidence on record, the deceased had indeed cohabited and presented to the general public and right-thinking men and women in a society that they were living together as husband and wife,” said the judge.
The judge also declared that the man was polygamous, meaning the woman and his second wife will share personal effects and the rest of the properties equally.
Another ruling saw the High Court in Nakuru rule that children are not proof of marriage, handing a blow to a woman seeking to be recognised as the wife of a former Nakuru businessman, despite claiming that she had a five-year relationship with the deceased businessman and even had five children.
Justice Joel Ngugi ruled that despite living together or bearing children, a man and woman must satisfy what constitutes a customary marriage before they are considered a married couple. He added that a woman and a man must have the capacity to conduct marriage, consent from both families of the couple and a ceremonial slaughtering of a ram.
“Dowry must also be paid in full or in part before cohabitation,” he ruled.
One of the most controversial rulings came in September 2021 when Justice Teresiah Matheka broke down the factors to consider while presiding over matrimonial property disputes before declaring that housewives should be paid.
“It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing."
"Raising children is a full-time job that families pay a person to do. Cooking and cleaning as well. Hence, for a woman in employment who has to balance childbearing and rearing this contribution must be considered," the Judge stated.
Six months ago, the appellate court changed the course of divorces in the country by declaring the law prohibiting married couples from seeking divorce before three years elapsed unconstitutional. According to appellate judges, Gatembu Kairu, Pauline Nyamweya and Jessie Lessit, the Marriage Act limits the divorce period and ties down the newlyweds in a marriage union.
The court ruling thus upheld the nullification of the law, which barred newlywed couples in a civil marriage from leaving or remarrying before the marriage hits three years. The judges argued that there exist cases where divorce in a civil law marriage may be necessary and justified despite the marriage being younger than three years old.
The judges agreed that divorce should be allowed for situations which are "unavoidable and unendurable" for instance, exceptional hardship. That way, the couple should be allowed to go separate ways to protect the rights of the parties involved.
Divorce these days is like a way of life, compared to the boomer generation where divorce cases were uncommon. In other words, couples can even call it quits amicably at the start of romantic and intimate matters.
The number of divorce applications in the Judiciary has been on the rise in recent years as evidence of marriage not being a bed of roses. In a span of two years since 2020, a total of 10,338 couples sought to separate due to various grounds informing a divorce.
A report by the Judiciary of Kenya released recently revealed that 4,734 marriages were formally dissolved between 2020 and the end of 2021, counted as a regular fiscal calendar.
Of the divorces between 2020 and 2021, 3,784 were applied in the magistrate's court across the country, with the remaining 1,820 being applied in the Kadhi Courts. Between 2021 and 2022, marriages totalling 5,604 were formally terminated, with 3,082 divorce applications being in the Magistrate's Court and 1,652 in Kadhi's Courts.
Since the last report of the 2020/21 fiscal period, 870 more couples called it quits, suggesting the number of divorce cases could constantly rise in the coming years.
Whilst divorce is believed to have existed since time immemorial, the increasing rate coupled with several court rulings altering the conditions of marriage and shared property could see more and more Kenyans shy away from marriages entirely.
A man and woman during a wedding. /FILE
