Family LAW IN Kenya an argumentive essay PDF

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University of Nairobi,:18 April 2014Table of Content  Introduction State Sanctioned Marriages: Where it Begun  The State Should Stay out of the Bedroom Why Privatize Marriage  State has an Interest in the Marriage Business Case for the interference of the State  Conclusion  Bibliography INTRODU...

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University of Nairobi,

:

18 April 2014

Table of Content  Introduction 3 -

State Sanctioned Marriages: Where it Begun 5

 The State Should Stay out of the Bedroom 6 -

Why Privatize Marriage 7

 State has an Interest in the Marriage Business 10 -

Case for the interference of the State 10

 Conclusion 14  Bibliography 15 1

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1. INTRODUCTION

Marriage is like the sphinx-a conspicuous and recognizable and age-old monument on the landscape and yet still riddled with secrets and intrigue. To newcomers the monument seems wonderful; while to those in the vicinity its adorable features are taken for granted. In examining the wonders and terrors in a matrimony, most people view it as a matter of private decision-making and domestic arrangement. On its superficial attributes, the monumental public character of the marriage as an institution is generally least noticed. In the creation of the family and the network of kinships, to the generational handing down of property, marriage certainly plays the role of a designer of private life. It influences to a great extent the individual identity and determines circles of intimacy. In this respect, it can bring solace or misery in equal measure. Even in the least complex society governed by law, marriage exists as a public legal act and not merely as a private romantic declaration or religious rite.1Marriage has been defined as a public sexual union that creates kinship obligations and sharing of resources between men, women and the children their sexual union may produce.2 But recently, the view that marriage is ideally a private relationship has gained credence in most sovereigns; marriage is regarded as a private realm in the establishment of private family that the state should not unnecessarily enter. Privatization in essence points to a situation where the state does not interfere in the personal relationships that subsist within a marriage. The alternative would be that people decide their own terms similar to any other contract. Privatization would require that marriage cease to be defined by statute rather parties define it for themselves including the rights and obligations. However, and on the contrary to the foregoing, marriage is looked at as a union of personal love and commitment which plays a 1 2

Maggie Gallagher, “What is Marriage for? The Pubic Purposes of Marriage law” Ibid

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significant role in public order. In Kenya, marital status is an important determinant on ones standing in the community and the state at large. Away from the privacy of the marital home, the structure of marriage organizes community life and facilitates the government’s grasp of the populace. The knowledge of the intricacies of this institution is of profound importance to the government as it forms the basic unit of the sovereign people of Kenya. In societal socialization, marriage requires some element of public knowledge-at least some publicity beyond the couples themselves, thus witnesses are a mandatory requirement in the marriage ceremony. This requirement is mandatory in almost all forms of marriage celebration in Kenya and beyond. More specifically, marriages that will be considered legal definitively will require state sanction or recognition. In the ordinary sense, the public and the republic sets the terms of the marriage, says who can marry, who can officiate the marriage and what rights and obligations the agreement entails, whether the marriage can be ended and if so, how and in what specific circumstances. Marriage prescribes duties and dispenses privileges. The governmental apparatus in Kenya has packed into the institution of marriage many benefits and obligations. These benefits span from tax policy, property rules, social security and acquisition of citizenship to name just a few. Husbands and wives are required to take care and support each other sometimes beyond the subsistence of the marriage. However, despite the deep entrenchment of state support for support and hegemony of heterosexual marriage, there is a growing body of literature that advocates for a muted state involvement in marriage. Most of these authors are of the opinion that marriage being a private relationship ought to be subjected to the barest of state control. Ironically for most libertarians, the debate has been the need for legalization of gay marriages, but now more and more are turning to the idea that the government should actually cease being involved in the business of decrying who can and cannot get married. This newfound love for privatization of marriage has gained credence out of 4

the notion that marriage by all its general attributes is essentially a contractual relationship that requires only the two parties; this is different from the position in Kenya now where marriage is ideally a tripartite contractual relationship involving the two parties and the state as an interested third party. However this debate is far from conclusive. Some of the reasons that have been advanced by the opposing sides each hold credence and substantial support for each standpoint. This paper seeks only to ventilate on these differing points of view and consider a vantage point by which to take a stand. Out of the unavoidable constrains of space and time, the group sought to avoid a detailed consideration of the merits of the growing body of literature that associates privatization of marriage with equality of rights for gay relationship owing to the fact that in Kenya such relationships are not clearly recognized in law despite the fact that they are alive and thriving apace. This paper therefore perceives marriage as a heterosexual relationship within all the confines stipulated in law. In the end, we are of the opinion that despite the seriousness of some of the claims for privatization of marriage, the state still has an important role to play in this institution for reasons that go beyond the parties themselves. 1.1 State Sanctioned Marriage: Where it Begun But when did the state get so entangled in this business? It is imprecise to state when exactly the state with all its manifestations throughout the ancient world saw the need to run the marriage business, however the history of English marriages and the state provides a revelation which would be considered in favor to the contemporary private marriage proponents. One scholar, Lawrence Stone writes that marriage was in the eyes of the laity seemed to imply a private contract between two individuals, and only enforceable by the community’s sense of what was right. At the turn of the 16th century, the formally witnessed contract called the ‘spousal’ was proceeded by the proclamation of the banns that was called three times in church, however this came after the spousal had realized for the couple a legally binding contract of marriage (Boaz, 1997). 5

The first legislative framework in recognition of marriage in England came in 1753 through the Earl of Hardwicke’s Marriage Act. The English government thus began to regulate the institution of marriage through formal law. But even after this act in the numerous colonies such as New England, marriages were still conducted less formally by justices of peace or other magistrates however; even those marriages that were conducted through local customs and common law were recognized as valid (Marriage Records, 2011). In Africa and Kenya in particular, marriages were conducted through elaborate customary practices unique to the community. From this legislation the state slowly asserted its control of marriage throughout different sovereigns and cultures such that by the 20th century, the government had intruded into the marriage contract with the legislature and the courts unilaterally defining the terms the marriage contract.

2. THE STATE SHOULD STAY OUT OF THE BEDROOM 2.1 Case for the Privatization of Marriage

The heading above has been used by many authors but none has them have been able to evoke much recognition from its usage as that generated in 1967 by Pierre Trudeau. In his Omnibus Bill to the Canadian legislature, Trudeau sought to bring several controversial issues to the spotlight of law for first time; these included abortion, divorce, gay relationships and gun reforms. His bravery owing to the fact that he was then acting Justice Minister would cause a tidal wave of controversy whose ripples shook the entire nation (CBC Digital Archives, 2011). Trudeau would go on to say ‘…what is done in private between adults doesn’t concern the Criminal Code.’ Whilst Trudeau sentiments were largely based on the criminalization of gay relationships, its worthy to point out that some of his arguments resonates with those echoed by the contemporary libertines who are pro marriage privatization.

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2.2 Marriage as a Private Institution For the most part, advocates of private marriage have often given it two definitions that are marginally distinct. In one construction of this term, the state is expected to completely stay out of the institution and not dictate the terms or even issue license for such unions. In the Kenyan context this would mean that the state will not makes laws that govern marriage at all. If the couples deem it fit to cement their relationship through a ceremony or any ritual then they should be at liberty to do so to the extent that such ceremony or ritual stays within the confines of the law. In this respect, those with religious affiliations will be allowed to conduct their ceremonies within the sanctioned doctrines or rules of these institutions. The other meaning of privatization of marriage would be to regard a marriage as any other contractual relationship. In this context the state will only be called to enforce the contract in instances of breach. The parties can thus spell out most of all terms including the rights of the children, how to share or engage together in financial activities and how and when the contract can come to an end. 2.3 Why Privatize Marriage? It has been argued that it could have been practical and easy if the marriage was treated as private contract between two individuals. If a couple wanted to contract for the traditional positions of a breadwinner and a homemaker arrangement with a specific set of rules to govern their intimate relationship, property ownership, and alimony in an event of a divorce then they should be allowed to do so. This idea is backed by the constitutional provisions that give the citizens certain fundamental rights. There are a number of arguments that support privatization of the marriage institution. Some of these arguments are greatly informed by the different views of the purpose of marriage.

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2.3.1 The Freedom against Discrimination and the Freedom of Conscience

One broad view of marriage is that it is an essentially private, intimate, emotional relationship created by two people for their personal reasons to enhance their personal well-being. That marriage is created by the couple; for the couple.3 The question that therefore arises is; isn’t it discriminatory and wrong for the state to favor certain kinds of intimate relations over others? This goes contrary to the freedom against discrimination guaranteed in the constitution.4 With regards to this argument, there has been a lot of uproar about gay marriages. They are becoming more prevalent albeit only 13 countries in the world have fully legalized them. In some jurisdictions, they are christened civil unions or partnerships; really a marriage by another name. One proposition to solve the quagmire is to privatize marriage. The state shouldn’t care whether you choose to marry someone of the same sex. Furthermore the constitution guarantees the freedom of conscience and expression5. As long as there is free consent and the parties are of age. After all, marriage is a personal right of the individual created for the individual, for purposes the individual defines.6 It is simply no one else’s business.

2.3.2 The Right to Privacy

Since marriage is arguably a private institution, interference by the state leads to infringement of the right to privacy guaranteed by the Constitution.7 When the state dictates who is eligible to marry in terms of sexual orientation, it is arguable that it is infringing on an individual’s right to privacy.

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Maggie Gallagher, “What is marriage for? The public purposes of Marriage Law” Constitution of Kenya, Article 27 5 Ibid, article 37 6 Supra note 7 The Constitution, Article 31 4The

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2.3.3 Religion and Marriage

Proponents of privatization have argued that marriage be left entirely to religion. After all, some marriages for example Islamic are governed by the religious law. For religion, marriage is a spiritual contract. If a state is secular, then it would be prudent for the government to leave the institution to religion. Dispute resolution within the marriage would also be left to that religion.8 2.3.4 Pre-Nuptials Agreements

Division of property is one of the contentious issues related to marriage. Upon dissolution of a marriage, the former spouses will be subject to the Matrimonial Property Act which will be used in determining the spousal interests. However, some countries give their citizens a chance to determine their property rights. Pre-nuptial agreements are signed prior to contracting the marriage in a bid to determine property rights. This is one way in which the state steps out of the marriage contract so that the parties involved can decide their fate. 2.3.5 No-Fault Divorce

Currently, under the Kenyan law, divorce has to be granted on the basis of the grounds provided for. In some jurisdictions, divorce is granted without proof of wrongdoing by either party. It is one of the ways in which the state could begin taking a back seat in matters marriage. If the state doesn’t check intention at the time of marriage, why should it know the reasons for divorce? No fault divorces avoid the airing of private issues in court. Some research has shown that such divorces could reduce rates of domestic violence and suicide rates because people aren’t being ‘forced’ to live together. These are just some of the numerous reasons that have been advanced by the proponents of marriage privatization.

8 Though a viable argument, it is noteworthy that leaving the marriage institution to the religion entirely would be discriminatory against the growing number of atheists in the world.

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2.3.6 Recognition of Gay Relationships

It is not surprising that many of the proponents of privatization are gay rights activist. This is ideally for the reason that the privileged position that marriage give to the parties is denied to gay couples. The advantages that the government confers to heterosexual marriages as construed in most sovereigns will be leveled if the state stopped playing the role of licensor of marriage contract. In the UK where the law allows for civil partnerships for gay couples (with almost equal rights as their heterosexual counterparts) the agitation for reforms has calmed. However, the fact that the law still creates two distinct regimes for registration is still discriminatory. If all types of unions were privatized then the state will not have to bother on who and how they should get government recognition for their relationship.

3. THE STATE HAS AN INTEREST IN THE MARRIAGE BUSINESS 3.2 Case for the Interference of the State

There are several reasons as why the state would find it necessary to interfere with the ‘privacy’ of marriage. These reasons are considered so fundamental and of interest to the state that they cannot be lest to the whim or judgment of the partners in a marriage. The following are some of the highlights.

3.2.1 Best Interests of the Child

Maggie Gallagher refers to marriage as the sexual union where child-bearing and bring up of children is not only tolerated but applauded and encouraged (Gallagher, 2002). Marriage ceases to be about the two main actors when children come into the picture. The state has to regulate marriages in order to cater for the welfare of children. This has found expression in local and international legislation as the ‘best interests of the child’. The state determines custody of children where there is a dispute. At the time of dissolving a marriage, the court may make orders concerning the children of the union. 10

These children have a right to maintenance and continued care despite the status of their parents. The well-being of children is directly proportional to social stability. Studies have shown that with a rising number of psychologically unstable children come an increase in crime and other social ills. Forced marriages are still prevalent in this side of Africa. Most of them involve girls who are underage; as young as eight. If marriage was to be a contract, it would be an uphill task to protect such girls who are enslaved in such marriages. Typically, the parents of such girls receive bride price from a dinosaur of a man and they then send off the girl. In the respective customary laws, that sounds like a binding contract. However, the intervention of the state would be required to enforce justice despite the supposed privacy of marriage.

3.2.2 Enforcement of Marital Obligations

From a marriage institution there are obligations, both legal and social, that are conferred upon both parties especially with regards to children. The parents are to cater for the basic needs of the children as their guardians. Conjugal rights have also been viewed as essential in a marriage. Where some of these obligations have been neglected either by one or both of the parties, the state interferes to enforce them. It thus provides a fertile ground for a continued discourse on the efficacy of some of these laws. Does the law against marital rape work in light of the obligations that society and indeed the law puts on married couples?

3.2.3 Domestic Violence

Domestic violence is special because it happens within the precincts where someone should be most protected. Though prevalent, the fact is that most of the cases do not see the light of day. The privacy of marriage is a curse for victims of domestic violence because they are encouraged to keep the violence under wraps. The state therefore needs to come in and ensure that such victims get justice.

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The violence also affects the lives of children who grow up watching their parents fight or are themselves victims. It is the interests of the state to ensure social stability by intruding in violent marriages. To this end, legislation provides for care orders which are issued in respect of children who could be victims of domestic violence (Cusack, 2012).

3.2.4 Patriarchal Society The world over, feminists have made a name criticizing the maleness in the law. Most African societies are patriarchal and so it follows that the females are subjugated generally in society. The same has been manifested in cases involving matrimonial property where women are left holding the short end of the stick. The state comes in to correct these inequalities and change the balance of power. Before the enactment of the Matrimonial Property Act, women were left to the wiles of the judges. Sometimes contribution in property wouldn’t be allowed if it was nonfinancial. Now, there is more decisive legislation on the same.

3.2.5 Legal Privileges

The state also confers practical advantages to the parties in a marriage. These are many legal privileges attached to marriage. For example, spouses cannot testify against each other. In insurance law, spouses are deemed to have an insurable interest in each other’s lives. These privileges are easy to dole out because marriage is a certain concept within the law. If marriage takes on a shifty description based on people’s circumstances, it would be harder to admini...