THE RIGHTS OF SPOUSES UNDER CONVERSION OF MARRIAGES

THE RIGHTS OF SPOUSES UNDER CONVERSION OF MARRIAGES

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THE RIGHTS OF SPOUSES UNDER CONVERSION OF MARRIAGES

By: Leency Awino Ogutu

Abstract

The conversion of a potentially polygamous marriage into a monogamous one often entails the satisfaction of a certain criteria spelt out in law; specifically the Marriage Act 2014. A closer look at the criteria seems to speak towards preserving the institution of marriage while protecting the rights of the spouses within that marriage. The foregoing may be achieved by preventing the spouses within an established potentially polygamous marriage from conducting another one in the monogamous form, without their spouse’s knowledge. Ultimately, this safeguards the spouse’s rights established by virtue of being part of the marriage and being legally recognized. This article examines conversion of marriages closely, while attempting to justify the rationale stated herein.

Introduction

Marriage is the voluntary union between a man and a woman whether in a monogamous or polygamous union and registered in accordance to the Marriage Act 2014. The law provides that the parties to a marriage must have attained the age of eighteen years for the marriage to be legally valid. The Constitution of Kenya 2010 further recognizes the fact that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. In the same breadth, these parties also have equal obligations. This means that certain legal consequences arise from a marriage.

The kinds of marriages recognized within Kenya are; Christian marriages- celebrated in accordance with the rites of a Christian denomination, Civil marriage, Customary marriage- celebrated in accordance with the customary rites relating to any of the communities in Kenya, Hindu marriage- celebrated in accordance with the Hindu rites and ceremonies and Islamic marriage- celebrated in accordance with Islamic law.A Christian, Hindu or civil marriage is monogamous whereas a marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.

According to section 59 of the Marriage Act 2014, marriage may be proven in Kenya by; a certificate of marriage issued under the Marriage Act 2014 or any other written law, a certified copy of the same, an entry in a register of marriages maintained under the Marriage Act 2014 or any other written law, a certified copy of the same and an entry in a register of marriages maintained by the proper authority of the Khoja Shia, Ith’nasheri, Shia imam, Ismaili or Bohra communities or a certified copy of such entry. After a brief discussion on the basic requirements of a legally valid marriage, this article will delve into the details of conversion.

History of Conversion of marriages in Kenya

Following the negative attitude exhibited by the colonisers towards the polygamous form of marriage exercised by most Kenyan communities during the pre-colonial and colonial periods, there was need to ensure the conversion of such marriages to a form recognized by English law. The conversion was expressed under section 9 of the African Christian Marriage and Divorce Act cap 151 of the Laws of Kenya (repealed). The missionaries contemplated that the conversion of Africans to Christianity would require them to discard certain practices that were in contravention of the Christian way of life. Polygamy was one such practice.

The statute allowed the conversion of actual or potentially polygamous marriages into monogamous ones. This provision created complications in regards to its practicability; due to the fact that it allowed the conversion of actual polygamous marriages into monogamous ones. This meant that the union already had more than one wife. Difficulty arose since a monogamous marriage required the husband to only have one wife. Questions as to which wife would be considered for the purposes of conversion inevitably came about.

The effect of such a provision is that it remained silent on the rights of the other wives left out during the conversion. What was their position in regards to matrimonial property, succession or the rights of their children to parental responsibility? There was definitely a gap.

Current law on Conversion of marriages

The Marriage Act 2014 under section 8 (2) cures the impracticability of the African Christian Marriage and Divorce Act cap 151 of the Laws of Kenya (repealed) by providing that a polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife. This bars the conversion of an actual polygamous marriage into a monogamous one.

Requirements for conversion under the Marriage Act 2014

This section will look into the criteria provided under the Marriage Act 2014 for the conversion of potentially polygamous marriages into monogamous ones. The foregoing will culminate into a discussion on how such criteria works towards the preservation of the institution of marriage and the protecting the rights of spouses therein.

Section 8(1) provides that the marriage may only be converted into a monogamous one if each spouse voluntarily declares the intent to make such a conversion. This article opines that this provision seeks to protect the autonomy of the parties within a marriage. The section provides that parties must voluntarily, without any form of coercion agree to such conversion. Such conversion shall not be effected in the case that one of the parties has been coerced to undertake it. The same provision further touches on the equal rights and obligations that parties to marriage have at the time of the marriage, during the marriage and at its dissolution.

Section 8(2) provides that a polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife. As discussed earlier, this provision corrects the difficult position set by section 9 of the African Christian Marriage and Divorce Act cap 151 of the Laws of Kenya (repealed). The current provision ensures that a marriage has not yet attained actual polygamy before conversion can be effected so as to avoid the difficulties that arise with conversing an already polygamous marriage to a monogamous one.

Section 8(3) provides that a declaration to convert a potentially polygamous marriage to a monogamous one shall be made in the presence of a marriage officer and shall be recorded and signed by each spouse. Once again, the issue of voluntariness comes up as stated in section 8(1). Both sections uphold the fact that marriage should be based on the free consent of both parties.

To finalise the conversion process, a marriage officer before whom a declaration is made, shall transmit a copy of the written and signed declaration to the Registrar. The registrar shall then take possession of the certificate registering the marriage as potentially polygamous and shall issue a certificate registering it as monogamous. The certificate shall serve as proof of the marriage between the parties. Ultimately the Registrar shall enter the details of the converted marriage in the prescribed manner into the register maintained for such purposes.

From the foregoing it is clear that the conversion process seeks to protect the rights of parties within the marriage. The provisions emphasize the need for free will before the conversion process takes place while maintaining that only a potentially polygamous subsisting marriage can be converted to a monogamous one. Of course provided the husband has only one wife at the time of conversion. The law does not allow the husband to take up another wife for purposes of conversion Therefore where the marriage is stable, the law seeks to preserve it even though its form changes.

Arising issues

Following that the law allows for the conversion of a potentially polygamous marriage into a monogamous one, what is its position in regards to the conversion of a monogamous one into a polygamous one?

The Law under Section 9 of the Marriage Act 2014 is quite clear that subject to section 8, a married person shall not while in a monogamous marriage, contract another marriage or while in a polygamous or potentially polygamous marriage, contract another marriage in any monogamous form. This provision clearly highlights the fact that one can only convert a subsisting potentially polygamous marriage into a monogamous one as opposed to forming a new union with a new partner in a monogamous form while their potentially polygamous marriage is still validly recognized by law.

The marriage described above will be declared void by virtue of section 11(1) (c) of the Marriage Act 2014. Any person, who has a living husband or wife and conducts a marriage ceremony which is void by virtue of it taking place during the life of the husband or wife is guilty of a felony and is liable to five years imprisonment. The offence is known as bigamy.

Conclusion

In conclusion, it is clear that the law on conversion seeks to preserve established marriages while protecting the rights of the spouses there in. This has been displayed by the requirement for consent before the potentially polygamous marriage is converted to a monogamous form. Consequently, both parties are shall have a say in matters affecting the union. This prevents spouses from maliciously imposing their decisions on the other spouse. Furthermore, the law prohibits one from conducting another marriage while in a subsisting one. The effect is that the rights of the legally recognized spouse are upheld despite the existence of another person purporting to be the legitimate one. This safeguards both the family as a natural and fundamental unit of the society and the rights of the spouses and children within the marriage.