Should we start treating marriage like a contract?
Constitution lays the groundwork for legal marriages, designating them as unions between willing adults of opposite sexes.
Dear wakili,
I've been listening to some friends who believe that marriage should be viewed as a contract with a fixed term and specific obligations, like having children and meeting each other's conjugal needs. What's your legal perspective on this?
Dear reader,
The relationship between law and society is complex and reciprocal. Law is designed to create harmony among individuals and their connections to other aspects of life.
In most cases, it serves as a foundation for fostering healthy interactions. Therefore, it is important to recognise that social values and systems play a significant role in shaping laws and policies, and vice versa. The preamble of Kenya's Constitution exemplifies how laws can influence, reaffirm, and reform social values and norms.
One cannot debate whether marriages should include terminating clauses beyond death and divorce without understanding the foundational legal and social philosophy that governs the formation, structuring, and funding of these unions. First, Article 45, Clause 2, of the Constitution lays the groundwork for legal marriages, designating them as unions between willing adults of opposite sexes.
In the Kenyan context, this means male and female, with the former permitted to marry more than one of the latter, within universally accepted polygamy, but in complete rejection of polyandry. This reflects a patriarchal structure that law, religion, and communities still support, even as the understanding of gender evolves.
The behaviour and dynamics of marriages in contemporary society often suggest a low survival rate. Notably, there is a rising number of single-headed households. Additionally, many children remain unaware of their fathers or struggle to trace their paternal heritage, despite the potential of DNA technology to provide clarity.
In informal social settings, discussions about dysfunctional or broken families are increasingly common. An alarming reality facing society today is the unparalleled level of domestic violence, including femicide, which seems prevalent in marriages. This situation paints marriage as a seemingly lost cause.
The argument that marriages should include more explicit terms for deliverables and termination beyond death and divorce should test the elasticity of the existing legal, policy, and practice framework. While the law emphasises that a marriage can end through death or divorce, it does not define the expected conduct, demeanour, and behaviour of the individuals involved.
This could explain why the Marriage Act of 2014 incorporates various religious beliefs and interpretations related to marriage. In most religions, marriage is considered a bond for the living, not the dead.
It is important to recognise that individuals entering into marriage possess inherent rights, interests, and needs that cannot be diminished or disregarded. These factors remain constant as the foundation for maintaining the relationship. In this context, ending a marriage can be justified by the provisions outlined in Sections 64-70 of the Marriage Act, except for Section 66, which has been ruled unconstitutional.
This matter was addressed in Civil Appeal 166 of 2019, National Assembly of Kenya v. Kina & Another, which determined that a three-year waiting period before seeking separation or divorce in a civil marriage constitutes an affront to the constitution.
If a marriage contract is to include specific termination clauses in addition to divorce and death, certain aspects of the contract may need to be further refined and could become mandatory. If having children is a requirement of the marriage, couples might need to undergo compulsory fertility tests to ensure their reproductive capabilities are functioning optimally.
Conversely, if children are not desired, couples should agree on relevant non-childbearing methods. Additionally, couples may discuss how to have children, considering options such as in vitro fertilisation (IVF), surrogacy, or adoption, especially if one partner does not wish to experience childbirth.
Property acquired or improved during marriage must be clearly outlined in terms of its management after the union, should the marriage end before death or divorce. While the Matrimonial Property Act provides clarity on several aspects, additional clarification may be necessary.
Any emerging laws should take into account the implications of dowry payments within timed marriage contracts. The Marriage Act, in Section 45(2), legitimises the concept of dowry by stating that if a dowry is required to validate a marriage under customary law, the payment of a nominal dowry amount is sufficient to establish a customary marriage.
The concept of timed marriages, which includes clearly defined responsibilities, may involve remedies for breaches of contract. The proposals presented here could inspire a revolutionary shift in social norms, akin to past suggestions for marriage certificates that can be renewed like driver's licenses.
However, marriage is a well-established social support system and serves as a foundational element in Kenyan law regarding family. This system involves numerous institutions, particularly religious communities and those deeply rooted in cultural practices. Therefore, this discussion may require unprecedented levels of public participation.
