This archive report was first published on 9 September 2019.
Published on September 9, 2019, a case in the Kenyan courts brought to light the complexities of family law, particularly in cases involving polygamous marriages.
Two women were fighting for the right to bury their 'husband', a scenario that is not uncommon in Kenya. In fact, there have been several instances where multiple wives have moved to court to prevent each other from burying their deceased husbands.
These disputes have been ongoing for decades, and they highlight the flaws in Kenya's family law. The Marriage Act, which governs family law in the country, is split between customary, Sharia, civil, Hindu, and Christian laws. This has led to conflicting rules and tension in the application of the law.
One of the most striking examples of the flaws in family law is the recognition of only one wife to offer a diplomatic passport and hospital cover. This is a clear indication of the mess that the current system has created.
Customary law, which was once a part of Kenyan society, has become outdated and serves no purpose in modern Kenya. The older generation of men married multiple wives to expand their families and increase their wealth, but modern men prefer polygamous marriage for sexual reasons.
However, this has led to the neglect of children and first wives, and the man can easily replace the wives at a whim, thanks to the customary and Sharia laws. These laws also exacerbate the problem of early marriages, which interfere with the schooling of girls.
India's Parliament recently approved a bill that outlawed the archaic 'instant' divorce of Muslim women, a practice that is still common in Kenyan Muslim households. However, the rule cannot be justified when it comes to the division of property, and determination of contribution to the marriage will be problematic in haphazard divorces.
Modern Muslim women are economically empowered and can contribute to the family financially, but they cannot rely on the Kadhi's Court for division of matrimonial property during divorce, as Sharia law has not kept up with the times.
The rules in the Marriage Act need to be uniform to offer clarity and security to both parties in a relationship. The Constitution is supreme and offers arbitration once other rules in family law fail, but it would be less ambiguous if all marriages were conducted under the umbrella of the Constitution in the first place and registered accordingly.
Digitising the marriage register will go a long way in helping in burial and divorce disputes. The Attorney-General's office has come up with a rule that all marriages be registered, but it is hard to tell to what extent the rule is being adhered to.
Customary and Sharia laws need a rethink to protect women, who are often victims of domestic abuse, including physical abuse, neglect, and abandonment. We need to move away from misogynistic thinking around marriage to reverse abuse of women and emphasize socio-economic empowerment of women and girls.
The burial of husbands could also be determined independently of the property in question, and the law should step in to uphold the rights of the dead during family disputes over matrimonial property.
Reform of the Marriage Act is overdue, and it ought to keep abreast with societal changes.
