Why man wants marriage papers rule invalidated

A lawyer has sued the Attorney General and the Registrar of Marriages over the mandatory requirement for couples in customary marriages to register them.

In his case filed before High Court Judge Chacha Mwita, lawyer Rodgers Moda argued that Sections 42, 44, 45, 55, and 96 of the Marriage Act, 2014 and the Customary Marriages Rules 2017 unfairly create a loophole to delegitimise marriages despite persons who are in such mutually agree to be bound by them.

“The petitioner respectfully submits that while Parliament may regulate the procedural and evidentiary aspects of marriage, it cannot, consistent with the Constitution, prescribe administrative formalities that effectively nullify customary marriages and strip families of their constitutional protection,” argued Moda.

He stated that the ripple effect is that spouses are not eligible to get matrimonial wealth after parting ways, while in case of death, the widow and the children are likely not to be recognised as beneficiaries of the deceased's wealth.

The lawyer said customary marriages form the foundation of family life for millions of Kenyans, particularly in rural areas where access to registration facilities is limited or non-existent.

At the same time, he argued that the law fails to consider dynamics such as economic disadvantages, illiteracy and elderly couples who got married before 2014.

“He asserted that so long as a person has completed customary rites, he or should not be loc he Petitioner's grievance is that, in practice and effect, the transitional and time-bound registration framework has been administered and relied upon to produce retrogressive outcomes, including the denial of spousal recognition and accrued rights for marriages that were lawful and socially recognised for years or decades before 2014,” he added.

Moda joins voices of persons proposing an overhaul of the marriage, succession and matrimonial law to ensure they reflect the current realities.

High Court Judge Reuben Nyakundi last week recommended that Kenya amends the succession law to accommodate Kenyan customs such as marriages and come-we-stay arrangements, and do away with the patriarchal norms that discriminate against women.

In his ruling over the wealth left by Andrea Maiyo, the judge said the sole reason why Kenyans keep fighting each other in succession cases is simply that the Succession Act is not in sync with the 2010 Constitution.

He was of the view that only those norms that give rights and equality to parties, especially women, should be adopted.

Justice Nyakundi observed that, despite the Constitution giving women marriage equality, there are still some communities that group them as children on the belief that they cannot make independent decisions away from men.

“It is interesting to note that some communities still hold the view that even women in their adulthood prima facie they share the same identification reference with minors. That any decision made by a woman holding the title of her spouse is not capable or competent to make an independent decision without reference to her husband or a male spouse,” said Nyakundi.

He further said the image of a man being the provider and protector had been carried forward to the many succession disputes before the courts. The judge was of the view that a woman should not be relegated to the lowest pitch of the pyramid on succession.

“There are many landmark cases in the repository of Kenya Law Reports which have addressed the conflict between discriminatory customary Inheritance Laws such as Patriarchal or male primogeniture and the constitutional guarantees of equality and non-discrimination. What is interesting is that 15 years down the line from the promulgation of our new constitution there is still legal tension between customary law and the imperatives of the constitution. In essence, the application of customary law of male patriarchal and or primogeniture is a violation of the constitution,” he added.

He said to date, there is no justification or reason why a girl, a married daughter, a widow, or a spouse should not enjoy the wealth created in a marriage. The judge was of the view that it appears the male inheritance rights seem to be the right story of communities and a static thumb print of loss against the female gender.

However, he said the story is slightly different with multi-racial or multi-ethnic families. According to him, it is the time Kenyans have a candid discussion on whether Parliament should amend the Succession Act, since its enactment in 1981.

“Time has come that we live and immerse our lives in the fountain of constitutionalism in promoting the rights to inheritance so that we can guarantee Human Dignity ensuring women living in our communities and other marginalised groups receive equitable shares during the scheme of distribution of the estate.”

“If then to some citizens of the Republic the Law of Succession does not answer their aspirations and vision of the law in inheritance may be time has come for them to approach the National Assembly to enact Customary Law Act to harmonize and codify certain customs and culture to be recognized and protected but must be consistent with the constitutional values in Article 10 and other related provisions in our constitution including the fundamental Human Rights as crafted in chapter 4 being the Bill of Rights,” he said.

Nevertheless, Justice Nyakundi threw out the application filed by Peris Maiyo, who sought to change her lawyers in the case. He also declined her plea to suspend the judgment requiring her family to share the wealth left by the deceased.