Family Law in Kenya : The Changes Which The Implementation Of The Recommendations By "the Commission On The Law Of Marriage and Divorce, 1968" Will Introduce In The Present Law Of Divorce, And The Desirability Or Otherwise Of "the Proposed Law" Vis - A - Vis The Present Law
Abstract
On 6th April, 19~7, the President of the Republic of Kenya ~
appointed fourteen commissioners to consider the existing Laws
relating to Marriage, Divorce and matters relating thereto. II
The 60mmissioners were charged with the task of making
recommendations for a new, comprehensive and uniform law of
Marriage and Divorce which would apply to all persons in Kenya.
The nee~ for such a Commission was noted by the Attorney-Genera12
who observed that at present there existed in Kenya different
systems of marriage and Divorce laws affecting the various
communities in different ways. These laws are The Matrimonial
Causes Act,3 which offers reliefs to parties who have contracted
their marriage under the Marriage Act4 or the African Christian
Marriage and Divorce Act~ This latter Act applies only to
African Christians. Its only differences with the Marriage Act
are that it provides a simple procedure and allows Africans
married under customary law to convert their union inn a
Illegally binding Monogamous Marriage.1I \:1: also releases widows
who had contracted their marriage under it from the duty of
cohabiting with the deceased husband I s brother or anyone else
entitled to such cohabitation under customary law. Other laws
governing Marriage and Divorce in Kenya are the Hindu Marriage
and Divorce Act,6 The Mohammedan Marriage, Divorce and Succession
7
Act, and a Myriad of customary laws which governs the Marriage
and Divorce practices of a large number of the African population.
As F.M. KASSAM observes in a critique of the Report of the Kenya
commission on Marriage and Divorce,8 the various statutes and
customary laws differed in vital requirements such as Registration
and grounds for Divorce. This creates conflicts between the laws
and a host of Administrative problems. These distinctions are not
desirable in view of the need for National integration as
"
inter-racial and inter-tribal marriages become frequent. As the
aim of this dissertation is to show that the law of Divorce
recommended by the Commissioners is more sound than the present
Divorce laws, It is intended to examine lithe law that might bell
Vis-a-vis the law that IS, in four vital areas. These areas are:-
1. Nature of divorce
2. Grounds for Divorce
3. Prerequisites for Divorce •
4. Bars to Divorce and procedure in Divorce suits.
For the purposes' of clarity and the avoidance of repetition, It
is intended to examine and adduce arguments in the above areas
seriatim.
Citation
L.L.B. Degree, University of Nairobi.Publisher
University of Nairobi School of Law