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.