Recognising come-we-stay marriage is the best way to protect our women by Roseline Njogu

In Summary

  • The Marriage Bill 2012 has caused considerable waves, with much of the discussion being centred on the so-called “come-we-stay” provision
  • Section 7 of the draft Bill published by the Attorney-General recognises a Presumption of Marriage where parties have openly cohabited for over two years
  • Recognition of such marriages will lead to greater protections for women (and children) of such unions. I’m not on a crusade against men, but often, the losers of such arrangements upon termination are women

 

While I was growing up, I didn’t have a clear picture of my dream wedding like many young girls do. But I always knew I would float down the aisle in cascades of lace, to meet my profusely sweating knight in shining armour at the altar.

Two and something years ago, I did, sans the said perspiration on my Mr Right’s part.

I’m a hopeless romantic, who hasn’t been cured by marriage, and I believe the union between man and wife must be entered into with trepidation, and much soul-searching.

However, I am also a family lawyer and lecturer, a pragmatist. Not everybody gets, or even wants, a big white wedding.

More importantly, the issues arising out of marriage or marriage-type relationships are too important not to protect, regardless of how the marriage began.

The Marriage Bill 2012 has caused considerable waves, with much of the discussion being centred on the so-called “come-we-stay” provision.

Section 7 of the draft Bill published by the Attorney-General recognises a Presumption of Marriage where parties have openly cohabited for over two years. That provision is missing from the Bill published by the Commission for the Implementation of the Constitution.

However, Cabinet briefs on discussions on the Bill point to recognising cohabitations of over six months as marriages. It is not clear what position the final draft tabled in Parliament will embrace.

Naturally, this provision has been vilified by both Muslim and Christian clerics as cheapening the solemnity of marriage.

And while I agree with them on the importance of maintaining the sanctity of the institution, I believe these ‘marriages’ merit legal protection for four reasons.

First, our law currently recognises come-we-stay marriages, and a cohabiting woman is called a Common Law wife.

Granted, the existence of such marriages must be proved through evidence arduously adduced before the court.

Cohabitation of such period and in such manner as to cause a presumption of marriage to arise must be shown.

The Bill removes this requirement of proof and curtails the discretion of the court in such matters.

Secondly, recognition of such marriages will lead to greater protections for women (and children) of such unions. I’m not on a crusade against men, but often, the losers of such arrangements upon termination are women.

The man makes away with the couple’s investments (conveniently made in his name), and the woman, not being a wife, is left without a legal leg to stand on.

These women deserve the protection of the law. Further, maybe the threat of an impending marriage will give pause to young people before they rush to cohabit.

Thirdly, when one partner dies intestate a plethora of new issues arises. The courts have been inconsistent in their decisions as to whether a woman in such a relationship is a wife for purposes of inheritance.

The children of the union will almost certainly inherit from their father, but in some cases, the woman is disinherited as the law only recognises blood and affinity relatives. She may even lose property acquired jointly but whose title is not in her name.

Finally, recognition of such marriages makes the best of a less-than-ideal situation. An overarching theme in this Bill is the right to found a family, regardless of one’s financial capabilities or religious persuasions.

Legal scholars argue that the law is a reflection of society. I agree. Ours is an imperfect society (in my eyes, and the eyes of the clergy aforementioned).

The legal recognition and protection of Common Law marriages, in my view, is the law’s attempt to reflect accurately the real politic of our society.

Ms Njogu is an emerging comparative law scholar and a lecturer at Riara Law School (rnjogu@riarauniversity.ac.ke)

By ROSELINE NJOGU
DAILY NATION, December 4  2012

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