In one societal context a household may mention to a adult male and a adult female who portion a common family. In another. it is defined as all individuals who portion blood dealingss. In others. it is defined as all individuals who portion a family. In others still it means all the members of a family. including parents and kids with possibly other dealingss. boarders and even retainers.
Legally. the term household is a restricted construct. There are certain formal pre-requisites that have to be met and the chief 1 is a matrimony ceremonial. In jurisprudence a household is created when households enter into a lawfully recognised matrimony. The jurisprudence besides restricts the right to end that legal position. The household is registered because it serves a figure of intents in society.
1. It is the basic constituent of a society administration ; Article 16 of the Universal Declaration of Human Rights. 2. It is the basic economic unit of society that is most productive activities take topographic point within the household set up. 3. The household apparatus provides for a model for the parties to hold satisfactory sexual look. 4. It guarantees prolongation of society through the receiving of offspring. 5. It provides a model for company between the members of that household.
THE OBJECTS OF FAMILY LAW
1. It seeks to specify position between the parties in that household i. e. it defines what rights a member of the household can claim over the other or over the other’s belongings. Changing the position of parties in the household. 2. A remedial function ; that is it serves to protect certain weaker members of that
household e. g. kids. On expiration of a household relationship there are certain members who may necessitate protection particularly economic protection. Note. The tendency now is that non all household relationships are created by matrimony ceremonials such as cohabitation. individual parents. The jurisprudence has developed to recognize some of these relationships.
Major maps of household jurisprudence
History OF THE FAMILY AS AN INSTITUTION.
The tendency now is that non all household relationships are really created inside a matrimony relationship. Some of the developments in jurisprudence have been to cover with these issues. under common jurisprudence and equity there is acknowledgment given to cohabitees. Children born out of matrimony besides get.
Family jurisprudence as an establishment besides has a history.
Engels: The beginnings of the household. Private Property and the province. In this book the writer states that the establishment of the household has non existed for all times and they say that associating to the establishment of the household there was an ancient crude phase of promiscuousness where there were no limitations as sing sexual dealingss and it was a free for all. The writers have met unfavorable judgment for avering this fact but this points to an earlier phase when there was no household bing. They so say that the household developed along four chief phases
1. Consanguine Family ;
2. Punuluan Family
3. Pairing Family
4. Monogamous Family
Consanguine and Punuluan Families are based on group matrimonies and the coupling and monogamous household and at this phase the society tries to dissociate itself from group matrimonies.
Engels says that matrimony groups were separated harmonizing to coevalss so that you find that one coevals consisted of hubbies and married womans who could associate so long as they belonged to the same coevals. Parents and kid could non associate. Leftovers of this type of matrimony at the clip he was composing in the early nineteenth Century could still be found among some Hawaiian folks.
In the Punuluan phase brother and sister were excluded from sexual dealingss. In the akin household so long as you belonged to the same coevals you could hold sexual dealingss. The Punuluan type of society was found among Indian folk called the Punulua.
These signifiers of group matrimony it was unsure as to who the male parent of any peculiar kid was but it was certain who the female parent was so that group matrimonies were the beginning of following descent through the mother’s line so that we have matriarchy being the signifier of following descent. The writer once more says that societies that are matriarchal originated from here.
The kernel of the partner offing household is that one adult male lives with one adult female but the relationship is such that polygamy and occasional unfaithfulness on the portion of the adult male is allowable. However the adult female is required to be purely faithful and criminal conversation on her portion is purely punished. To some people this is where subjection of adult females starts.
Restrictions on sexual dealingss are extended so that there is a progressive phase within which connubial dealingss can take topographic point. In the partner offing household conjugal dealingss are more restricted and adult females are restricted merely to their hubbies who can non be their brother.
This is different from the partner offing household in two ways
1. There is a much greater emphasis that is given to the matrimony establishment. in the partner offing household disintegration of matrimony is comparatively easy but in a monogamous household a matrimony can non be dissolved unless some formalities are followed. The rights to conjugal dealingss are extended to the married woman because it is non merely the married woman who has to be faithful but the adult male every bit good. The writers of this text say that the chief intent of the rise of the monogamous household is to bring forth kids of unchallenged paternity and this is of import for intents of heritage. That is the linkage that the writers make in the rise of household and private belongings ownership. Those who so own belongings become the swayers and that is the nexus between household. belongings ownership and the province.
The chief ground that this history becomes relevant is when we look at the struggles that. it is argued that when we came into contact with the Europeans. our prevailing signifier of household was Pairing Family. In some societies we still were in the Punuluan. That means that the Europeans found us at partner offing and imposed Torahs which were applicable to the monogamous household and hence we find tension bing between the two different systems of jurisprudence right from the really get downing because they were at different degrees of development. they reflected different values. Those tensenesss have existed and that is the ground why harmonization of the different household jurisprudence state of affairss appears to be hard.
HISTORICAL DEVELOPMENT OF FAMILY LAWS IN KENYA
The analyzing point in household jurisprudence is the 1897 East Africa Order in Council which applied certain Indian and British Acts of Parliament to the East African Protectorate. It besides applied the common jurisprudence of England which was in force at the clip. Insofar as the indigens were concerned the Order in Council had limited application it provided that instances against indigens would be brought in native tribunals and a Commissioner was given the power to set up and get rid of those Native Courts and to modulate their process every bit good as give waies as to the application of native jurisprudence and usage.
As a consequence of this power. the commissioner made the native tribunal ordinances of 1897 and what these ordinances provided was that in affairs impacting the personal position of indigens. so the jurisprudence of their caste or folk in so far as it could be ascertained and in so far as it was non abhorrent to national morality could be applied. For those indigens who were Muslims. Islamic jurisprudence would use to them and this was with respect to affairs impacting personal position.
This same preparation is what we fundamentally find in our court Act in so far as the application of customary jurisprudence is concerned. The commissariats were farther modified but the beginnings are Native Courts Regulations.
There were besides two other communities in Kenya at the clip. the British Colonizers and the Indians who had been brought in as labor and the issue here was whether for those groups they applied Indian Act or British Laws and common jurisprudence regulations were applied. The Indian Law was fundamentally British jurisprudence that had been passed in India and there was non much difference between the two. they were evidently geared for application to the British Settler but did they use to the Hindu? The premise was that in Kenya. they would use.
For illustration the Indian Succession Act of 1865. this was one of the Indian applied Acts under the 1897 Order in Council. In India it had been expressly stated that that peculiar Act did non use to succession affairs of Hindus in which instance in India they applied their customary sequence Torahs in affairs of sequence. When this peculiar Act was applied in Kenya there was no such exclusion with respect to the Kenya Hindus. There were besides issues as respects matrimony and divorce and they applied English Marriage Laws. There was a spot of job with respect to the Hindus in Kenya particularly between 1897 and 1898 when it was stated that the Indian Succession Act did non use to Hindus and that they were to be governed by their ain customary jurisprudence. For those Hindus who had converted to Christianity. two Acts were passed to provide for their sequence. the Hindu Wills Act and the Probate and Administration Act of India. the premise was that the Orthodox Hindus applied their customary jurisprudence in affairs of sequence.
Equally early as 1898 we have all these Torahs regulating different peoples. In 1902 we got the East Africa Order in Council of 1902 whose chief intent was to clear up farther when customary jurisprudence applied. It was stated that in all instances whether civil or condemnable in which indigens were parties. the tribunals would be guided by native jurisprudence in so far as it was applicable and non repugnant to justness and morality or inconsistent with any jurisprudence made in the associated state. This preparation of the Order in Council is the same preparation that we have in Section 3 of our Judicature Act in so far as application of customary jurisprudence is concerned. In countries of household jurisprudence for those indigens who still pattern customary jurisprudence are still governed by African Customary Law. Muslims still continue to be governed by Muslim Law but with Hindus a figure of developments occurred which made the Hindus to follow Torahs that were similar to those found in the statues.
The 1902 Order in Council gave the commissioner power to do Torahs which would use in the associated state and one of the first Torahs that was made in 1902 was the Marriage Ordinance. This Regulation was a jurisprudence of general application in the sense that it was non limited by race or faith and was meant to use to all occupants in the associated state. It provided for fundamentally a Christian signifier of matrimony which was purely monogamous and made it an offense for a individual married under customary jurisprudence to contract a matrimony under the regulation or frailty versa. It was besides meant to supply an avenue for the born-again indigens to contract the Christian type of matrimony and for the colonists to contract matrimony. What was of import is that any African who married under the Marriage Ordinance was supposed to hold embraced the Christian manner of life and hence distanced herself from their customary manner of life.
Please expression at Cole v. Cole the opinion in this instance exemplified the state of affairs of what happened if one contracted a matrimony outside the regulation. A Nigerian twosome got married harmonizing to Christian rites under the Nigerian Marriage Ordinance. They had a boy who was mentally incapacitated and after a while the hubby died. The issue so arose as to who was to win the adult male or who was entitled to the man’s belongings and the man’s brother argued that under Customary Law he was the 1 entitled to inherit the man’s belongings. The married woman argued that since they had married under the Marriage Ordinance they had distanced themselves from the African manner of life therefore African customary jurisprudence did non use and alternatively the English Law of Succession applied and that under that English Law of Succession she was the 1 entitled to inherit in her ain right and as defender of her boy. The tribunal upheld her statement fundamentally saying that since they had married under the matrimony regulation the African customary jurisprudence no longer applied to them.
This was fundamentally the same attack that was taken by the Kenyan colonial tribunal and you will happen this stated in many of the instances that were decided in that period
R v. Amkeyo
R v. Mwakio
Robin v. Rex
Most of these instances were really covering with issue of admissibility of grounds given by the married womans reasoning that they are in a privileged place and therefore could non attest against their hubbies in Mwakio the Judge said that “it is unfortunate that the word married woman and matrimony have been applied in this connexion. If merely the adult female party had been described as a courtesan or something of the kind. the inquiry could ne’er hold arisen. ” That illustrated the colonial tribunals attitude to adult females who were married harmonizing to customary jurisprudence. They did non merit to be termed married womans as per the colonialists and the married woman grounds was traveling to be admissible because they were married under customary jurisprudence.
THE NATIVE CHRISTIAN MARRIAGE ORDINANCE IN 1904
The Native Christian Marriage Ordinance applied merely to the matrimony of Christian appliers. It was supposed to supplement the matrimony regulation and was intended to alleviate the Africans of the demand to follow with the formalities laid down in the matrimony regulation. It merely applied to Africans who professed Christianity and merely similar matrimony regulation matrimony under this Act was purely monogamous.
This Act besides provided some protection to widows in the sense that widows who had been married under the regulation were protected from being inherited as was the instance in customary jurisprudence. That is they could decline to subject themselves to the topic of widows heritage. The matrimony had to be celebrated by a church curate and before the church curate did this he had to fulfill himself that the parties were Christians.
The native matrimony Christian regulation was replaced in 1891 with the African Christian Marriage and Divorce Act. Cap 151 of the Torahs of Kenya.
THE ENACTMENT OF THE DIVORCE ORDINANCE
This was based on the Indian Divorce Act of 1869 which was one of the Acts applied by the 1897 Order in Council. It provided or afforded alleviation merely in regard to monogamous matrimonies. This is still the place to the present twenty-four hours. It was replaced by the marital Causes Act in 1941.
In 1928 we besides have extra relieve being accorded by the separation Courts ( Separation & A ; Maintenance Ordinance ) which was limited to monogamous matrimonies. It still exists under the same name in our Torahs and its Cap 153. The intent was to supply parties with judicial separation other than divorce and besides to supply parties in a monogamous matrimony to seek care while the matrimony is still existing.
In 1906 the Mohammedan Marriage & A ; Divorce Registration Ordinance was introduced to supply for enrollment of Islamic Marriages and Divorces. Please note that it merely provides for enrollment of matrimony or divorce. The Act is fundamentally procedural and non substantial.
In 1946 we have the Hindu Marriage Divorce and Succession Ordinance being enacted. This is where Hindus parted manner with Hindu Customary Law. the Act provided that in future all Hindu Marriages were required to be monogamous and the Act extended to Hindus the alleviation that are available under the Matrimonial Act and under the subsidiary Courts separation and care Act. Under Orthodox Hindus matrimonies can be polygamous.
THE CONSTITUTIONAL BASIS FOR APPLICATION OF DIFFERENT LAW SYSTEMS.
One of the statements which was put frontward really strongly by Dr. Gibson Kamau Kuria when he was learning household jurisprudence was that the Marriage Bill of 1976 was unconstitutional and for that ground could non be upheld. The Bill sought to harmonize different household jurisprudence systems by presenting one jurisprudence. He gave two grounds why the measure was unconstitutional 1. Historically it could non stand because it assumed that sociologically and politically the Kenyan people were one entity which they were non and his historical statement is the statement of the different jurisprudence systems which was along racial lines and Kenya was still a really racially divided society ; 2. The Kenyan fundamental law guarantees a right to freedom of scruples and this includes freedom of faith and worship. Part of that freedom and worship is found in our different household Torahs. He argues that the statutory jurisprudence is found on Christian norms and therefore it is the Christian’s pick to get married under Christian jurisprudence. Muslims pick to get married under the Muslim Law likewise Africans were free to pattern their imposts under their imposts and that to pass under one unvarying jurisprudence for all would be unconstitutional.
Under the Draft Bill to change the Fundamental law this statement is put frontward under article 38 clause 5 the Bill provides that Parliament enacts statute law that will recognize matrimonies concluded under any tradition or under any system of spiritual. personal or household jurisprudence. If the Bill is accepted so we are looking at the continued multiplicity of household Torahs in Kenya and there is no mark of any possible fusion in the close hereafter.
REPORT OF THE COMMISSION ON THE LAW OF MARRIAGE AND DIVORCE
There is an appendix of a Marriage Bill proposed in 1996 which sought to harmonize all household Torahs in Kenya. The study is besides of import in the sense that it summarises what the commissariats are under the different systems of household jurisprudence with respect to marriage and disassociate and why it was thought necessary to harmonize all the household Torahs.
SOME PROBLEMS OCCASSIONED BY MULTIPLICITY OF FAMILY LAWS
1. Continued application of English Family Law ;
2. Change of Family jurisprudence ;
3. Conflicts – internal struggles between different household jurisprudence systems.
Continued APPLICATION OF ENGLISH FAMILY LAW
This is an anomaly given that we are about 40 old ages into independency and yet we still apply English Laws and English Statutes peculiar in countries of household jurisprudence. This is in 3 ways a. Continued application of common jurisprudence in signifier of common jurisprudence givens which still apply to Kenya. e. g. Common Law Rights of a married woman to plight the husband’s recognition. This has been applied in Kenya in a figure of instances Patterson v. Nanyuki General Stores. Ramji Dass Co. v. McDonald
The given is that when a married woman acquires goods on recognition. she is deemed to be moving as the husband’s agent and the hubby will be apt to pay.
In Ramji Dass it was stated that this given existed even when the married woman and hubby were non populating together.
B. Given of Promotion: This usually arises in a household relationship when a household member transportations belongings to another by manner of a gift. The issue arises as to whether the good involvement in that belongings has been transferred to the other individual which is what is known as the promotion when the belongings has been entirely transferred to the other individual or whether that other individual holds the belongings in trust for the individual who has given it. Is there an promotion ensuing in a trust? In common jurisprudence the given does be if it can be shown that the purpose was to reassign the good involvement so there is promotion.
There is authorization to the consequence that the given applies in Kenya. in Shallo v. Maryam. Bishen Singh v. Mohinder Singh. Sarah Wanjiku Mutiso V. Gideon Mutiso
In the instance of Wanjiku v. Mutiso [ 1988 ] Wanjiku and Mutiso were hubby and married woman. In 1967. during the class of their matrimony. Mutiso acquired a farm through two loans. both of which were secured by charges on the farm. Mutiso was a Member of Parliament but was jailed for 9 and a half old ages in 1971 for sedition. Mutiso fell into arrears in mortgage payments. Mutiso made out a power of lawyer in favor of the married woman but he was later obliged to reassign the farm into her exclusive name. He executed a title of gift to that consequence. Subsequently the parties grew apart and when Mutiso was released they were unable to restart their married life together. Mutiso hence filed suit claiming that his married woman held the belongings as his legal guardian and she should reassign the same back. The issues that arose for consideration were ( 1 ) whether the title of gift was null ; ( 2 ) whether there was an express trust in favor of the hubby ; ( 3 ) whether. in the absence of an express trust. a resulting trust could be applied.
The tribunal ruled in favor of Mutiso and the married woman appealed.
It was held
1. While the hubby did non clearly plead ensuing trust. the facts of the instance and the supplication of ‘trust’ efficaciously referred to a resulting trust. 2. There was no express trust in this instance because the transportation was specific and expressly by manner of gift. 3. where belongings is transferred to another as a gift with the purpose that the latter clasp it as legal guardian for the former. a resulting trust may be implied. 4. The given of promotion should merely be made so as to harmonize with the societal conditions in Kenya and to conform to the most likely purposes of the partners. In this instance. the strength of the given would be much diminished. There was sufficient rebuttal grounds that it was non the husband’s purpose to do an absolute gift to the married woman. A constructive trust would hence be imposed to forestall the married woman from taking deceitful advantage of her hubby.
The Appeal was dismissed.
c. Presumption of Marriage: This arises where a adult male and adult female cohabit and name themselves out as adult male and married woman. Under this given they will be deemed to be married even if they have non undergone any formal matrimony ceremonial. Family jurisprudence is besides seeking to integrate certain state of affairss which do non fall within the household threshold and this is one of them. Where parties have non met legal necessities to be called adult male and married woman. This given has been applied to the Kenyan state of affairs with respect to this premise the Kenyan tribunals have stated that this given existed under African Customary Law. Wanjiku Yawe v. Public Trustee.
Peter Hinga v. Mary Wanjiku and
R. V Peter s/o Mikhayo
Charles Manjani v. Rosemary Moraa
In Wanjiku Yawe the tribunal found that this given can besides be found under African Customary Law in R v. Peter s/o Mikhayo the interesting issue was that of the period of cohabitation. for how long should you live together for this given to come into topographic point? Is it one twelvemonth or 10 months?
In Peter s/o Mikhayo. the accused cohabited with a lady for a period of between 4 and 8 months. so one twenty-four hours he found his lady executing a sexual act in the shrub with a adult male and proceeded to kill the adult male. In his defense mechanism on charge of slaying. he said that the lady was his married woman and he had been provoked to kill the adult male. The tribunal had to see whether that period of cohabitation was long plenty to trip a given of matrimony. Again this is one of the instance relied on customary jurisprudence and it held that under Customary jurisprudence. that period was adequate and in fact stated that under customary jurisprudence. the minute you start live togethering the given is triggered.
In Charles Manjani V Rosemary Moraa the given was said to use even where the married woman had antecedently been married to another adult male. it was held that the given would use and the first matrimony was dissolved during cohabitation but by the clip cohabitation started it had non been lawfully resolved.
MARRIED WOMEN’S PROPERTY ACT OF 1882
An English Act that still applies in Kenya and is the rule jurisprudence that applies when allocating marital belongings. In I v. I and in Antony Karanja v. Karanja
In I v I [ 1970 ] this is the first reported determination of the Kenyan High Court where the Married Women’s Property Act ( MWPA ) of England was held to use in Kenya. The tribunal besides considered assorted English governments and made a determination on the given of promotion.
The hubby in this instance had acquired a belongings in England from his net incomes and had it registered in the joint names of the partners. The house was later sold and most of the returns used to buy a house in Kenya which was transferred into the husband’s name. The married woman had expected that the subsequent belongings would travel into their joint names.
The inquiry before the tribunal was whether the Married Women’s Property Act of 1882 of England ( MWPA ) would use in Kenya. Further. whether the given of promotion to the married woman as a consequence of the initial transportation to herself of a half-share had been rebutted. Held:
1. The MWPA was a legislative act of general application in England on 12 August 1897. It would therefore apply in Kenya so far as the fortunes of Kenya and its dwellers license. The MWPA would use in precedence to customary jurisprudence. Judicature Act ( Cap 8 ) subdivision 3 considered. 2. The given of promotion may be rebutted where belongings was acquired for the joint usage of the partners. The given that the belongings was conveyed to the married woman for her ain usage is nevertheless non rebutted if the transportation was effected to get the better of creditors. 3. In this instance. there was a post-nuptial colony between the parties in relation to the belongings of the matrimony. The word ‘settlement’ should be given a broad building. Hence. the tribunal has power under subdivision 28 of the Matrimonial Causes Act ( K ) . which is applicable in this instance. 4. The hubby in this instance had non shown any ground for fluctuation of the premarital colony between the partners.
In Karanja v. Karanja during the class of their matrimony. the parties acquired several belongingss which were all registered in the name of the hubby. One belongings was acquired from money supplied by the married woman while the other belongingss were acquired with her direct or indirect part. The tribunal considered whether customary jurisprudence would run to unfit any imputation of trust in favor of a married adult female. particularly one in salaried employment. Held:
1. The Married Women’s Property Act is applicable to Kenya. and customary jurisprudence is capable to any written jurisprudence. 2. Even without power to reassign belongings. the tribunal has power under the MWPA to allow declarations of ownership of belongings. In instances where the belongings was acquired as a joint venture. it will be regarded as belonging to the partners jointly no affair in whose name the belongings stands. 3. The absence of an understanding or purpose that the contributing partner portion beneficially in the belongings does non except the imputation of such an purpose. This will depend on the jurisprudence of trust. which will non separate between direct and indirect part. 4. Where an African hubby and married woman are in salaried employment. the imputation of a trust can non be rejected outright. This deduction would originate where the married woman is lending indirectly through payments for family and other disbursals which the hubby would otherwise hold had to pay. 5. In this instance. the hubby held the immoveable belongingss in difference in trust for himself and his married woman in proportions of two to one severally. However. it would non be just to order sale or ownership of the Karen belongings since the hubby was shacking at that place with his new household.
The concluding determination of the tribunal to present one-third good involvement in the belongingss to the married woman is applaudable. The Act provides that a married adult female is capable of geting. owning and disposing of belongings as her ain separate belongings and the history to this Act is that under English Law adult females could non keep separate belongings. This act liberated married adult females who can now have and dispose off their ain belongings.
Registration by Mention
1. Under the Matrimonial Causes Act Section 3 it provides that the jurisprudence that is to be applied in Matrimonial proceedings is that which applies in the High Court of Justice of England. This proviso exists in our jurisprudence so when we draft our pleadings in marital and divorce instances we have to travel back to the proceedings in England to see how they do it.
2. Section 35 of the Marriage Act which provides that no matrimony will be valid if the parties are within forbidden grades of affinity harmonizing to the jurisprudence of England. Again we go back to English jurisprudence to happen out what are the grades of affinity and so happen out who can non get married who in footings of dealingss.
A major job is what happens when a jurisprudence undergoes subsequent alterations. do we follow the alterations wholesale? The perfect illustration is in divorce jurisprudence. the divorce jurisprudence underwent major reform in 1970 e. g. when it comes to disassociate you find that to obtain a divorce you have to turn out that the other party has been guilty of a mistake. In 1970 in England all these evidences were removed and there is merely one land that of unreconcilable differences. In Kenya you still have to cite one or more of the evidences that are listed in the marital causes Act.
K v K HCCC No. 123 of 1975 where it was held that any amendments which are contrary to our ain Torahs would non be applicable in our ain state of affairs.
FAMILY LAW LECTURE 2
PROBLEM OF CHANGING ONE’S FAMILY LAW FROM ONE SYSTEM TO ANOTHER
The issue is whether one can alter from one system of household jurisprudence to another e. g. can one alteration from English Statutory Law to Customary Law or frailty versa? Theoretically it looks possible because under S. 76 of the Constitution it is provided that freedom of spiritual belief is protected and guaranteed and following from this constitutional warrant it follows that the minute you change from your faith. your household jurisprudence will automatically alter as 1s household jurisprudence is determined by 1s spiritual beliefs. However it has non been that simple and the place is that while one can easy alter from customary. Hindu or Islamic household jurisprudence to statutory jurisprudence. you have to hold changed your faith. It is non easy to change over from statutory to Islamic or Customary merely by the act of alteration of religion. Statutory jurisprudence still insists on a figure of formalities before one can alter from one system to another.
English jurisprudence started with a state of affairs of non-tolerance of other household jurisprudence systems other than their ain household jurisprudence system and you find instances like
Hyde v. Hyde
This instance concerned the matrimony in 1858 of two Church of jesus christ of latter-day saintss in Salt Lake City. and matrimony was defined in that Ruling as matrimony harmonizing to Christendom was the ‘voluntary brotherhood for life of one adult male and one adult female to the exclusion of all others’ .
Re Bethel [ 1888 ]
In this instance an English adult male married a Botswana Woman under Botswana customary jurisprudence and they had a kid. the hubby died and left belongings in England. The issue was whether this girl was legitimate and could therefore inherit the belongings in England and the tribunal held that that matrimony was non recognized under English jurisprudence because it was potentially polygamous and the girl was hence non legitimate and could non inherit the belongings. And they quoted Hyde’s instance that matrimony was the voluntary brotherhood for life of one adult male and one adult female to the exclusion of all others.
Ex Parte Mir- Anwarrudin ( 1917 )
Had a similar opinion with Re Bethel
The attitude of the English tribunals non acknowledging any other jurisprudence was besides found in Kenya in colonial times Re Amkeyo the tribunals termed the married womans in those matrimonies as courtesans and refused to acknowledge them as married womans.
From 1940 the English Courts started to alter their attitude and started acknowledging other household jurisprudence systems for intents of entertaining marital causes originating from those systems. Note that this acknowledgment was non for intents of formalizing them but for intents of easing the alteration from those systems to statutory household jurisprudence systems so that they would acknowledge another household jurisprudence system for intents of annuling it or intents of easing alteration from that system to the English jurisprudence system.
During 1940s up through to the present twenty-four hours. tribunals now do acknowledge other household jurisprudence systems and acknowledge that you can alter from one system to another
Bandail v. Bandail
A Hindu polygamous matrimony was recognized for intents of invalidating in England.
Sowa v. Sowa
In this instance. a polygamous matrimony was celebrated in Ghana where the parties were domiciled. Prior to the ceremonial the hubby promised the married woman that he would travel through a later ceremonial which. harmonizing to the jurisprudence of Ghana. would change over the brotherhood into a monogamous matrimony. He failed to transport out his promise. It was held that. despite his promise and despite the fact that the hubby had non taken an extra married woman. the matrimony continued to be regarded as polygamous.
The English tribunals besides made opinions as to what Acts of the Apostless could alter a polygamous matrimony to a monogamous matrimony. The first act was a alteration of spiritual belief of religion which so affected the parties legal position was the first act to be recognized.
BY CHANGE OF RELIGION
Sinha Peearage Case [ 1946 ] 1 All E. R. 263 P. C
The parties changed their Hindu Sect from one practising polygamous matrimony to one practising monogamous matrimony. It was held that altering their spiritual beliefs changed their matrimonial position and the polygamous matrimony was changed to a monogamous one.
A. G Of Ceylon v Reid [ 1965 ] A. C. 720
Local Legislation is one recognized manner with the purpose of altering the character of 1s household jurisprudence system.
Parkasho v. Singh [ 1967 ] 1 All E. R.
A legislative act converted Sikh matrimony from being polygamous matrimony to monogamous matrimony and it was held that it was out of these faith alterations that household jurisprudence of Sikhs was changed. The statute law must be full statute law that trades with all matrimonies in that class.
Under our ain Christian Marriages Act it is your faith that determines whether you can alter your class of matrimony.
Where there is a 2nd ceremonial of matrimony that is designed to alter one position from polygamous to monogamous brotherhood. This is the sort of state of affairs which would obtain under the African Marriage and Divorce Act
Ohochuku V. Ohochuku [ 1960 ] 1 All E. R. 253
The parties had been married under Nigerian Customary Law and so underwent a Christian Marriage. Under English jurisprudence which created a monogamous matrimony
BY CHANGE OF DOMICILE
Ali v. Ali
This instance provides authorization for the proposition that. if a hubby changes his legal residence from a state that permits polygamy to one which does non. this alteration of legal residence renders the matrimony monogamous.
Change of Domicile
Domicile is basically 1s lasting place or the topographic point that one intends to put up their lasting abode and in this instance the parties had contracted a polygamous matrimony in India but the matrimony had remained a de facto monogamous matrimony. They so changed their Domicile to England which changed their matrimony into a dejure monogamous matrimony.
The English accepted in two stages bit by bit acknowledging other household jurisprudence systems for the intents of invalidating those brotherhoods or change overing them into English systems. but ne’er frailty versa.
The Kenyan state of affairs is really much like the English 1. Kenya statutes do supply for the alteration from one system to the other. Section 11 ( B ) of the Marriage Act implies that one can alter their customary or Muslim jurisprudence matrimony into a Christian matrimony. When you apply for a matrimony certification there must be an Affidavit stating that neither party is married under customary or Muslim jurisprudence to any other individual they intend to get married
Section 9 of the African Christian Marriage and Divorce Act provided for parties who are married under customary jurisprudence to get married under the Act if they wish to make so and there are a figure of parties that
The Islamic jurisprudence under subdivision 5 ( 6 ) besides in any manner does supply of transition of customary jurisprudence matrimonies to Islamic matrimonies. though non straight. The subdivision makes it an offense for one to change over to Islamic matrimony from other matrimonies unless there is a divorce.
In our state of affairs one can alter 1s household jurisprudence
Ayoob v. ( 1968 ) E. A. 72
Estate of Ruenji
Re Ogolla’s Estate
In Ayoob instance the parties were Muslims and they got married under the Marriage Act as the statutory jurisprudence matrimony. On the same twenty-four hours they were married under Muslim Law. Subsequently the hubby divorced the married woman by manner of tarak a Muslim signifier of divorce. He so went to tribunal seeking a declaration that his matrimony had been legitimately resolved. It was held that the hubby by executing the taraq was able to disassociate the Muslim matrimony but if he wanted to disassociate the statutory jurisprudence matrimony he would hold to register for divorce under the Matrimonial Causes Act. The tribunal is stating that the act of contract of a Muslim matrimony after the statutory jurisprudence matrimony does non change over the statutory jurisprudence matrimony so that the statutory jurisprudence matrimony was still prevailing and had to be divorced by following tribunal processs
Ruenji and Ogola – facts are similar
Estate of Ruenji
The deceased a Kikuyu by folk and domiciled in Kenya. died go forthing a gross estate of about 53. 000 shillings. It is non disputed that he was married to one Loise Murugi Mbiri under the African Christian Marriages Act in 1941. It is besides alleged that the deceased later married two other ladies. viz. Mary Waithira and Mary Wanjohi harmonizing to the Kikuyu customary jurisprudence and had kids by them. The public legal guardian and the attorney for Loise submitted that the first inquiry that must be decided is whether in position of the deceased’s foremost matrimony under the African Christian Marriage and Divorce Act the deceased could come in into one or more other lawful matrimonies. Marriage under the African Christian Marriage and Divorce Act is meant to be a Christian matrimony and that parties become lawfully bound to each other as adult male and married woman so long as both of them shall populate and their matrimony can non be dissolved during their life-time except by a valid judgement of divorce and that if either of them ( before the decease of the other ) should illicitly contract another matrimony while their matrimony remained undissolved. the wrongdoer would be guilty of bigamy. and apt to punishment for that offense. It is evident that the deceased had non divorced Loise during his life-time. and that. accordingly. any subsequent matrimony would be illegal.
In both Ruenji and Ogola a adult male married his first married woman under statutory jurisprudence and so contracted 2nd matrimony under customary jurisprudence. The adult male died and the inquiry arose whether both married womans could profit from the hubby Estate. The tribunal held that the 2nd married womans were non recognized under Statutory jurisprudence because the adult male did non hold capacity to contract a 2nd matrimony and they therefore they and their kids could non inherit from the man’s estate. The tribunal is stating that the adult male could non change over from a statutory manner of life that he had committed himself to. The 2nd married womans were non recognized.
These two instances were instrumental in taking to Succession Law and in our Law of Succession Act whilst even under customary jurisprudence married womans can inherit irrespective of the fact that the hubbies could hold married antecedently under statutory jurisprudence.
The current measure to amend the fundamental law addresses this issue by giving equal acknowledgment to all the systems under the fundamental law. Family jurisprudence system will be protected and one time one alterations their faith as a consequence that alteration will be recognized and guaranteed. What is staying is to acknowledge and convey all the system under one system and give them constitutional protection.
Other ways in which household jurisprudence might be changed
1. Where one marries person practising another household jurisprudence system: for illustration if a individual practising a customary jurisprudence system marries a individual practising Islamic jurisprudence usually the deduction is that that matrimony will confer upon the parties a new household jurisprudence system and usually the operating jurisprudence system will be that of the adult male. Ours is a patriarchal society.
2. one can besides get a new household jurisprudence system by alteration of Domicile
Ali bhai a household was allowed to alter their household jurisprudence system after settling at the Kenya Coast. From Hindu to Islam.
Change of Family Law in other legal power – cited under struggle of matrimony Torahs
Manjany V Ndongo ( 1967 ) JAL 13
Mokhotu v. Manyaapelo – Lesotho
Onwudinjo v. Onwudinjo [ 1962 ] J. A. L 49-52 – Nigerian
Bakari v. Kichunda ( 1973 ) L. R. T Tanzania
Rattansey v. Rattansey ( 1960 ) E. A. – Tanzania
These instances dealt with alteration of household jurisprudence system.
These instances – most of commonwealth legal power have fundamentally adopted the Kenya place that is. you can non alter 1s household jurisprudence system merely by altering 1s faith particularly if it is from statutory jurisprudence system to other household jurisprudence system.
Onwundinjo v. Onwundinjo was a sequence affair. the other married woman could non inherit because the hubby had contracted an earlier statutory jurisprudence matrimony.
In Manyaapelo a 2nd customary jurisprudence matrimony between the parties was declared void and null because at the clip of undertaking the hubby had non validly divorced the first married woman who he had married under statutory jurisprudence.
In the Gambia in Manjany vs. Ndongo the tribunals recognized you could alter from statutory to Islamic jurisprudence matrimony by undertaking an Muslim matrimony ceremonial after the statutory matrimony ceremonial
In Ayoob the facts are similar to Manjany but the tribunals ruled otherwise.
In Ayoob. the plaintiff in error a Sunni Muslim. and the respondent. a Shiite Muslim. were married in conformity with the Marriage Act ( Cap 150 ) . A matrimony under this Act is monogamous. Subsequently they went through a ceremonial of matrimony harmonizing to Mohammedan Law. the respondent by so holding adopted the philosophies of her husband’s religious order. The plaintiff in error subsequently purported to disassociate the respondent by articulating talak. The Appellant so. by request to the High Court. sought a declaration that his matrimony to the respondent was legitimately dissolved. The erudite justice held that a matrimony under the Marriage Act was non a Mohammedan matrimony and that it could merely be dissolved during the joint life-time of the partners by a valid judgement of divorce pronounced under the Matrimonial Causes Act ( Cap 152 ) and he consequently dismissed the request.
In Rattansey the facts were similar but the tribunals held that the talak terminated the statutory jurisprudence matrimony earlier contracted.
Gambia and Tanzania – these can be distinguished from other commonwealth states in the sense that they have made an effort to acknowledge their ain household Torahs and Islamic Law and Statutory Law in Gambia are equal.
CONFLICTS THAT ARISE
The struggles that arise are in 3 chief respects
1. Conflict between statutory and other systems of household jurisprudence because of the reluctance by the tribunal to acknowledge that one alteration from statutory to other household Torahs. E. g. parties will acquire married under statutory jurisprudence and go on to populate their customary manner of life and in the procedure contract customary jurisprudence matrimonies and the issue is to what extent will that customary jurisprudence apply to people married under statutory jurisprudence?
There are state of affairss such as Re Ogola originating or narratives of people holding gotten married under statutory jurisprudence and so acquiring married under customary jurisprudence and subsequently to recognize that they have committed an offense.
2. Different Customary Law systems particularly African customary jurisprudence system. This job is exacerbated by the fact that the Kenyan population is going urbanised and when we say that the Kenya customary jurisprudence applies. which is the customary jurisprudence and particularly for people who live in urban countries and do non pattern any customary jurisprudence.
3. Legislative acts – two illustrations will be between the Marriage Act and the Law of Succession Act whereby under the Marriage Act matrimonies are purely monogamous and it is an offense to carry on a 2nd matrimony but the Law of Succession gives acknowledgment to potentially polygamous matrimony and that they can inherit under this jurisprudence. Under the Matrimonial Causes Act there is no proviso for application of customary jurisprudence in finding the destiny of the kids. Under the children’s act the act provides that in affairs finding detention of kids one of the affairs to be taken into history are the imposts impacting that kid. So in an effort to suit African system of jurisprudence the kids are brought in a construct non present in other Acts. Unless there is a entire inspection and repair of the legislative acts in the household jurisprudence sphere where they are harmonized and put on the same wavelength we shall go on holding these struggles of four different household jurisprudence systems.
What is a matrimony – a matrimony will be a brotherhood between one adult male and one adult female who intend to populate together as hubby and married woman. What happens in polygamous matrimonies? The adult male will contract separate matrimonies with each adult female so for each it is a brotherhood between one adult male and one adult female. Marriage therefore is fundamentally a consensual contract and is a societal contract between the parties involved. Before there can be a matrimony there must be the understanding to get married. and the first return in any matrimony relationship includes an understanding to get married.
LEGAL INCIDENCE OF AGREEMENT TO MARRY
Not every understanding to get married will ensue in a matrimony.
Basically under statutory jurisprudence an understanding to marry is said to be under common jurisprudence when parties decide to acquire married and act in a mode that shows their purpose to get married. Under common jurisprudence. understandings to get married amounted to contracts that were lawfully enforceable provided it could be shown that the parties involved intended to come in into a legal relationship so that a party who withdrew from such an understanding without any legal justification could be sued for breach of contract and the injured parties could claim amendss.
Bing basically a contractual relationship. all the usual contractual demands must use i. e. demands as to capacity to come in into that contract. consent. purpose to make legal dealingss etc. All these must be met before one can aver that there has been a breach of that contract.
Shaw v. Shaw ( 1954 ) 2 Q 3
The Plaintiff had cohabited with a adult male she regarded as a hubby for 14 old ages and they lived together as hubby and married woman and at one point even celebrated their matrimony. Upon his decease. the complainant discovered that for 10 old ages of their matrimony the adult male had been married to another adult female who died 2 old ages before him and that it was hence in those two old ages that he had capacity to get married the complainant. i. e. he was merely individual for 2 old ages of their cohabitation and merely in those 2 old ages that he should hold been lawfully been married to her. She sued in the States for breach of guarantee and that guarantee was that he was individual and had capacity to get married and he had hence breached his promise to get married her. The tribunal awarded her amendss for breach of that guarantee.
Other than general amendss. when there is a breach of understanding to get married under common jurisprudence usually gifts given in contemplation of that matrimony will besides be required to be returned by the guilty party.
Cohen v. Seller ( 1926 ) 1 K. B. 536
The gift in inquiry was a diamond battle ring that had been given to the lady and the issue was whether she should return the ring when the battle was broken and it was held that if it was the adult male who was guilty. or responsible for the breach. so he could non demand the return of the engagement ring but if it was the adult female who had refused to carry through the conditions of the understanding so she was required to carry through the conditions of the ring. It was found that it was the adult male who had refused to transport out his promise and the adult female was awarded general amendss and the lady allowed to maintain the battle ring.
Larok v. Obwoga ( Ugandan Case )
The lady who was the Respondent and the Appellant were friends when the lady was a student at college she became pregnant and as a consequence was expelled from the college. The adult male so wrote to the lady assuring to get married her by the terminal of April. This was in 1968. In October he once more wrote to the lady indicating that he was no longer lament to get married her. The lady so went to tribunal and sued for breach of promise to get married and the lower tribunal held that the adult male had committed a breach of the promise and awarded the lady 2000 as amendss. The tribunal based its calculation on two evidences that the opportunities of acquiring married had been impaired and secondly the hurt posed to her feelings. The adult male appealed but his entreaty was dismissed and the amount of 2000 shillings was to be paid. In England this action of breach of promise to get married is no longer recognized. It was abolished in 1970 by the Law Reform Miscellaneous Provisions ) Act UK ( 1970 ) the act abolished actions of breach of promise to get married but in KENYA IT WAS NOT and still applies in Kenya via the Judicature Act. MUINDE V. MUINDE
Please note commissariats of Section 170 of the Penal Code which states that any individual who wilfully and by fraud causes any adult female who is non legitimately married to him to believe that she is legitimately married to him and to live together and hold sexual intercourse in that belief is guilty of a felony and is apt to imprisonment for 10 old ages. AGREEMENT TO MARRY
Under Islamic jurisprudence understandings to get married are entered into between the parents of the intended partners. Which means that until the contract to get married and the existent matrimony takes topographic point ; no contractual duties arise as between the intended partners. Therefore no suit for breach of understanding to get married can be instituted. However. where gifts or decorations have been exchanged between the two households. so these can be returned if the understanding to get married is broken. This was the issue in FAZALDIN V. DIN MOHAMMED
The girl’s male parent entered into a betrothal understanding without her consent and she subsequently refused to get married the prospective suer. The prospective suer brought an action where he claimed amendss for breach of understanding to get married and in the option he besides sought an injunction to keep her from get marrieding any other adult male until he had recovered all his amendss and the gifts he had given. The tribunal held that he could merely retrieve the nowadayss and the decorations he had given but could non retrieve any amendss. The same place obtains under Hindu Law where understandings to get married are made between the parents of several partners and a engagement in regard of a male child and a miss can be done when they are still babies. In Dhanji v. Ruda
The betrothal understanding was made when the parties were still kids and the parents exchanged decorations. vesture and other gifts. When the miss became of age. she indicated that she had no purpose of acquiring married to the male child and the battle was finally broken. The parents of the male child instituted proceedings for amendss for the breach of contract. Court held that no amendss were recoverable because a contract where a individual is forced against her will is contrary to public notice and morality and the parents could merely retrieve their gifts and decorations. Agreement to get married under customary jurisprudence
Under customary jurisprudence understanding to get married usually take the signifier of engagements and the nature of the engagement will differ between the different communities whereby for some communities it is rather an luxuriant formal ceremonial while for others it is a household matter with a few informants. therefore the understanding under African customary jurisprudence takes topographic point between the households of the parties and non the parties themselves. The effects of a engagement under customary jurisprudence is that on portion of the adult female she loses her sexual freedom and can non hold any sexual or any relationship with any other adult male and on the portion of the adult male he is under an duty to pay the bride monetary value. . On the portion of the household. the household of the miss is bound to give away their girl and are under an duty to maintain her celibacy while the household of the male child is under an duty to pay the bride monetary value. In the event of a breach happening. it has been held that under African customary jurisprudence an action of breach of promise to get married will non lie. This was held in muinde v. muinde There are other redresss provided for under the Magistrates Act which include actions for amendss for seduction. and besides actions for gestation compensation. Muinde Muinde
It stated that if the Agreement to get married is made under statutory jurisprudence. the action will lie because the action is portion of the deceased household jurisprudence but it will non lie in customary jurisprudence because the redresss provided for in customary jurisprudence are listed and they had been awarded in the yesteryear.