Comments on the Marriage (Amendment) Bill, 2023

 

The health of societies is the health of families, and the health of families is the health of marriages.

The Marriage (Amendment) Bill of 2023 proposes the addition of a new Section 75A. Under this Section, the parties to a civil, Christian, Hindu, or customary marriage may obtain a divorce by mutual consent upon petition to the court. Three conditions must all be met for such a divorce to occur: (i) the irretrievable breakdown of the marriage; (ii) the mutual separation of the parties for at least one year before the date of presentation of the petition; and (iii) the mutual written agreement (backed by consent) of the parties to dissolve the marriage.

The proposed change to the law would further redefine the institution of marriage to the institution’s detriment, weaken the extended family, and expose women to vulnerability.

The Marriage (Amendment) Bill of 2023 should not be passed into law without radical changes.

Objections to the Marriage (Amendment) Bill

1. Permitting no-fault divorce makes marriage ephemeral, to the detriment of the dignity of persons, families, the economy, and society.

• Marriage is not simply the legalization of an informal union, of some “set of heterosexual unions undertaken with some idea of duration and manifested to the relevant social environment.”^[1] Rather, marriage is a union of unconditional love between a man and a woman. In marriage, a man and a woman pledge to love each other without conditions, giving themselves completely to each other. They publicly proclaim this truth and thus seal their union. Only if marriage is exclusive, indissoluble, and open to life is it truly unconditional. Marriage understood as an unconditional union has numerous and weighty advantages over marriage understood in legalistic terms. A “legalistic” vision of marriage is detrimental to the dignity of persons, families, the economy, and society. Therefore, it contravenes Articles 21(2), 28, 43, and 45(1) of the Constitution of Kenya.
• Permitting no-fault divorce redefines marriage as a union that is dissoluble at the option of the parties. It redefines marriage as a conditional union given legal status, rather than an unconditional union created by matrimonial consent and consummation and merely recognized by the law.
• Only when marriage is understood as an unconditional union does it respect the dignity of man and woman.

• Marriage is an unconditional union in which one man and woman solemnly vow to give themselves to each other. They belong to each other. Each takes the other as the man that he is and will be or the woman that she is and will be.
• However, if marriage is conditional, it is a union “for a time,” subject to change as one of the spouses changes. If we think of marriage as conditional, we hold (even if inadvertently) that the reason for loving another person is not who they are, but something else about them that is subject to change: their qualities of character or body, or even their capacity to give us emotional or physical satisfaction. If we cease to be satisfied, the union dissolves. For this reason, when marriage is thought of as conditional, each person reduces the other to an object of use.^[2] This goes against inherent human dignity. For that reason, it cannot lead to deep and lasting fulfillment. Moreover, it contravenes Article 28 of the Constitution of Kenya, which declares the right of every Kenyan to have his inherent dignity promoted and protected.
• Although the unconditional union of marriage often entails difficulties, it leads to profound fulfillment and lasting satisfaction – much more so than marriage as a conditional union. The State should aim to help married couples overcome their challenges and achieve enduring happiness rather than undermine the marriage bond. Thus, the State would fulfill its duty to protect the family under Article 45(1) of the Constitution of Kenya.

• It is crucial for the flourishing of the children and the economy that marriage be understood and lived as an unconditional union.

• There is a close correlation between conditional “marriage” and low fertility rates.^[3] In an acclaimed classic sociological work, Carle Zimmermann puts it this way: the very act of childbearing “creates resistance to the breaking-up of [a] marriage.… Societies that have numerous children tend to have familism. Other societies (those with few children) do not have it.”^[4]
• This relationship also works the other way around. Unconditional love tends to correspond to higher fertility rates. When marriage is understood as an unconditional union, a man and a woman take each other as they are. This also means accepting the natural tendency of the sexual union between man and woman to give rise to children.
• Historical evidence testifies to the truth of this claim. For example, in the Roman Empire, the family was characterized by frequent divorce and the (socially accepted) access of men to prostitutes and concubines. As a result, childlessness prevailed and men and women had recourse to available methods of abortion, contraception, and even infanticide – which was most common.^[5]
• Empirical evidence likewise demonstrates the enduring truth of the claim in our day and age. Changes in fertility or marriage behavior cause changes in the other behavior.^[6]
• The natural fecundity of the marital union produces labor, one of the three main factors of the production of wealth. In fact, at present, countries with low fertility rates rely, to an increasing extent, on immigrant labor – that is, on labor produced by countries with high fertility rates.^[7] The fecundity of the marital union, then, is necessary for the creation of wealth.
• Moreover, the unconditional love of the spouses for each other is an indispensable agent for an upright distribution of wealth. In a family animated by the unconditional love of the spouses for each other, the children too are loved unconditionally as the fruit of the spouses’ union. Thus, the children learn that people are not instruments to be used but instead persons to be affirmed in one’s action – including (eventually) in one’s economic activity – even though this requires sacrifice. They learn to put others above themselves.^[8] Without this, children, and the workers they will eventually become, may easily lack the desire to safeguard the vulnerable: the poor, the elderly, the disabled, etc. They will also tend to place higher values on so-called “goods and services” that reduce others to objects of use and accumulate self-centered material wealth or pleasure. This shapes economic markets according to the mold of self-centeredness.^[9]
• Besides this economic argument, we put forward a constitutional objection. The State has a constitutional duty to take measures for the progressive realization of socio-economic rights under Article 21, read with Article 43 of the Constitution of Kenya. The Marriage (Amendment) Bill of 2023, therefore, is unconstitutional.

• Stable marriages lead to better outcomes for children. When marriage is understood as an unconditional union, it tends to be stabler than when understood in legalistic terms.

• In the United States, people who reported that their top reason for moving in together was either to test the relationship or because it made sense financially were significantly more likely to see their marriages end than those who did so because they wanted to spend more time with their partner.^[10] In other words, the more conditional a union is understood to be at the outset, the less stable it is likely to be as a marriage.
• Marital dissolution is associated with lower emotional security in children.^[11] Emotional insecurity is sometimes expressed in problematic behaviors: frequent breaking of rules, drug or alcohol abuse, early sexual activity, or violence.
• Marital dissolution also often implies financial strains associated with worse educational outcomes.
• Finally, sociological research asserts that children who experience the divorce of their parents are at greater risk for a divorce when they eventually marry.^[12] Children of divorce, in general, seem to have less commitment to the ideal of lifelong marriage than children from intact marriages,^[13] creating a vicious cycle.
• The State must reinforce, not undermine or ignore, marital stability.

• A peaceful society is impossible if marriage is understood as a conditional union.

• The democratic system is based on the ideas of liberty and equality.^[14]

• Liberty, here, is understood as autonomy, independence, absolute freedom. A person is free to do as he likes, as long as he does not impinge on the freedom of his fellow man. Such a system cannot exist unless the citizens have a permanent and practical desire for peaceful coexistence. In the absence of this desire, social life is not possible in a democracy.
• This freedom is often understood in material terms because of its preoccupation with the satisfaction of desire (“to do as one likes”). A person who lives according to this notion of freedom can only be free if he acquires the material means to satisfy his desires, i.e., if he has money.
• In such a “free” society, it is difficult, if not impossible, to maintain equality among social classes. But if there is no equality, the liberty of the weak is threatened because they must be subordinate to the freedom of the rich. This, in turn, threatens the peaceful coexistence that a democracy requires to exist.
• The problem with the democratic system is its notion of freedom. If there is no agreement on fundamentals in the ethical sphere, including the duty to actively foster the good of one’s neighbor, a democracy cannot but tend to instability.

• As has already been said, conditional unions reinforce self-centeredness and reduce commitment to others. Therefore, understanding marriage as a conditional union is detrimental to the flourishing of the society, of any society.

2. Permitting no-fault divorce increases the vulnerability of women.

• Especially in urban areas, the workplace is distant from the family dwelling. The devotion of mothers to raising children and caring for the household often means that they work less outside of the home. For that reason, women tend to be economically dependent on their spouses. The less stable marriages are, the more the economic vulnerability that these women are exposed to.
• In Kenya, significantly fewer women than men receive tertiary education.^[15] Tertiary education (particularly university education) is associated with remarkably higher employment rates for both men and women.^[16]
• Women in Nairobi are disproportionately affected: over 50% of working-age women in Nairobi are unemployed, that is, not working for pay or profit.^[17]

3. Permitting no-fault divorce weakens the extended family.

• In many African societies, marriage also unites the spouses’ families.^[18] Even where couples are united in civil or Christian marriages, some customary union is usually involved, uniting the spouses’ families into one extended family.
• The extended family serves as a social welfare institution.

• People working in urban areas often remit income to their relatives and the relatives of their spouses in rural areas. For spouses, their income is shared, and they send some portion of it to the relatives of either spouse.
• For people working in urban areas, the residences and farms of their relatives in rural areas often serve as a safety net. Should they undergo economic misfortune, these families can relocate to rural areas and share in the work and wealth available in their rural homes.

• The dissolution of a marriage removes the basis for the interfamilial union that forms the extended family. If marriages are less stable, dissolution will happen more frequently.
• As shown above, a no-fault divorce regime will tend to reduce marital stability. Therefore, it will weaken extended families, to the detriment of many who rely on it for social welfare.

Recommendations

1. The Marriage (Amendment) Bill should reform divorce proceedings to make reconciliation or, if that is impossible, amicable settlement a priority.

• With good reason, the Marriage (Amendment) Bill proposes no-fault divorce as an alternative to lengthy, acrimonious, and expensive proceedings in a fault-based divorce regime. However, as has already been stated above, no-fault divorce is detrimental to persons, families, the economy, and the entire society. For this reason, it contradicts the duty of the State to protect the family (Article 45(1)), to progressively realize socio-economic rights (Articles 21 and 43), and to respect and promote the dignity of the person (Article 28).
• Rather than no-fault divorce, the lengthy and acrimonious nature of fault-based divorce proceedings can be better resolved in a way that accords with the constitutional duties of the State.

• Where one spouse applies for divorce over the objections of the other, the parties should be required to attend a pre-trial conference. The conference should be designed to clarify the points of disagreement between the spouses.
• The petitioner’s attendance at such a conference should constitute a condition precedent for the further continuation of the divorce proceedings.
• The powers of the officer conducting the pre-trial conference should include the power to recommend that the spouses or their children have recourse to counseling. Such counseling would be directed to assisting the spouses to reconcile and, only if reconciliation seems impossible, to resolve or understand the emotional turbulence they are encountering because of marriage breakdown. Such a better understanding would frequently contribute to the prospects of an amicable and equitable settlement of the collateral issues arising from divorce.

2. The State should constitute a task force on the family to investigate the stability of marriages of different groups of Kenyans and propose economic, legal, and social means to improve marriage stability.

Conclusion

If passed, the Marriage (Amendment) Bill would introduce no-fault divorce to the detriment of persons, families, the economy, and society in contravention of Articles 21, 28, 43, and 45(1) of the Constitution of Kenya. We urge Parliament to instead reform the existing no-fault divorce proceedings by providing for measures for reconciliation or, at least, amicable divorces by amending the Marriage (Amendment) Bill to match Recommendation 1 above. Furthermore, the State should constitute a task force on the family to investigate and bolster marriage stability.

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