Post on 29-Jan-2023
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Table of Content
Introduction 3
- State Sanctioned Marriages: Where it Begun 5
The State Should Stay out of the Bedroom 6
- Why Privatize Marriage 7
State has an Interest in the Marriage Business 10
- Case for the interference of the State 10
Conclusion 14
Bibliography 15
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1. INTRODUCTION
Marriage is like the sphinx-a conspicuous and recognizable and age-old monument on
the landscape and yet still riddled with secrets and intrigue. To newcomers the
monument seems wonderful; while to those in the vicinity its adorable features are
taken for granted. In examining the wonders and terrors in a matrimony, most people
view it as a matter of private decision-making and domestic arrangement. On its
superficial attributes, the monumental public character of the marriage as an institution
is generally least noticed. In the creation of the family and the network of kinships, to
the generational handing down of property, marriage certainly plays the role of a
designer of private life. It influences to a great extent the individual identity and
determines circles of intimacy. In this respect, it can bring solace or misery in equal
measure. Even in the least complex society governed by law, marriage exists as a public
legal act and not merely as a private romantic declaration or religious rite.1Marriage has
been defined as a public sexual union that creates kinship obligations and sharing of
resources between men, women and the children their sexual union may produce.2
But recently, the view that marriage is ideally a private relationship has gained
credence in most sovereigns; marriage is regarded as a private realm in the
establishment of private family that the state should not unnecessarily enter.
Privatization in essence points to a situation where the state does not interfere in the
personal relationships that subsist within a marriage. The alternative would be that
people decide their own terms similar to any other contract. Privatization would require
that marriage cease to be defined by statute rather parties define it for themselves
including the rights and obligations. However, and on the contrary to the foregoing,
marriage is looked at as a union of personal love and commitment which plays a
1 Maggie Gallagher, “What is Marriage for? The Pubic Purposes of Marriage law” 2 Ibid
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significant role in public order. In Kenya, marital status is an important determinant on
ones standing in the community and the state at large. Away from the privacy of the
marital home, the structure of marriage organizes community life and facilitates the
government’s grasp of the populace. The knowledge of the intricacies of this institution
is of profound importance to the government as it forms the basic unit of the sovereign
people of Kenya. In societal socialization, marriage requires some element of public
knowledge-at least some publicity beyond the couples themselves, thus witnesses are a
mandatory requirement in the marriage ceremony. This requirement is mandatory in
almost all forms of marriage celebration in Kenya and beyond. More specifically,
marriages that will be considered legal definitively will require state sanction or
recognition.
In the ordinary sense, the public and the republic sets the terms of the marriage, says
who can marry, who can officiate the marriage and what rights and obligations the
agreement entails, whether the marriage can be ended and if so, how and in what
specific circumstances. Marriage prescribes duties and dispenses privileges. The
governmental apparatus in Kenya has packed into the institution of marriage many
benefits and obligations. These benefits span from tax policy, property rules, social
security and acquisition of citizenship to name just a few. Husbands and wives are
required to take care and support each other sometimes beyond the subsistence of the
marriage.
However, despite the deep entrenchment of state support for support and hegemony of
heterosexual marriage, there is a growing body of literature that advocates for a muted
state involvement in marriage. Most of these authors are of the opinion that marriage
being a private relationship ought to be subjected to the barest of state control.
Ironically for most libertarians, the debate has been the need for legalization of gay
marriages, but now more and more are turning to the idea that the government should
actually cease being involved in the business of decrying who can and cannot get
married. This newfound love for privatization of marriage has gained credence out of
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the notion that marriage by all its general attributes is essentially a contractual
relationship that requires only the two parties; this is different from the position in
Kenya now where marriage is ideally a tripartite contractual relationship involving the
two parties and the state as an interested third party.
However this debate is far from conclusive. Some of the reasons that have been
advanced by the opposing sides each hold credence and substantial support for each
standpoint. This paper seeks only to ventilate on these differing points of view and
consider a vantage point by which to take a stand. Out of the unavoidable constrains of
space and time, the group sought to avoid a detailed consideration of the merits of the
growing body of literature that associates privatization of marriage with equality of
rights for gay relationship owing to the fact that in Kenya such relationships are not
clearly recognized in law despite the fact that they are alive and thriving apace. This
paper therefore perceives marriage as a heterosexual relationship within all the confines
stipulated in law. In the end, we are of the opinion that despite the seriousness of some
of the claims for privatization of marriage, the state still has an important role to play in
this institution for reasons that go beyond the parties themselves.
1.1 State Sanctioned Marriage: Where it Begun
But when did the state get so entangled in this business? It is imprecise to state when
exactly the state with all its manifestations throughout the ancient world saw the need
to run the marriage business, however the history of English marriages and the state
provides a revelation which would be considered in favor to the contemporary private
marriage proponents. One scholar, Lawrence Stone writes that marriage was in the eyes
of the laity seemed to imply a private contract between two individuals, and only
enforceable by the community’s sense of what was right. At the turn of the 16th
century, the formally witnessed contract called the ‘spousal’ was proceeded by the
proclamation of the banns that was called three times in church, however this came
after the spousal had realized for the couple a legally binding contract of marriage
(Boaz, 1997).
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The first legislative framework in recognition of marriage in England came in 1753
through the Earl of Hardwicke’s Marriage Act. The English government thus began to
regulate the institution of marriage through formal law. But even after this act in the
numerous colonies such as New England, marriages were still conducted less formally
by justices of peace or other magistrates however; even those marriages that were
conducted through local customs and common law were recognized as valid (Marriage
Records, 2011). In Africa and Kenya in particular, marriages were conducted through
elaborate customary practices unique to the community. From this legislation the state
slowly asserted its control of marriage throughout different sovereigns and cultures
such that by the 20th century, the government had intruded into the marriage contract
with the legislature and the courts unilaterally defining the terms the marriage contract.
2. THE STATE SHOULD STAY OUT OF THE BEDROOM
2.1 Case for the Privatization of Marriage
The heading above has been used by many authors but none has them have been able
to evoke much recognition from its usage as that generated in 1967 by Pierre Trudeau.
In his Omnibus Bill to the Canadian legislature, Trudeau sought to bring several
controversial issues to the spotlight of law for first time; these included abortion,
divorce, gay relationships and gun reforms. His bravery owing to the fact that he was
then acting Justice Minister would cause a tidal wave of controversy whose ripples
shook the entire nation (CBC Digital Archives, 2011). Trudeau would go on to say
‘…what is done in private between adults doesn’t concern the Criminal Code.’ Whilst
Trudeau sentiments were largely based on the criminalization of gay relationships, its
worthy to point out that some of his arguments resonates with those echoed by the
contemporary libertines who are pro marriage privatization.
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2.2 Marriage as a Private Institution
For the most part, advocates of private marriage have often given it two definitions that
are marginally distinct. In one construction of this term, the state is expected to
completely stay out of the institution and not dictate the terms or even issue license for
such unions. In the Kenyan context this would mean that the state will not makes laws
that govern marriage at all. If the couples deem it fit to cement their relationship
through a ceremony or any ritual then they should be at liberty to do so to the extent
that such ceremony or ritual stays within the confines of the law. In this respect, those
with religious affiliations will be allowed to conduct their ceremonies within the
sanctioned doctrines or rules of these institutions.
The other meaning of privatization of marriage would be to regard a marriage as any
other contractual relationship. In this context the state will only be called to enforce the
contract in instances of breach. The parties can thus spell out most of all terms including
the rights of the children, how to share or engage together in financial activities and
how and when the contract can come to an end.
2.3 Why Privatize Marriage?
It has been argued that it could have been practical and easy if the marriage was treated
as private contract between two individuals. If a couple wanted to contract for the
traditional positions of a breadwinner and a homemaker arrangement with a specific
set of rules to govern their intimate relationship, property ownership, and alimony in
an event of a divorce then they should be allowed to do so. This idea is backed by the
constitutional provisions that give the citizens certain fundamental rights.
There are a number of arguments that support privatization of the marriage institution.
Some of these arguments are greatly informed by the different views of the purpose of
marriage.
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2.3.1 The Freedom against Discrimination and the Freedom of Conscience
One broad view of marriage is that it is an essentially private, intimate, emotional
relationship created by two people for their personal reasons to enhance their personal
well-being. That marriage is created by the couple; for the couple.3 The question that
therefore arises is; isn’t it discriminatory and wrong for the state to favor certain kinds
of intimate relations over others? This goes contrary to the freedom against
discrimination guaranteed in the constitution.4
With regards to this argument, there has been a lot of uproar about gay marriages. They
are becoming more prevalent albeit only 13 countries in the world have fully legalized
them. In some jurisdictions, they are christened civil unions or partnerships; really a
marriage by another name.
One proposition to solve the quagmire is to privatize marriage. The state shouldn’t care
whether you choose to marry someone of the same sex. Furthermore the constitution
guarantees the freedom of conscience and expression5. As long as there is free consent
and the parties are of age. After all, marriage is a personal right of the individual
created for the individual, for purposes the individual defines.6 It is simply no one else’s
business.
2.3.2 The Right to Privacy
Since marriage is arguably a private institution, interference by the state leads to
infringement of the right to privacy guaranteed by the Constitution.7 When the state
dictates who is eligible to marry in terms of sexual orientation, it is arguable that it is
infringing on an individual’s right to privacy.
3 Maggie Gallagher, “What is marriage for? The public purposes of Marriage Law” 4The Constitution of Kenya, Article 27 5 Ibid, article 37 6 Supra note 7 The Constitution, Article 31
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2.3.3 Religion and Marriage
Proponents of privatization have argued that marriage be left entirely to religion. After
all, some marriages for example Islamic are governed by the religious law. For religion,
marriage is a spiritual contract. If a state is secular, then it would be prudent for the
government to leave the institution to religion. Dispute resolution within the marriage
would also be left to that religion.8
2.3.4 Pre-Nuptials Agreements
Division of property is one of the contentious issues related to marriage. Upon
dissolution of a marriage, the former spouses will be subject to the Matrimonial
Property Act which will be used in determining the spousal interests. However, some
countries give their citizens a chance to determine their property rights. Pre-nuptial
agreements are signed prior to contracting the marriage in a bid to determine property
rights. This is one way in which the state steps out of the marriage contract so that the
parties involved can decide their fate.
2.3.5 No-Fault Divorce
Currently, under the Kenyan law, divorce has to be granted on the basis of the grounds
provided for. In some jurisdictions, divorce is granted without proof of wrongdoing by
either party. It is one of the ways in which the state could begin taking a back seat in
matters marriage. If the state doesn’t check intention at the time of marriage, why
should it know the reasons for divorce? No fault divorces avoid the airing of private
issues in court. Some research has shown that such divorces could reduce rates of
domestic violence and suicide rates because people aren’t being ‘forced’ to live together.
These are just some of the numerous reasons that have been advanced by the
proponents of marriage privatization.
8 Though a viable argument, it is noteworthy that leaving the marriage institution to the religion entirely
would be discriminatory against the growing number of atheists in the world.
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2.3.6 Recognition of Gay Relationships
It is not surprising that many of the proponents of privatization are gay rights activist.
This is ideally for the reason that the privileged position that marriage give to the
parties is denied to gay couples. The advantages that the government confers to
heterosexual marriages as construed in most sovereigns will be leveled if the state
stopped playing the role of licensor of marriage contract. In the UK where the law
allows for civil partnerships for gay couples (with almost equal rights as their
heterosexual counterparts) the agitation for reforms has calmed. However, the fact that
the law still creates two distinct regimes for registration is still discriminatory. If all
types of unions were privatized then the state will not have to bother on who and how
they should get government recognition for their relationship.
3. THE STATE HAS AN INTEREST IN THE MARRIAGE BUSINESS
3.2 Case for the Interference of the State
There are several reasons as why the state would find it necessary to interfere with the
‘privacy’ of marriage. These reasons are considered so fundamental and of interest to
the state that they cannot be lest to the whim or judgment of the partners in a marriage.
The following are some of the highlights.
3.2.1 Best Interests of the Child
Maggie Gallagher refers to marriage as the sexual union where child-bearing and bring
up of children is not only tolerated but applauded and encouraged (Gallagher, 2002).
Marriage ceases to be about the two main actors when children come into the picture.
The state has to regulate marriages in order to cater for the welfare of children. This has
found expression in local and international legislation as the ‘best interests of the child’.
The state determines custody of children where there is a dispute. At the time of
dissolving a marriage, the court may make orders concerning the children of the union.
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These children have a right to maintenance and continued care despite the status of
their parents. The well-being of children is directly proportional to social stability.
Studies have shown that with a rising number of psychologically unstable children
come an increase in crime and other social ills.
Forced marriages are still prevalent in this side of Africa. Most of them involve girls
who are underage; as young as eight. If marriage was to be a contract, it would be an
uphill task to protect such girls who are enslaved in such marriages. Typically, the
parents of such girls receive bride price from a dinosaur of a man and they then send off
the girl. In the respective customary laws, that sounds like a binding contract. However,
the intervention of the state would be required to enforce justice despite the supposed
privacy of marriage.
3.2.2 Enforcement of Marital Obligations
From a marriage institution there are obligations, both legal and social, that are
conferred upon both parties especially with regards to children. The parents are to cater
for the basic needs of the children as their guardians. Conjugal rights have also been
viewed as essential in a marriage. Where some of these obligations have been neglected
either by one or both of the parties, the state interferes to enforce them. It thus provides
a fertile ground for a continued discourse on the efficacy of some of these laws. Does
the law against marital rape work in light of the obligations that society and indeed the
law puts on married couples?
3.2.3 Domestic Violence
Domestic violence is special because it happens within the precincts where someone
should be most protected. Though prevalent, the fact is that most of the cases do not see
the light of day. The privacy of marriage is a curse for victims of domestic violence
because they are encouraged to keep the violence under wraps. The state therefore
needs to come in and ensure that such victims get justice.
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The violence also affects the lives of children who grow up watching their parents fight
or are themselves victims. It is the interests of the state to ensure social stability by
intruding in violent marriages. To this end, legislation provides for care orders which
are issued in respect of children who could be victims of domestic violence (Cusack,
2012).
3.2.4 Patriarchal Society
The world over, feminists have made a name criticizing the maleness in the law. Most
African societies are patriarchal and so it follows that the females are subjugated
generally in society. The same has been manifested in cases involving matrimonial
property where women are left holding the short end of the stick. The state comes in to
correct these inequalities and change the balance of power.
Before the enactment of the Matrimonial Property Act, women were left to the wiles of
the judges. Sometimes contribution in property wouldn’t be allowed if it was non-
financial. Now, there is more decisive legislation on the same.
3.2.5 Legal Privileges
The state also confers practical advantages to the parties in a marriage. These are many
legal privileges attached to marriage. For example, spouses cannot testify against each
other. In insurance law, spouses are deemed to have an insurable interest in each
other’s lives. These privileges are easy to dole out because marriage is a certain concept
within the law. If marriage takes on a shifty description based on people’s
circumstances, it would be harder to administer such privileges.
3.2.6 Family as the Basic Unit of the Society
The definition of family is dynamic. However, it remains the basic unit of society. Its
existence continues to be threatened in recent times. Our constitution recognizes the
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family as the basic unit of society and singles it out for state protection9. The state has
interests in protecting the institution. First, stability of families will ensure stability of
society at large. If marriages are unstable, more delinquent children exist and they end
up being a burden for the state.
3.2.7 The Tragedy of the Commons
This is an economics theory by Garrett Hardin, according to which individuals, acting
independently and rationally according to each one's self-interest, behave contrary to
the whole group's long-term best interests by depleting some common resources.
Garrett focused on human population growth, the use of the Earth's natural resources,
and the welfare state. If individuals relied on themselves and not on the relationship of
society and man, Hardin argued that how many children a family would have would
not be of public concern. Parents breeding excessively would leave fewer descendants
because they would be unable to provide for each child adequately. Hardin stated that
if the children of improvident parents starved to death, if overbreeding was its own
punishment, then there would be no public interest in controlling the breeding of
families. He blamed the welfare state for allowing the tragedy of the commons; where
the state provides for children and supports initiatives for overbreeding as a
fundamental human right.
Hardin lamented this interpretation of the Universal Declaration of Human Rights:
The Universal Declaration of Human Rights describes the family as the natural and
fundamental unit of society. [Article 16[5]] It follows that any choice and decision with
regard to the size of the family must irrevocably rest with the family itself, and cannot
be made by anyone else.
—U Thant, Statement on Population by UN Secretary-General [6]
9 The Constitution of Kenya, Article 45
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A number of states like China and India have given this argument weight and therefore
interfered with the marriage institution by dictating the maximum number of children
that a couple can bear.
4. CONCLUSION
Having considered some of the most pertinent reasons for or against state
regulation of marriage, the group is of the opinion that the state ideally has a very
significant role to play in the institution of marriage. First and foremost it cannot be
wished away that a marriage union forms the foundation in which a family is built;
it is the family that forms the basic unit of the communities that coalesce into
society. This ideally makes this institution very important. The state has to ensure
that the generation of the future is protected and accorded all that is necessary to
enable then face the challenges of the future. This can only be achieved if the home
is protected from capricious and selfish acts that will put in jeopardy the future of
the state. The population of the world currently stands at slightly above seven
billion; there is an increasing strain on the natural resources that makes life
possible. It would thus be foolhardy to deny the state a role in regulating who and
when people can get into relationships that ideally add on this pressure.
Some suggestion that have been flouted by the pro privatization libertines will
actually aggravate state control of marriage. The standard form contract cannot
work because the rights of the children and even the parties will to be varied from
one scenario to another, a situation that could create inequality of rights. Ideally,
the fundamental human rights are also bound to suffer as a party may contract or
subject oneself to inhumane conditions at the behest of the other party. Our
unanimous conclusion is that the government needs to streamline the law to ensure
conformity to current global trends but still maintaining a keen interest in the
institution of marriage.
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The Constitution of Kenya 2010