University of Nairobi,

:

18 April 2014

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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