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There was uproar in the National Assembly following the tabling of a controversial Bill that seeks to allow couples to annul their marriage within one year.

The MPs were up in arms over the Marriage Amendment Bill, 2023 which came for first reading on Wednesday, terming it unconstitutional on grounds that it was aimed at killing marriages.

Bill was introduced by Suna West MP Peter Masara.  It seeks to allow courts to grant a divorce if marriages have irretrievably broken down, if parties have mutually separated for at least one year immediately preceding the date of presentation of the petition seeking its annulment and when both parties mutually agreed to dissolve their marriage.

At the moment, couples are required to prove an irretrievable breakdown of marriage and or a matrimonial offence for them to be granted a divorce.

“The court may grant a decree of divorce by mutual consent if the petition is made at least one year of the celebration of the marriages. Parties jointly present the petition.

Bill allows the court to grant a divorce upon satisfaction that the arguments made in the petition seeking to have the marriage annulled are true,” the Bill.

It adds: “Parties to a marriage, the Bill notes will be deemed to have been divorced with effect from the date of the decree granted by the court. Any party to the petition may, by filing a notice of motion withdraw the petition anytime before a decree of divorce is granted.”

Bill, however, allows the court on the application of a party, to nullify a decree of divorce granted on grounds that the consent was obtained by coercion, fraud or undue influence. “The innocent party is entitled to damages where the court nullifies a decree of divorce,” the Bill.

Masara explained that his Bill is based on the fact that in Kenya, divorce as has always been and still is fault-based, meaning that a person will only get a divorce when they prove fault on the part of their spouses.

He said that due to this, divorce proceedings have become acrimonious, lengthy, tedious and expensive due to the time taken to prove such faults in court.

“Owing to the significant amount of time taken to finalise divorce proceedings, spouses whose marriages have broken down are forced to continue staying in unhappy marriages even though it may not be in their best interests. Bill seeks to remedy such situations by allowing spouses to mutually agree to divorce. This will enable such spouses to part ways in an amicable, simple and cost-effective manner in terms of time and resources,” Masara says.

Unhappy marriages

But despite his push, questions regarding the constitutionality of the Bill emerged after Laikipia Woman Rep  Jane Kagiri chal opposed it, Kagiri warning that once the amendment is allowed, foreigners would take advantage of Kenyan girls where they will use and dump them.

Kagiri raised questions after the House was informed that although the Justice and Legal Affairs Committee (JLAC) had approved the Bill for tabling, Rarieda MP Otiende Amollo had opposed it on grounds that its provisions were not in conformity to those of the constitution.

She said: “When you have a Marriage Amendment Bill that is going to allow for the dissolution of a marriage after one year or based on mutual consent, I think that’s an affront to our Constitution and something that we should not allow.”

She added: “If we allow for such an amendment, we’re allowing for fictitious marriages where foreigners walk in, cheat our young and beautiful ladies and eventually exit after they’ve achieved the citizenship  they’re seeking.”

Various processes

Leader of Majority Kimani Ichung’wa also questioned how the Bill found its way to Parliament, yet it has to undergo various processes before it is formally introduced for first reading.

“It is clear that this Bill will go contrary to the provision of the Constitution, I will be raising this matter with the Liaison Committee to find out how this Bill found its way to the plenary,” he said.

Leader of Minority Opiyo Wandayi said he would have preferred that the Bill be subjected to public participation so that members are allowed to give their views on it to avoid a situation where it will be thrown out by the courts should it be found to be unconstitutional.

Said Wandayi: “We seem to be in a very unique situation here. For the first time since I came here, I have seen opposition to a bill during the first reading. Under the circumstances, Mr Speaker it may call you to give a considered ruling on this matter being in mind issues on the bill touch on the constitution.”

Amollo also asked the Speaker to give a ruling on the bill as it negates the spirit of the constitution.

“I am afraid that the Bill is unconstitutional. I would suggest that this is an area where you would give your considered ruling on it. I would suggest that the bill be taken back to JLAC and see whether it can be salvaged if not we allow it to just die.”

Following the move, Speaker Mosses Wetangula said that he would give a ruling on the ill in the next two weeks.