Why the marriage bill should give you sleepless nights if you have a #mentalhealth condition.

6:27:00 PM

Four days ago at around midnight, one of my friends in mental health called to ask if I had seen the Marriage Bill. I have been deep in work over the last few weeks, it took me a whole week to remove my TV and DVD from their boxes and another week to actually connect them (after studying the manual like I had an exam). So my obvious answer was no and he went ahead to brief me on the contentious issues on it that directly affect anyone with a mental health condition.

There will be a press briefing on the same tomorrow which unfortunately I cannot attend because it is purple day (#purpledayKE) and the government is finally launching the National Epilepsy Guidelines, an event where I will be speaking at. I will however discuss this issues further in a second post but I wanted to highlight the contentious issues (see the ones highlighted in yellow) and seek as many opinions and positions as possible on this clauses (legal discussions are most welcome).

Here is a summary;


Marriage Bill 2013
Clause 5: Witness to a Marriage: Specific Reference 5(2)(b)(i)
5. (1) A marriage conducted under this Act shall be witnessed by two competent witnesses.
(2) A person is not competent to act as a witness if that person is-
(a) below the age of eighteen years;
(b) otherwise not competent to enter into a contract because of-
(i) mental disability rendering that person incapable of understanding what the
parties are doing; or
(ii) intoxication;
(c) unable to understand, whether through an interpreter or otherwise, the language in
which the ceremony is held.
(3) The person who celebrates a marriage shall not be a witness to the marriage for the purpose of this section.

Clause 11: Void Marriages: Specific Reference 11(2)(c)

11. ( 1 ) A Union is not a marriage if at the time of the making of the union-
(a) either party is below the minimum age for marriage;
(b) the parties are within the prohibited marriage relationship ;
(c) either party is incompetent to marry by reason of a subsisting marriage;
(d) by order made under section 25, the court has directed that the intended marriage is
not to be contracted;
(e) the consent of either party has not been freely given;
(f) either party is absent from the ceremony;
(g) both parties knowingly and wilfully permit a person who is not authorised to
do so to celebrate the union;
(h) either party is mistaken about the identity of the other Party; or
(i) either party knowingly or wilfully enters into the marriage for fraudulent purposes.

(2) Consent is not freely given where the party who purports to give it-
(a) is influenced by coercion of fraud;
(b) is mistaken as to the nature or purpose of the ceremony; or
(c) is suffering from any mental disorder or mental disability whether permanent or temporary, or is intoxicated, or is under the influence of drugs, so as not to appreciate the nature or purport of the ceremony.

Clause 12: Voidable Marriages: Specific Reference 12(a)(ii)

12. Subject to section 50 a marriage is voidable if-
(a) at the date of the marriage-
(i) either party was and has ever since remained incapable of consummating it; '
(ii) either party was and has ever since remained subject to recurrent attacks of insanity;
(b) there was a failure to give notice of intention to marry under section 19;
(c) notice, of objection to the intended marriage having been given was not withdrawn or dismissed;
(d) a person officiating thereat was not lawfully entitled to do so;
(e) the fact that a person officiating the marriage was not lawfully entitled to officiate;
(f) a procedural error that does not undermine the essence of the marriage in question;  or
(g) failure to register the marriage,

Clause 66: Right to petition for separation or divorce : Specific Reference 66(6)(c)

66.(1) A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of marriage

(2) A Party to a marriage celebrated under part IV may only petition the court for separation of the parties or the dissolution of the marriage on the following grounds:
(a) adultery by the other spouse
(b) Cruelty by the other spouse
(c) exceptional depravity by the other spouse
(d) desertion by the other spouse for at least three years or;
(e) the irretrievable breakdown of the marriage

(3) The petitioner may file the petition with the court for the separation of the parties or the dissolution of the marriage despite any effort to reconcile the parties.

(4) The court may refer a matrimonial dispute that arises in a marriage celebrated under part IV to a conciliatory process agreed between the parties

(5)The proceedings for the dissolution of marriage celebrated under Part IV may be adjourned for a period not exceeding six months as the court may think fit -
(a) the court to make further enquiries or for
(b) further attempts at reconciliation to be made by the parties to the marriage

(6) A marriage has irretrievably broken down if
(a) A spouse commits adultery;
(b) A spouse is cruel to the other spouse or child of the marriage;
(c) A spouse wilfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
(d) The spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has:
(e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition
(f) a spouse has been sentenced to a term of imprisonment of the for life or a term
of seven years or more;
(g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
(h) any other ground as the result may deem appropriate,

Clause 73: Annulment of Marriage: Specific Reference 73(1)(g)
73.(1) A party to a marriage may petition the court to annul the marriage on the ground that—
(a) the marriage has not been consummated since its celebration
(b) at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship:
(c) in the case of a monogamous marriage one of the parties was married to another person;
(d)  the petitioner's consent was not freely given;
(e) a party to the marriage was absent at the time for the celebration of the marriage
(f) at the time of marriage and without the knowledge of the husband, the wide is pregnant and that the husband is not responsible for the pregnancy; or
(g) at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity
(2) The court shall only grant a decree of annulment if-
(a) the petition is made within one year of the celebration of the marriage
(b) at the date of the marriage and regarding subsections (1)(b) and (c), the petitioner was ignorant of the facts alleged in the petition; and
(c) the marriage has not been consummated since the petition was made to the court
Clause 88
Clause 88:  Marriage of persons within prohibited marriage relationship
88.(1) A party to a purported celebration of a marriage Where the parties are within a prohibited marriage relationship commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years or a fine not exceeding three
hundred thousand shillings or to both.
(2) A person may not be Convicted of an offence under this section if that the person did not know and could not reasonably have been expected to discover the relationship.
(3) A person charged under subsection (l) may include a witness to the purported celebration of the marriage.

Clause 89: Coercion and fraud etc
89. A party to a ceremony purporting to be a marriage who at the time, knows or has reason to believe that the consent of the other party was induced by coercion or fraud or by a mistake as to the nature of the ceremony or that the other party was suffering from any mental disorders or mental disability whether permanent or temporary or was intoxicated or under the influence of drugs, so as not fully to appreciate the nature or purport or the ceremony, commits an offence and shall on conviction be liable to imprisonment for a term not exceeding three (3) years or a fine or three hundred thousand shillings or both

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