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Honestly speaking it is impossible to provide a single definition of marriage. In Hyde Vs Hyde and Woodhouse (1886) LR 1 PD 130, marriage was defined as the voluntary union for the life of one man and one woman to the exclusion of all others. This definition is however too idealistic as the realities of marriages today are quite the opposite. We have mixed families, polygamy, and the very latest ‘entanglements’.

The more acceptable definition is the one given by Thorpe LJ in the case of Bellinger Vs Bellinger (2001) 3 FCR 1  as it has no requirement for the parties to be of the opposite sex or that the life is for life and monogamous. He defined marriage as a contract for which parties elect but which is regulated by the State, both in its formation and termination by divorce because it affects status upon which depend a variety of entitlements, benefits, and obligations.

Legally, marriage is regarded as a contractual relationship. There are various rights and obligations marriage creates also referred to as the legal consequences of marriage and they include:

  1. The wife takes up the husband’s name either by substituting her surname or incorporating the husband’s name.
  2. Marriage entitles a spouse to citizenship and residency in a country.
  3. Marriage entitles a spouse to matrimonial property i.e. property that has been acquired during the pendency of marriage as according to Section 2 of the Matrimonial Property Act, 2013.
  4. Consortium- a spouse asserts conjugal rights and also has the right to the other’s society, comfort, and protection.
  5. Right to alimony/ spousal support is encapsulated in Sections 77- 85 of the Marriage Act, 2014 and Article 45 (3) of the Constitution of Kenya, 2010.
  6. A spouse is entitled to live a violent-free life according to the Protection Against Domestic Violence Act, 2015.
  7. Right to make medical decisions on behalf of the other in case of incapacitation of the other spouse. A spouse cannot however make medical decisions on abortion.
  8. Right to sue or be sued on their names.
  9. Right to equal contribution or parental responsibility as set out in Article 53 (1) (e) and the decision by Justice Mumbi Ngugi in the case of ZAK and MPE Foundation Vs AG and MA.
  10. Right not to testify against a spouse in criminal proceedings.
  11. In conclusion, each spouse has equal rights in a marriage. And thus none should be subjected to degrading treatment, abuse, or discrimination. And in case you didn’t know your rights, now you know. Cheers❤️
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Benson Otieno
Benson Otieno
1 year ago

Well researched and quite insightful.

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