The institution of the family lies at the heart of society. The Constitution of Kenya appreciates the role the family plays in maintaining social order in society and calls on the State to recognize and protect it. In that regard, an adult person has the right to marry a person of the opposite sex based on the free consent of the parties. In other words, the Constitution outlaws same-sex marriages and requires only the consent of the parties to an anticipated marriage.
The concept of marriage is controversial and at times very emotive. It is worthwhile to note that there is no universally accepted definition of marriage. The law of marriage in Kenya traces its origin to ancient England. In ancient England, there was no clear-cut line between the Church and the State. Put differently, marriage in England was controlled by canon law. Marriage was therefore what the Church said it to mean.
In Hyde v Hyde (1866), Lord Penzane observed the following with regards to marriage, ‘I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of others’. A man who had undergone surgery to be a woman would not, therefore, be legally married to a man.
Similarly, marriage was defined as ‘a lifelong and indissoluble union, for better, for worse, of one man with one woman, to the exclusion of all others on either side’ at the 1920 Lambeth Conference. Speaking at the Oxford Conference of Evangelicals in 1956, Christopher Chavasse, then Bishop of Rochester, took marriage to mean ‘a contract between the bride and bridegroom, for better or worse, resulting into the holy estate of matrimony’.
It is evident that monogamy was and still is, the only recognized form of marriage in Christendom. In addition, marriage was seen as indissoluble meaning that no one or thing, except death, could cast asunder what God had put together. Indissolubility, as understood later, did not mean that parties could not divorce but they must have intended the union to be for an indefinite duration.
In the case of Sheffield CC v E and S, is also indicative of the grips that the Church had on marriage. Munby J had the following to say ‘although we live in a multi-cultural society of many faiths, it must not be forgotten that as a secular judge my concern… is with marriage as a civil contract, not a religious vow.
The English Reformation saw the birth of the English law of marriage which brought little to no changes. It should be added that the state broke away from the church before the reformation. Post-reformation saw the emergence of new definitions of marriage. It was now viewed from the lens of contract and gender neutrality.
In Bellinger v Bellinger, Thorpe LJ stated that marriage ‘is a contract for which parties elect but which is regulated by the state, both in its formation and in its termination by divorce because it affects status upon which depend a variety of entitlements, benefits, and obligations’.
On the other hand, Lord Millet adopted a more traditionalist approach in Ghaidan v Godin-Mendoza. For him, marriage is a ‘lawful union of a man and a woman’. He went ahead to explain that ‘it [marriage] is a legal relationship between persons of the opposite sex. A man’s spouse must be a woman; a woman’s spouse must be a man’.
The definitions above, except for Bellinger v Bellinger, have been overtaken by events with the enactment of the English and Welsh Marriage (Same-Sex Couples) Act 2013. The Act gives effect to sex-neutral marriages.
In Islamic Law, marriage is taken to mean a contract between two heterosexual persons for the term of their lives. Hussaini observed that marriage is a ‘civil contract to which both parties; a man and woman freely consent and accept’. The only difference between marriage under Islamic and Canon law is that in the former marriage is not a sacrament but a civil contract.
In Kenya, the validity, or otherwise, of a marriage is determined by recourse to the Marriage Act. The Marriage Act defines marriage as the ‘voluntary union of a man and a woman whether in a monogamous or polygamous union and registered following the Act’. The definition of marriage as adopted by the Marriage Act slightly mirrors the definition which prevailed in England albeit with slight variations. It is equally evident that the state has very strong grips on marriage.
This discourse would be incomplete if I do not mention cohabitation. The Marriage Act defines cohabitation as ‘to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage’. Cohabitation for that matter is not recognized as marriage. The only status it can achieve is concubinage. This is not to say that marriage cannot be presumed from long cohabitation.
In its generic sense consummation means the first act of sex after marriage between heterosexual couples. Kamau J in Binita Niraj Dhanani v Niraj Chandulal Dhanani expressed himself thus on consummation; ‘a marriage is said to be consummated as soon as the parties have sexual intercourse after solemnization’.
The High Court of Namibia in Ge v Ge, defined consummation as the ‘first official act of sexual intercourse between married people’. The definition is nevertheless problematic as the word ‘official’ is ambiguous. Does it mean that the first act of sexual intercourse must be communicated to the whole world for it to be official?
For Jonathan Herring, consummation is ‘intercourse carried out by the penetration of the vagina by the penis’. This means that penetration of the vagina by any other object other than the penis is not a consummation. Equally, penetration of the anus by the penis or any other object or body organ is not a consummation.
In Canon law, where consummation originated, a marriage is consummated when the spouses engage in a conjugal act humanly for the generation of offspring. This means that coitus interruptus (pulling out the penis before ejaculation), and anal or oral sex does not amount to consummation. A consummated marriage, therefore, could not be dissolved by any mortal authority since the church held it to be indissoluble.
Comparatively, under Islamic law, a marriage need not be consummated through sex for it to pass muster. In the Islamic sense, marriage is consummated by the isolation of the couple where they spend time in solitude. The majority of scholars such as the Hanbali, Maliki, and Hanafi hold that sexual intercourse is unnecessary for consummation. For the Shafie scholars, marriage must be consummated through sexual intercourse.
It was held in De v AG that consummation must be ‘ordinary and complete’ but not ‘partial and imperfect’. What is gleaned is that there must be some form of ejaculation,satisfaction and no use of protection. Nonetheless, the court in R v R departed from the ratio in De v AG and held that orgasm or ejaculation is unnecessary. The use of protection, as seen in Cowen v Cowen, negated consummation. This was overruled in Baxter v Baxter where it was held that the use of protection does not amount to non-consummation.
The Kenyan Marriage Act does not define consummation but includes non-consummation as a ground for the nullity of a marriage. Section 12 of the Act enacts that a marriage is voidable if, among others, at the date of the marriage either party was and has ever since remained incapable of consummating it. A voidable marriage is a valid marriage that can be avoided by a party to the marriage on application to the court. Wilful refusal to consummate is not a ground for annulment under the Act.
Before the enactment of the Marriage Act, nullity proceedings were undertaken in pursuance of the Matrimonial Causes Act 1973. Under section 14 of the Matrimonial Causes Act, incapacity to consummate and wilful refusal to consummate were both grounds for annulment of a marriage. It follows that a party wishing to rely on wilful refusal to consummate in Kenya could bring an action under the common law. Thus far, it is imperative to consider the grounds separately.
- Incapacity to consummate
Incapacity means either party, as at the date of marriage and after the marriage, has an incurable defect hence cannot engage in sexual intercourse. In particular circumstances, the defect is remediable and, in that case, incapacity cannot be supplicated as held in Napier v Napier. Conversely, if the defect is curable but remedying it could hasten the death of either party then it will be presumed that such defect is permanent.
The incapacity may be attributable to impotence. Impotency is customarily ascertained by medical evidence. Nonetheless, a meticulous examination of case law proposes that it could be presumed in the absence of medical evidence. This was the case in G v M where it was stated that ‘if a marriage has not been consummated after three years of cohabitation through no fault of the petitioner, the respondent must be impotent. The decision was cited with approval in SPK v VPK.
Incapacity may also be due to invisible aversion. This is where a party cannot engage in sexual intercourse as a result of “paralysis of will”. In Wilson v Wilson, Tapp J observed as follows; ‘where there is a wilful wrongful refusal of sexual intercourse due to incapacity arising from nervousness or hysteria or from an invincible repugnance to the act of consummation, thus rendering the consummation impracticable, a Court is justified in declaring such a marriage to be null and void on the ground of impotence’. The standard of proof has to be ‘vehemens proesumptio’ and not ‘suspicio probablis’.
- Wilful refusal
It is widely accepted that mere refusal to consummate due to obstinacy is not enough to warrant a nullity decree. A husband is expected to employ his skills to ensure that his beautiful dreamer awakens unto him in the bedroom. A wife is equally expected to soothe her husband with sweet melodies for him to stand to the occasion i.e. consummate.
In Horton v Horton, wilful refusal was defined as a ‘settled and definite decision come to without just excuse’. On the other hand, it was said to be a ‘deliberate decision without any justifiable cause not to have sexual intercourse with the aggrieved party’ in ZWK v LW.Put differently, a party that can consummate elects, without just cause, not to consummate.
For a party to succeed in an action for nullity on the ground of wilful refusal they must prove that they took reasonable steps to ensure that the marriage was consummated. In ZWK v LW an order for annulment was denied since in the eyes of the court the petitioner did not prove that he took reasonable steps to consummate the marriage. An action would also fail if the parties consummate during the pendency of the suit.
In India, wilful refusal is not available as a ground of nullity but of divorce. In Canada, the case of Dickinson v Dickinson which established that tenacious rejection was enough for a nullity decree was overruled in Heil v Heil. The position in India was informed by the recommendation of the Royal Commission on Marriage and Divorce that wilful refusal ought to be a ground for divorce but not nullity in England and Scotland.
It is against this background that this paper calls for the abolition of consummation in Kenya on the following grounds. Firstly, the Constitution of Kenya provides that there shall be no state religion. On the other hand, consummation as it has been seen is a religious edict. What is gleaned is that the Marriage Act in contravention of the constitution imposes a religious edict on all and sundry without regard to a person’s religion. I must hasten to add, that there is a considerable number of atheists in Kenya who do not believe in religion.
Secondly, Article 31 gives every person the right to privacy including the right not to have information relating to their family or private affairs unnecessarily required or revealed. By requiring that parties consummate their marriage the state is breaching the parties’ privacy. This is because the state wants to be intimate about other people’s intimacies. It is argued that the state has no place in a person’s family or private affairs.
Thirdly, the capacity to consummate, or rather the ability to have sex is not essential for a marriage. This is gleaned from the definition of marriage which is defined as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered under the Marriage Act. The essentials of marriage are therefore consent of the parties and capacity. Capacity in this sense refers to the capacity to marry but not the capacity to consummate i.e. a person should be 18 years and above.
In addition, to ensure equality of persons before the law the Constitution guarantees that every person is equal before the law and has the right to equal protection and equal benefit of the law. This equality includes the full and equal enjoyment of all rights and fundamental freedoms. The question is how shall an impotent person enjoy the right to equal protection and equal benefit of the law when the Marriage Act requires him/her to consummate despite inability? Doesn’t consummation of marriage mean that all persons are equal but some persons are more equal than others?
Suffice it to add, sex is not the only reason people marry and marriage is not synonymous with sex. A marriage may be contracted for the sole purpose of companionship thus sex has no place in such marriage. In Scott v Scott, parties who were 43 and 40 respectively contracted a marriage for companionship with no sexual intercourse. The court had to give effect to the agreement of the parties hence the petition for a decree of nullity by the husband was dismissed.
Lastly, the law closes its eyes to pre-marital sex. The reality of the 21st century is that more often than not people engage in pre-marital relationships and even more in same-sex relationships. For that, Herring argues that sex has no unique place in marriage. I am at crossroads to understanding why sex should be an issue after marriage when it was not an issue before the marriage. It is time to rethink Ford v Ford.
The law has long recognized that there need be no sexual relationship for a valid marriage to subsist. This is reflected in the maxim consensus nonconcubitus facit matrimonium meaning that consent of the parties is enough to constitute marriage. Cohabitation is inconsequential. Parties to marriage could also live tanquam soror vel tanquam frater. This means an arrangement where parties live as brother and sister i.e. no intercourse.
At a time also when people engage in extra-marital sexual relations consummation it has been argued that consummation is unnecessary. To require consummation would in Sir James’ words amount to ‘making windows into people’s souls. It is argued that whether parties consummate their marriage or not should be no concern of the judges or the state.
Ronald Odhiambo Bwana is an undergraduate LL.B student at Mount Kenya University, Parklands Law Campus. He can be reached via email@example.com
*The author studies LLB at Mount Kenya University Parklands Law Campus. He can be reached at firstname.lastname@example.org
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 Ibid, .
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