LEGAL EFFECT OF MARRIAGE
After a valid marriage is celebrated it creates some rights and duties among the parties to that marriage.
- RIGHTS AND DUTIES OF PARTIES TO MARRIAGE
This is covered under part IV of the Marriage Act. It is a consortium of rights i.e a band of rights.
The rights of the parties to marriage include the following-: right to cohabit, conjugal rights, love and respect, maintenance, protection and intimacy, companionship and consummation.
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Right/ Duty to cohabitation
- A married person is entitled to cohabitation of his/her spouse unless they are judiciary separated or they have agreed to live apart. Cohabitation means Living together as husband and wife. This occurs even if parties are not married.
- The obligation to cohabit is not mandatory. S 140 LMA parties may not be compelled to cohabit. If it were it would negate consent and voluntariness.
Ahmadi Saidi Kidevu v Sharifa Shamte [1989] TLR 148, Maina J, the issue was whether the court could compel the respondent’s wife to cohabit with the husband. The court held that; when difficulties arise in a marriage, and one spouse decides to live separately from the other, the court cannot compel them to live together. Parliament, in its wisdom, enacted section 140 of the Law of Marriage Act, which clearly provides that a court cannot compel one spouse to live with the other. The only remedy to a spouse who has been deserted is to commence divorce or separation proceedings.
Mwendwa Mtinangi v Juma Mahumbi [1984] TLR 47, Lugakingira J (as he then was), in view of section 140 of the Law of Marriage Act, 1971 no court is empowered to compel cohabitation.
- S 111 LMA if a decree of separation is issued parties are relieved their duty to cohabit.
- S 67 LMA parties may by written agreement agree to live apart.
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Maintenance right
- As a general rule a husband has a duty to maintain his wife.
- S 63 provides that , it shall be the duty of every husband to maintain his wife or wives and to provide them with such accommodation, clothing and food as may be reasonable having regard to his means and station in life;
- The principles of maintenance were laid down in the case of Miss Gray Ltd v Cathcart (EARL) 1922 38 TLR 562, the wife has the power to contract for her husband. S 64 LMA
- If the Husband neglects to provide the actual necessity of life to the wife, the wife has the right pledge his credit for such necessity. However if the Husband fixes a suitable allowance to the standard of their domestic life, the wife may not pledge the credit for the matters covered by that allowance.
- This duty will shift to the wife if the wife has the means to do so, to provide in similar manner for her husband and if that husband is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health. This is provided for by s 63
(b) LMA
- The court has the power to order maintenance as per s 115 LMA
v Other rights
Right to love and respect s 66 LMA no right to inflict corporal punishment Right to companionship and intimacy
Right to sexual intercourse