Exploring the duality of marriage in Kenya through the focus of matrimonial property: harmonising public interest and the private relational contract

Abstract

Marriage, as a social institution, presents a complex duality, with states often treating it simultaneously as a public interest institution and a private contractual arrangement. This study embarks on an in-depth exploration of this duality, focusing on matrimonial property and navigating the intricate balance between public and private aspects of marriage. By examining legal frameworks, societal norms, and historical contexts, the research seeks to elucidate the origins and evolution of this duality. The investigation unfolds against the backdrop of contrasting approaches to matrimonial property and its division over the years, among them is the place and effectiveness of ante and post-nuptial agreements. The divergent approaches to matrimonial property show the two aspects of marriage. Additionally, the contradicting decisions in matrimonial property are a compelling example of Kenya exhibiting elements of both approaches. Practices and laws reflect an amalgamation of the public interest and private contract perspectives. The study aims to untangle this complexity by clarifying when public intervention is warranted and exploring justifications for such intervention. Central to the inquiry is an examination of laws pertaining to matrimonial property and their implications for intervention strategies. Despite the silence of the law on the predominant approach to marriage, the practical application reveals a blend of public and private elements. The study dissects these legal nuances to provide insights into the prevailing approach and proposes pragmatic solutions for the approach used in the division of matrimonial property. The research endeavours to contribute to a deeper understanding of marriage dynamics and intervention strategies in contemporary society. Additionally advocating for the effective use of marital agreements as an integral tool to harmonise this duality. By addressing the complexities inherent in the intersection of private relationships and public interest, the findings aim to inform policymakers, legal professionals, and society at large. Ultimately, the study seeks to promote a balanced approach to intervention, safeguarding individual autonomy while upholding the broader societal interests associated with marriage as a fundamental institution.