Tuesday, 3 September 2013

Conjugal rights grounds for divorce?

No one in the relationship wants to live with a partner who chooses to seek satisfaction outside marriage when moments that make intimacy difficult hit the relationship. PHOTO/FILE

Would a sexless marriage work, for you?
“Not for me,” says Terry Langat, 28. Terry has been happily married for four years now and believes that a healthy sexual relationship is a basic ingredient of a happy marriage.
In her view, if you are not having sex with your significant other, you are missing a vital connection.
Many Kenyan women share this point of view, yet many of them are living in almost sexless relationships, not for lack of libido or desire, but because they do not trust their straying partners, no longer feel physically thrilled by them, just would not be bothered to initiate or participate, or have higher libidos than their partners.
Everyone agrees — in theory at least — that sex is an extremely important part of an intimate union. Religious elders say so, couple therapists say so, and even the law says so.
LEGALLY OBLIGED
In fact, many husbands do not know that they risk being compelled by the courts to service their wives if they should take the legal route to force their husbands to have sex with them.
On a personal level and in the real world, though, things are different.
Women, it turns out, are willing to sacrifice their physical satisfaction for a man who provides.
Maureen Nyaga, 30, is one of them. She says that sex is a vital component of a marriage. For her, it serves many more purposes than pleasure.
But she says that whether a lack of it is enough to bring a marriage to an end depends on the circumstances surrounding it.
If her man’s disinterest in sex is caused by medical issues, then she would take it but even then, she would expect other forms of physical affection from him like hugging and cuddling.
“If he wasn’t attracted to me anymore then it would mean that we were living a lie. Being sexual is part of being married,” she says.
VITAL COMPONENT
Alice Chege, a 33-year-old from Nakuru, agrees. “A good sexual relationship is just part of the deal and if he was a good father and perfectly played all his other roles, then I would put up with it because I believe that he would do the same for me.
Look at it this way, if we had a happy marriage and he had an accident that made him unable to have sex, would this be a reason to leave him? “
“If sex was the only trouble spot in our relationship, I wouldn’t be so quick to sacrifice my family,” says Linda Waya, 28.
However, she doubts that she could survive a lifetime with a husband who was not the least bit interested in her sexually.
CAUSE TO STRAY
So what happens when a woman is not getting enough? It is human nature to want to feel wanted and desired, especially by those whom we are romantically involved with.
Open rejection from a partner can lead a woman to feel undesired and unloved and sexual frustration is likely to open up a lot of temptations for her to have her needs met elsewhere.
She is not content with platonic bliss but she does not see sex as a big enough reason to throw her family into disarray.
Most couples in this situation usually only see two ways out of it. To cheat on their significant other and live with the guilt or ignore the problem and stay, feeling trapped and stressed.
GETTING TO THE ROOT
According to relationships counsellor Maurice Matheka, both of these options ultimately tear a couple apart. The only way out of this situation is getting to the root of the issue.
Talking with your man about it and forging a way forward together.
But this is easier said than done; sex is an awkward topic, to begin with, and complaints about an otherwise loving partner’s performance can feel unnecessarily hurtful.
So, what if he refuses to talk about it or to get help? I pose this question to Mariam Gumbe, who has been married for six years.
She admits that this is not something that has crossed her mind. For her, cheating is out of the question.
MARITAL BLISS
The way she sees it, if the problem went on for years and he persistently refused to get help, it would mean that he did not care about her or their relationship and she would ask for a divorce. “That is the most honest option. We all deserve to be happy,” she says.
If she found herself in such a situation, Georgina Njeri, 27, says she would try and talk it through with her husband of two years, the way they do with other issues.
She is, however, sceptical about taking matters like these to a third party unless this person is a doctor or a therapist. She says that she has seen couples at the church she goes to take sexual issues to the church elders, who in turn remind them of the duties that husbands and wives have.
She does not know whether or not these reminders work but she insists that she would not go this way.
“I would hate to pressure him. Sex for me should have an emotional connection and if he was just fulfilling his duties, then it would be mechanical. I want him to actually want to do it, not have to put up with it.”
LEGAL SOLUTION
There is always the legal route to help resolve a sexless marriage. The law acknowledges that one of the duties of a spouse is to have sex with their partner.
Nairobi lawyer Kimani Githongo says that wilful denial of sex by a spouse or refusal to actively participate in it without a reasonable cause is mental cruelty and grounds for divorce permissible under Kenyan laws.
Under the Matrimonial Causes Act, women in sexless but salvageable marriages can seek the intervention of the court to be given an order for the restitution of conjugal rights.
If the courts do not find any reason why this decree should not be granted, they will grant it. But the courts are keen not to infringe on the rights of each party.
For instance, if a man is withholding sex because either he or she is infected with HIV, then a court cannot give an order for the restitution of conjugal rights.
COMPENSATION IN LIEU OF CONJUGAL RIGHTS
While the courts may not be able to force one person to have sex with another, if a man is given this order but still refuses to grant the wife her conjugal rights, he will be required to periodically pay sums of money to his wife.
At this point, this can be grounds for divorce. The Act, however, does not address the plight of the wife who refuses to obey such an order.
According to Matheka, there is no black and white description of how much sex is enough sex or what amounts to a sexless marriage.
He explains that individuals have varying sexual energies from time to time even in marriage and when sex is withheld for prolonged periods or there is a major difference in the sexual needs and desires of the partners, then a marriage can be referred to as sexless.
If your man has never had sex with you and he has persistently denied you sex throughout the marriage, this means that the marriage is not consummated and is grounds for an annulment.
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