WOMEN AND THE LAW: THE PROCESS OF REGISTRATION OF CUSTOMARY MARRIAGES IN KENYA

The enactment of the Marriage Act 2014 brought with it the recognition of 5 primary systems of marriage. Section 6 of the Act provides as follows:

“(1) A marriage may be registered under this Act if it is celebrated—

1. in accordance with the rites of a Christian denomination;
2. as a civil marriage;
3. in accordance with the customary rites relating to any of the communities in Kenya;
4. in accordance with the Hindu rites and ceremonies; and
5. in accordance with Islamic law.

(2) A Christian, Hindu or civil marriage is monogamous.

(3) A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.”

WHAT IS A CUSTOMARY MARRIAGE?

A Customary marriage is a marriage that is conducted in accordance to the customs of the community of either one or both of the parties to the marriage in question.

Customary Marriage system is one of the five systems envisaged by the Marriage Act, 2014. After the enactment of the Marriage Act 2014, the Registrar in consultation with various stakeholders, drafted the Marriage (Customary) Rules 2017 to operationalize the registration of customary marriages pursuant to the provisions of Section 50 (1) of the said Act. The purpose of the said rules was to give effect on the equality of status across all systems of marriage and more so to provide a process of proper registration through certificates to be issued by the Registrar of marriages.

On 3^rd April, 2017 the Marriage (Customary) Rules 2017 were gazetted vide Legal Notice No. 46 and its operative date set for 1^st of August, 2017. As such all parties married under African Customary law are required to register their marriages and marriage certificates issued to that effect.

Requirements for Registration of a Customary Marriage

• Both parties must be present at the office of the Registrar
• Avail identification documents (original and copies)
• 1 colored passport photo for each party
• At the time of registration the parties MUST NOT have entered into either a CIVIL or CHRISTIAN marriage.
• The registration of a customary marriage is only applicable to Kenyans who have contracted African customary marriage rites
• Fee payable is Ksh 3900.

1. STEPS TO REGISTER AN EXISTING CUSTOMARY MARRIAGE

Parties who were already married prior to the gazette notice are required to register the marriage and be furnished with a marriage certificate.  The process is as follows:

STEP ONE – COLLECTION OF APPLICATION FORMS BY BOTH PARTIES

Both parties present themselves to the Registrar of Marriages office to be interviewed to establish:

1. Marital and mental capacity
2. The laws and customs applied
3. Date when the customary marriage was conducted
4. Whether the basics were met – parents meetings, payment of dowry, the period the couple has been living together
5. Existence of the marriage to be registered
6. Existing and previous spouses
7. Consent by both parties to register the customary marriage
8. Check details on identification documents

STEP TWO – FILLING OF FORMS AND REGISTRATION

1.  Parties to receive the form for filling
2.  Attach copies of identification cards (ID) and passport  photos
3. Parties to register forms in the customary marriage register before taking the forms to the chief and witnesses for attestation (witnesses and chief to indicate phone numbers on forms, witnesses attesting at this stage must be witnesses who were present during the customary rites)

STEP THREE – RETURN OF FILLED FORMS

1. State Counsel to confirm whether the forms are filled in correctly
2. Can redo the interview in step one to confirm details
3. Give approval to pay

STEP FOUR – PAYMENT OF REGISTRATION FEE

1.  Pay 3900 at cash office
2. Parties to fill particulars form (mostly parents details as well as contact details)

STEP FIVE – ISSUANCE OF DATE

1. State Counsel to issue date according to diary

STEP SIX – TYPING OF CUSTOMARY MARRIAGE CERTIFICATE

1. Certificate to be typed as per the particulars form filled in step four

STEP SEVEN – ISSUANCE OF MARRIAGE CERTIFICATE

1. Registrar to issue the marriage certificate
2. Vows not necessary but the parties can be reminded of the tenets of customary law marriages
3. Both parties to be present
4. Two witnesses to attest

STEP EIGHT – REGISTRATION/DATA CAPTURE OF MARRIAGE CERTIFICATE

1. To be done as soon as the certificate is issued or in the case of a regional office certificates to be sent to Nairobi office.

• STEPS TO REGISTER A FRESH CUSTOMARY MARRIAGE

Parties who wish to contract customary marriages after the commencement date i.e after the operative date of 1^st August, 2017, are required to notify the Registrar of the status conferred on them as husband and wife within three (3) months of completion of the relevant customary rites pursuant to the provisions of Section 44 of the Marriage Act, 2014. The process entails:

STEP ONE – PLACING A NOTICE

This is meant to establish:

1. The laws and customs applied
2. Date when the customary marriage was conducted
3. The location at which the customary marriage was conducted
4. Whether the basics were met – parents meetings, payment of dowry/token,
5. Legal Capacity (Age)
6. Consent by both parties to register the customary marriage
7. Existing and previous spouse(s)

STEP TWO – ISSUANCE OF AN ACKNOWLEDGEMENT CERTIFICATE (Form CM2)

The notice runs for 14 days and the Registrar shall upon the expiry of the 14 day notice period, issue the parties with an Acknowledgement Certificate once she is satisfied that there was no impediment/objection raised towards the registration in question.

STEP THREE – APPLICATION FOR REGISTRATION OF A CUSTOMARY MARRIAGE (FORM CM3)

Parties are expected to apply for registration of the marriage in question within 6 months upon receipt of the Acknowledgement Certificate, in accordance with the provisions of Section 55 (1) of the Marriage Act, 2014. This is vide a prescribed Form and is accompanied by the Acknowledgement Certificate.

STEP FOUR – ISSUANCE OF THE CUSTOMARY  MARRIAGE CERTIFICATE (FORM CM4)

The Registrar shall consider the application by the parties and if satisfied that the same meets the legal requirements, shall proceed to issue the Marriage Certificate.

(This is an excerpt from a presentation made by Hamida Chidagaya to participants at the Lawquery Women and the Law Seminar: The Legal Rights of Women in Marriage and thereafter  on 28^th April 2018 at Ratna Square Hall, Mombasa from 2pm – 4pm. See our Calendar of events HERE for our next Seminar.

To invite Lawquery to make presentation on any legal issue, email us on info@lawquery.co.ke)

Disclaimer: The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official policy or position of LawQuery Limited.