By Eva Mola
What are the legal rights of women in marriage and thereafter? This is the question that the Lawquery Seminar on 28th April 2018 seeks to to address. We shall in this article examine the first of those rights – Right to a Valid Marriage.
Section 3 of the Marriage Act of Kenya which was passed in 2014 declares that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. This dispels the notion of imbalance in a marriage relationship. Under the law, both the man and the woman have equal protection of the law. The Constitution is the main authority on this, providing in Article 27 that every person is equal before the law and has the right to equal protection and equal benefit of the law. Further, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Any limitation to this right must be squarely founded in law, and must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (Article 24). This is also in line with some of the national values – human dignity, equality, social justice, equality, human rights and non-discrimination (Article 10 of the Constitution of Kenya).
Is your Marriage Recognized by the Law?
Firstly, you must be able to say that you are in a legally recognized union. The Constitution protects the right of every adult to marry a person of the opposite sex, based on the free consent of the parties (Article 45). This right entitles them to equal rights at the time of marriage, during the marriage and at the dissolution of marriage. The Marriage Act clearly defines a “marriage” as “the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act”. The Marriage Act 2014 consolidated the five different regimes of marriage in Kenya at the time under one law. The unions recognized under this Act include: Christian marriage, Customary marriage, Muslim marriage, Hindu marriage and the Civil marriage. All of these 5 types of marriages once registered under this Act have the same legal status. [With regard to Muslim marriages however, the Act stipulates that the parties to an Islamic marriage shall only have the rights granted under Islamic law].
For your marriage to be recognized in Kenya, it must be registered under one of these systems. Marriages contracted outside Kenya will primarily be recognized in Kenya if the marriage observed the requirements of the law of marriage in that foreign country. A close reading of section 22 of the Marriage Act seems to apply a secondary step in recognition of foreign marriages. It places a condition to the foreign marriages that the parties to the marriage must have had capacity to contract the marriage under the laws of that foreign country at the time of celebrating the marriage. However, if one of the parties to the marriage was domiciled in Kenya at the time of celebrating the marriage, then both parties must meet the requirements for capacity to contract a marriage under Kenyan law. This seals the loopholes created by difference in requirements for capacity to marry under different laws. This is in keeping with the Convention On Celebration And Recognition Of The Validity Of Marriages which has been adopted by Kenya and forms part of Kenyan law per Article 2 of the Constitution. Under this Convention (Article 5), the application of a foreign law of marriage may be refused if such application is manifestly incompatible with the public policy (“ordre public“) of the State of celebration. In simple terms, if for instance, a foreign law has set age limits for marriage that are different to Kenyan law (18 years), Kenyan law may refuse to recognize that marriage if one of the parties permanently lives in Kenya.
Of the five marriages recognized under the Act, the Customary marriage, Muslim marriage and the Hindu marriage is “potentially polygamous”. This means that the husband can marry more than one wife provided he follows the process provided in the Act and in the religion or tradition. The husband is not allowed to contract a monogamous marriage after the first marriage was polygamous. The parties who are married in these types of marriages can, if the husband has not taken a second wife yet, convert their marriage into a monogamous one by appearing before the registrar to make that declaration (Section 8, Marriage Act). The registrar will take the previous certificate from them and then issue them with a new certificate indicating that the marriage is now monogamous.
The Civil marriage and Christian marriage on the other hand are monogamous. This means that the husband is only allowed to marry one wife. If he marries a second wife while the first marriage is still in force, he commits the felony offense known as “bigamy” under Section 171 of the Penal Code and if convicted may be liable to five years’ imprisonment. He may alternatively be charged under Section 87 of the Marriage Act with the offence of making a false statement in the Notice of Intention to Marry and may if found guilty be liable to imprisonment for a term not exceeding two years or fine not exceeding two million shillings or to both. The parties to these union are not allowed to later convert their marriage into a polygamous one such as Customary, Hindu or Muslim while the monogamous marriage is still in force.
What makes a marriage invalid?
A marriage is INVALID where:
- One of the parties is below the age of 18 years
- The parties are within the close family relationship prohibited by the Act.
- Either of the parties is at the time of the marriage already in a subsisting monogamous marriage.
- One of the parties has not given consent to the marriage
- One of the parties to the marriage is absent at the marriage ceremony
- One of the parties is mistaken about the identity of the other.
- One of the parties has entered into the marriage for fraudulent purposes
- Both parties knowingly allow a person who is not authorized to conduct the marriage ceremony.
- There is an objection to the Notice of Intention to Marry that has not been withdrawn, dismissed or determined.
- The marriage is not witnessed by a competent witness.
It is imperative that the person marrying and even the witness ensure that the marriage ceremony does not offend the law in any of these ways. If public order is not a good enough reason, 2 reasons to ensure that your marriage is valid are THAT:
- Section 87 of the Marriage Act makes it an offence for any person to marry a person who is below the minimum age. Anyone found guilty of this will be liable to imprisonment for a term not exceeding five years or a fine not exceeding one million shillings or to both.
- It is an offence to marry or witness a marriage, where one of the parties to the marriage is below the age of 18 years, or where the 21 days notice of intention to marry has not been given or where the notice of intention has an objection which has not been withdrawn, dismissed or determined. If you are found guilty of this offence, you face imprisonment for a term not exceeding six months or a fine not exceeding fifty thousand shillings or to both (Section 92, Marriage Act)
Who is a competent witness?
For most marriages, the best couple/ best maid/ best man will serve as the witness to the marriage. They sign the marriage certificate confirming that to the best of their knowledge, the marriage has been conducted properly. For a marriage to have a competent witness, that person witnessing the marriage – the best man/ best maid/ best couple, must be:
- Above 18 years of age
- Competent to enter into a contract (that it, having the mental presence to understand the ceremony and not intoxicated)
- Capable of understanding the language in which the marriage ceremony is conducted (get an interpreter if necessary)
- Not the same person as the marriage celebrant (that is, not the priest or registrar)
If you would prefer to have a best couple/ best maid/ best man who does not meet these requirements, then ensure that the marriage certificate is signed by a different person who meets those requirements.
Is there a need for registration of marriage?
The law as it stands requires all marriages to be registered. It is important to have your marital union registered so that it can be recognized and protected by law. Even Customary marriages are not expected to be registered and a certificate(s) issued. Long gone are the days of “Marriage by Affidavit”. This will help to streamline the law of marriages and succession. If two parties wish to have their union recognized as a marriage, they will have to make it official. Under the Marriage Act to “cohabit” means “to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage”. By this definition, resemblance of a marriage is by no means the same thing as a marriage. No further mention is made of cohabitation in the Marriage Act or in the Matrimonial Property Act, leading to the presumption that such relationships can no longer be recognized in law as the case has been.
One important application is in Insurance Law. It has been common for people to include live-in partners with whom no formal marriage exists in their insurance cover as spouses. While strictly speaking, nothing prevents you from taking a life or health cover over a person whose life you have an insurable interest in, it would now be misleading for you to declare that person as a spouse. This is because it causes an (illegal) presumption of marriage which the law has tried to cure by requiring all marriages to be registered. You should not be allowed to have for instance a monogamous marriage with wife A and then name wife A and woman B as being both your wives in a health cover. In terms of succession, woman B may be placed at a precarious position since, she was under the impression that she was in a formal union, yet in essence, she would have a hard task to prove that her marriage was valid. The court would not be out of turn in such a case to state that if indeed the husband had intended for woman B to be considered a wife for purposes of inheritance, then he would have made their union official.
Just to mention, under section 76 of the Marriage Act, a promise to marry is not binding.
The Marriage Act will not register a marriage between parties who are closely related. For the avoidance of doubt, the Act has listed the relationships which would prohibit a marriage registration. Under Section 10 of the Act. A person is not permitted to marry:
- that person’s grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew; (The marriage of a person with that person’s cousin does not apply to persons who profess the Islamic faith.)
- the grandparent, parent, child or grandchild of that person’s spouse or former spouse;
- the grandparent, parent, child or grandchild of that person’s former spouse;
- a person whom that person has adopted or by whom that person has been adopted; or
- any other person where such marriages is prohibited under customary law.
It is an offence to knowingly marry a person with whom you have a prohibited relationship, or even to witness such a marriage. The penalty for this is imprisonment for a term not exceeding five years or a fine not exceeding three hundred thousand shillings or to both (Section 88).
What is a voidable marriage?
A voidable marriage can be cancelled. Its validity can be challenged by one of the parties. If it is not challenged, it may be considered valid. A marriage in Kenya is voidable if at the date of the marriage:
- either party was and has ever since remained incapable of consummating it;
- either party was and has ever since remained subject to recurrent attacks of insanity;
- there was a failure to give notice of intention to marry
- notice of objection to the intended marriage having been given was not withdrawn or dismissed
- the fact that a person officiating the marriage was not lawfully entitled to officiate;
- failure to register the marriage
You as a party have the first responsibility to ensure that you are in a valid marriage. If you find that your marriage for any reason under the Act is not valid, then you have the choice to either regularize or petition for its annulment. You may, if a criminal offence has been committed in contracting that marriage, report the matter to the authorities for action to be taken against the perpetrators. The secondary responsibility lies with the Registrar of Marriages, who must ensure that the proper process of registration of marriages is observed before a certificate of marriage is issued. In the next article we shall discuss the process of registration of different marriages.
Former CEO, Lawquery Limited.
Eva Mola is the CEO of Lawquery Limited( at the time of writing this post), a legal research and consultancy firm. Her writings on different legal topics are also available on the Lawquery Website – www.lawquery.co.ke and on the Lawquery Kenya Mobile App (free on Google Playstore).