While some look forward to a long life with a marriage partner unfortunately, some people might want to immediately terminate the marriage and make it that it did not exist in the first place. This is through annulment of the marriage.
There is a small window in which the Court may grant an Annulment. Marriages that do not qualify for Annulment can only be terminated by Divorce or death of the spouse.
Sec 73 of the Marriage Acts sets out the grounds for Annulment as; –
- Marriage has not been consummated since celebration (the one who refuses to consummate cannot annul the marriage)
- Parties were in a prohibited relationship e.g. closely related
- In Monogamous marriage, on discovery that the other party was still in a valid marriage
- Consent to marry was not freely given e.g. forced marriage, underage marriage.
- One party was not present during the marriage ceremony e.g. use of proxy
- The wife is pregnant by another man at the time of marriage and the husband is not aware
- Where one party has recurrent bouts of insanity and the other party was not aware. (this needs to be proved by medical experts)
Any grounds for Annulment but must be proved by evidence in Court. Apart from the above reasons, the court will only consider on Annulment where;
- The petition is filed in court within one year of the marriage celebration. Later then this Divorce is the only option.
- The person applying was not aware of the facts before hand where they are relying on prohibited relationships or existing marriage
- Marriage not consummated after the annulment case is filed in court.
Once annulled, the marriage will be deemed that it never existed. However, this annulment does not render lawful an unlawful action or render unlawful a lawful action taken while marriage existed e.g. provide spousal consent, next of kin, joint property, joint loan, guarantee.
An Annulment does not negate any actions taken as man and wife during the marriage. In particular, any communication remains privilege hence one spouse cannot be forced to testify against the other. Further, any debt entered into jointly as part of the marriage still remains owing to both parties.
The courts in Kenya do grant annulment orders e.g. DF VS PBS, ANNULMENT HCC NO.9 OF 2017, Malindi. The court granted an annulment as there was no consummation since the marriage ceremony. In HCC NO.166 OF 2013, CBG VS JLW the nullity order was not granted as the case was filed after 3 years which is beyond the 1 year allowed in Law. In HCC DIVOURCE CAUSE 197 OF 2013, INK VS PJKN & FNK, the court was not convinced that the party provided sufficient and convincing evidence to support an annulment. If follows that only valid cases properly proved with evidence and as per the Legal provisions will be annulled by our Courts.
The annulment order allows a marriage that was based on a falsehood or lack of knowledge to be terminated. It is an option to allow any forced unsustainable marriage to be terminated before the 3 years required to file for divorce. The Court however will not Annul a marriage on a flimsy or illegitimate ground. Therefore, marriage should be entered into with awareness and commitment.
Were you aware of annulment of marriage? What are your views on it?