The Act is deals with Christian, Civil, Customary, Hindu and Islamic Marriages. It brings together all these types of marriages into one Act, where before each type had an Act of its own. The Act deals with the appointments of Registrars and Registration of Marriages, Matrimonial Disputes and Proceedings, Rights of Action, Separation and Maintenance of Spouses. It also gives direction for Licensing of Pastors/ Ministers of Faith who contract marriages, and set out Offences and Penalties related to marriages. The Act also brings together the marriage, separation and divorce laws into a single Act.
It defines what a marriage is and who may marry, the types of marriages one may get into. The Act echoes the Constitution of Kenya (Art.45 (3) by stating that “parties to a marriage are entitled to equal rights as at the time of the marriage, during the marriage and at the dissolution of the marriage.”
Marriage is defined as the Voluntary union of a man and woman in a monogamous (one man – one wife), polygamous (one man – more than one wife) or potentially polygamous marriage (meaning e.g. Under Islamic Law where a man can have more than one wife).
Voluntary means that the parties to the marriage must both consent to the marriage. Consent is not freely given where one of the parties is forced into the marriage, is mistaken or does not understand the nature or intention of the marriage ceremony or is suffering from any mental condition whether permanent or temporary, or is intoxicated, or is under the influence of drugs, so as not to appreciate the nature and intention of the ceremony.
ESSENTIALS OF A VALID MARRIAGE
TYPES OF MARRIAGES
The 4 types of marriages legally accepted in Kenya are
A union is not a marriage if at the time of the making of the union—
In the case of a Void Marriage, the marriage does not have any legal effect from the time it was entered into.
A marriage is voidable meaning an innocent party can have it dismissed (annulled) if he/ she so wishes if—
Under the law, a marriage continues until:
• the death of a spouse;
• a decree declaring the presumption of the death of a spouse is given by the Court;
• a decree of annulment is given by the Registrar;
• a decree of divorce is given by the Court; or
• a decree of divorce or annulment is given in a foreign country and recognized in Kenya under this Act.
A widow or widower may choose to re-marry or not to re-marry.
Marriages must be registered with the Office of the Registrar of Marriages. When going to the Registrar of Marriages, BOTH PARTIES must be present and produce the following documents:
For a Marriage between two Kenyans
For a Marriage between Kenyan and a Foreigner
The process of registration will be the same like for two Kenyans but:
A person who has been married to a Kenyan citizen for a period of at least seven (7) years is entitled on application to be registered as a citizen (Art. 15(1) of the Constitution)
Where the couple (both Kenyans) cannot give 21 days’ notice
They must provide original and copies of:
For a Marriage between Foreigners
The two must both present to the Registrar original and copies of:
Any document not in English must be translated and verified as a correct translation.
What is cohabitation?
This is an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. It is a common and accepted practice in Kenya for unmarried couples to live together as husband and wife.
Is an affidavit proof of marriage?
A practice has developed in Kenya where partners who are cohabiting as man and wife swear an affidavit that they want their relationship to be recognized. This affidavit is usually used at work places for the employer to recognize an employee’s spouse for benefits or medical insurance. The affidavit is only useful where the policy of the employer and the insurer accept the affidavit. Usually, it is the choice of an employee whom he wants to enjoy his benefits, so the affidavit may be acceptable. However, strictly speaking, the Marriage Act lists the items that prove marriage, and an affidavit is not one of them.
Common law and Law from Cases, seems to accept cohabitation under what is called a “Presumption of Marriage”. Usually this is proved by the fact that the couple were staying together for some time, and that they were conducting themselves to the people around them as Husband and Wife. This can be used as proof of dependency in the Law of Succession.
What are the rights of a cohabitee
A marriage may be converted from being a potentially polygamous marriage to a monogamous marriage if each spouse voluntarily declares the intent to make such a conversion. (Section 8). This means that a man who has married one wife under a marriage type that allows polygamy can convert the marriage to a monogamous one where he will no longer be allowed to marry other wives. In such a case, the man should have only one wife at the time, and both man and wife should sign a declaration before a marriage officer/ registrar that they want to change their marriage certificate to one that does not allow polygamy. A new marriage certificate will be issued to them.
CHRISTIAN MARRIAGES GROUNDS FOR DIVORCE
CIVIL MARRIAGES GROUNDS FOR DIVORCE
SEPARATION AGREEMENT (SECTION 14)
CUSTOMARY MARRIAGE GROUNDS FOR DIVORCE
HINDU MARRIAGE GROUNDS FOR DIVORCE
DIVORCE IN ISLAMIC MARRIAGE
Declaring that a marriage is null is different from a divorce. In a declaration of nullity, the court is being asked to order that the marriage in fact was not valid and should be treated as though it never existed.
Grounds for annulment of marriage
A party to a marriage may petition the court to annul the marriage on the ground that—
The court shall only grant a decree of annulment if—
The court may order a party to marriage to maintain his/ her spouse or former spouse in the case where (Section 77):
The court in making an order for maintenance may make it so that it is for a specific period, otherwise, an order of maintenance may unless it is cancelled by the court, remain until (Section 78):
A court can be asked to look at the order of maintenance again and either cancel or make some changes to it. The court can cancel or change the order if it finds that at the time of making the order the first time, there was a mistake, or one party was not fully honest or if there was a major change in the way things are at the time.
Maintenance cannot be passed on to a third party in the way a debt can be passed.
If a party refuses or delays in paying maintenance, the payment is treated as a debt for collection purposes. You cannot however seek to recover a payment of maintenance after 3 years has passed since it ought to have been paid. If the maintenance did not have any item of security and the money was owing before the person to pay died, the estate of the deceased can be followed to pay the debt.
Court may set aside or stop the sale of property meant to reduce the means of paying maintenance or depriving a spouse of property
Court may order a party to stop molesting a spouse or former spouse (Section 84)
No proceedings may be brought to compel one spouse to cohabit with the other (Section 84)
Spouse alleging desertion may refer matter to reconciliatory body
Court may order restitution of conjugal rights where it’s satisfied of the truth of statements in support and there are no legal grounds why the application should not be granted Sec 84(3)
PENALTY (Fines in Kshs)
False statement in the notice of intention to marry or notice of objection
Jail for max 2 years or fine max 2 million shillings or to both
Marriage to a person under 18 years
Jail for max 5 years or fine max 1 million shillings or to both
Marriage of persons within prohibited marriage relationship. Witnesses to such marriages are also liable to be charged.
Jail for max 5 years or fine max 300,000
Forced Marriage - Marrying someone without the person’s consent
Jail for max 3 years or fine of 300,000 or both
Unauthorized persons celebrating marriage relationship
Jail for max 3 years or fine of 300,000
Celebrating marriage without witnesses
Jail for max 3 months or fine max 10,000
Celebrating marriage where:
Witnesses also liable to be charged
Jail for max 6 months or fine max 50,000
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