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The Marriage Act

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

  • Parties legally capable of contracting to marry
  • Mutual consent or agreement
  • Parties must be of opposite sex (Art.45 (2) Constitution)
  • An actual contracting in the form prescribed by law

TYPES OF MARRIAGES

The 4 types of marriages legally accepted in Kenya are

Christian Marriage

  •  Applies where a party to the marriage is a Christian (Section 17)
  • It is monogamous
  • It is officiated by a person authorized by the Registrar in accordance with Christian values

Customary Marriage

  • Can be polygamous
  • celebrated in accordance with the customs of the communities of one or both parties to the intended marriage.
  • Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry is enough to prove a customary marriage
  • The parties to a customary marriage notify the Registrar of their marriage within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned.
  • Customary marriages that took place before the Act came in force in 2014 can be registered and a certificate issued – within 3 years (starting 20th May, 2014) (Sec 96(3)) – the Cabinet Secretary can extend the period for registration

Hindu Marriage

  • Applies where parties to the marriage is of Hindu religion
  • It is Monogamous
  • officiated by a person authorized by the Registrar and in accordance with the Hindu religious

Islamic Marriage

  • Can be polygamous
  • shall only apply to persons who profess the Islamic faith.
  • officiated by a kadhi, sheikh or imam as may be authorized by the Registrar and celebrated in accordance with Islamic law.

Civil Marriage

  • It is monogamous
  • It is officiated by the Registrar or his representatives

 

VOID MARRIAGES

A union is not a marriage if at the time of the making of the union—

  • either party is below 18years of age
  • the parties are of close family relationship which is not allowed;
  • either party is in a current marriage;
  • the court has directed that the marriage is not to be contracted because of an objection;
  • the consent of either party has not been freely given;
  • either party is absent from the ceremony;
  • both parties knowingly and wilfully permit a person who is not authorized to do so to celebrate the union;
  • either party is mistaken about the identity of the other party
  • either party knowingly or wilfully enters into the marriage for fraudulent purposes.

In the case of a Void Marriage, the marriage does not have any legal effect from the time it was entered into.

 

VOIDABLE MARRIAGES

A marriage is voidable meaning an innocent party can have it dismissed (annulled) if he/ she so wishes 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 (Section 25);
    • notice of objection to the intended marriage was given and was not withdrawn or dismissed;
    • the fact that a person officiating the marriage was not lawfully entitled to officiate;
    • the marriage was not registered or registered properly

 

 

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.

  1. A person cannot get into a marriage unless he/ she has reached 18 years of age (section 4)
  2. A person shall not marry someone who is close family relation, such as:
    • that person’s grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew;
    • 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.
  3. Even a relationship of the half-blood is a bar to marriage (step – relatives).
  4. The marriage of a person with that person’s cousin does not apply to Muslims.
  1. A marriage must be witnessed by two people who also sign the Marriage Certificate (Section 5)
  2. The witnesses must be 18 years old and above
  3. The witnesses must be people who can be allowed by law to enter into a contract, meaning – they are capable of understanding what the parties are doing and are not intoxicated (drunk).
  4. The witnesses should be able to understand whether through an interpreter, the language being used at the Marriage ceremony.
  5. The parties to the marriage and the person joining them cannot also be witnesses to the marriage.
  6. In the case of a Customary Marriage, the witnesses must be people who shall have played a key cultural role in the celebrating the marriage.

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

  • Copies of ID cards and Coloured Passport photos for both parties
  • Kshs.600/-
  • Go to the Registrar of Marriages office and fill a form giving Notice of Marriage, which will run for 21 days. You will pay Kshs.600/-
  • After 21 days if the ceremony is to take place at the Registrar’s office, at the end of the 21 days’ notice you pay Kshs.3,300/- and you are given a marriage date according to the diary of the Registrar.
  • If you are having the ceremony in Church you will need to return to the Registrar after the 21 days are over with a copy of the officiating pastor’s license and the serial number of the marriage certificate which will be issued. You will pay Kshs.800 to the registrar and will be issued with a Registrar’s Certificate after 7 days. You will present the certificate to the Church and after the ceremony the church will issue you with the Marriage Certificate.
  • If the ceremony is to take place that is not the church or the Registrar’s Office e.g. A garden wedding, you will need to pay Kshs.7,200/- for a special license.

For a Marriage between Kenyan and a Foreigner

The process of registration will be the same like for two Kenyans but:

  1. The Kenyan will need to produce original and copies of:
    • ID Card/ Valid Kenyan Passport
    • Coloured passport size photograph
    • Birth Certificate
    • Affidavit that there is no impediment to marriage (form available at Registrar’s office)
    • In case of a widowed person – Death Certificate
    • In case of divorced person – Divorce Decree Absolute (given by the court that granted the divorce)
  2. The Foreigner will need to produce original and copies of:
    • Valid Passport
    • Birth Certificate
    • Coloured passport sized photograph
    • Certificate of No Impediment to Marriage given by his/ her local Registrar
    • In case of a widowed person – Death Certificate
    • In case of divorced person – Divorce Decree Absolute (given by the court that granted the divorce)
    • Return air ticket/ Visa/ Work Permit

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:

  1. Birth Certificates
  2. ID Cards or Passports
  3. Proof that there is no impediment to marriage
    • In case of a widowed person – Death Certificate
    • In case of divorced person – Divorce Decree Absolute (given by the court that granted the divorce)
  4. Coloured passport sized photographs
  5. An affidavit stating the reason why they cannot give 21 days’ notice

For a Marriage between Foreigners

The two must both present to the Registrar original and copies of:

  • Valid Passports
  • Birth Certificate
  • Coloured passport sized photographs
  • Certificates of No Impediment to Marriage given by his/ her local Registrar
  • In case of a widowed person – Death Certificate
  • In case of divorced person – Divorce Decree Absolute (given by the court that granted the divorce)
  • Return air ticket/ Visa/ Work Permit.

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

  1. A cohabitation is not formally accepted as a marriage in Kenya, because it is not listed among the types of marriages under the Marriage Act.
  2. A cohabitee cannot sue for maintenance when they separate.
  3. A cohabitee can only seek for a share of inheritance on the death of a partner where he/she can prove that the deceased partner was providing for him/her under presumption of marriage under Section 29 of the Law of Succession Act.
  4. The children born from a cohabitation will have rights under the Children’s Act

 

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.

  • Under Section 63, the Registrar, marriage officer or authorised person may correct clerical errors or omissions on register or certificate of marriage
  • person making correction to sign and date correction and register the details
  • notify parties of the changes made within a reasonable time
  • A party to a marriage may apply to the Registrar or to a marriage officer or to a person authorised by the Registrar to correct a clerical error or omission in a register of marriage or a certificate of marriage regarding that person’s marriage.
  • Where the Registrar, a marriage officer or a person authorised by the Registrar makes a correction under subsection (1), the Registrar, marriage officer or person authorised by the Registrar shall sign and date the correction and shall enter the details of the correction against the relevant entry in the register of marriage.
  • The Registrar shall notify the parties to a marriage of any changes made in the register of marriage or marriage certificate within a reasonable period of the changes being made.
  • A minister of faith may apply to the Registrar to be appointed as a marriage officer for the purposes of this Act.
  • The Registrar may appoint a minister of faith who makes an application under subsection (1) as a marriage officer.
  • The Registrar shall issue a person appointed as a marriage officer under this section with a license.
  • A person appointed as a marriage officer under this section may only officiate at marriages celebrated according to the traditions of the faith in which the minister of faith serves.
  • The Registrar may cancel a license issued to a person under this section and shall give written reasons for such withdrawal.
  • A licence granted in respect of marriages under any law in operation before the commencement of this Act shall, if the licence has not been cancelled at the commencement of this Act, be deemed to be a licence granted under this section.
  • A person who knows of an impediment / reason as to why an intended marriage should not take place may give a written notice of objection to the person in charge of a public place of worship (pastor of the church) where notice of intended marriage has been posted (Section 19). The notice of objection should have the name of the person giving the notice of objection and the person’s relationship with either of the intended parties and state the reason for the objection to the intended marriage.
  • A person who has given notice of objection may, at any time, withdraw the objection in writing.
  • After receiving a notice of objection, the pastor shall hear the objection and if the pastor considers that the objection requires a further hearing, he or she shall postpone the marriage ceremony until such time as the objections will be determined in accordance with the church regulations
  • The pastor must determine the objection within a reasonable period which shall not be more than seven days after hearing the objection.
  • After giving the decision on the objection – either dismissing or allowing it, the pastor shall prepare and submit a report of the process of determination of the objection in the prescribed form to the parties and the Registrar within seven days of determination.
  • Any party who is dissatisfied with the decision of the pastor may appeal to the court within fourteen days of the decision
  • After receiving a notice of intention to marry, the Registrar publishes the notice at the Registrar’s Office/ Place where the marriage is to be celebrated.
  • Anyone who knows of a just reason or impediment why the marriage should not take place writes a notice of objection to the Registrar. The notice of objection shall include the name of the person giving the notice of objection and the person’s relationship with either of the intended parties to the marriage and shall state the reasons for the objection to the intended marriage.
  • A person who has given a notice of objection may at any time withdraw the objection in writing
  • Upon receiving a notice of objection, the person in charge of a place where the marriage is to be celebrated shall hear the objection forthwith and if the person in charge of the place where the marriage is to be celebrated considers that the objection requires further hearing, he or she shall postpone the marriage ceremony until such time as the objection shall be determine in accordance with the Regulations.
  • The person in charge of a place where the marriage is to be celebrated shall determine an objection within a reasonable period which shall not be more than seven days after the hearing of the objection.
  • Upon determination of an objection, the person in charge of a place where the marriage is to be celebrated shall prepare and submit a report of the process of determination of the objection in the prescribed form to the parties and the Registrar within seven days of the determination
  • Any person who is dissatisfied with the decision of the person in charge of a place where the marriage is to be celebrated may appeal to the Court within fourteen days of the decision.
  • The Registrar shall hear an objection within seven days of the Registrar receiving the notice of objection and give his decision within seven days of the hearing.
  • Any party dissatisfied with the decision of the Registrar may appeal to the court within seven days of the decision by the Registrar.
  • A person who makes a frivolous, malicious or fraudulent objection commits an offence and upon conviction is liable to imprisonment for a term not exceeding five years or a fine not exceeding one million shillings or to both.
  • marriage ceremony may not be performed until any appeal that has been made against a decision of the Registrar to permit the marriage ceremony to be performed is heard and determined. The court shall hear and determine the appeal as soon as it can, and may go ahead even if any of the parties fails to come to court.
  • A party to a marriage has the right to petition the court for separation or divorce for any of the grounds below.
  • A petition can only be filed where the parties have been married for at least 3 years.
  • The filing of a petition does not prevent the parties from seeking to get back together in the meantime.
  • The court can adjourn for a maximum 6 months the petition to allow the parties try and mend their differences or to get further information for the case.

CHRISTIAN MARRIAGES GROUNDS FOR DIVORCE

  • one or more acts of adultery committed by the other party;
  • cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage; or
  • desertion by either party for at least three years immediately preceding the date of presentation of the petition;
  • exceptional depravity by either party;
  • the irretrievable breakdown of the marriage.

CIVIL MARRIAGES GROUNDS FOR DIVORCE

  • adultery by the other spouse;
  • cruelty by the other spouse;
  • exceptional depravity by the other spouse;
  • desertion by the other spouse for at least three years; or
  • the irretrievable breakdown of the marriage, i. e:
    • a spouse commits adultery;
    • a spouse is cruel to the other spouse or to any child of the marriage;
    • a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
    • the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;
    • a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
    • a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more;
    • a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
    • any other ground as the court may deem appropriate.

SEPARATION AGREEMENT (SECTION 14)

  • The parties to a civil marriage may agree to live apart for one year. The separation can be made formal in an agreement. This agreement is filed in court and is made valid and enforceable.  
  • A court may change or dismiss the agreement in full or parts of it if the court is satisfied that since the agreement was made there has been a major change of circumstances.
  • A party to a civil marriage may apply to the court to determine their status after the expiry of the one year period from the date of agreement.

CUSTOMARY MARRIAGE GROUNDS FOR DIVORCE

  • adultery;
  • cruelty;
  • desertion;
  • exceptional depravity;
  • irretrievable breakdown of the marriage; or
  • any valid ground under the customary law of the petitioner

HINDU MARRIAGE GROUNDS FOR DIVORCE

  • the marriage has irretrievably broken down;
  • the other party has deserted the petitioner for at least three years before the making of the petition;
  • the other party has converted to another religion;
  • since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;
  • the other party has committed cruelty on the other; and
  • the other party has committed exceptional depravity on the other.

DIVORCE IN ISLAMIC MARRIAGE

  • Divorce is governed by Islamic Laws. A petition (application) for divorce is made at the Kadhi’s Court.
  • Where a Kadhi, sheikh, imam or person authorized by the Registrar grants a decree for the dissolution of a marriage celebrated under Part VII, the Kadhi, Sheikh, Imam, Mukhi or authorized person shall deliver a copy of the decree to the Registrar.

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 marriage has not been consummated since its celebration;
  • at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;
  • in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;
  • the petitioner’s consent was not freely given;
  • a party to the marriage was absent at the time of the celebration of the marriage;
  • at the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy; or
  • at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

The court shall only grant a decree of annulment if—

  • the petition is made within one year of the celebration of the marriage;
  • For the grounds of being in a prohibited relationship or one party being already in a monogamous marriage, at the date of the marriage the petitioner did not know the facts alleged in the petition
  • the marriage has not been consummated since the petition was made to the court.
  • A petition for annulment may be presented by only one of the parties.
  • The ground of refusal to consummate the marriage cannot be presented by the party who has refused the consummation.
  • Where the ground for annulment is that one spouse was not aware of certain facts, only the spouse who was not aware of those facts can come to court seeking an annulment.
  • The parties to a marriage which has been annulled by decree absolute of the court shall be deemed never to have been married but a decree of annulment shall not—
    • render lawful anything which was done unlawfully during the marriage or render unlawful anything which was done lawfully during the marriage; or
    • affect the competence of either of the parties as a witness in respect of anything done or omitted to be done, or any privilege in respect of communications between them, during the marriage or relieve either party of any debt properly incurred on behalf of the other during the marriage.

The court may order a party to marriage to maintain his/ her spouse or former spouse in the case where (Section 77):

  • the person has refused or neglected to provide for the spouse or former spouse
  • the person has deserted the other spouse or former spouse
  • any matrimonial proceedings are pending in court
  • when granting or after granting a decree of separation or divorce
  • if, after presuming a spouse dead, the person is found alive
  • a foreign court has made an order of maintenance

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):

  • if the maintenance order did not have security, when the person paying maintenance dies
  • if the maintenance order had some form of security, when the person being paid dies
  • the person being paid is now able to support himself/ herself
  • if the person being paid remarries (Section 79)

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)

SECTION

OFFENCE

PENALTY (Fines in Kshs)

Sec 86

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

Sec 87

Marriage to a person under 18 years

 

Jail for max 5 years or fine max 1 million shillings or to both

Sec 88

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

Sec 89

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:

  • one party is below 18 years;
  • a notice of intention to marry has not been given; or
  • a notice of objection to the intended marriage has been given and the objection has not been withdrawn, dismissed or determined

Witnesses also liable to be charged

Jail for max 6 months or fine max 50,000

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