The Constitution of Kenya, Article 45, provides that the family is the natural and fundamental unit of society and the necessary basis of social order. As such, the family unit enjoys the recognition and protection of the State. Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. Parliament is further required to enact legislation that recognises marriages concluded under any tradition, or system of religious, personal or family law, including any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution. Registration of marriages brings Article 45 of the Constitution of Kenya as well as the Marriage Act, 2014 Laws of Kenya, to life.
One of the major advantages of registration of a marriage is to ensure that the parties are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. Registration of marriage protects these rights and makes it possible to attain them. The possibility of registering all the 5 systems of marriage has ensured that both parties, and in particular women, enjoy rights that were not easily accessible before.
Registration of marriages ensures that both parties, in particular women, are not forcefully entered into marriages. This is achieved at the time of marriage when the legal age, capacity and consent are first established before any registration takes place.
Another important advantage of registration of marriages is the ability of women to have rights over matrimonial property. The law protects them in that matrimonial property belongs to both parties in the marriage, and furthermore, cannot be sold without the spousal consent of either party. Registration of a marriage works as a facilitator in bringing to life this legal right that is availed to women.
Registration of marriages also protects women when it comes to succession matters. Upon the death of a spouse, the surviving spouse has some guaranteed rights to property. A surviving spouse will retain property interests in matrimonial property. The failure to register a marriage puts women at risk of being left with no property or alimony in case of divorce. Registration of marriages, especially customary marriages, has alleviated this risk.
Finally, registration of marriages has made it possible for parties to enjoy spousal benefits such as life insurance policies, health insurance policies, terminal benefits, among many other benefits.
(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 28th April 2018 at Ratna Square Hall, Mombasa from 2pm – 4pm. See our Calendar of events HERE for our next Seminar.