By Ochiel J Dudley, Legal Researcher
Laws of Kenya Department.
The Bill seeks to consolidate existing marriage laws into a single Act (currently seven).
Marriage – voluntary union of a man and a woman Sec 3(1)
Equality – both parties to marriage have equal rights all through Sec 3(2)
Age – A person must be 18 years to marry Sec 4
Witnesses – Any marriage must have 2 witnesses present (Sec 5(1)) excluding Pastor, Sheikh or Director or the person who officiates the marriage (Sec 5(3)).
Recognition – Christian, civil, customary, Hindu, Islamic marriages recognized and must be registered (Sec 6(1)). Practices of other group or faith may be notified in the Gazette (Sec 6(1)(f))
Monogamy – Christian, Hindu or civil marriages are monogamous (Sec 6(2)
Polygamy–
Islamic and customary marriages are potentially polygamous (Sec 6(3)
Conversion – marriage can be converted from potentially polygamous to monogamous if both spouses voluntarily agree (Sec 8(1))
- Husband must have only one wife at the time to convert to monogamy
- New certificate to converted couples
Subsisting Marriages – No one in a monogamous marriage can contract another marriage. No one in a polygamous marriage can contract a monogamous marriage (Sec 9).
Blood Relations – prohibited marriage relationship – cousins, nephews, uncles, parents, sisters, brothers;
- Marriage amongst cousins professing Islamic faith not forbidden (Sec 10(4)).
Void Marriages (Sec 11(1))
Married parties treated as if there was no marriage at all –
- underage,
- parties are within the prohibited marriage relationship;
- either party is already married;
- by court order
- consent parties not been freely given (fraud, coercion, mental disorder, influence of drugs, intoxication);
- either party is absent from the ceremony;
- parties permit unqualified person to celebrate the union;
- parties are mistaken about the identity of the other party; or
- parties enter the marriage for fraudulent purposes.
(Sec 11(1))
Voidable Marriage
Parties have a choice and can decide to uphold the marriage on the grounds that–
- marriage was not consummated
- Recurrent attacks of insanity
- No notice was given
- Notice of objection not yet withdrawn
- Unlicensed person
- Minor procedural errors
- Failure to register the marriage
I need a break (Sec 14)
- Parties to civil marriages (only) can agree to live apart for one year (Sec 14(1)
- Agreement filed in court, court can vary or set aside the agreement where circumstances have changed
Widow/ers
- May elect to marry or stay un-married
Duration of Marriage
Marriage to last until
-death
-presumption of death
-annulment
-divorce within Kenya or abroad
Christian Marriages
- parties are Christians (Sec 17)
-public place of worship (Sec 18)
- written notice of 21 days to Director and person in charge of place of worship where they intend to marry (Sec 19)
Notice to include:
- names, age and residence of parties
- names (if known and alive) of parents plus residence
- declaration parties not in a prohibited relationship e.g. cousins, nephew, aunt,
- date and venue of marriage
- Signature both parties
- Marital status
- If divorced, decree
- If widowed, death certificate
Notices and Objection to Marriage
Sec 21 - 26
- director to publish notice
- objectors to write giving names, relationship and reasons for objecting
- director to notify officiating person not to proceed, summon parties, and hear within seven days
- aggrieved party may appeal to court
- baseless or fraudulent objectors risk fine of 1M or 5 years in jail term
- where no objection Director certificate of non-impediment
Marriage Certificate
- 3 copies each signed by officiating person, parties and the two witnesses
- copies the parties, retain one and another to Director
Civil Marriages
- Section 31 requires notices similar to Christian marriages (Section 18 to 26)
Marriages at Embassies in Kenya, in foreign countries
Sec 36 to 40
Customary Marriages
- according to customs of communities of one or both parties Sec 42
- where dowry required, token sufficient to prove marriage
- parties must notify Director within 3 months of completing steps required
- must specify customary law and declare that the necessary customary requirements completed (Sec 44)
- Signatures or personal marks of two adult witnesses who played crucial cultural roles in the marriage
Notification to confim:
Sec 44(3)
- Both parties 18 years old at time of marriage
- Marriage between person outside prohibited relationships
- Both parties freely consent
- If second, third, fourth wife etc that current wife/wives know
- Also whether the current wife/wives approve or disapprove of the intended marriage and their reasons for approving, disapproving.
Hindu Marriages
(Sec 45 to 46)
- -persons professing Hindu faith
- In accordance with Hindu rituals
- -person officiating to deliver record to Director
Islamic Marriages
(Sec 47 to 48)
- persons who profess Islamic faith
- Khadhi, sheikh, Imam to officiate
- record of marriage delivered to Director
Director of Marriages
(Sec 49)
- perform civil marriages
- register all marriages
- issue marriage certificates for all registered marriages
- certificates of no impediment where no objection to marriage
- determine rules governing customary marriages
- determine objections from notices to marry
- appoint national, county marriage officers
Marriage Officers
Sec 50 –diplomatic staff of Kenya to celebrate civil marriages abroad
Sec 51 – ministers of faith as marriage officers according to traditions of their faith
- may cancel licenses
- licenses previously issued to continue as if issued under the Act
Registration of Marriages
Sec 52 – Christian marriages
Sec 53 – civil marriages
Sec 54 - customary marriages
- within 6 months of completing rituals, both to apply to, and appear before, Director for a certificate
- both to appear before Director for certificate
Sec 55 – Hindu marriages
Sec 56- Islamic marriages
- Khadhi, sheikh or Imam to record details and Issue certificate
- Deliver record plus certificate to Director
- Director to register marriage
Sec 57 - Cabinet Secretary to consult with stakeholders make regulations for any other type of marriage not covered.
Sec 58 – marriages celebrated abroad
Proof of Marriage
Sec 59 Evidences of marriage
- a certificate of marriage;
- a certified copy of a certificate of marriage
- an entry in a register of marriages
- a certified copy of an entry in a register of marriages
- where marriage celebrated in public place of worship, and resgistration was not required, by an entry in a register kept at that place of worship
- an entry in a register of marriages maintained by the proper authority of the Khoja Shia, Ith’nasheri, Shia imam, Ismaili or Bohra communities, or a certified copy of such an entry.
Decrees of Divorce or Annulment
- Sec 60 copies to be sent by court to Director
- Sec 61 copy to be sent by any party to Director
Correction of Errors
Sec 63 director may correct errors on register
Matrimonial Disputes and Proceedings
Sec 64
Parties to
Christian marriage may seek reconciliation from available church bodies
Sec 65
Otherwise may petition court for a dissolution of marriage on the grounds that :
- adultery;
- cruelty, whether mental or physical on the petitioner or children; or
- desertion for at least three years.
Parties to
civil marriage may not petition court before 3 years since celebration of marriage (Sec 66(1))
Afterwards may petition court for dissolution, (Sec 66(2)) citing:
- adultery by the other spouse;
- cruelty by the other spouse;
- exceptional depravity by the other spouse;
- desertion for at least three years; or
- irretrievable breakdown of the marriage e.g. (insanity, imprisonment for life or 7+ years)
Attempts to reconcile do not matter, a party may still petition
Parties to a
customary marriage Sec 68
- may undergo conciliation
- process of mediation or traditional dispute resolution must conform to the Constitution
Otherwise party may petition for dissolution citing-
- adultery;
- cruelty;
- desertion; or
- any valid ground under the customary law of the petitioner
Parties to a
Hindu marriage
Annulment of Marriage
(Parties treated as if they had never married)
Sec 73
A party to a marriage may petition the court to annul the marriage on the ground that—
- the marriage not consummated since its celebration;
- at the time of the marriage the parties were in a prohibited relationship and without the knowledge of either party,;
- in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;
- consent was not freely given;
- a party to the marriage was absent at the time of the celebration of the marriage;
- the wife was pregnant at the time of the marriage and without the knowledge of the husband where the husband is not responsible for the pregnancy; or
- the other party suffers recurrent bouts of insanity at the time of the marriage and without the knowledge of the petitioner,.
Sec 73(2) the court will only grant a decree of annulment if—
- the petition is made within 1 year of the celebration of the marriage;
- at the date of the marriage the petitioner was ignorant of the facts alleged in the petition; and
- the marriage has not been consummated since the petition was made to the court.
Sec 74
-only one party can ask the court to annul a marriage
Sec 75 Effects of decree of annulment
I Will Marry You!
- Sec 76(1) Promises to marry not binding (not a contract)
- Sec 76(2) A party may recover damages if he or she suffers a loss because one has refused to honour a promise to marry (e.g. dowry, wedding planning expenses etc)
Maintenance of Spouse
Sec 77, court may order one to maintain spouse or former spouse
- if the person has refused or neglected to provide for the spouse or former spouse
- if the person has deserted the other spouse or former spouse
- during the course of any matrimonial proceedings;
- when granting or after granting a decree of separation or divorce; or
- if, after presuming a spouse dead, the person is found alive.
Order of Maintenance to Last Until
Sec 78
- death of the spouse;
- death of the spouse in whose favour it was made; or
- the person being maintained is subsequently able to support himself or herself.
- Remarriage – Sec 79
Other relief
- Court may order a party to refrain from molesting a spouse or former spouse
Right to Liberty
- No proceedings may be brought to compel one spouse to cohabit with the other Sec 84(2)
- However court may order restitution of conjugal rights Sec 84(3)
Children
Custody and maintenance of children remain under the Childrens Act
Criminal Offences
- False statement in the notice of intention to marry or notice of objection, liable to jail for max 5 years or fine max 1 million shillings or to both Sec 86
- Marriage to a person under 18 years - liable to jail for max 5 years or fine max 1 million shillings or to both Sec 87
- Marriage of persons within prohibited marriage relationship jail for max 5 years or fine max 300,000 Sec 88
- Marrying someone without the person’s consent liable to jail for max 3 years or fine max 300,000 or both Sec 89
- Unauthorized persons celebrating marriage relationship jail for max 3 years or fine max 300,000
- Marrying without witnesses jail for max 3 years 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 jail for max 6 months or fine max 50,000
Rules
Sec 93 to 95
- By Cabinet Secretary on forms, notices etc
- By Rules Committee to regulate court procedure and processes
Registration of Existing Marriages
- Islamic and Hindu within 3 years after Act passes – Sec 96(2)
- Customary marriage – within 3 years – Sec 96(3)
Laws to be Repealed
Sec 97
Cap 150 The Marriage Act.
Cap 151 The African Christian Marriage And Divorce Act.
Cap 152 The Matrimonial Causes Act.
Cap 153 The Subordinate Court (Separation and Maintenance) Act.
Cap 155 The Man Marriage And Divorce Registration Act.
Cap 156 The Mohammedan Marriage Divorce and Succession Act.
Cap 157 The Hindu Marriage and Divorce Act.
Savings – Sec 98
- Subsisting marriages are valid
- Ongoing court cases to continue under the law by which they were filed
