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Kenya Law / Blog / Articles: Highlights Of The Marriage Act, 2014.

Highlights Of The Marriage Act, 2014.

Ochiel J Dudley

Legal Researcher

Kenya Law

Date of Assent: 20th April, 2014

Commencement Date: 20th May, 2014

Preface:

The Act is set out in some thirteen parts. Part one is Preliminary while Part two bears the General Provisions. Parts three, four, five, six and seven deal with Christian, Civil, Customary, Hindu and Islamic Marriages respectively. Appointments of Registrar’s and Registration of Marriages are the object of Parts eight and nine. Matrimonial Disputes and Proceedings, Rights of Action and Maintenance of Spouses occupy Parts ten to twelve. Part thirteen is on Offences and Penalties while Part fourteen is on Miscellaneous provisions.

The Act seeks to consolidate existing marriage laws into a single Act (currently seven).

Court – means a resident magistrate’s court

Marriage – voluntary union of a man and a woman Sec 3(1)

Child – any individual below the age of eighteen

Equality – both parties to marriage have equal rights all through Sec 3(2)

Age – A person must be 18 years to marry Sec 4

Faith – any association of a religious nature or any denomination, sect or school where such exist under a religion

Hindu – a Hindu by religion, a Buddhist of Indian origin or a Jain or Sikh by religion

Matrimonial proceedings – include proceedings for maintenance or custody of children instituted independently of a petition for declaration, annulment, separation or divorce

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)).

Monogamy – Christian, Hindu or civil marriages are monogamous (Sec 6(2)

-A person in a monogamous marriage shall not contract another marriage (Sec 9(a))

Polygamy Islamic and customary marriages are presumed to be polygamous or potentially polygamous (Sec 6(3)

- A person in a polygamous marriage shall not contract another, monogamous marriage (Sec 9(b)

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
  • declaration witnessed by marriage officer and signed by the couple
  • 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 – aunts, cousins, nephews, uncles, parents, sisters, brothers;
  • grandparent, child, or grandchild of spouses or former spouse
  • a person one has adopted or by whom adopted
  • marriages prohibited by customary law
  • half-blood is a bar to marriage
  • 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 knowingly and willfully permitted an unqualified person to celebrate the union;
  • parties are mistaken about the identity of the other party; or
  • parties enter the marriage for fraudulent purposes.

Voidable Marriage Court has a choice and may void the marriage on the grounds that–

  • at date of marriage, either party was and has remained incapable of consummating
  • Recurrent attacks of insanity
  • No notice was given
  • Notice of objection not yet withdrawn
  • Unlicensed person officiated
  • Failure to register the marriage

Spouses and the law of tort

A spouse not ordinarily liable for the tort (civil wrongs) of the other spouse

  • Each spouse bears same liability in tort to other spouse as if they were not married
  • Spouses may claim from negligent acts or omissions as well as breach of duty which causes loss of companionship

I need a break (Sec 14)

  • Parties to civil marriages (only) can agree to live apart for one year (Sec 14(1)
  • Agreement to live apart valid and enforceable and must be filed in court
  • Court can vary or set aside the agreement where circumstances have changed materially since signing
  • Parties may apply for court to determine status of the marriage at expiry of the year

Widow/ers

  • May elect to marry or stay un-married (Section 15)

Duration of Marriage

Marriage to last until

  • death
  • court declares the presumption of death of a spouse
  • annulment or divorce

Christian Marriages

where a party is a Christian (Sec 17)

  • by a marriage officer, a licensed church minister appointed by the Registrar (Sec 18)
  • a person who knows of impediment to intended marriage may give a written notice of objection to person in charge of the public place of worship where marriage notice has been posted (Sec 19)
  • written notice to include the name of the objector, relationship with either party and reasons for objection to the marriage
  • Objectors may withdraw the notice at any time in writing
  • Person in charge of public place of worship to hear the objection immediately and
  • if he considers that the objection requires a further hearing, postpone the marriage ceremony until the objection is determined in accordance with church regulations
  • objection must be determined within reasonable period, not more than seven days after hearing the objection
  • report to parties and Registrars on process used to determine objection within seven days
  • Any dissatisfied party to appeal to court within fourteen days

Marriage Certificate (Sec 21)

  • 3 copies each signed by officiating person, parties and the two witnesses
  • copies to the parties, official retain one and another to Director

Recognition of foreign marriages as Christian marriages in Kenya

marriages celebrated outside Kenya may be recognized as a christian marriage in Kenya if

  • it was contracted according to the laws of the country of celebration and is consistent with provisions on christian marriages under the Act
  • at time of marriage, parties had capacity to marry under law of country where marriage was celebrated or
  • both parties had the capacity to marry, if at the time of the marriage any party to the marriage was domiciled in Kenya Christian marriages at embassies, high commissions or consulate in Kenya
  • Marriages at the embassy, high commission or consulate of a foreign country in Kenya is a christian marriage where–
  • it’s in accordance with that foreign country’s law on christian marriages
  • parties had capacity to marry under that foreign country’s law or
  • both parties had the capacity to marry, if at the time of the marriage any party to the marriage was domiciled in Kenya

Civil Marriages

By registrar in place determined by Registrar (Sec 24)

written notice of not less than 21 days or more than three months to Registrar and person in charge of place of where they intend to marry (Sec 25(1))

Notice to include:

  • names, age and residence of intended 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
  • Marital status of each party : if divorced, copy of decree and if widowed, copy of death certificate of former spouse (Sec 25(2))
  • Registrar to publish notice of intention to marry at the proposed venue (Sec 26)
  • objectors to write giving names, relationship and reasons for objecting to Registrar or person in charge of venue
  • Objector may withdraw notice in writing, at any time

Obligation of person a person in charge of the venue of a civil marriage in cases of objections

  • Person in charge of venue to hear the objection immediately and
  • if he considers that the objection requires a further hearing, postpone the marriage ceremony until the objection is determined in accordance with the Regulations
  • objection must be determined within reasonable period, not more than seven days after hearing the objection
  • report to parties and Registrars within seven on process used to determine objection days
  • Any dissatisfied party to appeal to court within fourteen days
  • director to notify officiating person not to proceed, summon parties, and hear within seven days

Determination of objection by the Registrar

  • Similar process on written objection
  • Hearing within seven days of receipt and determination within seven days of hearing
  • Aggrieved party may appeal to court within seven days
  • baseless or fraudulent objectors risk fine of 1M or 5 years in jail term

Staying effect of appeals (Sec 30)

  • no marriage until appeal from Registrar’s decision has been heard and determined

Expeditious disposal

  • Court to hear and determine appeals expeditiously
  • court may hear and determine despite failure of party to appear before it

Certificate of no impediment

  • Certificate of no impediment where no one objects
  • Kenyans wishing to marry in foreign countries where a certificate of impediment’s required to apply to Registrar

Registrar’s power to dispense with notice

  • Registrar may dispense with notice where there is sufficient reason to do so
  • Before dispensing with notice Registrar to confirm no party is: in a prohibited relationship; below age; in another marriage

Contraction of civil marriages

  • Registrar to complete and sign a marriage certificate
  • cause parties plus witnesses to sign,
  • give two copies of certificate to parties, retain the third

Civil marriages at Kenyan embassies, high commissions or consulates by Kenyan citizens/non-citizens (Sect 37 to 40)

  • Kenyan citizens/Non-citizens may celebrate marriages in Kenyan missions in foreign countries in presence of the Registrar or his delegate
  • Marriage abroad valid in Kenya if the parties had capacity to marry in Kenya
  • Marriage valid if it was contracted in accordance with the law of the foreign country, is consistent with the laws of Kenya and the parties had capacity to marry (Section 40)

Duty to register Marriage

  • Persons who officiate marriages to deliver copy of marriage certificate to Registrar
  • Registrar to enter details of the certificate in the register of marriages
  • Failure to register a marriage liable to fine not exceeding five thousand shillings or to a community service order

Customary Marriages

  • according to customs of communities of one or both parties Sec 43
  • where dowry required, payment of a token amount’s sufficient to prove marriage
  • parties MUSTnotify Registrar within 3 months of completing steps required to complete marriage as per the community (Sec 44)
  • Notice must specify customary law applied and declare that the necessary customary requirements completed (Sec 45) and
  • contain a declaration by the two parties that necessary customary requirements have been undertaken
  • The declaration to contain signatures or personal marks of two adult witnesses who played crucial cultural roles in the marriage

Notification to confirm, Sec 44(3)

  • Both parties 18 years old at time of marriage
  • Marriage between person outside prohibited relationships
  • Both parties freely consent

Hindu Marriages

(Sec 46 to 47)

  • persons professing Hindu faith
  • persons authorised by Registrar in accordance with Hindu rituals
  • person officiating to deliver record to Registrar

Islamic Marriages

(Sec 48 to 49)

  • persons who profess Islamic faith
  • Kadhi, sheikh, Imam authorised by Registrar to officiate
  • record of marriage delivered to Registrar

Appointment of Registrar and Marriage officers

(Sec 50)

The Registrar of Marriages, appointed by the Cabinet Secretary shall-

  • 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
  • may appoint marriage officers at national, county levels
  • diplomatic staff of Kenya to celebrate civil marriages abroad (Sec 51)
  • ministers of faith as marriage officers according to traditions of their faith Sec 52
  • may cancel licenses, giving written treasons (Sec 52(5))
  • licenses previously issued to continue as if issued under the Act (Sec 52(6))

Registration of Marriages Sec 53 – Christian marriages a copy of certificate to be sent to Registrar within fourteen days

Sec 54 – civil marriages record to be sent to Registrar, Registrar to issue certificate

Sec 55 – Customary marriages

  • within 6 months of completing rituals, both to apply to, and appear before, Registrar for a certificate
  • Registrar to register marriage and issue certificate where he is satisfied that the parties have complied with the law and have appeared before him in person

Sec 56 – Hindu marriages

  • authorised persons to record details and deliver record to register for registration
  • Registrar to confirm that marriage complies with the law
  • Cabinet Secretary may make rules on registration of Hindu marriages

Sec 57- Islamic marriages

  • Khadhi, sheikh or Imam to record details and issue certificate
  • Deliver record plus certificate to Registrar
  • Registrar to register marriage where he’s satisfied that part has been complied with

Sec 58

  • marriages celebrated abroad may be registered on application, where marriage complies with the Act
  • marriage certificate issued in other country may be considered as proof, certified translation where certificate not in the official languages (Swahili or English)

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 registration 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 court to deliver a certified copy of decree to Registrar; Registrar to register in appropriate record
  • Sec 61 any party may apply to Registrar to register decree where foreign court annuls or dissolves a marriage celebrated in Kenya #
  • Registrar to register foreign decree if satisfied it should be recognised in Kenya

Application to include:

  • a copy of the decree (certified translation if not in official languages)
  • a statutory declaration by a competent practitioner under the laws of that foreign country witnessing that the decree is effective in that country

Correction of Errors

  • Sec 63 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

Matrimonial Disputes and Proceedings

Dissolution of christian marriages

Sec 64 Parties may first seek reconciliation from available church bodies where marriage was celebrated

Sec 65

Otherwise may petition court for a dissolution of marriage on the grounds that :

  • one or more acts of adultery;
  • cruelty, whether mental or physical on the petitioner or children; or
  • desertion for at least three years
  • exceptional depravity
  • irretrievable breakdown of the marriage

Dissolution of civil marriage

  • Parties to civil marriage may not petition court before 3 years since celebration of marriage (Sec 66(1)
  • Parties to a civil marriage may only 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 for separation or dissolution
  • Court may refer dispute to a reconciliatory process agreed between the parties
  • Matrimonial proceedings for the dissolution of a marriage may be adjourned for a period of not more than six for the court to make further enquiries or further attempts at reconciliation

Irretrievable breakdown of a marriage

A marriage has irretrievably broken down where (Sec 66(5))

  • a spouse commits adultery
  • a spouse is cruel to the other spouse or child of the marriage
  • willful neglect for at least two years
  • spouses have separated for at least two years
  • desertion for at least three years
  • sentence of life imprisonment or seven years onwards
  • incurable insanity (certified by at least two doctors, one a psychiatrist)
  • any other ground court deems appropriate

Dissolution of customary marriages

Parties to a customary marriage Sec 68

  • may undergo conciliation or traditional dispute resolution
  • the process must conform to the Constitution
  • person who takes the parties through the process must file a report in court

Otherwise party may petition for dissolution citing-

  • adultery;
  • cruelty;
  • desertion
  • exceptional depravity
  • irretrievable breakdown of the marriage or
  • any valid ground under the customary law of the petitioner
  • Cabinet Secretary may make regulations for implementation of provision on dissolution of customary marriage

Dissolution of Hindu marriages

Parties may petition the court on the grounds that

  • irretrievable broken down
  • desertion
  • conversion to a different religion
  • rape, sodomy, bestiality or adultery
  • cruelty
  • exceptional depravity on a spouse

Dissolution of Islamic marriages

  • governed by Islamic law
  • copy of decree by Kadhi, sheikh or imam to be delivered to Registrar

Annulment of Marriage

(Parties treated as if they had never been married)

Sec 73

A party to a marriage may petition the court to annul the marriage on the ground that—

  • the marriage’s not been consummated since its celebration;
  • parties were unknowingly in a prohibited relationship;
  • in the case of a monogamous marriage,one of the parties was married to another person at the time of the marriage;
  • consent was not freely given;
  • a party to the marriage was absent at the time of the celebration of the marriage;
  • pregnancy at the time of the marriage 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

  • only party ignorant of facts to present, where annulment is sought on the basis of ignorance of facts)

Sec 75 Effects of decree of annulment

  • Parties treated as if they had never got married
  • does not render illegal anything done legally during the marriage and vice versa
  • affect competence of either party as a witness to communications during the marriage or relieve any party of any debts incurred during the marriage on behalf of the other

Effect of a promise to marry

- Sec 76 A promises to marry is not binding (not a contract capable of specific performances

Maintenance of Spouse

Sec 77, court may order one to maintain spouse or former spouse

  • where the person has refused or neglected to provide for the spouse or former spouse
  • in case 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
  • based on the decree of a foreign court (Sec 77(2))

Order of Maintenance to Last Until

Sec 78 Unless revoked

  • death of the spouse (unsecured);
  • death of the spouse in whose favour it was made (secured); or
  • the person being maintained is subsequently able to support himself or herself
  • Shall automatically lapse on remarriage – Sec 79

Revocation and variation of maintenance order

  • where court’s satisfied that the order was obtained as a result of a misrepresentation, mistake or where there has been a material change of circumstances
  • court may vary terms where there’s a material change of circumstances despite any provision in the maintenance order itself

Assignment of maintenance

Maintenance payable to a person cannot be assigned, transferred, attached, or levied upon in respect of any debt or claim

Recovery of maintenance arrears

  • no installment is recoverable after a period of three years from the date it accrued despite any other period of limitation
  • arrears of unsecured maintenance is a civil debt recoverable summarily, provable in bankruptcy and recoverable from the estate of the deceased’s
  • personal representative of a person entitled may recover maintenance arrears summarily as a civil debt

Compounding of maintenance arrears

  • Court may set aside or injunct a disposition/intended disposition of property meant to reduce the means of paying maintenance or depriving a spouse of property
  • Where the sale’s to a bona fide purchaser for value court may grant orders as though the sale had taken place

Other relief

  • Court may order a party to refrain from molesting a spouse or former spouse
  • No proceedings may be brought to compel one spouse to cohabit with the other Sec 84(2)
  • 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)

Custody and Maintenance of Children

Custody and maintenance of children remains under the Childrens Act and other law written law relating to children

Criminal Offences

  • False statement in the notice of intention to marry or notice of objection, liable to jail for max 2 years or fine max 2 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. Witnesses to such marriages liable to be charged.
  • Marrying someone without the person’s consent liable to jail for max 3 years or fine of 300,000 or both Sec 89
  • 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 jail for max 6 months or fine max 50,000

Offences relating to the celebration or witnessing of union

  • It’s an offence to celebrate or witness a union purporting to be a marriage where one knows or should know that:
  • at least one party is below the age of eighteen years
  • a notice of intention to marry has not been given where required
  • a notice of objection has not yet been withdrawn
  • Offenders liable to jail for max 6 months or fine max 50,000

Rules (Sec 93 to 95)

  • Marriages to be celebrated in accordance with rules made by the Cabinet Secretary
  • Cabinet Secretary may make rules for celebration of any marriage
  • By Cabinet Secretary on forms, fees, notices, explanation to parties, procedure for registration etc
  • By Rules Committee (under the Civil Procedure Code Act) to regulate court procedure and processes

Registration/Validity of Existing Marriages

  • Customary marriage – within 3 years (starting 20th May, 2014) (Sec 96(3))
  • Cabinet Secretary may extend the period for registration
  • Subsisting valid marriages under written or customary law are valid marriages under this Act (Sec 98(1))

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

  • Ongoing court cases to continue, as far as practicable, in accordance with this Act

Updates:

Jurisprudence is slowly but steadily building on the Marriage Act, 2014. Here are a few pertinent points made by the Courts so far:

As to desertion

RNN v SNW [2014] eKLR http://ow.ly/IIFFU

The Court had to interpret Section 66(2)(e) of the Marriage Act, 2014 which provides that a divorce may be granted where the marriage has been shown to have irretrievably broken down. Section 66(b)(d) of the Act further provides that a marriage is deemed to have irretrievably broken down where: “(d) the spouses have been separated for at least two years, whether voluntary or by decree of the court.” The Court found that the couple which had lived apart for 12 years and in separate towns clearly had no union between them. There was no doubt that the marriage had irretrievably broken down.

As to proof of adultery

W.E.L v J.M.H [2014] eKLR http://ow.ly/IIFvQ

The petitioner filed for divorce from his wife on the grounds of adultery. Section 66(2)(a) provides for the grounds upon which a civil marriage may be dissolved. These include adultery by the other spouse. In his petition and in his evidence the petitioner alleged that the respondent had affairs with other men, would come home late and drunk and was cruel to him.

On the allegation of adultery the, court found that the petitioner had failed to name even one man with whom the respondent was committing adultery. The Court held that it is not enough to simply throw about allegations of adultery but the petitioner must adduce evidence to prove beyond a preponderance of doubt that indeed the respondent was committing adultery. The petitioner must give names, times and occasions. The mere fact that he suspected one suspects his wife of adultery cannot amount to proof of the fact.

As to application of the Act to causes filed before the commencement date

KLB v CR [2014] eKLR http://ow.ly/IIFqI

The Court held that the Marriage Act, 2014 was not applicable to a dispute that was filed on 31st October, 2013 and thus before the Act, which came into operation on 20th May, 2014. That even though the cause was heard on 28th May, 2014 after the commencement of the Act the cause was filed before the commencement of the Act.

This decision seems to be per incuriam in view of section 98(2) and the decision in M.S.V v S.J.V. [2015] eKLR cited below.

As to application of the Act to causes filed before the commencement date

M.S.V v S.J.V. [2015] eKLR http://ow.ly/K8K70

The issue was whether the Hindu Marriages and Divorce Act (repealed) or the Marriage Act, 2014 applied to a divorce cause which was filed in 2008 before the commencement date. Lenaola J held that the Act applies to all ongoing divorce causes as far as practicable. He cited Section 98(2) which provides that “Proceedings commenced under any written law shall, so far as practicable, be continued in accordance with the provisions of this Act.” (emphasis supplied).

The judge opined that the provision was inserted to take care of the lacuna created by Section 97 which repealed all the seven laws listed in the Schedule and which regulated marriage and divorce.

As to the waiting period before a foreign spouse can obtain permanent residency in Kenya

Khatija Ramtula Nur Mohamed v Minister for Citizenship and Immigration [2015] eKLR  http://ow.ly/KhfkK

The appellants had appealed against the ruling of the High Court which denied their petition for a declaration that section 37 of the Kenya Citizenship and Immigration Act, 2011 which provides for a 3 year waiting period, as opposed to automatic residency status is unconstitutional.

The section provides as follows:
37.Permanent residence

The following persons, their children and spouses shall be eligible upon application in the prescribed manner for grant of permanent residence status in Kenya—

(a) …

(d) the spouses of Kenyan citizen married for at least three years.”(emphasissupplied)

The Court held that the “waiting” period of 3 years before a foreign spouse can obtain permanent residency status is not unconstitutional.

As to the constitutionality of polygamous marriages without consent of the existing wife/wives

MARY WANJUHI MUIGAI v AG [2015] eKLR http://ow.ly/UXatP

The petitioner had challenged the constitutionality of the Act for excluding some faiths (Bahai) from its scope. The Act was also challenged for permitting the practice of polygamy without requiring consent of existing wife or wives.

The court held that section 6 of the Act had to be read as including all marriages celebrated under any religious faiths duly recognized and registered in Kenya.The court further held that the practice of polygamy and registration of polygamous marriages without consent of the previous wife or wives is inconsistent with the equality provisions of the Constitution.

*The author is an Advocate of the High Court of Kenya and a Legal Researcher in the Laws of Kenya Department at the National Council for Law Reporting (Kenya Law). He can be reached through ochieljd(at)gmail(dot)com

 

  1. May 20, 2014

    Do these laws mean that people married under for example have to register their mrriages as monogamous as the previous marriage acts are repealed

  2. May 21, 2014

    Thank you Dudely for the highlights which are quite informative.

  3. June 16, 2014

    Where can i get a soft copy of the marriage bill 2014

  4. June 26, 2014

    is there any provision on the distribution of matrimonial property in the Act?

  5. July 8, 2014

    Diana the link redirects to the KLR’s site but unfortunately the the Act thereat is the 1902 one

  6. July 10, 2014

    Honestly this new marriage bill while attempting Africanization legalization of marriages falls short for marital affairs as social. Former laws pertained with evolution of English, Wales and Scottish common law regarding marriages. Indeed there are indistinct aspects identified with Kenyan families since arrival of explorer Thompson. It could help legal matters since socially over the years one aspect common as such the reputation of couples. Sadly abused also has been that idea “the reputation of coupling.” I wonder from law schools in Kenya were family law not included as it could be Culturally.

    All too said law is law and Culture is Culture.

  7. July 18, 2014

    I co habited for 3 years with a man who was customarily married. He went on and had a Christian wedding without my knowledge. What does the law say about this? Do I have any recourse?

  8. August 18, 2014

    hello
    I’m a Kenyan wishing to marry a foreigner in Kenyan but I’m a little bit confused. It seems there’s nowhere in your website that shows the requirements needed. My question is, what documents does the my fiance need? and should all the documents be translated to English?.

  9. August 24, 2014

    Thank You for compiling that comprehensive & objective highlights of the Marriage Act, 2014 ! By the way, Diana, do we have a registry of enactments (at the national assembly) where we can access the archives forthat matter ?

  10. September 30, 2014

    I must admit that Kenya has made such a commendable step in its trial to protect the marriage institution by passing this Law.

    However, I still strongly believe that Legislation at its best is helplessly incapacitated to protect marriages. Legislation cannot replace commitment, trust and love for God’s statutes, which in my view are the pillars which MUST exist if we are to salvage the remains of this important institution in the society.

  11. October 30, 2014

    So is
    Cap 152 The Matrimonial Causes Act,
    Cap 153 The Subordinate Court (Separation and Maintenance) Act.,
    cap 157 The Hindu Marriage and Divorce Act.
    been repealed effective 20th april or 20th may already…?

  12. November 8, 2014

    THIS HAS BEEN OF GRETE ASSISTANCE TO ME ESPECIALLY NOW THAT I HAV AN EXAM .THANK U

  13. November 13, 2014

    Hello,

    Is this Act already in force? I am looking to register a marriage to be celebrated under customary laws and i am being told its not in force yet and that there are no forms in place.

  14. January 19, 2015

    What happens if you lose the certificate before you even signed it, we live in Dubai and our certificate has gone missing.

    • February 9, 2015

      You can try to find help from the Kenyan Embassy/Consulate in Dubai

  15. January 29, 2015

    @Betty Kerubo: So far, only the Marriage (General) Rules, 2014 (L.N. 61/2014) have been published. There’s nothing in them about the registration of customary marriages yet. Note that section 96(3) require the parties to a customary marriage to register such a marriage within three years of the coming to force of the Act (up to 20th May, 2017 as the Act commenced on 20th May, 2014). Further, the Cabinet Secretary may extend the registration period by notice in the Gazette.

  16. February 9, 2015

    Found this summary important and accurate for my use. Good work Ochiel.

  17. March 19, 2015

    this law can be void en bias if an husband also files a suit of maintainances en will not be granted

  18. March 23, 2015

    Kindly assist me to outline three causes of a lawful divorce in Kenya

  19. March 23, 2015

    I’m Russian and my fiance is British. We are planning to get married in Kenya. Is it necessary to apply 21 day before or we can apply for marriage not as in advance? After we get marriage certificate in Kenya, where can I get apostil so it will be valued in Russia?

  20. April 5, 2015

    Been married for ninetee years under customary. N
    Marriage not working and have been neglected including adultery. Want to quit with child support. Advise

    • May 12, 2015

      You would have to move the Magistrates Court to dissolve the marriage. Afterwards or when the case for divorce is pending, you would then have to go the children’s court for orders on the maintenance and custody of the children.

  21. May 18, 2015

    This has been quite helpful to me, thanks for sharing

  22. June 12, 2015

    Hi,

    I have been married with one kid for the last one year and wanted to know whether one can still get a marriage certificate and what is required of us?

    Thank you

    • June 17, 2015

      It’s not clear from the information you’ve given, but assuming you had undertaken a customary marriage, then you would be liable to have your marriage registered and be eligible for a certificate under the new laws. However, the law provides for a three year grace period from May 2014 and the AG is in the process of developing Rules to guide the process.

  23. June 17, 2015

    Dudley,if you were in marriage based in the past laws of equal share of property for both husband and wife despite the contribution.. does it mean, in the new law one party might loose because the name is not in the title or property?

  24. June 23, 2015

    I converted to Islam and will be getting married soon. If the Khadhi officiates the marriage what names will appear on the Marriage certificate i.e the name i have been given as a Muslim or the names on my ID (i still have not changed my names on my official documents )

  25. June 24, 2015

    hi i amiranian girl wishing to marry kenyan guy he is cheistian and am muslim so he accept to be muslim so get marry in iran embassy in kenya but i want we have recorded marriage in kenya also so how it be ? You said marriage in embassies known as christian marriage? But we muslim marry and also my marriage with him with be civil marriage? I dnt want imam of kenya come because i dnt believe in their things i only believe my iranian style so a pastor should came for him?

  26. July 13, 2015

    Hi are affidavits done at a lawyers office recognized as legal documents that can stand in a court of law as record of a marriage?

    The affidavits have not been registered with the AG’s office. Can this be annulled easily?

    Thanks,
    Edgar Njenga

  27. August 22, 2015

    Was married three months ago under customary and just realised that the man is still married to another woman and a christian marriage,can it be nullified?

    • November 23, 2015

      A party to a christian marriage has no capacity to procure another marriage while that christian marriage remains. Otherwise one commits the offense of bigamy and the subsequent marriage is also considered void. That means the subsequent marriage is treated as if there was no marriage at all.

  28. November 5, 2015

    I have stayed with a lady of kenyan citizan, me also kenya citizan for oversix months. I am from a different faith than hers. Wnated to know if its true are we automatically husband and wife according to kenya law?

  29. November 23, 2015

    Hello i want to fill marriage certificate online then print it out where do i visit its that for church copy

  30. December 7, 2015

    Please help.I want to divorce my husband.We married in Kenya but we live in the USA,how do I go about it.Help please.

  31. December 29, 2015

    Is a come we stay marriage still recognised in Kenya?

  32. January 7, 2016

    Am a kenyan living in germany. I was married with a german but we got divorced here in germany. Where in kenya do i have to register that am divorced to ge the divorce decree absolute?

  33. January 14, 2016

    does Kenyan marriage law specify that wife must take the husband’s surname after marriage or is there any other possibilities, like for example husband taking wife’s surname or both retaining their own, etc?

  34. January 17, 2016

    These marriage laws are vague to succession law. The marriage certificate is not used during succession and all the power is given local area chief who looks for false wife and children to include in the succession letter, How would a wife know if a secret affair bore a child. How does one know the mistress who come for burial and succession cases. These succession laws are unfair to legal wife’s and children, who are forced spend a lot of their own money and time to fight scavengers and gold digger. You can’t keep your man in the pocket once you are married and the certificate you get is called a piece of paper by the chief and the Kenyan High court. Think as a cheater victim who is suffering fighting in court.

  35. January 21, 2016

    where you had a customary marriage and as well an affidavit from the magistrate, which one take p residence/

  36. January 25, 2016

    I have stayed with a man for more than 5years in a relationship then left me and married another woman. we have a son together.
    Do i have any rights over him

  37. February 21, 2016

    What’s the notice duration for legal concent for marriage?

  38. April 29, 2016

    would a man with kids from a past affair (never lived together) be allowed to marry another woman in christian marriage act

    • September 28, 2016

      is come we stay marriages with a period of two years leaving together valid in kenya…

      what is the implication in law after separation

  39. April 30, 2016

    What do I in a marriage with violence,, got married while 17,led into a Christian Church marriage fast to get into Bible school as a couple. After that no other family sitting was done,, but had changed my name to this man’s. I feel overwhelmed,, had bought a dagger to slaughter me,, violence with a pliers,, I need help! Someone to speak to.

  40. June 1, 2016

    What or where do I need go or do in Mombasa for a divorce from him?

  41. June 13, 2016

    Are atheists covered under the Marriage Act of 2014 brother Ochiel.

  42. July 6, 2016

    Am a christian man and wants to marry my muslim girlfriend according to their culture(muslim) this is not permitted can i marry her through civil marriage?

  43. July 18, 2016

    We did a traditional marriage June last year with a Sudanese national and i am a Kenyan, what are the requirements to get a civil marriage and for him to get Kenyan citizenship?

  44. July 18, 2016

    this act gives no defination of reinstitution of conjugal rights,provide no remedy/penalty incase adecree is not adhered to and like the matrimonial causes act legalise rape.

  45. August 24, 2016

    I have lost my marriage certificate. Can i get an original copy? If yes, how? (certificate acquired in 2012)

  46. August 29, 2016

    I want to re marry again are there any Barr’s coz I already have a wife that I want to be a polygamist

  47. August 31, 2016

    I’m a Kenyan did a civil marriage a year ago abroad to my long time partner with whom I have with 5 children from age 9 downward. Can my foreign husband get a status in Kenya?

  48. September 8, 2016

    Does the law provide provision for change of marriage witnesses?

  49. September 13, 2016

    If a customary marriage is not registered does it mean the come we stay that is too common is not recognised in law. That is it is illegal in the eyes of the law? What about the children in such a union?

  50. September 24, 2016

    Please, help me out on this: am a Congolese living in Kenya since 2007. Customarily married to a young kikuyu from nyahururu in 2009, which was also witnessed before lawyer who issued an affidavit of marriage to us. In 2012, while away, and without any quarrel, my wife deserted from home, and disappeared in nature after changing all her contacts, even in their family, they refused to tell where she is up to date. see? We never legally divorced. Now is where my request falls in: have completed 8 years in Kenya, and getting ready to apply for citizenship by registration. Can the 2 documents, the customary register signed by both parties and the affidavit of marriage from the lawyer legally be accepted by the board in charge of granting citizenship? You understand better the law, please, assist me with the right details and procedures to follow. Would appreciate so much.
    In advance, thank you for your comments and feedback (I use my passport, with entry permit).
    Regards,

  51. September 28, 2016

    What happens when one cohabits with someone and then they separate and one wants to marry again under the christian marriage law? In the cohabitation, no bride price was paid and there are no children

  52. October 7, 2016

    I have been married for 12 yrs and we have the marriage certificate. In the course of our marriage, I have come to learn of things I did not priorly know about my husband. It had been hard for him to secure a job given that he was expelled from the university following students unrest. He went ahead and forged transcripts and certificates from the university. He then decided to get into construction business which I financially supported from my savings from employment until now when he is very financially stable. Four years ago, I lost my job and it is then that I got to know who he really is. He started accusing me of adultery without any evidence and even went shead and proposed a separation. He refused to provide for the family arguing that he was investing and even suggested that we take the children to a children’s home or give them up for adoption. He apologized for the false accusations and explained that he will not allow me leave him. We have two children aged 7 and 5. This year August, he again tried to manipulate me by hacking my social media accounts and started chatting suggestively with my male friends then he accused me of adultery. He wrote a letter and emailed to me to which I responded. In the letter, he said he hacked into my private accounts and came across some information that he was no willing to share. I felt pissed off and decided to pack and leave with the kids but he refused and threatened my life and those of the kids. I am planning to file for a divorce, children custody and children’s upkeep. The challenge I am facing is that I am currently working outside the country (Juba) but my contract is ending in April 2017. I only take my breaks after every 10 weeks to be with the family. Upon the end of my contract, I should be able to come back to my country (Kenya) and live my children. Please, advice me on how to go about it because I don’t want to lose the custody of my children on grounds that I am currently working outside the country. Thanks

  53. November 13, 2016

    Thankyou for the summary. I wish such summaries could be made of all the chapters….or rather the important chapters in the laws of Kenya.

  54. January 21, 2017

    I need a divorce from a civil marriage under irreconcilable differences, but its not yet 3 years, how do I go about it?

    • May 10, 2017

      Dear Peter Karogo,

      Please contact me privately through wangarilaw@gmail.com i may have a solution for you.

      Regards.

  55. March 17, 2017

    If parents had civil marriage but separated without divorce… Do either of the party have right in that marriage

  56. March 26, 2017

    What is the penalty of people practising adultry In case they are found?

  57. March 31, 2017

    Married foreigner divorced him abroad …with divorce papers, what to I need for second marriage?

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