In today’s globalised and interconnected world, interfaith marriages, marriages between partners of different religious backgrounds, are increasingly common. As societies become more open and tolerant of cultural and religious diversity, Kenya, too, has witnessed a steady rise in interfaith unions. These marriages not only strengthen personal relationships but also embody the spirit of pluralism, tolerance, and constitutional freedoms under the Constitution of Kenya, 2010.
This article explores the legal definition of marriage under Kenyan law, the recognised types of marriage, the procedure for solemnising interfaith marriages, and the critical role of the courts and registrars in accommodating marriages that fall outside the traditional Christian, Hindu, Islamic, and customary categories.
What Is Marriage Under Kenyan Law?
Under Section 3 of the Marriage Act, marriage is defined as:
Marriage is defined in section 3 of the Act as follows:
(1) Marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with this Act.
(2) Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.
(3) All marriages registered under this Act have the same legal status.
(4) Subject to subsection (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law.
Subsequently, marriage in Kenya is legally defined as the voluntary union of a man and a woman, either in a monogamous or polygamous union, and registered according to the Marriage Act, 2014. All registered marriages have equal legal status, and both parties have equal rights and obligations throughout the marriage and at its dissolution. The minimum age for marriage is 18 years, and entering into a marriage with anyone below this age is a criminal offence.
Types of Marriages Recognised in Kenya
The Marriage Act (Section 6) recognises five main types of marriages:
- Christian Marriage: Celebrated according to Christian rites, solemnised by authorised religious ministers.
- Civil Marriage: Conducted by a Registrar of Marriages or in authorised locations.
- Customary Marriage: Based on the traditional customs of Kenya’s various communities.
- Hindu Marriage: Performed according to Hindu religious practices.
- Islamic Marriage: Celebrated under Islamic law and customs.
Christian, Hindu, and Civil marriages are strictly monogamous, while Customary and Islamic marriages may be polygamous.
However, the list under Section 6 is not exhaustive. Courts have clarified that limiting religious marriages to only Christian, Hindu, and Islamic practices would be unconstitutional. This is because it discriminates against adherents of other faiths, contrary to Article 27 COK (equality and freedom from discrimination on different grounds, including religion) and Article 32 COK (freedom of religion, belief and opinion).
Requirements for a Valid Marriage in Kenya
To contract a valid marriage, the following requirements must be met:
- Minimum Age: Both parties must be at least 18 years old.
- Voluntary Consent: Both parties must voluntarily consent to the union.
- Witnesses: Two competent witnesses (at least 18 years old, sane, sober) must be present, excluding the officiant and the couple themselves.
- Single Status: Each party must be single or have legally dissolved any previous marriage.
- Identification Documents: Valid Kenyan national ID or passport for both parties. Foreigners may require additional documentation, like proof of residence or a visitor’s permit.
- Affidavit of Single Status: Sworn documents confirming that the parties are not married to anyone else.
- Registration: All marriages must be registered, and a Certificate of Marriage is issued by the Registrar.
Constitutional Protection of Religious Freedom
The Constitution of Kenya guarantees:
- Article 27: Equality and Freedom Discrimination on any grounds of race, sex, pregnancy, marital status, culture, conscience, age, etc.
- Article 32: Freedom of conscience, religion, belief, and opinion.
In Mary Wanjuhi Muigai v Attorney General & another [2015] eKLR-Petition 237 of 2014, the Court underscored that the Marriage Act’s Section 6 was drafted incompletely, failing to account for marriages conducted under other religions practised in Kenya. The Court noted that such a restrictive interpretation would unconstitutionally discriminate against individuals outside Christianity, Islam, Hinduism, or customary frameworks. The Court, therefore, ordered that section 6 of the Marriage Act must be read as including all marriages celebrated under all religious faiths duly recognised and registered in Kenya.
Thus, the Kenyan judiciary has consistently expanded the ambit of religious marriages to ensure constitutional inclusivity, allowing adherents of other faiths to solemnise marriages through their spiritual leaders, provided they are duly registered.
Interfaith Marriages under the Marriage Act
Under Sections 52 and 93 of the Marriage Act, provide that any religious minister outside the mainstream Christian, Hindu, or Islamic faiths may apply to the Registrar of Marriages for registration and authorisation to officiate marriages, with the Registrar maintaining an updated roll of such approved ministers. This ensures that adherents of all religions can lawfully celebrate marriages without discrimination, fully in line with Articles 27 and 32 of the Constitution.
Once registered as an approved celebrant, they can legally officiate marriages of their faith, ensuring their followers’ marriages are lawfully recognised.
The Interfaith Marriage Dimension
When parties from different religions wish to marry, they have two main options:
- Civil Marriage – conducted by the Registrar at the Attorney General’s office or designated places. Civil marriage is neutral and universally recognised.
- Religious Marriage – where the officiating religious leader is duly registered under the Act, the marriage can be celebrated under one party’s faith, subject to compliance with the Act.
Where a religion is not expressly listed in Section 6, the Registrar’s discretion under Section 52 ensures such marriages can still be accommodated without discrimination.
Step-by-Step: How to Register an Interfaith Marriage in Kenya
- Choose and confirm the type of marriage: Whether you want to proceed as a civil marriage or under the religious rites of one of the spouses. If you choose the religious way, ensure your religious leader or officiant is registered or seek registration under the provisions of sections 52 and 93.
- Documentation: Collect national IDs or passports, birth certificates, and affidavits of single status/certificates of no impediment.
- Notice/Marriage License: Apply for registration of marriage with the Registrar of Marriages through the e-Citizen platform. For special licenses or unlisted religions, submit the required documentation and request approval of the celebrant.
- Marriage Ceremony: Hold the ceremony in the presence of two witnesses and the approved officiant.
- Certificate of Marriage: After the ceremony, have the certificate signed by all parties and witnesses. Submit it to the Registrar for official registration.
- Get Marriage Certificate: The Registrar issues the official document confirming the legal status of the marriage.
Legal Considerations in Interfaith Marriages
- Inheritance: Religious doctrines may affect succession rights.
- Child Custody: Courts may consider religious upbringing.
- Conversion Pressure: Some faiths may require conversion, which can cause tension.
- Community Acceptance: Social stigma may affect marital stability.
Conclusion
The Constitution of Kenya, 2010, demands inclusivity and respect for all faiths in the solemnization of marriages. While Section 6 of the Marriage Act lists specific categories, courts have clarified that the list is not exhaustive. To cure this gap, the Act provides in Sections 52 and 93 that any religious minister outside the mainstream Christian, Hindu, or Islamic faiths may apply to the Registrar of Marriages for registration and authorisation to officiate marriages, with the Registrar maintaining an updated roll of such approved ministers. This ensures that adherents of all religions can lawfully celebrate marriages without discrimination, fully in line with Articles 27 and 32 of the Constitution.
At Njaga & Co. Advocates LLP’s Family Law, we are your trusted legal partner in every aspect of family law. We provide expert support in marriage registration (civil, religious, customary, and interfaith), prenuptial agreements, succession and inheritance planning, family trusts registration, guardianship and adoption, and divorce, separation, custody, and maintenance proceedings. We blend deep legal expertise with tailored, practical solutions to safeguard your family’s best interests at every stage.
Contact us today to ensure your interfaith marriage and all your family’s legal matters are handled with professionalism, precision, and care.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
