Divorce Under Customary Marriage in Kenya: The Complete Legal Guide

What is a customary marriage under Kenyan law?

A customary marriage is one of five forms of marriage formally recognized in Kenya under section 6(1) of the Marriage Act, 2014, alongside Christian, civil, Hindu and Islamic marriages. Under section 3, a marriage is defined as the voluntary union of a man and a woman, whether monogamous or polygamous. Under section 6(3) of the Marriage Act, a marriage celebrated under customary law is presumed to be polygamous or potentially polygamous unless it is later converted to a monogamous marriage under section 8.

Crucially, section 43(1) provides that a customary marriage is celebrated “in accordance with the customs of the communities of one or both of the parties” meaning the exact requirements differ from community to community. Among the Agikuyu (Kikuyu), for example, this typically involves negotiations between the two families, agreement on and payment of ruracio (dowry, traditionally including livestock), and the ngurario and related ceremonies. Among the Luo, the equivalent is the ayie process; among the Abagusii (Kisii), the ekerigo.

What is common across communities, and consistently emphasized by Kenyan courts, is that a customary marriage is not formed by intention or a proposal alone. In the leading Court of Appeal authority of Hortensia Wanjiku Yawe v The Public Trustee, Civil Appeal No. 13 of 1976, the court held that the party asserting a customary marriage bears the onus of proving it, that the standard of proof is the ordinary civil standard of balance of probabilities, and that the formalities required for a valid customary marriage must actually be proved to that standard; they cannot be assumed.

Read our previous article on Why Most Kenyan Spouses Are Not in Valid Marriages: The Legal Gap in Customary/Traditional Marriages

What are the steps to make a customary marriage lawful under the Marriage Act, 2014?

The Marriage Act 2014 sets out a clear, if often overlooked, procedure for a customary marriage to be legally recognized and registered:

1. Capacity and Intention of the Parties: Both parties must meet the minimum age of 18 years under section 4. Consent must be free, there must be no prohibited relationship, and there must be no existing disqualifying marriage.
2. Complete the customary rites of the relevant community. This includes consent of the parties and, typically, their families, the customary negotiations, and payment of dowry. Under section 43(2), where dowry is required to prove a customary marriage under the relevant custom, payment of a token amount is legally sufficient — full payment of the agreed dowry is not itself a statutory precondition for validity.
3. Notify the Registrar of Marriages within three months. Section 44 requires the parties to notify the Registrar of the customary marriage within three months of completing the ceremonies or steps that confer marital status in their community.
4. Provide the required notification content. Under section 45, the notification must specify the customary law applied, contain a written declaration that the necessary customary requirements have been undertaken, and be signed by two adult witnesses who each played a key cultural role in the marriage. It must also confirm that both parties were 18 years or older, were not within a prohibited marriage relationship, and freely consented. Upon verification of the Notice, the Registrar publishes a 14-day public notice inviting any objections or caveats to the registration.
5. Apply for registration and a certificate within six months. Section 55 requires both parties to appear before the Registrar within six months of the marriage to apply for, and be issued with, a marriage certificate.

What are the common grounds for divorce under customary marriage in Kenya?

Unlike civil or Christian marriages where parties may head straight to court upon breakdown, Section 68(1) of the Marriage Act, 2014 stipulates that parties to a customary marriage must first undergo a reconciliation process administered by:

1. An elder, clan council, or customary dispute resolution mechanism; or
2. An alternative dispute resolution (ADR) mechanism recognized under Article 159(2)(c) of the Constitution of Kenya, 2010.

A court will generally not entertain a petition to dissolve a customary marriage unless a report or certificate confirms that customary reconciliation mechanisms were pursued and failed to resolve the marital dispute.

This reflects the continued, formally recognized role of elders and community structures in resolving customary marriage disputes, even though the court still makes the final decree.

Under Section 69(1) of the Marriage Act, 2014, a party to a customary marriage may petition the court for the dissolution of the marriage on any of the following grounds:

1. Adultery committed by the other spouse;
2. Cruelty, whether mental, psychological, or physical, inflicted on the petitioning spouse or the children of the marriage;
3. Desertion by either spouse for a continuous period of at least three years;
4. Exceptional depravity;
5. Irretrievable breakdown of the marriage (where marital consortium has collapsed beyond repair); or
6. Any valid ground recognized under the customary law of the petitioner (e.g., severe neglect, witchcraft, refusal of conjugal rights, or persistent mistreatment under tribal custom, provided it does not contravene the Bill of Rights in the Constitution).

To understand the divorce process in Kenya, read our article on Grounds for Divorce in Kenya and Foreigners and Divorce Law in Kenya: A Comprehensive Guide

What are the main steps in customary divorce proceedings?

The usual process begins with assessing marital status and the available divorce grounds. The petitioner then prepares the petition and supporting documents, files in the competent court, and arranges lawful service on the respondent.

The respondent may answer the petition, dispute the alleged marriage or grounds, and raise an appropriate cross-petition. The court gives directions, considers any suitable settlement process, hears the evidence, and determines whether dissolution is justified.

After judgment, the parties must obtain the required decree absolute or final order and complete any applicable finalization and registration steps. A petition, private separation agreement, or favourable oral indication is not the same as a final divorce decree.

What happens if parties enter into a relationship without following the required customary rites?

If the fundamental customary rites of the relevant community were never completed, such as the non-payment of dowry (rũracio), omission of clan approvals, or failure to perform sealing rites (ngurario in Kikuyu custom or ayie in Luo custom), the union is void ab initio (void from inception).

Consequently, a single visit, a marriage proposal favourably received in principle, or an intention to marry that is never followed through does not, by itself, create a marriage.

As established in Hortensiah Wanjiku Yawe v. Public Trustee (1976) eKLR,  and EMM v PMK (Divorce Cause E023 of 2023) [2024], an unfulfilled marriage proposal, an engagement, or an informal romantic courtship does not create a customary marriage under Kenyan law. Mere intention to marry, unaccompanied by the essential customary ceremonies, confers no legal marital status whatsoever.

Can there be marriage by presumption in Kenya?

For decades, Kenyan courts recognized the common-law doctrine of presumption of marriage arising from prolonged cohabitation and general public repute. However, the Supreme Court of Kenya significantly redefined this doctrine in the landmark decision of  MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR).

The Supreme Court delivered critical findings that govern all marital claims in Kenya:

1. The Doctrine is “On Its Deathbed”: The Supreme Court observed that the doctrine of presumption of marriage is on its deathbed and must only be invoked sparingly, with extreme caution, and under the rarest of circumstances supported by cogent evidence.
2. Five Strict Conjunctive Tests: To invoke the presumption, all five parameters must be proven concurrently on a balance of probabilities:
   • Long-term, continuous cohabitation;
   • Legal capacity of both parties to contract a marriage;
   • Mutual intention to contract a marriage;
   • Mutual consent of both parties; and
   • Holding themselves out to the world and their community as husband and wife.
3. No Involuntary Matrimony: The court reiterated that marriage is strictly a voluntary union. Courts will not impose marriage on cohabiting couples or partners who merely shared a residence without intending to contract matrimony.

What happens when there is no customary marriage and the parties intend to get a “divorce”?

This scenario comes up more often than most people expect, typically where a couple (or one of them) has long assumed a customary arrangement amounted to a marriage, only for it to later emerge, on close review of the facts, that the essential customary formalities were never actually completed and no presumption of marriage can be supported by the evidence. It matters a great deal, because a divorce presupposes a marriage.

A court can only dissolve a marriage that legally exists. Where the parties never contracted a lawful customary marriage, the union is a legal nullity, and it is legally impossible to grant a divorce. As held in EMM v PMK  [2024] KEMC 11 (KLR), a court cannot dissolve what never existed. Where this is the position, the correct legal remedy is not a divorce petition but proof of non-marriage. In practice, this typically involves:

1. Originating Summons / Plaint for Declaration of Marital Status: The party applies to the High Court or Resident Magistrate’s Court for a declaratory order confirming that no valid marriage was ever contracted and that the applicant is legally single.
2. Nullity Proceedings: Petitioning the court for a decree of nullity declaring the purported marriage void ab initio under Section 73 of the Marriage Act, 2014.
3. Supporting Affidavits from Clan Elders: Executing sworn affidavits of customary law and custom to prove to administrative or international bodies (such as USCIS, embassies, or foreign courts) that no traditional marriage ever materialized.

What is the difference between divorce, annulment, and a declaration of no marriage?

Divorce ends an existing marriage on established legal grounds. Annulment concerns a purported marriage and the statutory grounds for setting it aside under sections 73–75 of the Marriage Act. A declaration of non-existence addresses whether the alleged marriage ever arose.

These remedies are not interchangeable. The correct claim depends on the facts, applicable law, available grounds, any time limits, and the court’s jurisdiction. A declaratory claim must have a proper jurisdictional and procedural foundation; it is not created merely by labelling an affidavit a “certificate of no marriage”.

Is matrimonial property divided equally after customary divorce?

There is no automatic rule that every asset must be divided 50–50. Sections 2, 6 and 7 of the Matrimonial Property Act distinguish matrimonial property and recognize monetary and non-monetary contribution. Non-monetary contribution includes matters such as domestic work, childcare and management of family property or business.

The Supreme Court’s decision in JOO v MBO & 2 others [2023] KESC 4 (KLR) explains why constitutional equality in marriage does not automatically create equal ownership of every asset. The evidence of contribution and the character of the property remain important. Section 8 of the Act addresses property in polygamous marriages.

Read our article on Division of Property After Divorce in Kenya: Understanding the Legal Framework

Other considerations: property, succession, children and evidence

Whether a valid customary marriage exists has consequences well beyond the divorce question itself:

• Matrimonial property. The Matrimonial Property Act No. 49 of 2013 governs property rights. Under Section 7, matrimonial property vests in the spouses according to their respective financial and non-financial contributions. In polygamous customary marriages, property acquired jointly before the subsequent wives joined is held between the original spouses, while subsequent acquisitions are apportioned based on individual contribution (Section 8).
• Succession. A surviving “spouse’s” inheritance rights under the Law of Succession Act depend on marital status at the time of death. Where no marriage existed, a partner will not automatically qualify as a spouse for inheritance purposes, though a dependency claim may sometimes be available on separate grounds.
• Children. Whatever the outcome on the question of marriage, children of the relationship are not affected in their own right. Under Articles 27 and 53 of the Constitution of Kenya, 2010, a child’s rights, including to maintenance and inheritance, do not depend on their parents’ marital status. The Supreme Court reaffirmed this principle emphatically in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others, SC Petition No. E035 of 2025 (30 June 2025), holding that a child’s inheritance rights cannot be limited by reason of the parents’ marital status.
• Cross-border and immigration matters. Where a Kenyan customary arrangement has been referenced in a foreign visa, immigration, or marriage application, the Kenyan-law position (valid marriage, no marriage, or presumed marriage) is only one part of the picture. Separate advice from counsel qualified in the relevant foreign jurisdiction is essential to understand how that finding will be treated there.

Frequently Asked Questions (FAQ)

Q: Does paying a small token or visiting the in-laws mean I am customarily married?
A: No. Visiting the family or paying an initial token (such as Kũhanda Ithĩgĩ in Kikuyu custom) merely signifies an intention or engagement. Unless the full dowry (rũracio) is delivered and the definitive customary marriage rites (ngurario) are completed, no customary marriage exists.

Q: Is payment of dowry (ruracio) compulsory for a valid customary marriage in Kenya?
A: Section 43(2) of the Marriage Act, 2014 provides that where dowry is required to prove a customary marriage, payment of a token amount is sufficient. Full payment is not a strict legal precondition, but some payment, together with performance of the recognized rites, is generally still required to establish that a marriage was concluded.

Q: How long do I have to register for a customary marriage?
A: Notify the Registrar within three months of completing the customary ceremonies (section 44) and apply in person for registration and a certificate within six months of the marriage (section 55).

Q: Is an unregistered customary marriage still legally recognized in Kenya?
A: This is a genuinely unsettled area. Some decisions recognize unregistered unions that meet the essential customary formalities, while others read the Marriage Act’s registration and evidence provisions strictly. Because the courts are divided, the answer depends closely on the specific facts and evidence available.

Q: What evidence is needed to prove (or disprove) that a customary marriage existed?
A: Under section 59, marriage may be proved by a certificate or register entry. Where none exists, courts rely on witness evidence, particularly from elders or family members present at the negotiations, covering consent, dowry payment, performance of rites, and cohabitation, assessed on a balance of probabilities as set out in Hortensia Wanjiku Yawe v The Public Trustee.

Our Family Law Practice & Legal Services

At Njaga & Co. Advocates LLP’s Family Law department, our family and matrimonial law practice group provides strategic, compassionate, and authoritative legal representation across all facets of Kenyan family jurisprudence.

Our specialized family law services include:

• Customary Marriage Advisory & Registration: Structuring customary unions, drafting marriage agreements, and navigating statutory registration under the Marriage Act, 2014.
• Divorce & Matrimonial Dispute Resolution: Instituting and defending divorce petitions, judicial separations, and structured elder/clan mediation mechanisms.
• Cross-Border Marital & Immigration Advisory: Drafting formal legal opinions, declarations of marital status, and elder affidavits for U.S. Citizenship and Immigration Services (USCIS), foreign embassies, and international family courts.
• Matrimonial Property Division: Protecting and litigating matrimonial property claims under the Matrimonial Property Act, 2013, and advising cohabitees on constructive and resulting trust claims.
• Child Custody & Maintenance: Enforcing parental responsibility agreements and litigating custody, maintenance, and international child abduction matters under the Children Act, 2022.

Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.