The definition of marriage under Kenyan law is provided under Article 45 of the Constitution and reinforced in the Marriage Act[1] as the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with the Act. It is worth noting that in Kenya, we have yet to acknowledge same-sex marriages, as seen from other jurisdictions, such as the USA, where same-sex people are allowed to marry.
Marriage is thus seen as a consensual agreement between adults of the opposite sex, whether in a monogamous (a man being married to only one wife) or polygamous (a man being married to more than one woman simultaneously) relationship. Further, the Act entitles the parties to a marriage to have equal rights and obligations at the time of the marriage, during the marriage, and at the dissolution of the marriage. For a marriage to be valid in Kenya, the parties must be consenting adults aged over 18 years, and two adults of sound mind witnesses must witness the marriage.
Types of recognized Marriages in Kenya
In Kenya, we have the following kinds of marriages: –
- Christian marriages: – These are marriages between parties confessing the Christian doctrines and rites. They are conducted in church by a licensed minister, priest, or pastor. They are generally monogamous in nature.
- Civil marriages: – They are marriages that are celebrated by the Registrar of Marriage under the Attorney General. It is what many people refer to as marriage in the Attorney General’s chambers. They are also monogamous in nature.
- Customary marriages: – They are marriages that are conducted under the customary rites of the communities of one or both of the parties intending to get married. They are characterized by customs such as paying for dowry and other ceremonies of the involved Kenyan communities. Once the relevant customs have been conducted, the involved parties must inform the Registrar of marriages through a written notification of their customary marriage specifying the customary law applicable and the rites they conducted to have their marriage recognized and issued with a certificate. Customary marriages are inherently polygamous in nature as the man can marry as many wives as their custom allows, provided the first wife consents.
- Hindu marriages: – They are marriages conducted between parties that profess the Hindu religion. They are officiated by persons recognized by the Registrar of the marriages in accordance with the Hindu doctrines.
- Islamic marriages: – They are marriages conducted between parties that profess the Islamic religion. The marriages are conducted by an Imam, Sheikh, or Kadhi court under the sharia law. Islamic marriages are generally polygamous, as the husband is legally allowed to marry as many as four wives.
Prohibited Marriages in Kenya
In Kenya, there are certain prohibited marriages. An individual who undertakes such marriages commits a criminal offense and shall, on conviction, be liable to imprisonment for a term not exceeding five years or a fine not exceeding three hundred thousand shillings or to both. However, where an individual did not know or could not reasonably be expected to know of the relationship, such a person may not be convicted. The prohibited marriages in Kenya are based on the blood relationship or other customary prohibitions.
You cannot marry anyone with whom you have blood or a half-blood relationship The Act prohibits marriages such as marriages between brothers and sisters, marriages between a child and parent, marriages between a child and grandparents, marriages between uncles and their nieces, and marriages between cousins and marriage between an adopted child and the adopting person. However, for marriages under Islamic law, cousins are allowed to marry each other.
Valid, Void, and Voidable Marriages in Kenya
Valid marriage:
A marriage is valid if it meets the required legal standards and is recognized by the law. Such marriage can only be terminated by either divorce or the death of a spouse. Any marriage, whether civil, Christian, Hindu, or customary in Kenya that meets the guidelines of the Act and the Regulations, and the parties are issued with a marriage certificate Is deemed valid.
Void marriages:
These are marriages that are inherently defective, null, and void ab initio (at the start) under the eyes of the law. This type of marriage can never be valid, no matter the wishes of the parties. They include; –
- Prohibited marriages
- Where a party is below the minimum age of 18 years
- Where consent was not freely given in circumstances such as fraud, mental incapacity of a party, intoxication by drugs, or a party is mistaken for the purposes of the ceremony
- Where a party is absent at the marriage ceremony
- Where both parties enter a marriage for fraudulent reasons
- Where both parties willfully allow a person who is not allowed by the law to celebrate the union
- Where a court orders that an intended marriage not be conducted
- Whether either of the parties is incompetent by reason of an existing marriage, e.g., someone is married in a Christian or civil marriage, and they have not yet divorced.
- Where a party to an intended marriage is mistaken for the identity of the other party
Voidable marriages:
These are marriages that are, for all purposes, seen by the law as valid until certain irregularities vacate that validity. A marriage is voidable for the following reasons: –
- Non-consummation (the lack of sexual intercourse to make the marriage valid) due to incapacity or willful refusal by either party.
- Mental insanity or venereal disease by either party.
- In the case of civil marriages, the failure to give notice of intention to marry. to the Registrar of not less than 21 days and not more than 3 months.
- Where there is an existing notice of objection to a marriage that has not been dismissed or withdrawn.
- Incapacity of the person officiating the marriage.
- Failure to register a marriage.
Duration of Marriage
Marriage is considered a voluntary life legal agreement between two consenting adults to live as spouses. Accordingly, marriage creates mutual rights and responsibilities for each party. Some of the rights of the marriage are that a spouse cannot be held liable for the torts of the other spouse, a right to claim due to neglect, act, or omission by either spouse that causes loss of companionship or other damages, etc. Parties are deemed to marry for life unless the marriage is terminated through the following ways;
- Death of a spouse
- Decree declaring presumption of death of a spouse (this is done after 7 years of absence of a spouse and the other party having undertaken all reasonable ways to find the spouse with futile)
- A decree of annulment
- A decree of divorce either in Kenya or from a foreign country that is recognized in Kenya.