In Kenya, many couples believe they are legally married after conducting the various cultural rituals of their respective tribes, such as dowry payments. However, this belief often does not hold up in the eyes of the law. Despite the cultural ceremonies, these marriages lack legal validity unless registered under the office of the Attorney General.
The Legal Requirement for Valid Marriages
According to the Marriage Act of 2014, a marriage is defined as the voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered under this Act. This means that even if a couple has gone through all the traditional rituals, their marriage is not legally binding until officially registered.
Section 55 of the Marriage Act: Registration of Customary Marriages
Section 55 of the Marriage Act 2014 requires the registration of customary marriages. The Marriage (Customary Marriage) Rules, 2017 (Legal Notice 46 of 2017) further stipulates that a customary marriage register entry is made once registered, and the parties are issued a certificate of customary marriage.
The Alarming Statistics
Recent data from the office of the Attorney General reveals a startling fact: fewer than 800 customary marriages have been registered. This leaves a vast majority of couples in a legally grey area, especially when it comes to issues like property rights and division of matrimonial property.
The Legal Crossroads
When disputes arise, such as the declaration of property rights or the division of matrimonial property, couples who have not registered their marriages find themselves at a legal crossroads. Without a marriage certificate, they cannot prove their marital status, leaving them vulnerable to the common law presumption of marriage.
The Supreme Court’s Parameters for the Presumption of Marriage
The Supreme Court of Kenya has laid out specific parameters for the presumption of marriage in Petition No. 9 of 2021 between Mary Nyambura Kangara (Petitioner) and Paul Ogari Mayaka (Respondent), with Initiative for Strategic Litigation in Africa (Isla) as Amicus Curiae. These parameters include:
- The parties must have lived together for a long time.
- The parties must have the legal right or capacity to marry.
- The parties must have intended to marry.
- There must be consent by both parties.
- The parties must have held themselves out to the outside world as being a married couple.
- The onus of proving the presumption is on the party who alleges it.
- The evidence to rebut the presumption has to be strong, distinct, satisfactory, and conclusive.
- The standard of proof is on a balance of probabilities.
The Consequences of Unregistered Marriages
The lack of registration leaves couples in a precarious position, especially regarding property rights. Without a marriage certificate, proving ownership or entitlement to property acquired during the marriage becomes a significant challenge. This often results in lengthy legal battles and uncertainty for the parties involved.
Maintenance of Spouse or Former Spouse
Another critical issue for unregistered customary marriages is the matter of maintenance. According to Section 77 of the Marriage Act, 2014, a court may order a person to pay maintenance to a spouse or former spouse if:
- The person has refused or neglected to provide for the spouse or former spouse as required by the Act.
- The person has deserted the other spouse or former spouse for as long as the desertion continues.
- During any matrimonial proceedings.
This means that even if a marriage is not registered, a spouse may still seek maintenance under certain conditions. However, the lack of a marriage certificate complicates the process, making it harder to prove the existence of the marriage and the entitlement to maintenance.
Cultural and Practical Factors
Despite widespread awareness, many couples, including professionals like advocates—find themselves in unregistered come-and-stay relationships. Several factors contribute to this phenomenon:
- Cultural Traditions and Beliefs: Strong cultural practices often take precedence, and couples may view traditional ceremonies as sufficient for validating their marriage.
- Complexity and Bureaucracy: The legal registration process can be perceived as cumbersome and time-consuming, deterring couples from completing it.
- Informal Agreements and Social Acceptance: Many couples rely on informal understandings and social recognition, which negate the need for legal formalization.
- Financial and Practical Considerations: Costs and prioritization of immediate needs can lead to delays in legal registration.
Conclusion
The gap between cultural practices and legal requirements highlights the need for greater awareness and action. Couples must understand the importance of registering marriages for legal recognition and protection. As the legal landscape evolves, Kenyan law must adapt and provide clear guidelines to safeguard the rights of all married couples.
At Njaga & Co Advocates, we excel in family law and are dedicated to providing exceptional legal guidance and support. Our experienced team is committed to helping you navigate the complexities of family law with expertise and care.
Don’t leave your marital status to chance. Register your customary marriage today to secure your legal rights and protect your family’s future.
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