Securing your union under the Marriage Act

Kenya: If you are planning to get married, you need to familiarise yourself with provisions in the new Marriage Act. After all the controversy it attracted, you do not want to break the law and ruin your honeymoon. This is what you need to know:

I’m already married. Can I marry more wives?

The Act is clear that polygamous unions are only acceptable for marriages conducted under customary law or according to the Islamic faith. This is supported by section 6 (3), which states that ‘A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.’

All Christian, Civil, and Hindu marriages, are, by law, monogamous unions. 

Can I convert a potentially polygamous marriage into a monogamous one?

A marriage may be converted from being a potentially polygamous to monogamous if each spouse voluntarily declares the intent to make such a conversion. For instance, if a couple was married customarily, they could convert it into a Christian, Civil or Hindu marriage (all are monogamous unions), provided both parties agree. It is, however, important to note that a polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife.

Who can I marry?

A person shall not marry their grandparent, parent, child, sister, brother, cousin (except for marriages conducted under Islamic law), nephew, great aunt, or great uncle. The grandparents, parent, child or grandchild of someone’s spouse or former spouse, as well as a person whom the person intending to marry has adopted, are also off limits. Any relationship of half-blood is, by law, a bar to marriage.

Anyone found guilty of engaging in prohibited unions faces a jail term of up to five years and a fine not exceeding Sh300,000 or both.

What is the minimum age for marriage?

A person shall not marry unless they have attained 18 years. Anyone flouting this section of the law is guilty of an offence, and is liable to imprisonment for a term not exceeding five years, or a fine not exceeding Sh1 million or to both.

Who should I notify?

Parties to a customary marriage shall notify the registrar within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties concerned.

Such notification will specify the customary law applied in the marriage, and a written declaration by the parties, that the necessary customary requirements to prove the marriage have been undertaken. Such a declaration shall also contain signatures of two adult witnesses that have played a key role in celebrating the marriage.

Under miscellaneous provisions of this Act, parties to a customary marriage are required to register such unions within three years of coming into force of the Act.

When can I live apart with my spouse?

Parties to a civil marriage may agree to live apart for one year, and any such agreement shall be valid and enforceable, and shall be filed in court.

What’s the procedure for objecting to a marriage?

Anyone wishing to object a marriage, conducted under Christian rites, may give a written notice of such to the person in charge of a public place of worship where notice of intended marriage has been posted. Such a notice will include the name of the person objecting to the marriage and their relationship with either of the parties intending to marry, as well as their reasons for objecting the marriage.

Such matters, must, by law, be resolved within seven days of hearing the objection. Any appeals on the outcome must be made within 14 days of the decision. The Act also provides for objections to intentions to marry under civil law.

How and when should I give a notice for civil marriage?

Where a couple decides to marry under civil law, both parties shall give to the registrar and the person in charge of the place where they intend to celebrate the marriage a written notice of not less than 21 days, and not more than three months of their intention to marry.

Is it an offence to give phony objections to a marriage?

Any person who makes a frivolous, malicious, or fraudulent objection to a marriage commits an offence, and is liable, upon conviction, to imprisonment for a term not exceeding five years or a fine not exceeding Sh1 million or to both.

What happens if someone appeals a decision to permit my marriage?  

A marriage ceremony may not be performed until any appeal made against the decision of the registrar to permit the marriage is heard and determined.

If I married abroad, can I register my marriage locally?

A Kenyan who celebrates a marriage outside the country may apply to the Registrar of Marriages to have that union registered, so long as it complies with provisions of the Act.

When can a marriage become void?

Being incapable to consummate a marriage or where a party in the marriage, has, from the date of the union, been subject to recurrent attacks of insanity, where there was failure to give notice of intention to marry, and where the person officiating the marriage is not lawfully entitled to do so, could result in cancellation of a marriage.

What are the legally recognised grounds for dissolving a marriage?

A Christian marriage may be dissolved on grounds of adultery, cruelty, desertion, exceptional depravity or irretrievable breakdown of the marriage. Similar reasons may lead to dissolution of a civil marriage, but in this case, parties may not petition the court for separation unless three years have lapsed since they got married.

Grounds for divorce in customary marriage are similar to those in civil and Christian marriages, but also includes  ‘any valid ground under the customary law of the petitioner. Those married under Hindu rites may also seek to dissolve their marriages where a spouse has converted to another religion, or where the party to a marriage has committed rape, sodomy, bestiality or adultery.

When can I be ordered to maintain my spouse?

The court may order a person to pay maintenance to a spouse or former spouse, (this means either a wife or husband may be a beneficiary), if the person has neglected the spouse, deserted them, or during the course of any matrimonial proceedings. The same also applies if, after making a decree of presumption of death the spouse or former spouse is found to be alive.

An order of maintenance shall, however, lapse upon the remarriage of the beneficiary of the order.

What happens if my spouse molests me?

The court may order a party to refrain from molesting a spouse or former spouse.