In 2014, Kenya witnessed a significant shift in matrimonial law with the enactment of the Marriage Act, recognising five forms of marriage: Hindu, Christian, Civil, Muslim, and customary.
This legislation mandated the registration of all marriages, including customary unions, marking a departure from previous practices.
Traditionally, proof of marriage in customary unions relied on witnesses attesting to adherence to tribal customs. However, the 2014 Act mandated formal registration, altering the legal landscape for matrimonial disputes.
A landmark case in 1967, Mwagiru vs. Mumbi, spelled out the key ingredients for a marriage under Kikuyu customary law. Yet, with the advent of the Marriage Act, registration became a prerequisite for legal recognition.
Failure to register renders a marriage unrecognised under the law, as evidenced in a recent court case involving two women for the right to bury the body of a deceased individual.
The case revolved around the two women asserting marital ties to the deceased - one under Kamba customary law, the other by presumption of marriage after long cohabitation.
Despite both giving evidence of their alleged marriage, the court ruled against their claims due to lack of registration under the 2014 Act. The court proceeded to award the son to the deceased with one of the women the right to bury his father and allowed the two women the right to participate in the funeral.
The court's decision underscored the Act's significance in determining legal spousal status and inheritance rights. While the claimants could pursue succession under the Succession Act for their children born during the union, the absence of marriage registration precluded them from asserting spousal rights under the Marriage Act.
Unlike the Succession Act, which recognises children irrespective of marital status, the Marriage Act hinges spousal entitlements on registered unions. This dichotomy highlights Kenya's complex marital landscape, where legal recognition hinges on registration status.
The court's ruling elucidates the importance of adhering to the provisions of the 2014 Marriage Act. Failure to register marriages jeopardises spousal rights and complicates succession claims, underscoring the need for public awareness and streamlined registration processes.
The rights of children born under those unions are however recognised under the Succession Act and they have a right to inherit the property of the deceased.
To address this issue, the government must prioritise public education campaigns to promote marriage registration. Simplified registration procedures, akin to birth or death notifications to local chiefs, could facilitate compliance and enhance legal recognition of marriages.
The legal implications of unregistered marriages in Kenya underscore the imperative of adherence to the 2014 Marriage Act.
By prioritising registration and raising public awareness, the government can safeguard spousal rights and streamline succession processes, ensuring equitable access to marital and inheritance rights for all citizens.
Mr Njora is an advocate
