A woman has moved to court seeking to declare a section of the Marriage Act, which prohibits couples from annulling their marriage after a year, unconstitutional.
In a case filed before the High Court, Sabina Matiku claims it is against women’s right to be in marriage by free consent and right to equal treatment by law.
Annulling a marriage is different from a divorce. A divorce ends a legally valid marriage while in annulment, a party seeks a declaration that there was no marriage in the first place; the court erases a marriage by declaring the marriage null and void.
According to Section 73 of the Marriage Act, one can seek for annulment of marriage only within a year on the basis it has not been consummated since celebration or where one partner finds that the other is not eligible to marry or was out of coercion.
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At the same time, if one party elopes or misses a marriage celebration, this can lead to an annulment or if the wife was pregnant and that the husband is not responsible for it.
The other reason for annulment is if either party suffers from bouts of insanity.
Matiku is aggrieved with the deadline given for annulling a marriage.
“Section 73(2) (a) of the Marriage Act 2014 stops, hinders, bars and or deprives off the applicant’s right to seek a statutory remedy of nullification since the petition for nullification has been instituted outside one year,” her court papers filed by Manani, Lilan, Mwetich, and company advocates read in part.
In her case where she has sued alongside the women lawyers lobby, Federation of Women Lawyers (FIDA) she says that she learned that her husband Joseph Kariuki was not eligible to marry her as he had another wife.
Matiku and Chege were married at the Attorney General’s chamber in 2018. She says that at the time of their marriage, he did not disclose to her that he had a customary wife, Joyce Njoki, with who he had children.
This was two years after marriage.
“I was dumbfounded to discover in 2020 that prior to the celebration of our civil marriage, the husband was in a prior and subsisting customary marriage and they are blessed with children,” she said.
She however does not have children with him.
“I am desirous to seek nullification of the civil marriage between myself and my husband held on March 8, 2018, because he lacks and lacked the capacity to enter into monogamous marriage whereas he was on a subsisting polygamous marriage,” Matiku says.
She continues: “After discovering that my husband misrepresented both material and legal facts that he had a previous and subsisting customary marriage, my trust in him has been completely eroded. With my conscience and free will, I cannot continue with such a marriage premised on illegalities and non-disclosure of material information.” She says that her option to end the marriage is annulling it and not a divorce.
