Laws governing marriages in Kenya

Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union. These unions have to be registered and have the same legal status.

Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. Parties to an Islamic marriage shall only have the rights granted under Islamic law.

Age

A person shall not marry unless that person has attained the age of eighteen years.

Witnesses

A marriage shall be witnessed by two competent witnesses. A person is not competent to act as a witness if that person is:-

  • Below the age of eighteen years.
  • Has mental disability rendering that person incapable of understanding what the parties are doing.
  • Under intoxication.
  • Unable to understand, whether through an interpreter, the language in which the ceremony is held.

The person who celebrates a marriage shall not be a witness to the marriage.

Types of Marriages

Marriages may be registered if they are celebrated:-

  • In accordance with the rites of a Christian denomination
  • As a civil marriage
  • In accordance with the customary rites relating to any of the communities in Kenya
  • In accordance with the Hindu rites and ceremonies
  • In accordance with Islamic law.

A Christian, Hindu or civil marriage is monogamous.

A marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.

Conversion of marriages

  • A marriage may be converted from being a potentially polygamous marriage to a monogamous marriage if each spouse voluntarily declares the intent to make such a conversion.

This declaration should be made in the presence of a marriage officer and shall be recorded in writing and signed by each spouse. A copy is transmitted to the Registrar who is required to issue a certificate registering the marriage as monogamous.

  • A polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife.

Prohibited marriages

  • A married person shall not, while in a monogamous marriage, contract another marriage or while in a polygamous or potentially polygamous marriage, contract another marriage in any monogamous form. A widow or widower may re-marry or elect not to re-marry.
  • A person shall not marry—
  1. that person’s grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew.
  2. the grandparent, parent, child or grandchild of that person’s spouse or former spouse.
  3. the grandparent, parent, child or grandchild of that person’s former spouse.
  4. a person whom that person has adopted or by whom that person has been adopted.
  5. any other person where such marriages is prohibited under customary law.

The marriage of a person with that person’s cousin does not apply to persons who profess the Islamic faith.

Void marriages

A union is not a marriage if at the time of the making of the union:-

  • either party is below the minimum age for marriage
  • the court has directed that the intended marriage is not to be contracted
  • the consent of either party has not been freely given
  • either party is absent from the ceremony
  • both parties knowingly and willfully permit a person who is not authorised to do so to celebrate the union
  • either party is mistaken about the identity of the other party
  • either party knowingly or willfully enters into the marriage for fraudulent purposes

Spouses have the same liability in tort towards each other as if they were not married. A spouse shall not be liable for the torts of the other spouse by reason of being a spouse. Further, a spouse is entitled to claim, in any action resulting from a negligent act, omission or breach of duty, which causes loss of the companionship of the other, or damages in respect of that loss.

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