A NEW APPROACH

The validity of marriages was subject to confirmation and formally recognized through court judgments and rulings at the point where the parties were either involved in a divorce or regrettable when one party had died and the survivor was seeking to inherit their property. As a result, many parties in these Marriages lost out on their property; inheritance and other marital benefits due to their having to first prove that they were validly married.

For many years, the question of whether one was married under the Customary Law or Hindu Law remained a voidable presumption in Kenya.

The Marriage Act 2014 addressed this issue by consolidating all existing marital statutes into one legal regime. It further made provision for registration of marriages contracted under Customary and Hindu Laws under Section 96(3) and Section 91(3) of the Marriage Act 2014, respectively.

Similarly, the gazette notice issued on 9th June 2017 on the commencement of (a) the Marriage (Customary Marriage) Rules, 2017 and that of (b) the Marriage (Hindu Marriage) Rules, 2017 provides as follows:

  • All parties married under the Customary Law and Hindu Marriage and Divorce Registration Act (now repealed) are required to register their marriage starting 1st of August, 2017 and not later than 31st January, 2018.
  • Parties who wish to contract Customary or Hindu marriage from 1st of August, 2017 must obtain prior authorization from the Office of the Registrar of Marriages and marriage certificates shall be issued to parties upon successful application.
  • All ministers of faith under the Hindu Religion are now required to:
    • Apply through the Hindu Council of Kenya to the Registrar of Marriages for a license to solemnize Hindu marriages;
    • Apply for new marriage certificate books to be used from 1st of August, 2017.
IMPACT OF REGISTRATION OF CUSTOMARY AND HINDU MARRIAGES

IN PROBATE MATTERS

As stated, above, it is sometimes difficult to prove the existence and validity of marriages contracted under Cus

tomary Law; and as a result some parties would find themselves in a disadvantaged grey area when they were deemed to have been in an illegitimate extra-marital union rather than a polygamous marriage.

The Marriage Act Under section 6 (3) of the Act recognizes polygamous marriages and now allows 

for a marriage certificate to be issued so that the existence of a polygamous marriage does not require to be based on ascertainable and rebuttable facts. It is also noteworthy that Section 8(1) of the Act allows for conversion of a monogamous union to a polygamous one, provided that all affected parties have given their consent. Furthermore, it is not possible for parties in a polygamous customary marriage to convert it to a monogamous marriage unless as at the time of the conversion, the husband had only one wife.

In Transactions requiring Spousal Consent in Kenya:
Given that all marriages will now have to be registered, the swearing of marriage affidavits as proof of marriage is no longer necessary in the following transactions:

Disposition of land where spousal consent is required;
Matrimonial property offered as security to the Bank in respect of any borrowing;
Any other legal transaction requiring spousal consent
Parties to such transactions will now be required to prove existence of marriage as follows;

  • Production of a Marriage Certificate issued by the Registrar of Marriages; or
  • A written undertaking to produce a Marriage Certificate within six (6) months from the date of marriage together with certified copies of an Acknowledgment Certificate and an Application for Registration of Marriage issued by the Registrar of Marriages; or
  • An official search document issued by the Registrar of Marriages confirming registration of the marriage
    For that reason, it is prudent for all married couples to register their marriages accordingly so as to render their unions legally recognized.

For that reason, it is prudent for all married couples to register their marriages accordingly so as to render their unions legally recognized.