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Legal/Statutory Marriage in Kenya

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Legal/Statutory Marriage in Kenya
Civil Marriages
Civil Marriages Formalities
African Christian Marriages
Hindu Marriages
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In this article, I would like to begin by listing the bodies of Law applicable in Kenyan Courts regarding marriage in order to give the foundation for the aforementioned topic.

The general position of the Law in Kenya is that Kenya is governed by various regimes of Law as set out in The Judicature Act – Chapter (Cap) 8 – Laws of Kenya. Section 3 thereof defines the bodies of Law applicable in our Courts as follows:-

  1. The Constitution of Kenya – which is the Supreme Law of the Land
  2. All Written Laws/ Statutes/ Acts of Parliament to include Acts of Parliament of U.K. cited in Part I of the Schedule as modified in accordance with Part II
  3. Common Law – under which the Presumption of Marriage falls
  4. Doctrines of Equity
  5. Statutes of General Application in force in England on 12th August 1897
  6. Procedure and Practice observed in the Courts of Justice in England as at 12th August 1897
  7. African Customary Law where parties are subject to it or affected by it

Laws relating specifically to marriage and other family related issues can be described as the law substantially inherited from the English System/Laws. The only laws locally enacted are the Law of Succession Act and the Children’s Act.

More specifically, the Acts of Parliament governing Marriage in Kenya are as follows:

  1. Marriage Act – Cap 150
  2. African Christian Marriage & Divorce Act – Cap 151
  3. Matrimonial Causes Act – Cap 152
  4. Sub Ordinate Courts (Separation & Maintenance) Act – Cap 153
  5. Maintenance Orders Enforcement Act – Cap 154
  6. Mohammedan Marriage & Divorce Registration Act – Cap 155
  7. Mohammedan Marriage, Divorce and Succession Act – Cap 156
  8. Hindu Marriage & Divorce Act - Cap 157
  9. Hindu Succession Act - Cap 158

The proposed Marriage Bill – 2007 – drafted by the Kenya Law Reform Commission proposes to replace the above Legislations and consolidate all laws relating to marriage into one. In its preamble, the Marriage Bill specifically provides as follows:

"A Bill for An Act of Parliament to amend and consolidate the various laws relating to marriage and divorce and for connected purposes."

It is important to note that there have been serious attempts in the Bill to make provisions to recognize the practical situations in our Society.

Readers should however note that the proposed Marriage Bill is just that-a proposal- until Parliament debates it and enacts it into law. I will therefore concentrate on the law on marriage as it exists today.

Having laid the said foundation, I will now proceed to tackle the topical issue of Legal Marriage in Kenya.

The Oxford Advanced Learner’s Dictionary defines "Marriage" as "the legal relationship between a husband and wife".

Section 2 of the Matrimonial Causes Act, Chapter (Cap) 152 of the Laws of Kenya, which is an Act of Parliament consolidating and amending the Laws relating to matrimonial causes, meaning Divorce, Annulments, Judicial Separations, Restitution of Conjugal rights, Maintenance, Alimony, Damages, Settlement/Division of Matrimonial Property, Protection Orders and Custody defines "marriage” as follows:-

"the voluntary union of one man and one woman for life to the exclusion of all others."

The proposed Marriage Bill – 2007 – drafted by the Kenya Law Reform Commission proposes to define "marriage" at Section 3 as follows:

"Marriage means the voluntary union of a man and a woman intended to last for their life time."

It is interesting to note that the definition given in the Matrimonial Causes Act provides for a monogamous marriage while the proposed Marriage Bill appears to recognize a polygamous marriage. The law as it stands provides only for monogamous marriage and polygamy is only allowed if parties contract a marriage under customary law or are married under Islamic Law. The Bill proposes to take into account the prevailing circumstances in the country which have a strong historical background in that polygamy is as old as humanity. In modern day Kenya, Polygamy is now being practiced by way of concubinage where a married man keeps one or more other women as his wives without declaring marriage.

In Kenya, the following types of marriages are given due recognition by law:

  1. Statutory Marriages – marriage provided for under statute such as under the Marriage Act etc
  2. Customary Marriages
  3. Presumed Marriages – marriage provided for under common law

Under Statutory Marriages, we specifically have the following types of marriages which are determined by which law/statute parties are married under

  1. Civil Marriage
  2. African Christian Marriage
  3. Hindu Marriage
  4. Mohammedan Marriage

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