Marriage in Kenya is governed by the Marriage Act 2014 and is defined as the voluntary union of a man and a woman whether in a monogamous or polygamous & registered in accordance with the Act.
The Marriage Act (2014) recognizes the following systems of marriage:
- Civil Marriages
- Christian Marriages
- Hindu Marriages
- Customary Marriages
- Islamic Marriages
Before you decide to marry, you have to understand the legalities surrounding a legal marriage, which include?
- Consent – Both the groom and the bride must consent to the marriage, both verbally and in writing.
- Witnesses – Two adult witnesses are required to verify the marriage contract.
- Parties should be 18 years and above.
- The parties must be sane.
- Parties must be of the opposite sex
SYSTEMS OF MARRIAGES
CIVIL MARRIAGES.
This type of marriage is officiated by the registrar of marriages in a place determined by the registrar usually at the Attorney general’s office. (One woman- one man situation)
Individuals that intend to marry under this kind of marriage are required to give the registrar and the in charge of the venue where they intend to officiate their marriage a written notice of not less than 21 days and get married within 90 days from the date of that notice.
Couples situated in Nairobi can apply online for marriage services on the e-citizen platform, Online Marriage Services is only for Nairobi County. You can register your marriage at your local District / Sub County Commissioner’s Office; You can also register your Marriage at your local Registrar of Marriages in Nakuru, Eldoret, Kisumu, Malindi, Embu, Meru, Kisii, and Machakos.
What are the requirements of a civil marriage for citizens or refuges of Kenya?
Before you fill in the online application form found at https://www.e-citizen.go.ke or apply at your local registrar of marriages, ensure that you have the following documents ready for attaching:
- Copy of National Identity Card or valid Passport or valid Alien Card for Refugees;
- Copy of birth certificate; (ensure that the names appearing on the birth certificate and the national identity card/ passport are properly aligned- names should be the same and appear in the correct order);
- One coloured passport-size photo for each Applicant;
- Copy of Death Certificate (if widow or widower);
- Copy of Divorce Decree Absolute (If the partner had been married before and is divorced);
- A sworn affidavit to confirm marital status in the event the Divorce Decree or the Death Certificate is more than 2 years old;
- Copies of Identity Card or Valid Passport for the two (2) witnesses.
The applicant shall be required to pay a notice fee of Kshs. 600/= on the online platform upon approval of their application.
After lapse of 21 days’ Notice period, parties are required to book an appointment on the online platform to appear for interview and verification of original documents. If there are objections and registrar find it their solid grounds, he shall cancel the notice of marriage to hear and determine the objections. The hearing takes place within 7 days. If there no objections the couple shall be issued with the certificate of no impediment
Upon successful completion of the interview, parties will be required to pay a fee of Kshs. 3,300/= on the online platform after which they will be booked for solemnization of the marriage – 30 to 90 days (30 days for notice and processing, marriage to be solemnized within 90 days).
CHRISTIAN MARRIAGES
It is a union between parties that professes the Christian faith. It is usually a one-woman, one-man kind of union one that is usually officiated by a licensed church minister.
Before you fill in the online application form found at https://www.e-citizen.go.ke or apply at your local registrar of marriages, ensure that you have the following documents ready for attaching:
- Copy of National Identity Card or valid Passport or valid Alien Card for Refugees;
- Copy of birth certificate; (ensure that the names appearing on the birth certificate and the national identity card/ passport are properly aligned- names should be the same and appear in the correct order);
- One coloured passport-size photo for each Applicant;
- Copy of Death Certificate (if widow or widower);
- Copy of Divorce Decree Absolute (If the partner had been married before and divorced);
- A sworn affidavit to confirm marital status in the event the Divorce Decree or the Death Certificate is more than 2 years’ old;
- Copy of license for the Minister of Faith;
- Provide the serial number of the marriage book to be used (to be obtained from the Minister of Faith);
- Wedding invitation card.
The applicant shall be required to pay a notice fee of Kshs. 600/= on the online platform upon approval of their applications. After lapse of 21 days’ Notice period, parties to book an appointment on the online platform to appear before the Registrar for interview and verification of original documents and get married within 90 days from the date of that notice.
Upon successful completion of the interview, parties will be required to pay a fee of Kshs. 800/= for the clearance certificate on the online platform if the wedding is to take place inside a licensed location or Kshs. 7,200/= if the wedding is to take place outside a licensed place of worship e.g garden weddings.
The church minister announces the weddings at church 3 times so that anyone that has an objection can file the same. If someone is objecting to the celebration of marriage they should object within the 21 days of notice. The notice of objection should have the name of the person objecting to and the reasons for the objections. The objection should be lodged with the church minister. However, if there is no objection the wedding proceeds as scheduled.
Time frame: Clearance Certificate will be issued 3 days after the interview, approval and payment of the required fees.
HINDU MARRIAGES
This marriage union shall apply only to persons who profess the Hindu faith. A Hindu marriage is usually officiated by a person authorized by the Registrar in accordance with the Hindu religious rituals.
Hindu marriages are typically between one man and one woman. A unique characteristic of Hindu marriages is that the bride is required to pay dowry to the groom’s family. This is quite the opposite in African Customary marriages where the groom pays the dowry/bride price.
The documents and information required to have a Hindu Marriage be registered are the same as a Christian Marriage requirement.
ISLAMIC MARRIAGES
It applies only to persons who profess the Islamic faith. It is presided over by a Kadhi sheikh or imam as may be authorised by the Registrar and celebrated in accordance with Islamic law. A fee of Kshs. 3000-3500 is paid for the marriage certificate.
One has to book availability with Kadhi, you have to give notice when you intend to get married. You need to have 2 witnesses and both the groom and the bride have to consent to the union.
The person authorized to officiate at an Islamic marriage shall record the details of the marriage and shall deliver the record to the Registrar for the registration of such a marriage.
A unique characteristic of Islamic marriages is that one man may have up to four legal wives but he is required to treat all wives equally.
AFRICAN CUSTOMARY LAW
A marriage under this law is celebrated in accordance with the customs or rituals of the communities of one or both of the parties to the intended marriage. The nature of this type of marriage is polygamous, this means a man can marry more than one wife.
The registration of a customary marriage is only applicable to Kenyans who have undertaken the necessary rituals under the respective African Customary Law. For example; Where the payment of a dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.
Before 2017, the Law had no requirement for registration of customary marriages by the Registrar, however now under the Marriage (Customary Marriage) Rules, 2017 there is a notification requirement.
The parties to a customary marriage shall notify the Registrar of such marriage within 3 months of completion of the relevant ceremonies to confer husband and wife status and registration MUST BE DONE WITHIN 6 MONTHS from the date of marriage.
Before you fill out the online application form found at https://www.e-citizen.go.ke ensure that you have the following documents ready for attaching/ uploading:
- Copy of National Identity card or Passport;
- Copies of National Identity Cards of witnesses who were present at the time of the ceremony;
- Coloured Passport-size photo -one each;
- Letter from the Chief confirming that the customary marriage took place.
- At the time of registration, the parties MUST NOT have entered into either a civil or a Christian marriage
After submission of the application, the notice is to be displayed for 14 days. After the lapse of 14 days, both parties are required to book an appointment on the e-citizen online platform and appear before the Registrar of Marriages for submission of original documents and interview. Upon approval, the applicants will be required to pay a fee of Kshs 3,900/= on the e-citizen online platform. Timelines: You will receive a marriage certificate Within 14 days from the date of payment of the requisite fees.
REGISTRATION OF EXISTING CUSTOMARY MARRIAGES
You may be wondering, what about customary marriages celebrated before 2017?
Any customary marriages conducted before 1st August 2017 are deemed to be “Existing” customary marriages while those conducted after 1st August 2017 are considered “New”.
For registration of an existing Customary marriage, the process is similar to the registration of new marriages. Before you fill the online application form found at https://www.e-citizen.go.ke ensure that you have the following documents ready for attaching/ uploading:
- Copy of National Identity card or Valid Passport
- Coloured passport-size photo -one each
- At the time of registration, the parties MUST NOT have entered into either a CIVIL or CHRISTIAN marriage.
- After submission of the application, both parties are to book an appointment on the online platform and appear before the Registrar of Marriages for submission of original documents and interview within 7 days
- Upon approval, the applicants will be required to pay the fee of Kshs 3,900/= on the online platform
Time frame: Within 14 days from the date of payment
PRESUMED MARRIAGES
These are marriages that are formed on the basis of cohabiting with a man or woman for a long period with no desire, wish or intention to be within the confines of matrimony.
In a precedent-setting decision that may have far-reaching consequences for couples who had pegged their hope on long cohabitation as proof of marriage, the supreme court recently ruled that it is a presumption that can disappear in the face of proof that no marriage existed. For example, if your partner proves that he/she was in an existing system of marriage then the presumption of marriage cannot be proved.
The presumption of marriage usually comes up during the separation and division of matrimonial property and is usually resolved by the court. However, the recent ruling of the Supreme Court in the case of Petition No 9 Of 2021 between Mary Nyambura Kangara (Petitioner) Vs Paul Ogari Mayaka (Respondent) and Initiative for Strategic Litigation in Africa (Isla) (Amicus Curiae) sought to offer clarity on the strict parameters within which a presumption of marriage can be made.
- The parties must have lived together for a long time;
- The parties must have the legal right or capacity to marry e.g must be above the age of 18;
- The parties must have intended to marry i.e parties are not in a pre-existing marriage;
- There must be consent by both parties;
- The parties must have held themselves out to the outside world as being a married couple e.g listing your partner as your wife in your NHIF registration;
The Supreme Court also provided for a limitation of the presumption of marriage. It was of the opinion that here couples cohabit without the intention of contracting a marriage. In such scenarios, couples may choose to have an interdependent relationship outside of marriage. The Court opined that where such a situation is evident, and there is no intention of contracting a marriage, the presumption of marriage must never be made where this intention does not exist.
Despite the Court laying down the above parameters, it was of the view that the doctrine of presumption of marriage is on its deathbed, a view strengthened by the changes to the matrimonial laws in Kenya. The presumption should be used only sparingly where there is cogent evidence to reinforce it.
Article By: Ms. Ashley Mukami
Senior Associate – Kioi & Co. Advocates.
