The High Court ruled in March 2023 that proof of paternity with a partner doesn’t legitimise a marriage. Justice Asenath Ongeri said if a person proves that he or she got a child with the other, it cannot be the basis of an argument that was married.
This occurred after a case between a couple whereby the woman stated that she had been with her spouse from 1970 to 1990 and, together they had five children. She also said that he kicked her out, demolished their home then remarried. She asked the court to compel DNA evidence between her former spouse and their children to prove that she was married. However, Justice Ongeri dismissed this request and the case stating that children aren’t proof of marriage. The positive paternity result would only matter in succession or child support cases. Child paternity couldn’t be used to resolve the dispute over the five acres in Kericho County, 10 in Burgei, Bomet County and 18 in Ngata, Nakuru County.
She stated that during their 20-year cohabitation, she contributed to the purchase of the land. She also added that she helped with the upkeep of the tea on the land. Due to this, she said she was entitled to rewards from the properties. The man denied having any children with her. He also stated he no longer owned the land in Bomet and never owned any land in Kericho. Additionally, he claimed he was married to another woman and had seven children with her.
Ultimately, Justice Ongeri ruled that her witnesses and five children weren’t proof of marriage.
What does Kenyan law recognise as marriage?
In the Kenyan constitution, the Marriage Act 2014 defines marriage as a voluntary union between a man and a woman. It also recognises monogamous and polygamous marriages but it doesn’t recognise gay marriage.
In Kenya, you can get married if you are over 18 years, are in a heterosexual relationship, aren’t legally married to someone else and capable of understanding and consenting to marriage.
The following are the systems of marriage in Kenya.
Civil is one performed, recorded and recognized by a government official.
Religious. This is a union performed under the main religions recognised in the constitution. Christian marriage is a union performed by a licenced minister. Both parties need to be Christian.
The Marriage Act also recognises Islamic marriage as it pertains to Islamic law. Islamic marriages are registered within seven days of the union at the office of the registrar of Islamic marriages.
The Hindu Marriage and Divorce Act covers unions for Hindus, Buddhists, Jains or Sikhs. Under this, a marriage can be recognised if the groom is 18 and the bride is 16—with the consent of a guardian or 18 with their own consent.
Customary. A customary marriage is a union conducted according to the customs of the communities of either partner.
Why it’s important to register your marriage
Cohabitation is also known as a common-law marriage. However, in January 2023, the Supreme Court ruled that cohabiting over whatever period doesn’t automatically make you a married couple. In addition, you have to register for your union to be recognised.
Under the Matrimonial Property Act, property ownership relies on each spouse’s contribution towards buying it. In addition, a cohabitee can’t claim any property they may have jointly bought after separation. Cohabiting couples don’t have the same rights as married couples.
Additionally, land laws require spousal consent when transferring matrimonial property. Transfer of property is exempt from Stamp Duty and Capital Gains Tax, but the exemption is only possible if you provide proof of marriage.
Banks and insurance companies also need proof of marriage to provide loans and policies.
Read also: The Legal Beagle: Getting Married? Here Is What You Need To Know About Property Acquired Before And After Marriage
How to register your customary union
To register a new customary marriage, you must go to the Registrar of Marriages Office in Sheria House, Nairobi. The customary union rules state that
- You must notify the registrar within three months of the conclusion of the rites with the CM 1 – Notice of Customary Marriage.
- For 14 days, the notice is displayed in public. As a result, anyone who wishes to object to the union uses this period to share their wishes.
- After the expiration of the notice period, the registrar issues an Acknowledgement Certificate.
- The couple then applies for a CM 3 – Application for Registration of Customary Marriage and attaches the Acknowledgement Certificate.
- If all details are in order, the Registrar issues a Certificate of Customary Marriage.
Additionally, all forms are filled, and payments are made on the e-citizen platform.
The documents required are:
- Original and copies of IDs and passports
- A passport photograph for each party
- Forms CM 1 and CM 3
- The couple and their parent’s names, occupations, and residence
- The date of marriage, where it happened, and the customary law applied
- Indicate status as a bachelor, spinster, widow, widower, divorced, or married under customary law
- A husband with other wives in a polygamous marriage should declare it. In addition, he and his other spouses should sign and declare it.
- Witness declaration by two witnesses who are over 18 and witnessed the customary rites
- Registration fee of Sh 3,900
- Finally, both parties present
Both parties must not be in a civil or religious marriage. They must also have conducted their customary rites.
To register an existing customary union:
- Log on to the e-citizen platform
- Upload your IDs/Passport copies as prompted
- Add your coloured passport photos
- Book an appointment with the Registrar to submit original documents within seven days
- Upon approval, pay a registration fee of Sh 3,900
- After this, you will receive an affidavit, a marriage certificate, and the marriage solemnization ceremony.
How to register a civil union
If you don’t want to have a religious or customary wedding, you can register your partnership under civil marriage.
- Log into e-citizen and select the option under “Office of The Attorney General”
- Fill in the application form
- Attach the required documents: copies of ID/passport, a coloured passport photo for each party, a copy of the death certificate if widow or widower, a copy of the divorce decree if divorced, a sworn affidavit if the death or divorce certificates are more than two years old, copies of ID/passport of the two witnesses
- Pay the notice fee
- After the 21-day notice period, book an appointment for an interview to verify your original documents
- After the interview, pay and make a booking for the solemnisation of the union
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