Marriage is a sacred institution, and in Kenya, the Constitution, through Article 45, even states that it is “the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.”
With the urging of Article 45 of the Constitution of Kenya, there are various types of marriages recognized by law. Understanding these legal marriage types is crucial for individuals seeking to formalise their unions in a manner that best suits their intended outlook.
In Kenya, marriage laws were previously codified under various statutes, but the Marriage Act of 2014 repealed all the previous laws and made improvements to the legal landscape in terms of recognition and conducting of marriages.
For one, the recognition of different marriage types was now brought under one statute and the one you choose to enter into will depend on cultural practices, personal choices, and the relevant laws governing them.
This article explores the types of marriages that are legal in Kenya and references relevant laws and case law to provide a comprehensive understanding.
Civil Marriages
Civil marriages are the most common type of marriage in Kenya and are governed by the Marriage Act, 2014. The Marriage Act applies to all civil marriages in Kenya, and it outlines the requirements, procedures, and legal framework for civil unions.
The Act provides for the solemnization of marriages by a Registrar of Marriages, typically at the Attorney General's office or through authorised marriage officers. The legal age for marriage in Kenya is 18 years.
What You’ll Need to Have a Valid Civil Marriage:
Requirements: To solemnise a civil marriage, parties must meet specific requirements, such as age (over 18 according to the Age of Majority Act), consent, and capacity to marry. The parties should apply for a notice of marriage at least 21 days before the intended date of the marriage.
Consent: Parties must give free and voluntary consent to the marriage, and the Act explicitly states that forced marriages or marriages under duress are void.
Witnesses: Civil marriages require the presence of two competent witnesses, who must be at least 18 years old and capable of understanding the ceremony.
Registration: After the ceremony, the marriage is officially registered, and a certificate of marriage is issued.
Customary Marriages
Customary marriages are recognized in Kenya under the Marriage Act, 2014. These marriages are governed by the customs and traditions of the particular community or ethnic group to which the parties belong.
Customary marriages are recognized as valid marriages if they adhere to the customs and traditions of the respective community.
What You’ll Need to Have a Valid Customary Marriage
Requirements: To be valid, customary marriages must conform to the customs and traditions of the particular community and be solemnised in accordance with those practices.
Witnesses: Customary marriages may require the presence of witnesses, usually elders or community members, to validate the union.
Registration: While customary marriages do not require formal registration under the Marriage Act, they are still legally recognized if they meet the customs and traditions of the community.
Polygamous Marriages: Customary marriages can also be polygamous, with certain customary practices allowing a man to marry multiple wives.
Christian Marriages
Christian marriages in Kenya are recognized under the Marriage Act, 2014, and they are solemnised according to Christian religious traditions and practices.
Churches registered as marriage celebrants under the Act are authorised to conduct Christian marriages.
What You’ll Need to Have a Valid Christian Marriage:
Requirements: Parties must meet the legal requirements for marriage, including age, consent, and capacity. The marriage ceremony is conducted by a recognized Christian minister or priest.
Registration: After the ceremony, the marriage is registered with the Registrar of Marriages, and a certificate of marriage is issued.
Denominational Differences: Different Christian denominations may have variations in their marriage ceremonies, but the general legal framework remains the same under the Marriage Act.
Muslim Marriages
Muslim marriages are recognized under the Marriage Act, 2014, and are conducted in accordance with Islamic law and customs.
An Islamic marriage is typically conducted by an imam or Islamic scholar who is recognized as a marriage officer under the Act.
What You’ll Need to Have a Valid Muslim Marriage:
Requirements: Muslim marriages require compliance with Islamic law, including consent and capacity to marry.
Witnesses: The marriage may require the presence of witnesses who are knowledgeable about Islamic marriage practices.
Registration: After the ceremony, the marriage is registered with the Registrar of Marriages, and a certificate of marriage is issued.
Hindu Marriages
Hindu marriages in Kenya were previously governed by the Hindu Marriage and Divorce Act, 1975 which specifically applied to Hindus, Sikhs, Jains, and Buddhists, who wished to solemnise their marriages according to their religious customs.
However, the Marriage Act 2014 now caters to individuals of the above-mentioned adherences.
What You’ll Need to Have a Valid Hindu Marriages:
Requirements: Parties must meet the legal requirements for marriage, including age, consent, and capacity. The marriage is conducted by a Hindu priest or qualified celebrant.
Registration: After the ceremony, the marriage is registered under the principal Act, and a certificate of marriage is issued.
What The Law Doesn’t Recognise As Legal Marriage
Come-we-stay marriages are not recognized by the law or the courts. It doesn’t matter whether a couple has lived together as spouses for a substantial period and that they intended to be married.
Such recognition can however change depending on the legal situation at play. Where the couple presented themselves to the public as a married couple, a court of law may look at the specific situation and decide to treat it as such, but that is not a guarantee.
Typically, such a partnership will be treated differently in matters of inheritance, property division, and a few other legal matters in comparison to the Marriage Act.
Our Parting Shot
Kenya recognizes various types of marriages and understanding the legal framework for these marriage types is crucial for individuals wishing to formalise their unions. The Marriage Act, 2014, Hindu, Islamic and Customary practices all play a role in shaping the landscape of marriage in Kenya.
Legal recognition, rights, and responsibilities can vary depending on the type of marriage and the circumstances surrounding it. While the laws provide a foundational framework for marriage, the significance and interpretation of these laws can also be influenced by relevant circumstances, case law and judicial decisions.