Marriage Act

This Act may be cited as the Marriage Act.

Defines "Section" as "a body established under this Act for the purpose of reconciling parties to a marriage."

Persons are prohibited from marrying certain close relatives (including parents, children, siblings, cousins, adopted relations and those prohibited by customary law); a relationship of the half-blood is also a bar to marriage; cousin marriages are excepted for persons who profess the Islamic faith.

Lists specific factual and legal situations in which a marriage is void.

A marriage is voidable if either party was and has ever since remained incapable of consummating it.

A spouse is not liable for torts committed by the other spouse solely because they are married.

Parties to a civil marriage may agree to live apart for one year; such an agreement must be filed with the court and is valid and enforceable; the court may vary or set aside the agreement for a material change of circumstances; a party may apply after the one-year period to have their status determined.

A widow or widower may re-marry; a widow or a widower may elect not to re-marry.

Marriage ends on the death of a spouse.

Marriage is defined as the voluntary union of a man and a woman (monogamous or polygamous) and must be registered under this Act.

A person shall not marry unless that person has attained the age of eighteen years.

A marriage must be witnessed by two competent witnesses; certain persons (under 18, with relevant mental disability, intoxicated, or unable to understand the ceremony language) are listed as lacking competence, and the person who celebrates the marriage must not act as a witness.

Section 6 lists five kinds of marriage (Christian, civil, customary, Hindu, Islamic); it states that Christian, Hindu and civil marriages are monogamous and that marriages under customary law or Islamic law are presumed to be polygamous or potentially polygamous.

The Cabinet Secretary may, by notice in the Gazette, declare any area of Kenya to be a registration area for the purposes of this Act.

Sets rules for converting a potentially polygamous marriage to monogamous: spouses may declare conversion; declaration must be made in presence of a marriage officer, signed by each spouse; the marriage officer must send a copy to the Registrar; the Registrar must exchange certificates and enter converted marriages in the register.

Persons in a monogamous marriage may not contract another marriage.

This Part applies to a marriage where a party to the marriage professes the Christian religion.

Defines "marriage officer" as a licensed church minister appointed by the registrar under section 50.

People who know of an impediment may give a written notice of objection where a notice of intended marriage has been posted; the notice must state the objector27s name, their relationship to an intended party and the reason; an objector may withdraw the objection in writing at any time.

The person in charge of a public place of worship must hear objections immediately, may postpone a marriage if further hearing is needed, must determine objections within no more than seven days, must report determinations to the parties and Registrar within seven days, and any dissatisfied party may appeal to court within fourteen days.

Specifies signing, witnessing, and distribution/retention/delivery of copies of the marriage certificate.

A foreign marriage is recognised as a Christian marriage in Kenya if it was contracted in accordance with the law of the country where it was celebrated and is consistent with the requirements of this Part.

Christian marriages conducted at an embassy, high commission or consulate are to be contracted in accordance with the law relating to Christian marriages of the foreign country.

Marriages under this Part must be celebrated by the Registrar at a place determined by the Registrar.

When a man and a woman intend to marry under this Part they must give the Registrar and the person in charge of the place of celebration a written notice between not less than twenty-one days and not more than three months of their intention to marry; the notice must be signed by both parties.

After receiving a notice under section 25, the Registrar must publish the notice in the prescribed manner in the place where the marriage is to be celebrated.

A person who knows of an impediment to a proposed marriage may give a written notice of objection to the Registrar or the person in charge where the notice was posted; the notice must state the name and relationship of the objector and reasons; the objector may withdraw the objection in writing at any time.

The person in charge of the venue must hear objections immediately, may postpone the marriage if further hearing is needed until the objection is determined under the Regulations, must determine objections within a reasonable period not exceeding seven days after hearing, must prepare and submit a prescribed report to the parties and Registrar within seven days of determination, and dissatisfied persons may appeal to the Court within fourteen days.

Registrar must hear and decide objections under section 28 within specified short timeframes; dissatisfied parties may appeal; making frivolous, malicious or fraudulent objections is an offence with penalties including imprisonment up to five years or a fine up to one million shillings.

A marriage ceremony may not be performed until any appeal made against the Registrar's decision to permit the marriage ceremony has been heard and determined.

The court must hear and determine appeals promptly; the court may hear and determine an appeal even if a party or other person fails to appear.

The Registrar must issue a certificate of no impediment to persons intending to marry where no person objects; a Kenyan marrying abroad who is required to obtain such a certificate must apply, and the Registrar shall issue it if no person objects.

The Registrar may, by licence in the prescribed form and subject to section 25, dispense with the notice required by section 27 where there is sufficient reason.

Section 34(1) applies the provisions of section 30 with necessary modifications. Section 34(2) says the Registrar must not exercise the power conferred by section 33 to dispense with a notice unless a notice of objection has been withdrawn.

Complete and sign a marriage certificate in the prescribed form.

If the Registrar is satisfied there is no impediment, the Registrar must celebrate the marriage; the Registrar may issue a certificate of no impediment for a Kenyan marrying under foreign law that requires such a certificate.

A person who is not a Kenyan may celebrate a marriage under this Part in a foreign country if it is in the presence of the Registrar or a person authorised by the Registrar in a Kenyan embassy, high commission or consulate.

A civil marriage contracted in a foreign country is recognised if it was contracted in accordance with the law of that country and is consistent with the laws of Kenya.

A civil marriage celebrated at a Kenyan embassy, high commission or consulate in a foreign country is valid in Kenya if it was celebrated in accordance with that foreign country's law or if both parties had capacity to marry under that foreign country's law; additionally, despite subsection (1), such a marriage is valid in Kenya if the parties were capable of celebrating the marriage in Kenya.

Recognition of foreign marriages as civil marriages in Kenya if contracted in accordance with the law of that country.

The Cabinet Secretary may appoint Kenyan diplomatic staff abroad to celebrate marriages, and the Registrar must keep a register of marriages conducted in foreign countries.

Persons who celebrate or officiate at marriages must give a copy of the marriage certificate to the Registrar, who must enter the certificate details in the register; failure to register is an offence punishable by a fine not exceeding five thousand shillings or a community service order or both.

The person officiating must send a copy of the marriage certificate to the Registrar within fourteen days; the Registrar must confirm compliance with the Act before registering.

The Registrar must register marriages they celebrate; marriage officers must record and forward marriage details to the Registrar, who must then register the marriage; the Registrar must issue marriage certificates to the parties.

If parties complete customary marriage rituals under Part V they must apply to the Registrar within six months and appear in person; the Registrar must register the marriage and issue a certificate if satisfied and the parties have appeared.

Persons authorised by the Registrar who celebrate a marriage under Part VI must record the marriage details in the prescribed form and deliver the record to the Registrar; the Registrar must register the marriage and must confirm the marriage complies with the Act before registering; the Cabinet Secretary may make rules about registration under Part VI.

The Registrar must register a marriage when the Registrar receives the record and certificate for a marriage under Part VII and is satisfied the Act's provisions have been complied with.

Kenyans married abroad may apply to the Registrar to have the marriage registered; the Registrar may register only if satisfied the marriage complies with the Act and may consider foreign marriage certificates or other proof (with non-official-language certificates requiring certified translations).

Lists specific documentary forms that qualify as evidence of marriage (certificates, certified copies, register entries, certified register entries, community registers) and states that an entry in a place-of-worship register (or its certified copy) can prove a marriage if registration was not required.

When a court grants an annulment or divorce decree it must give a certified copy to the Registrar, and the Registrar must record the annulment or dissolution in the register kept for that purpose.

If a Kenyan marriage is annulled or dissolved by a foreign court, any party may apply to the Registrar to register that foreign decree; if the Registrar is satisfied it should be recognised as if made by a Kenyan court, the Registrar shall register it.

The Registrar must record declarations (section 8) and decrees (section 60) against the relevant marriage register entries; an entry of a foreign decree serves as sufficient proof that the marriage was annulled or dissolved abroad.

A party to a marriage may apply to the Registrar, a marriage officer or an authorised person to correct clerical errors or omissions; the Registrar/marriage officer/authorised person must sign, date and enter the correction; and the Registrar must notify the parties within a reasonable period.

Marriages under this Part must be celebrated in accordance with the customs of the communities of one or both parties.

Parties to a customary marriage must notify the Registrar of the marriage within three months after completion of the ceremonies or steps that confer marital status in their community.

Section 45 lists what must be included in a notification of a customary marriage, including specification of the customary law applied, a written declaration that customary requirements were undertaken, signatures or personal marks of two adult witnesses, that each witness played a key cultural role, and statements about age, prohibited relationships and free consent.

This Part applies only to persons who profess the Hindu faith.

Persons authorised by the Registrar may officiate Hindu marriages under this Part in accordance with a party's Hindu rituals; such authorised persons must record the marriage in the prescribed form and deliver the record to the Registrar for registration.

This Part applies only to persons who profess the Islamic faith.

Marriages under this Part must be officiated by a kadhi, sheikh or imam authorised by the Registrar and celebrated according to Islamic law; authorised officiants must record marriage details in the prescribed form and deliver the record to the Registrar; persons who profess the Islamic faith are exempt from provisions inconsistent with Islamic law and practices.

The Cabinet Secretary must appoint a Registrar of Marriages; the Registrar may appoint marriage officers at national and county levels under terms determined by the Public Service Commission.

The Registrar may, by notice in the Gazette, appoint a member of Kenya's diplomatic staff in a foreign country to celebrate civil marriages; a person so appointed must keep a record of all marriages celebrated in that country and deliver it to the Registrar for registration.

Ministers of faith may apply to the Registrar to be appointed as marriage officers; the Registrar may appoint or cancel such appointments, must issue a license to an appointed marriage officer and must give written reasons when cancelling; appointed officers may officiate only according to their faith's traditions.

Parties to a marriage celebrated under Part III may seek reconciliation services in the public place of worship where the marriage took place.

Section heading: Grounds for dissolution of a Christian marriage

Parties to a marriage under Part IV generally may not petition for separation or divorce until three years after the marriage, except that a petitioner may bring a petition earlier on specified grounds (such as adultery, cruelty, exceptional depravity, desertion for at least three years, or irretrievable breakdown). The petitioner may file despite reconciliation efforts; the court may refer disputes to or require conciliatory or reconciliation steps.

Recognition of decree by foreign court in matrimonial proceedings

Parties to a marriage celebrated under Part V may undergo conciliation or customary dispute resolution before the court decides a dissolution petition; that process must conform to the Constitution; the person conducting it must prepare a report for the court.

Lists valid grounds for divorce in customary marriages and permits the Cabinet Secretary to make regulations, in consultation with the communities, to implement the section.

Lists grounds for divorce of Hindu marriages.

Dissolutions of marriages celebrated under Part VII are governed by Islamic law.

Registration of divorce under Islamic law

Lists specific grounds on which a marriage may be annulled (e.g., non-consummation, prohibited relationship, prior marriage, lack of free consent, absence at celebration, wife pregnant by another, recurrent insanity) and conditions for petitions (e.g., time limit of one year, petitioner’s ignorance of certain facts, non-consummation after petition).

A petition for annulment may be brought only by a party to the marriage; where only one party lacked knowledge about certain facts it must be brought by that party; and if the allegation is that a party willfully refused to consummate the marriage, the petition may not be brought by the accused party.

A decree of annulment does not automatically make lawful acts that were unlawful during the marriage, nor make unlawful acts that were lawful during the marriage.

A promise by a person to marry another person is not legally binding.

The court may order payment of maintenance to a spouse or former spouse in the circumstances described in Section 77, including where specified grounds (Section 77(1)(a)–(e)) apply or when a foreign decree of separation, divorce or presumption of death is issued.

Maintenance that was unsecured lapses on the death of the spouse.

A maintenance order ends when the beneficiary remarries.

The court may revoke or vary existing maintenance orders if obtained by misrepresentation or mistake of fact, or if there has been a material change of circumstances; it may also vary maintenance agreements between spouses if there has been a material change of circumstances, despite any contrary provision.

Maintenance ordered by a court payable to a person cannot be assigned, transferred, or seized for any debt or claim.

No instalment of maintenance can be recovered in proceedings instituted more than three years after the instalment accrued; arrears of unsecured maintenance are civil debts recoverable summarily or, in certain cases, provable in bankruptcy or recoverable from an estate.

The court may set aside or enjoin dispositions of property made by a spouse or former spouse within the preceding three years intended to reduce means to pay maintenance or deprive a spouse of rights; if the disposition was a sale to a bona fide purchaser for value the court may grant orders as though the sale had occurred.

The court may order a party not to molest a spouse or former spouse; a deserted spouse may refer the matter to a conciliatory body; an aggrieved party may apply to court for restitution of conjugal rights and the court may order restitution if satisfied and there is no legal ground to refuse.

Custody and maintenance of children shall be dealt with in accordance with the Children Act (Cap. 141) and any other written law relating to children.

Anyone who makes a false statement in a notice of intention to marry (section 25) or a notice of objection (section 28) commits an offence; on conviction they may face up to two years' imprisonment or a fine up to two million shillings, or both. A defence exists if the person had reasonable grounds to believe the statement was true.

It is an offence for any person to marry someone below the minimum age; on conviction they face up to five years' imprisonment or a fine up to one million shillings or both.

A party who participates in a purported marriage within a prohibited relationship commits an offence and on conviction faces up to five years' imprisonment or a fine up to three hundred thousand shillings or both; a person cannot be convicted if they did not know and could not reasonably have been expected to discover the relationship.

It is an offence for a party to a purported marriage ceremony, who knows or has reason to believe the other party's consent was induced by coercion or fraud, was mistaken as to the nature of the ceremony, suffered from mental disorder or disability, or was intoxicated or under the influence of drugs, to participate; on conviction the offender may face up to three years' imprisonment or a fine of three hundred thousand shillings or both.

It is an offence for a person who celebrates a union purporting to be a marriage when not authorised to do so; on conviction they face up to three years' imprisonment or a fine of three hundred thousand shillings or both.

Celebrating a purported marriage without the required witnesses is an offence punishable on conviction by up to three months' imprisonment or a fine up to ten thousand shillings, or both.

It is an offence to celebrate or witness a union where one party is under 18, required notice to marry has not been given, or an unresolved objection exists; on conviction the person may be punished by up to six months' imprisonment, a fine up to fifty thousand shillings, or both.

The Cabinet Secretary may make rules for the celebration of any marriage.

The Cabinet Secretary may make regulations to implement this Act and may prescribe specified forms, fees, notices, procedures and related matters.

The Rules Committee may make rules regulating court practice or procedure under this Act.

Transitional rules requiring former registrars to send registers to the Registrar; requiring parties to certain unregistered marriages to apply for registration or register customary marriages within three years; and allowing the Cabinet Secretary to extend the registration period by Gazette notice.

Existing marriages that were valid immediately before this Act remain valid for the purposes of this Act; proceedings begun under prior written law should, so far as practicable, continue under this Act; and orders for judicial separation or divorce granted under prior law are to be treated, for the court's powers regarding maintenance, as decrees of separation or divorce under this Act.