Customary marriages in Kenya are an important part of the country’s diverse cultural heritage. They represent unions conducted in accordance with the traditions of various Kenyan communities. However, with the introduction of the Marriage Act of 2014, significant reforms were made to ensure that all types of marriages, including customary marriages, adhere to legal standards and are properly documented.
This article will guide you through the steps involved in registering a customary marriage in Kenya, including key formalities and requirements, while shedding light on the broader context of customary marriages under the law.
What is a Customary Marriage?
A customary marriage is a union conducted based on the customs and traditions of the community of either one or both parties involved in the marriage. Kenya’s Marriage Act 2014 recognizes customary marriages as one of the five legally recognized forms of marriage. These unions reflect Kenya’s rich cultural diversity and hold significant meaning for many communities.
However, prior to 2017, customary marriages were largely informal and often lacked formal documentation. This changed with the gazettement of the Marriage (Customary) Rules 2017, which required all customary marriages to be registered. This rule ensured that couples under customary law were entitled to the same legal protections and rights as those under other marriage systems.
Formalities of Customary Marriages
The registration of a customary marriage must occur after the completion of customary rites, which vary between communities. These rites include:
- Betrothal Ceremony: This is the formal agreement between the two parties to get married, often involving gift exchanges. These gifts should not be confused with dowry.
- Dowry Payment: Dowry or “bride price” is a key requirement for validating a customary marriage. The amount and form of dowry differ across communities. For instance, the Taveta community has a fixed dowry of one cow, three female goats, two bulls, and a home for the bride’s father. Among the Kisii, dowry may be higher depending on the woman’s level of education or the family’s prominence.
Once these ceremonies and dowry payments are completed, couples can proceed with the legal registration process.
Types of Customary Marriages
Customary marriages in Kenya can take various forms:
- Monogamous Marriage: A union between one man and one woman.
- Polygamous Marriage: A man may marry multiple women at different times.
- Leviratic Marriage: A man marries the widow of his deceased brother, and any children born are considered the offspring of the deceased.
- Sororate Marriage: A man marries the sister of his deceased wife, sometimes as a replacement or in cases where the wife cannot bear children.
- Widow Inheritance: A widow is inherited by a brother of the deceased husband, but any children from this union are recognized as the inheritor’s.
- Woman-to-Woman Marriage: A barren woman marries another woman to have children, and the children are regarded as the barren woman’s.
- Forcible Marriage: In some communities, the youngest daughter may remain at home to have children with a man of her choice to ensure the continuity of her father’s lineage.
Requirements for Registering a Customary Marriage
To register a customary marriage, certain conditions must be met:
- Both parties must be present at the Registrar’s office.
- Identification documents (ID or passport) and passport-sized photographs of both parties must be provided.
- Both parties must not have entered into another form of marriage, such as a civil or Christian marriage.
- The registration process applies only to Kenyan citizens who have conducted their marriage according to African customary rites.
- The registration fee is Ksh 3,900.
Steps to Register a Fresh Customary Marriage
For marriages contracted after August 1, 2017, the following steps must be followed:
- Notice of Marriage: The parties must place a notice to provide details about the marriage, such as the customs applied, the date and location of the marriage, and the consent of both parties.
- Issuance of Acknowledgment Certificate: After the notice period of 14 days, the Registrar issues an Acknowledgment Certificate if there are no objections.
- Application for Registration: Parties have six months from the receipt of the Acknowledgment Certificate to apply for registration.
- Issuance of Marriage Certificate: If the application is approved, the Registrar will issue a customary marriage certificate (Form CM4).
Steps to Register an Existing Customary Marriage
For marriages conducted before August 1, 2017, couples must also register their union by following a similar process:
- Initial Interview: Both parties present themselves at the Registrar’s office for an interview to establish the validity of the marriage.
- Filling of Forms: Couples complete the necessary forms, provide copies of identification, and have the forms attested by witnesses and the local chief.
- Payment of Fees: The registration fee is Ksh 3,900.
- Issuance of Marriage Certificate: Once approved, the Registrar issues a customary marriage certificate.
Customary Marriage Divorce in Kenya
Customary marriages can be dissolved either extrajudicially (through community elders) or judicially (through the courts). Divorce under customary law must meet specific conditions, including:
- Extrajudicial Divorce: Initiated by the husband, wife, or wife’s family. This usually involves the return of the bride price and a formal separation overseen by elders.
- Judicial Divorce: Sought when the parties cannot resolve their issues extrajudicially. Courts may grant a divorce based on grounds like infidelity, desertion, violence, or failure to fulfill marital duties.
The registration of customary marriages in Kenya ensures that such unions are recognized by law and that couples are entitled to legal rights and protections. The Marriage Act 2014 and the Marriage (Customary) Rules 2017 have streamlined the process, providing clear guidelines for couples who wish to formalize their union. Whether contracting a new marriage or registering an existing one, it is essential to follow the legal procedures to avoid complications in the future.
