> Planning a Customary Marriage? Here’s what the Law requires of you

Introduction

Before the Marriage Act No. 4 of 2014, there were a myriad of laws regulating marriages in Kenya. The prevailing regime then, was based on English law which only recognized monogamous marriages. Customary Marriages are potentially polygamous. It was illegal for those who had contracted customary marriages to contract Christian/monogamous marriages unless they distanced themselves from the ‘African way of life’. The effect was that gradually the law regarded customary marriages as inferior to other forms of marriages, yet communities continued to celebrate them. In addition to this, there was no requirement to register customary marriages making it difficult to prove the existence or non-existence of a marriage.

The enactment of the Marriage Act No. 4 2014 led to the amendment and consolidation of marriage laws in Kenya. It also provided marriage equality by requiring all systems of marriages be registered. 

The Marriage (Customary Marriage) Rules 2017, were enacted and provide the procedure for registration of Customary Marriages.

1. The Law

Rule 2 of The Marriage (Customary Marriage) Rules 2017 defines a Customary Marriage as marriage contracted in accordance with the customs of the communities of one or both of the parties to the marriage.

Section 55 of the Marriage Act 2014 provides that parties to a Customary Marriage must make an application for registration of the marriage within 6monhs after completing the customary rites conferring on them the status of husband and wife.

Vide Gazette Notice 5345 of 2017, all parties married under any African Customary Law are required to register their marriage starting from 1^st August 2017.

a) When to register a new customary marriage

Parties who contract a Customary Marriage after 1^st August 2017, must within six (6) months of completion of the customary rites conferring them the status of husband and wife notify the Registrar and apply for registration. It is however not clear if the Registrar may decline the registration of a customary marriage solely on the ground that registration is sought outside the six months period, and if so how to determine the date of completion customary rites.

b)  When to register an existing customary marriage

Customary marriages contracted before the commencement of the Act should be registered within 3 years of commencement. It therefore follows that Customary Marriages predating the Act should be registered by 31^st July 2020. However, note that under Section 96(4) the Cabinet secretary may extend the registration period by a Gazette Notice, and whether this will be done or not can be left to speculation.

2.  The Process of registration of Customary Marriages

Registration of Customary Marriage is currently only being done at the Nairobi registry. All parties seeking to register their Customary Marriages must go to the Registrar of Marriages Office, Ground Floor, Sheria House, Nairobi.

Rule 3 – 5 of The Customary Marriage Rules 2017 outline the process of registration of customary marriages. It is as follows:

a) Notification of Customary Marriage

The Parties must notify the registrar within 3 months, of completion of the customary rites conferring upon them the status of husband and wife.

Notice is done with form CM 1 – Notice of Customary Marriage.

b) Display of Notice

The Registrar of Marriages will display the Notice in a conspicuous place at their office for 14days. Anyone with objections to the registration of the marriage is to notify the registrar of the same and the grounds of the objection.

c) Issuance of Acknowledgement Certificate

After the expiry of the notice period without objections or after the objections have been considered and dealt with, the Registrar issues the parties an Acknowledgement Certificate.

d) Application for Registration of Customary Marriage

Parties are required to apply for registration of the marriage using form CM 3- Application for registration of Customary Marriage and attach the Acknowledgment certificate.

e) Issuance of Certificate of Customary Marriage

The Registrar considers the application and conducts the necessary investigations and where appropriate issues a Certificate of Customary Marriage.

3. Requirements and Eligibility for Registration a Customary Marriage

a) Requirements

    i. Documents:

• Original and Copies of valid I.D/ Passport of the parties
• 1 passport Photograph for each Party.
• Form CM 1 – Notification of Customary Marriage
• Form CM 3 – Application for Customary Marriage

   ii. Details Required in forms:

• The Parties’ and Parents’ Names, occupation and residence.
• Parties must indicate the date of marriage, where it took place and Customary Law applied.
• Parties must indicate their status whether: bachelor, spinster, widow, widower, divorced or married under customary law.
• If Husband has a subsisting customary marriage(s): he must disclose it in the form, and it must be signed by him and that spouse.
• Witness Declaration by 2 witnesses who must be 18+ years and must have witnessed the customary rites.

  iii. Registration fees – as at 6^th June 2019 Kshs. 3,900.

  iv. Both parties must appear before the Registrar of Marriages

b) Eligibility

1. The Parties must be 18 years or older.
2. At the time of marriage, the Parties must not have entered a Civil, Christian, Islam or Hindu marriage.
3. The parties must not be within the prohibited degrees of consanguinity.
4. The parties must freely consent to the registration of the marriage.
5. Registration of Customary Marriage is only applicable to Kenyans who have conducted the customary rites.

4. Why it is important to Register a Customary Marriage

1. To be recognized before the Law – you can only prove the existence of a customary marriage if it is registered and you have a Certificate of Customary Marriage.
2. The land laws require spousal consent when transferring matrimonial property. One can only prove existence of a customary marriage through a Certificate of Customary Marriage.
3. Transfer of property between spouses is exempt from Stamp Duty and Capital Gains Tax. You are required to prove the marriage in order to be exempted.
4. Banks and Insurance companies require spouses to provide evidence of existence of marriage when applying for a policy, a loan etc.

 Conclusion

The subject of marriage is closely intertwined with family, succession and property in Kenya. Before The Marriage Act 2014, the multiplicity and inequality of laws regarding marriage led to uncertainty and conflict around succession, matrimonial property etc.

The Marriage Act 2014 and The Marriage (Customary Marriage) Rules 2017, conform to provisions of Article 45 of the Constitution of Kenya which provides for equality of all systems of marriage and protection of the family. Parties to a Customary Marriage must register their marriages in order to enjoy the benefits the law bestows upon them.

A question however arises ‘When are the customary rites complete?’ For some communities it is when the groom slaughters and cooks for the in-laws, for others marriage rites are concluded when the groom delivers a drum of honey and white ewe. Customs vary and it’s important for the parties to find out from their different customary practices when the requirements for completion of marriage are met then proceed to register.

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