Area chiefs will from Tuesday have a say in the registration of traditional marriages involving people living within their jurisdictions, marking a shift in unions that have been happening with little government involvement.
According to Mary Mutaru, the acting Registrar of Marriages, it will require a chief’s nod before any couple can be issued with a government document certifying that they are in a customary marriage.
The chief-dependent process will apply to couples married without solemnisation of their unions in religious organisations or without wedding at the Attorney-General’s office.
“We thought of who can confirm that persons are married and are staying together as husband and wife. The answer was only the chief,” Ms Mutaru told the Nation on Friday.
Currently, the official document that a traditionally married couple needs in order to prove that they are in a union is an affidavit sworn before a person permitted by law.
But from Tuesday, when a June 9 gazette notice by the Attorney-General’s office comes into effect, a certificate that will cost Sh3,900 will take the place of the affidavit.
This means banks, insurance companies and other entities that need proof of marriage will start demanding certificates rather than affidavits.
The Sh3,900 to be paid for certification, said Ms Mutaru, will be a flat rate for all people registering their marriages with the government, regardless of whether it is a Christian, Islamic, Hindu, civil or customary marriage.
READ: State to require couples to register customary unions
“I think it will be a very reasonable figure and we believe it’s affordable to the Kenyan society,” she said.
A draft plan by the marriage registrar’s office shows that a couple should notify the office after conducting rites that will see their cultures recognising them as husband or wife.
After that, the registrar will place a 14-day notice asking anyone who would wish to oppose the declaration of the two as man and wife to step forward.
“We are also giving the public a chance. This person may be married in church. This person may be saying “I got married” but they have not done the customary rites; that’s when you find parents coming and saying, “No, we have never even met this man.” This person may be saying “we have undergone customary marriage” but is married in a civil union elsewhere,” said Ms Mutaru.
When the notice elapses, the couple will be expected to return to the registrar’s office to be informed of the date they can collect their certificate.
Certificates will be issued in threes: one for each of the spouses and another that will remain with the registrar “for purposes of registration” according to Ms Mutaru.
If a man is married to four wives, for instance, it means 12 certificates will be issued: four for him; four for each of the wives and four others for the registrar.
The paperwork that couples need to fill before getting the certificates is the one that will require certification from the area chief.
Because customary marriages allow polygamy, the man will also be required to write down whether he is also in other marriages.
However, this aspect of allowing polygamy has been misunderstood my many Kenyans according to enquiries Ms Mutaru has been receiving.
“People think that now that polygamy has been allowed, even if you’re married in church or done a civil wedding, you can still marry more; that the doors have been opened for people to marry.
That is the biggest myth we want to debunk. People should understand that customary marriages are potentially polygamous. And anybody married under a monogamous system of marriage [Christian, Hindu or civil cannot contract any other marriage,” she said.
The forms also require one to fill the custom under which the marriage was conducted, and according to the marriages registrar, only customs involving the known Kenyan tribes will be allowed.
“For instance, if a Kamba man marries a Luhya girl, of course they will do the Luhya customary law. So, it is that Luhya custom marriage we are capturing,” she said, adding that marriages where one is a foreigner can never be classified as customary.
“There are so many cultural practices involved. Our work is not to interfere with that. The question would be, “Have these parties been married under Kamba customary law?” If yes; we register,” Ms Mutaru said. “Our work is not to change African customs. Our work is to document African customs.”
The gazette notice informed those who have been married earlier under customary law to register their unions adding that those who would wish to marry after August 1, should comply with the process.
“The gazette notice was aimed at giving Kenyans direction on when the customary marriages and Hindu marriages will take effect. A lot of people have been misunderstanding and thinking that this is a deadline. This is not the deadline. This is where we start and we go forward,” said Ms Mutaru.
She added that ever since the Marriage Act came into effect in May 2014, her office is compelled to register all marriages both Christian and civil.
After Tuesday, Hindu and customary marriages will also be registered.
The type of marriages that will remain unregistered for a while will be those conducted under Islamic laws, and Ms Mutaru said the rules governing that marriage category are being created.
“We are almost there. We have done the rules, we are doing the final touch with legislative drafting pending the signing by the Attorney-General,” she said.
“When all the five systems of marriage are on board, it means that the Registrar of Marriages will now house all the components of marriage under our roof. Ultimately, we shall have a national marriage database for all marriages done in Kenya within five years,” she added.
The certificates to be issued for customary marriages are unlikely to change anything in property ownership or succession because the courts already have parameters to determine who gets what.
Widows and widowers, she noted, should not bother getting a certificate because once a spouse dies, it ceases to be a marriage. The same applies to those who have previously divorced.
Also, for couples in rural areas, there should be no rush to get registered from Tuesday because the registrar plans to pilot the certification in Nairobi before spreading it out.
“We have proposed to pilot the customary marriages in Nairobi so that we can see the teething problems, iron them out before we can roll it out. And the rolling out will come in after we sensitise our agents who are going to assist us,” said Ms Mutaru adding “This is the first time Kenya is registering customary marriages. So, we are going to start with Nairobi as the pilot.”
The process will then be rolled out to the 11 Attorney-General’s offices across Kenya by March 2018 before it can be spread to the offices in every county that are gazetted to conduct marriages.
Asked whether Kenyans have a deadline to register, Ms Mutaru said it will depend on the uptake.
“We haven’t set a deadline. But we are going to set it depending on the response from the public. But we must have an end to the registration, especially for existing marriages,” said Ms Mutaru.