Those intending to get married under customary law will first have to seek authorization from the government.
A new directive issued on Friday by Attorney General Githu Muigai has also tightened the noose on those who do not want to legalise their marriages by making it mandatory to those in unions made under customary or Hindu ceremonies to register their unions by August 1.
Effectively this will make it both partners in marriages solemnized in the two methods eligible for an equal share of property in the event that they divorce with women being seen as the biggest winners.
“Parties who wish to contract customary marriage from the operative date herein must obtain prior authorization from the Office of the Registrar of Marriages. Marriage certificates shall be issued to parties upon successful application,” said the AG in a Gazzette notice.
“Parties who wish to enter into Hindu marriage must obtain prior authorization from the Office of the Registrar of Marriages through a Registrar’s certificate or a special licence as the case may be,” he said.
Additionally all ministers of faith under the Hindu Religion are required to, “Apply through the Hindu Council of Kenya to the Registrar of Marriages for a licence to solemnize Hindu marriages.”
The Marriage Act 2014 recognises four types of marriages; Christian, Muslim, Hindu, civil and customary.
But since traditional customs play a huge part in the lives of Kenyans most couples go through customary marriage rights in order for their unions to get societal recognition. The customs relating to such marriages vary among communities, but the payment of bride price is a common practice.
Under the current law, couples who get married through customary law are supposed to register their marriages with the government within three weeks.
“The parties to a customary marriage shall notify the Registrar of such marriage within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned,” says the Marriage Act 2014.
However because a couple is considered husband and wife after the customary marriage ceremonies, it appears that quite a good number do not register their unions at the Registrar of Marriages.
And when such marriages hit the rocks seeking legal redress usually becomes a huge challenge.
Just three weeks ago a man lost a house registered under the name of a woman he had an affair with for 21 years after the Court of Appeal declared that the two were not married.
Syombua Mule had told the court that Charles Mulela had married her as a second wife through Kamba customs and was thus eligible for half of the property they had amassed together since 1986.
Mulela pulled a shocker in court by declaring that he never married Mule even producing documents to prove that he was in another marriage, a fact the court agreed to.
“The respondent may have visited the appellant’s home where he met her parents, purported to pay dowry and performed functions that otherwise would have amounted to contracting a Kamba customary but all that was in vain, as long as his statutory marriage to Dorcas was still subsisting,” said the justices Daniel Musinga, Gatembu Kairu and Agnes Murgor.
They also pointed out that since the two were not married, neither could claim a share of property registered in the name of the other. As a result, since the disputed house was registered under Mule’s name, Mulela lost it.