Couples united in customary weddings but not registered under Kenyan law now risk being annulled at the request of one partner after a court ruling that has made it mandatory for such marriages to be registered.
Principal Magistrate C.N. Ondieki in a ruling on a case where a woman wanted her marriage dissolved asserted that a customary marriage that is not registered is voidable and as such it cannot be dissolved before a court of law through a divorce.
Instead, the magistrate noted that such a marriage can only be annulled without other ramifications including splitting of property.
He quoted a clause of the Marriage Act of 2014 which defines marriage as “the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in”.
In the case filed before the Machakos Magistrate Court, the petitioner- a woman from the Kamba community, wanted her marriage with her husband dissolved on grounds that her partner was abusive, among others.
Why the petitioner wanted divorce
According to the submissions before the court, the woman was forced to leave their matrimonial home and relocate to a rented house where she settled with her children in 2018 after living together as husband and wife since 1987.
She further accused her husband of selling the land where their matrimonial home was built and failing to maintain and educate their two children.
After several attempts of saving her marriage through negotiations, the petitioner tried to return a goat named “mbui ya ulee”- a customary way of requesting for divorce among her community.
However, her attempt failed, hence necessitating the move to file a petition in court.
“The Petitioner avers that she tried to salvage the marriage and in 2023, in company of her brother Ronald Wambua Musyoki, she visited the Respondent’s home in Kamuthanga with elders, but negotiations were not fruitful,” read the ruling in part.
In his response, the husband accused the petitioner of being cruel to him by leaving her matrimonial home in 2018 without provocation while he was away at work.
In addition, he accused the wife of gossiping that he has extra-marital affairs and, as such, requested the court to strike out the divorce application.
Court clarifies dissolution and annulment of marriages
However, the Principal Magistrate underscored that the law requires all marriages regardless of the different forms to be registered by the registrar of marriages to allow an application for legal divorce under.
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“The Petitioner bears the burden of exhibiting either a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority,” the Principal Magistrate emphasized.
According to him, failure to register a marriage even after going through the ritual rites and cohabitation renders it the union voidable according to the law, a term he interprets to mean that a marriage is valid but can be annulled at any time.
This then led to his conclusion that although the customary marriage between the Petitioner and the Respondent is said to have been contracted in June of 1987 – both parties needed to provide a marriage certificate for a request of dissolution to be considered.
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“It further follows that with effect from 1st August 2020, having been rendered voidable, both the Petitioner and the Respondent were deprived of the right to Petition or Cross- Petition for divorce (dissolution of the purported marriage),” he ruled.
In conclusion, he noted that both the Petition and Cross-Petition having been found incompetent, and thereby struck out.
However, both parties are at liberty to file a Petition or Cross-Petition for annulment of the same marriage. The ruling now adds to various twists the question of validity of marriage and circumstances where divorce is justifiable.
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