What is a Marriage?

Section 3(1) of the Marriage Act, 2014 provides that marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act.

Section 3(2) further provides that parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.

What are the types of marriages recognized in Kenya?

Section 6 (1) of the Marriage Act, 2014 provides for the following kinds of marriages:

1. Christian marriages: marriages celebrated in accordance with the rites of a christian denomination;
2. Civil marriages: marriages celebrated before the registrar of marriages;
3. Customary marriages: marriages celebrated in accordance with the customary rites relating to any of the communities in Kenya;
4. Hindu marriages: marriages celebrated in accordance with the Hindu rites and ceremonies;
5. Islamic marriages: marriages celebrated in accordance with Islamic Law.

From the above kinds of marriages, a christian, hindu or civil marriage is considered monogamous while a marriage celebrated under Customary law or Islamic Law is presumed to be polygamous or potentially polygamous.

Despite the Law providing for polygamous or potentially polygamous marriages, Section 7 of the Marriage Act provides that a marriage may be converted to a monogamous marriage if each spouse voluntarily declares this intent. This declaration shall be made in the presence of a marriage officer and shall be recorded in writing and signed by each spouse.

A polygamous marriage on the other hand can only be converted if at the time of the conversion, the husband has only one wife.

Is Cohabitation recognized under the Kenyan Laws?

The Marriage Act under Section 2 defines “Cohabit” to mean to live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.

Under the Marriage Act, Cohabitation is not recognized as a kind of marriage, however, the Kenyan courts have recognized the same under the presumption of marriage, which is not absolute.

For instance, the Supreme Court in the case of MNK V POM, stated that the presumption of marriage arises from cohabitation over a long period of time and of public repute. However, this presumption is rebuttable by credible evidence providing something contrary to this.

The Court stated that the presumption of marriage should be applied cautiously and that there is a need for statutory law to provide for rights of parties in  long term cohabitation relationships.

The burden of proof of presumption of marriage lies on the party alleging and it is to be determined on a balance of probabilities.

The Criteria for establishment of a presumption of marriage are as below:

• Parties must have been in continuous cohabitation for a long period of time;
• The parties must have intended to live as husband and wife;
• There must be mutual consent and they must have legal capacity to marry;
• The Community must have recognized the parties as being married.

From the above, it is clear that the presumption of marriage is not automatic and can be challenged by strong evidence.

In case you want legal advise on the above subject,  you can reach out to us on:

Email: info@kendikadvocates.co.ke
Website: www.kendikadvocates.co.ke
Tel: +254768028504

Disclaimer:
This information provided in this Article is intended as a general overview of the subject dealt with. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Kendi & Company Advocates is not responsible for any actions taken or not taken on the basis of this information.