Sunday, Jan 25th 2015

Do you know the minimum marriage age in Kenya?

Wednesday, April 18, 2012 - 00:00 -- BY JOHN CHIGITI

Marriageable age (or marriage age) is the age at which a person is allowed to marry, either as of right or subject to parental or other forms of consent. The age and other requirements vary between countries, but generally it is set at 18, although most jurisdictions allow marriage at slightly younger ages with parental and/or judicial approval, or in case of pregnancy - Wikipedia.

Under Article 45 (2) of the Kenyan Constitution, every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. Section 2 of the Age of Majority Act, further provides that a person shall be of full age and cease to be under any disability by reason of age on attaining the age of 18 years.

Fifty five countries are parties to the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages, which requires them to specify a minimum marriage age by statute law, thus overriding customary, religious and tribal laws. Kenya has the Marriage Act which stipulates that if either party to an intended marriage, not being a widower or widow, is under 18 years of age, no licence shall be granted or certificate issued unless there is produced a written consent to the intended marriage signed by the person having the lawful custody of any such party under Section 19.

Section 20 (1) of the Marriage Act provides that if the person required to sign such consent is unable to write, or is insufficiently acquainted with the English language, or both, he shall sign such consent by placing his mark or cross thereto in the presence of one of the following persons: any judge, magistrate, justice of the peace, registrar of the High Court, registrar of marriages, medical officer or minister of religion. Such signature shall be attested by such person in the prescribed form.

 Under Section 21 of the Marriage Act, if there is no person having the lawful custody of such party residing in Kenya and capable of consenting to the marriage, then, upon being satisfied after due inquiry that the marriage is a proper one, any of the following persons may consent in writing to such marriage: the minister, a judge of the High Court or a Provincial Commissioner, and such consent shall be as effectual as if the person having the lawful custody had consented.

Sometimes the person who would otherwise give such consent refuses to give the consent. In such cases one has to make an application to High court and the Judge may, consent to the marriage. The consent of the Court so given shall have the same effect as if it had been given by the person whose consent is so required.

Given that marriage presupposes that there will be consummation, then any sexual intercourse by parties who purported to be married before they attain the age of 18 will be committing an offence under Section 8 (1) of the Sexual Offences Act, which stipulates that, a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

In England and Wales, the minimum legal age for getting married is 16. In England and Wales, the written consent of the parents or guardians is required for persons who have not reached 18 years old and have not been previously married. If either of the persons is below 18, a birth certificate must be produced. It is preferred that all persons produce such evidence.

Georgia has settled on a minimum age of 16 provided a judge approves while Kansas set the floor at 15 under the same conditions. Kansas’ new minimum age is younger than Kansas’s governor recommended and still younger than the vast majority of states, which set a minimum age of 16 with a parent’s permission. But the age standard brings Kansas in line with its neighbour Missouri.

The state with the lowest marriage age is New Hampshire, which allows 13-year-old girls and 14-year-old boys to marry although parents can annul their children’s marriages until the children reach 18, according to the National Conference of State Legislatures.

Early marriages expose children to premature sex, child parentage, abortion, exposure to early school dropout and violates the children’s reproductive health rights. It offends morality and violates the Convention on the Right of the Child and it should be discouraged.