The Marriage Provisions In The New Constitution
In Kenya, marriages are solemnised under different statutes and customs. Hindus and persons of allied religions conduct their marriages under the Hindu Marriage and Divorce Act which regulates the marriage of and provide for matrimonial cause between such parties.
Mohammedan Marriage and Divorce Registration Act provides for the registration of Mohammedan (Islamic) marriages and divorces.
The African Christian Marriage and Divorce Act applies only to the marriages of Africans - one or both of whom profess the Christian religion - and to the dissolution of such marriages.
Others opt to conduct their marriages before the Registrar of Marriages under the Marriage Act. This is popular with foreigners who marry or get married to Kenyans.
Marriages solemnised under the Customs of Kenya also have the same force of law just like those solemnised under an Act of Parliament so long as it is in line with Article 2(4) of the Constitution which stipulates that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid.
Every statute or Custom that governs the different forms of marriage has its own limits, rights and checks on all the issues around marriage like divorce, separation, dowry, children, property and all other matters related to or incidental to the marriage.
The forms of rites carried out under each marriage ceremony vary greatly in Kenya. Some marriages take place in places of worship while others are carried out in the Registrar’s office. Some take as long as a whole week while others are over in a matter of hours.
The Constitution has embraced the importance of the family unit under the Bill of Rights under Article 45(1) which provides that the family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State. It then provides that every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
Article 45 (3) stipulates that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
According to Article 45 (4), Parliament shall enact legislation that recognize (a) marriages concluded under any tradition, or system of religious, personal or family law; and(b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with the Constitution.
Article 261(1) of the Constitution provides that Parliament shall enact any legislation required to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date. Schedule Five of The Constitution provides that the Legislation to deal with family matters has to be in place within five years from the date the Constitution of Kenya came into being – that is in August 2010. The countdown is on albeit slow. We can only hope that this is going to be possible given that the Marriage Bill is already in Parliament. This Act aims at harmonising the different forms of marriages in Kenya.
Marriages in Kenya take many forms depending on the personal laws of the parties to the marriage. Blacks Law Dictionary 18th Edition defines personal law as follows, “The law that governs a person’s family matters usually regardless of where the person goes. In common law systems, personal law refers to the law of the person’s domicile.“The idea of the personal law is based on the conception of man as a social being, so that those transactions of his daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of capacity and succession, may be governed universally by that purpose . Although the law of domicile is the chief criteria adopted by English courts for the personal law, it lies within the power of any man of full age and capacity to establish his domicile in any country he chooses and thereby automatically to make the law of that country his personal law”.