Some people marry for dubious reasons. It is happening in America where parties contract marriages of convenience so that the American donates citizenship status to their foreign spouse who might still be married back at home. With the promulgation of the Kenyan constitution, a spouse can now donate citizenship to a foreign spouse. However, we need to have a mechanism that will help vet spouses who are hell-bent on granting citizenship to foreigners through marriage even in cases where the foreigner might actually be in another concealed subsisting marriage.
Section 32(1) of the Marriage Act of Kenya, where a person does not object to the celebration of a marriage, the registrar shall issue the people intending to marry with a certificate of no impediment.
(2) Where a Kenyan wishes to celebrate a marriage outside Kenya and where that Kenyan is required to obtain a certificate of no impediment from the registrar, such Kenyan shall apply for such a certificate and the registrar shall issue the certificate if there is no objection.
Under Rule 4 of the Kenyan Marriage Rules 2014, before you marry or get married, one must produce a certificate of no impediment. This simply shows there is no obstruction, inhibition, barrier or valid reason as to why the marriage should not go on. It’s like a marriage clearance certificate.
Given that a marriage generates a lot of rights and duties to those involved, the legislator saw it wise to develop the certificate. Marriages affect and or have a legal impact on the family, children, property, succession among other things.
If the root of the marriage is sick, then it will have ramifications to other aspects that flow from the relationship and beyond.
How will one know whether their potential spouse has another partner or not?
Married couples have an overriding interest in the matrimonial property superior to the rights of others. For instance, every spouse must give consent before the other spouse disposes of the matrimonial property.
The certificate of no impediment comes in handy to protect you from committing the offence of bigamy. Section 171 of the penal code stipulates that any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of the husband or wife, is guilty of a felony and is liable to imprisonment for five years.
However, this section shall not extend to any person whose marriage with the husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if the husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and has not been heard of by such person as being alive within that time.
Under Rules 4 of the Marriage Rules an application for a certificate of no impediment to marriage shall be made to the Registrar of marriages. The application shall be accompanied by certified copies of the applicant's identity card or passport, applicant’s birth certificate and intended spouse's passport. The registrar shall, upon being satisfied that there is no impediment to the intended marriage, issue the certificate.
Under Section 10 (1) of the Marriage Act, a person shall not marry:
(a) that person's grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew;
(b) the grandparent, parent, child or grandchild of that person's spouse or former spouse;
(c) the grandparent, parent, child or grandchild of that person's former spouse;
(d) a person whom that person has adopted or by whom that person has been adopted; or
(e) any other person where such marriages is prohibited under customary law.
(2) For the purposes of this section, a relationship of the half-blood is a bar to marriage.
(3) A person who, by this section, is forbidden to marry shall be said to be within a prohibited marriage relationship.
(4) The marriage of a person with that person's cousin does not apply to persons who profess the Islamic faith.
The certificate cannot be issued if the registrar establishes that your intended spouse falls within the foregoing prohibited grounds.