Marriage, divorce and the Kenyan law
The riveting drama surrounding the high-profile divorce case between Meru Senator Mithika Linturi and his estranged wife Marianne Kitany has turned national attention on the marriage law.
The claims made especially by Kitany have attracted racy headlines after the parties agreed to have the matter heard in open court. What is the story so far?
Kitany says she married Linturi in 2016 in a traditional ceremony involving Meru and Nandi rites after years of an all-consuming romance.
Linturi visited the home of the former Chief of Staff of DP William Ruto, met the elders, told them he was single and requested for Kitany’s hand in marriage.
He gave Sh100,000 as dowry and promised more gifts. Linturi drank a glass of mursik (sour milk) given to him by Nandi elders to seal the marriage as tradition demands.
Kitany officially became Linturi’s wife in accordance with Meru customs by chewing a bunch of miraa made in the shape of manhood.
But Linturi denies all that, saying Kitany was only a visitor to his home. He has produced a certificate as proof of marriage to his first wife but the court in June ruled the document had discrepancies.
The court will in time determine the merits of the claims of the parties. But what does the law say about marriage?
The Marriage Act, 2014 recognises five types of marriage, namely: civil, Christian, customary, Hindu and Islamic.
In all cases, marriage is defined as a voluntary union between a man and a woman. Same-sex marriages are prohibited. Union with a person under 18 years is also illegal. Except for certain cases reserved to Muslims, marriage between relatives is null and void.
The law recognises monogamous and polygamous marriage. Polygamy means a man having more than one wife simultaneously. Polyandry, where a woman has more than one husband at the same time, is not recognised in law.
Civil, Christian and Hindu marriages are strictly monogamous. Customary and Islamic marriages can be polygamous.
In a monogamous marriage, it is illegal to take another spouse without providing proof of death or divorce of the previous one.
Unlike in the past, the Marriage Act has regularised customary marriage such that no one can merely crawl out of the woods to claim to have been married under traditional rites.
Customary marriage is only available to Kenyans. It is conducted in accordance with the customs of one or both communities of the spouses.
Two types of customary marriage are recognised by law: existing and new marriages.
Persons who have already conducted a customary marriage can register their union with the Registrar of Marriages.
Persons intending to enter a new customary marriage must first go through the traditional rites and then issue a three-month notice at the Registrar of Marriages. Registration must be done within six months from the date of the traditional rites.
At the time of registration of either an existing or new customary marriage, the parties must not have entered into a civil or Christian marriage.