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Family Law

• Monogamous Family
• Polygamous Family
• Marriage Act, 2014
• Matrimonial Property Act
• Children’s Ac
• Christian marriages
• Civil marriages
• Customary marriages
• Hindu marriages
• Muslim marriages
Monogamy – Christian, Hindu or civil marriages are monogamous (Sec 6(2) of Marriage Act 2014)
-A person in a monogamous marriage shall not contract another marriage (Sec 9(a) of Marriage Act 2014)
Polygamy – Islamic and customary marriages are presumed to be polygamous or potentially polygamous (Sec 6(3) of Marriage Act 2014)
– A person in a polygamous marriage shall not contract another, monogamous marriage (Sec 9(b) of Marriage Act 2014)
Yes. Marriage can be converted from potentially polygamous to monogamous if both spouses voluntarily agree. {Section 8(1) of the Marriage Act 2014}
However;
• the Husband must have only one wife at the time to convert to monogamy;
• there must be declaration witnessed by marriage officer and signed by the couple; and
• a new certificate issued to converted couples.
NB/ No one in a monogamous marriage can contract another marriage. No one in a polygamous marriage can contract a monogamous marriage {Section 9(a) (b) of the Marriage Act, 2014}
• Aunts, cousins, nephews, uncles, parents, sisters, brothers.
• grandparent, child, or grandchild of spouses or former spouse
• a person one has adopted or by whom adopted
• marriages prohibited by customary law
• half-blood is a bar to marriage {Section 10(1)(a)-(e) of the Marriage Act,2014}
However, marriage amongst cousins professing Islamic faith are not forbidden {Section 10(4) of the Marriage Act, 2014}
A void marriage is one that is invalid from the very beginning.
They are considered unlawful in themselves and do not need any formalities to be terminated.
A marriage is declared void for the following reasons;
• One of the parties is underage;
• Parties are within the prohibited marriage relationship;
• Either party is already married;
• The consent of parties was not freely given (obtained through fraud, coercion, mental disorder, influence of drugs, intoxication);
• Either party is absent from the ceremony;
• The parties knowingly and willfully permitted an unqualified person to celebrate the union;
• One of the parties is mistaken of the identity of the other party; and
• Parties enter the marriage for fraudulent purposes. {Section 11(1) of the Marriage Act,2014}
A voidable marriage is one that is valid until declared invalid by the courts.
• At date of marriage, either party was and has remained incapable of consummating
• Recurrent attacks of insanity
• No notice was given
• Notice of objection not yet withdrawn
• Unlicensed person officiated
• Failure to register the marriage{Section 12(a)-(e) of the Marriage Act,2014}
A spouse is not liable for the tort (civil wrongs) of the other spouse.
Each spouse bears same liability in tort to other spouse as if they were not married.
Spouses may claim from negligent acts or omissions as well as breach of duty which causes loss of companionship. {Section 13(a)-(c) of the Marriage Act, 2014}
Marriage registered under the Marriage Act, 2014 subsist until;
• The death of a spouse.
• Court declares the presumption of the death of a spouse.
• Annulment
• Divorce. {Section 16(a)-(e) of the Marriage Act,2014}
Christian Marriages are celebrated by a marriage officer, a licensed church minister appointed by the Registrar {Section 18 of the Marriage Act, 2014}
A person who knows of impediment to intended marriage may give a written notice of objection to person in charge of the public place of worship where the marriage notice has been posted {Section 19 of the Marriage Act,2014}
• A written notice of objection should be issued to the person in charge of the public place of worship where the marriage notice has been posted.
• The written notice must include the name of the objector, relationship with either party or reasons for objection to the marriage.
• The Person in charge of the public place of worship to hear the objection immediately.
• If he considers that the objection requires a further hearing, postpone the marriage ceremony until the objection is determined in accordance with church regulations.
• Objection must be determined within a reasonable period, not more than seven days after hearing the objection
• Report to parties and Registrars on process used to determine the objection within seven days.
• Any dissatisfied party to appeal to the court within fourteen days
Objectors may withdraw the notice at any time in writing
The person officiating the marriage shall —
(a) complete and sign a marriage certificate in the prescribed form; and
(b) cause it to be signed by the parties and by the witnesses to the marriage.
(2) The person officiating at the marriage ceremony shall then issue —
(a) one copy of the marriage certificate to the parties;
(b) retain one copy of the marriage certificate; and
(c) deliver one copy of the marriage certificate to the Registrar.
• If they were contracted according to the laws of the country of celebration and are consistent with the provisions on Christian marriages under the Marriage Act, 2014.
• At the time of the marriage, parties had capacity to marry under the law of the country where the marriage was celebrated.
• Both parties had the capacity to marry and at the time of the marriage any party to the marriage was domiciled in Kenya.
The above requirements also apply to marriages celebrated at embassies, high commissions or consulates of a foreign country in Kenya.
• Adultery
• Cruelty
• Desertion by either party for a period of at least three years immediately preceding the date of presentation of the petition.
• Exceptional depravity by either party.
• Irretrievable breakdown of the marriage. {Section 24 of the Marriage Act, 2014}
Civil marriages are celebrated by the registrar in place determined by the Registrar. {Section 24 of the Marriage Act, 2014}
A written notice of not less than 21 days or more than three months must be issued to Registrar and person in charge of place of where they intend to marry {Section 25(1) of the Marriage Act, 2013}
• Names, age and residence of intended parties
• Names (if known and alive) of parents plus residence
• Declaration parties not in a prohibited relationship e.g. cousins, nephew, aunt,
• Date and venue of marriage
• Marital status of each party: if divorced, copy of decree and if widowed, copy of death certificate of former spouse {Section 25(2) of the Marriage Act, 2013}
The Registrar should publish the notice of intention to marry at the proposed venue {Section 26 of the Marriage Act, 2014}
• A written notice of objection should be issued to the Registrar or the person in charge of the venue.
• The written notice must include the name of the objector, relationship with either party or reasons for objection to the marriage
• Person in charge of venue should hear the objection immediately.
• If he considers that the objection requires a further hearing, postpone the marriage ceremony until the objection is determined in accordance with the Regulations
• objection must be determined within reasonable period, not more than seven days after hearing the objection
• report to parties and Registrars within seven on process used to determine objection days
• Any dissatisfied party to appeal to court within fourteen days
  • Objectors may withdraw the notice at any time in writing
The Registrar hears an objection within seven days of receipt and determines within seven days of hearing.
Aggrieved party may appeal to court within seven days.
N.B// No marriage until appeal from Registrar’s decision has been heard and determined. {Section 30 of the Marriage Act, 2014}
Baseless or fraudulent objectors risk fine of 1M or 5 years in jail term.
Yes. The registrar has the power to dispense with a notice where there is sufficient reason to do so.
However, before dispensing with the notice Registrar must confirm that no party is; in a prohibited relationship, below age or in another marriage
The Registrar issues 2 copies of the marriage certificate to the parties; each signed by him, the parties and the two witnesses, and retains the third copy.
Kenyan citizens/Non-citizens may celebrate marriages in Kenyan missions in foreign countries in the presence of the Registrar or his delegate.
Marriage abroad is valid in Kenya if;
• The parties had capacity to marry in Kenya
• If it was contracted in accordance with the law of the foreign country, is consistent with the laws of Kenya and the parties had capacity to marry {Section 40 of the Marriage Act,2014}
• Adultery
• Cruelty
• Desertion by either party for a period of at least three years immediately preceding the date of presentation of the petition.
• Exceptional depravity by either party.
• Irretrievable breakdown of the marriage. {Section 66(2)of the Marriage Act, 2014}
They are celebrated according to customs of communities of one or both of the parties {Section 43 of the Marriage Act, 2014}
They are contracted by the payment of the required dowry or the payment of a token.

However, parties must notify the Registrar within 3 months of completing the required steps to complete the marriage as per the community {Section 44 of the Marriage Act, 2014}

The Notice must specify the customary law applied and declare that the necessary customary requirements completed and contain a declaration by the two parties that necessary customary requirements have been undertaken. {Section 45(1) (a)(b) of the Marriage Act, 2014}
The declaration contains the signatures or personal marks of the two adult witnesses who played crucial cultural roles in the marriage. {Section 45(2) of the Marriage Act,2014}
The notice confirms that;
• Both parties 18 years old at time of marriage.
• The marriage is between persons outside the prohibited degree of relationships.
• Both parties freely gave consent to the marriage.{Section 44(3) of the Marriage Act,2014}
• Adultery
• Cruelty
• Desertion by either party for a period of at least three years immediately preceding the date of presentation of the petition.
• Exceptional depravity by either party.
• Irretrievable breakdown of the marriage.
• Any valid ground under the customary law of the petitioner {Section 69(1)of the Marriage Act, 2014}
Hindu marriages are celebrated by persons authorized by Registrar in accordance with Hindu rituals
The person presiding overthe marriage is expected to deliver the record of marriage to the Registrar. {Section 46 – 47 of the Marriage Act}
• Adultery
• Cruelty
• Desertion for a period of 3 years
• Unsoundness of mind where the Respondent has been under medical care for a period of five years
• Where husband is guilty of bestiality sodomy or rape
• Where the Respondent has ceased to be a Hindu {Section 70 of the Marriage Act,2014}
Islamic marriages are celebrated by the Kadhi, sheikh and Imam who are authorized by the Registrar to preside over the ceremony.
• Where the husband is impotent /where the parties are physically incapable of consummating the marriage. Consummation is the sexual intercourse between the parties after the marriage is solemnised
• Wilful refusal to consummate the marriage: This is where a party refused to consent to any sexual intercourse and that refusal must be steadfast and determined.
• Where parties are related to one another within the prohibited degrees of affinity and consanguinity.
• Where either spouse is married to another person and that other marriage is still subsisting.
• Where the consent of the parties was obtained through fraud or duress.
• Where a party to a marriage is at the time of contracting that marriage of unsound mind, drunk, insane.
• A party to the marriage was absent at the time of the celebration of the marriage.
• At the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy.{Section 73(1) of the Marriage Act,2014}
The court will only grant a decree of annulment if;
• the petition is made within 1 year of the celebration of the marriage;
• at the date of the marriage the petitioner was ignorant of the facts alleged in the petition; and
• the marriage has not been consummated since the petition was made to the court.{Section 73(2) of the Marriage Act,2014}
• Parties treated as if they had never got married
• Does not render illegal anything done legally during the marriage and vice versa
• Does not affect the competence of either party as a witness to communications during the marriage or relieve any party of any debts incurred during the marriage on behalf of the other.
A promises to marry is not binding (not a contract capable of specific performances {Section 76 of the Marriage Act, 2014}
The court may order one to maintain a spouse or a former spouse;
• where the person has refused or neglected to provide for the spouse or former spouse
• in case the person has deserted the other spouse or former spouse
• during the course of any matrimonial proceedings;
• when granting or after granting a decree of separation or divorce; or
• if, after presuming a spouse dead, the person is found alive {Section 77(1) of the Marriage Act, 2014}
• If the maintenance was unsecured, on the death of the spouse.
• If the maintenance was secured, on the death of the spouse in whose favor it was made;
• Where the person being maintained is subsequently able to support him or herself. {Section 78 of the Marriage Act, 2014}
• Upon the remarriage of the beneficiary of the order. {Section 79 of the Marriage Act, 2014}
• Court may order a party to refrain from molesting a spouse or former spouse.
• No proceedings may be brought to compel one spouse to cohabit with the other{ Section 84(2) of the Marriage Act, 2014}
• Spouse alleging desertion may refer matter to conciliatory body
• Court may order restitution of conjugal rights where it’s satisfied of the truth of statements in support and there are no legal grounds why the application should not be granted {Section 84(3) of the Marriage Act, 2014}
Any person who marries a person who is below the minimum age commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years or a fine not exceeding one million shillings or to both.{Section 87 of the Marriage Act,2014}
Where the parties are within a prohibited marriage relationship they shall on conviction be liable to imprisonment for a term not exceeding five years or a fine not exceeding three hundred thousand shillings or to both. . {Section 88(1) of the Marriage Act, 2014}
A person who celebrates a union purporting to be unauthorized person shall on conviction be liable to imprisonment for a term not exceeding three years or a fine of three hundred thousand shillings or both. {Section 90 of the Marriage Act, 2014}
A person who celebrates a union purporting to be a marriage at which the required witnesses are not present shall on conviction be liable to imprisonment for a term not exceeding three months or a fine not exceeding ten thousand shillings or to both. {Section 91 of the Marriage Act, 2014}
A person commits an offence where that person knows or should know that;
• At least one party is below the age of eighteen years.
• A notice of intention to marry where required has not been given.
• A notice of objection to the intended marriage has been given and the objection has not been withdrawn, dismissed or determined.{Section 92(1) of the Marriage Act, 2014}
Any person convicted for the offences above are under liable to imprisonment for a term not exceeding six months or a fine not exceeding fifty thousand shillings or to both.{Section 92(2) of the Marriage Act, 2014}
Matrimonial property means the matrimonial home or homes, household goods and effects in the matrimonial home or homes or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.  {Section 2 of the Matrimonial Property Act, 2013}
Where there is no prenuptial agreement, matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided (not equally) between the spouses.{Section 7 of the Matrimonial property Act,2013}
Property acquired or inherited before marriage is not part of matrimonial property. {Section 5 of the Matrimonial Property Act, 2013}
• Matrimonial property acquired by the man and the first wife shall be retained equally by the man and the first wife only, if the property was acquired before the man married another wife.
• Matrimonial property acquired by the man after the man marries another wife shall be regarded as owned by the man and the wives taking into account any contributions made by the man and each of the wives.
• It is possible for a wife to hold her matrimonial property with the husband separate from that of the other wives.
• Any wife can own matrimonial property equally with the husband without the participation of the other wife or wives.{Section 8 of the Matrimonial Property Act,2013}
• Any liability incurred by a spouse before the marriage remains the liability of the spouse who incurred it.
• Parties to a marriage share liabilities incurred during the marriage for the benefit of the marriage equally.
• If property becomes matrimonial property, any liability reasonably and justifiably incurred are shared equally by the spouses unless they otherwise agree,
• Parties to a marriage equally share liabilities or reasonable and justifiable expenses incurred for the benefit of the marriage. {Section 10 of the Matrimonial Property, Act}
The principles of customary law applicable to division of matrimonial property include;
• Customary laws relating to divorce or dissolution of marriage;
• Protection of rights of future generations to community and ancestral land (See Article 63 of the Constitution);
• Access and utilization of ancestral land and the cultural home by a wife or former wife.{Section 11 of the Matrimonial Property Act,2013}
• Matrimonial property cannot be sold, leased or mortgaged during a monogamous marriage without the consent of both spouses (See section 12(1)).
• Spouses in marriages, including the man and any of the man’s wives in the case of a polygamous marriage, have an interest in matrimonial property capable of protection by caveat, caution or any law in force on registration of title deeds.
• A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.
• A spouse shall not be evicted from the matrimonial home by any person except in execution of a decree; by a trustee in bankruptcy; or by a mortgagee or chargee in exercise of a power of sale or other remedy
• The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses.{Section 12 of the Matrimonial Property Act,2013}
Marriage does not affect the right of either spouse to own, or dispose of any property other than matrimonial property. {Section 13 of the Matrimonial Property Act, 2013}
Where matrimonial property is acquired during marriage;
• In the name of one spouse, there is a presumption that the property is held in trust for the other spouse; and
• In the names of the spouses jointly, there’s a presumption that their beneficial interests in the matrimonial property are equal.{Section 14 of the Matrimonial Property Act,2013}
Where a spouse gives any property to the other as a gift during the marriage, there’s a presumption the gift belongs absolutely to the receiving spouse. {Section 15 of the Matrimonial Property Act, 2013}
A spouse is not liable, solely by reason of marriage, for personal debts incurred before the marriage by the other spouse. {Section 16 of the Matrimonial Property Act, 2013}
A person may apply to a court for a declaration of rights to any contested matrimonial property in accordance with prescribed procedure;
• As part of a petition in a matrimonial cause; and
• Even where a petition has not been filed under any law relating to matrimonial causes. {Section 17 of the Matrimonial Property Act,2013}
No. The Married Women Property Act, 1882 is no longer applicable to matrimonial causes Kenya.

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