In Kenya, customary marriages are conducted under the customs and traditions of the parties’ specific community. Also known as traditional marriages, customary marriages are a sacred practice passed down through generations. They involve a series of rites and ceremonies that symbolize the union of a man and a woman, cementing their commitment to each other and their families. The Marriage Act recognizes customary marriages as valid, provided they adhere to certain legal requirements.
In this article, we delve into the world of customary marriage in Kenya. We discuss the significance of customary marriages, the key requirements under the law and the legal implications of such a union.
What is Customary Law?
Customary law is recognized as one of the sources of laws in Kenya and is designated “African customary law by the Judicature Act. Custom is the oldest source of law in Africa. It generated the body of law that governed the native African communities in pre-colonial Africa.
The Significance of Customary Marriages
Customary marriages hold significant cultural importance. They reflect the traditions and values of various communities across the country, serving as a vital way to preserve cultural identity and heritage, while fostering unity between families and communities. This is why this age-old practice continues to shape the lives of many Kenyans today.
Who Can Enter a Customary Marriage?
Parties to a customary marriage are required to be:
- of sound mind;
- acting voluntarily;
- above the age of 18;
- present at the ceremony; and
- not married to anyone else under a civil, Hindu or Christian marriage as both of these do not allow polygamy.
Other Legal Requirements of a Customary Marriage
Depending on the community that the parties belong to, a customary marriage may involve several different steps. Following these steps confirms the couple’s union and ensures the community’s acknowledgement. Common practices include introductions, dowry negotiations, blessings by elders, and other ceremonial events.
All customary marriages are required to be registered. Registration of a customary marriage provides proof of the marriage. Section 55 of the Marriage Act provides that parties to a customary marriage may register their union with the Registrar of Marriages. The use of the word “may” suggests that registration is not compulsory. However, emerging case law continues to make a case for registration. Failure to register your marriage could lead to its invalidation.
Registering your customary marriage is beneficial to both parties as it ensures that the parties need only produce their marriage certificate as proof of their union. This is especially important when handling legal matters such as name changes, divorce proceedings, child custody and maintenance matters, and succession/inheritance matters.
The Legal Recognition of Customary Marriages
The legal recognition of customary marriages bridges cultural traditions with modern legal frameworks, ensuring respect for Kenya’s rich diversity while safeguarding individual rights.
Section 43 of the Marriage Act specifies that a customary marriage is valid as long as it follows the requisite rites and formalities of the community that either one or both of the parties belong to. This is important as one cannot adopt rites or formalities not practised by their community.
Rights and Privileges of Parties to a Customary Marriage
A customary union grants various rights and privileges to all parties. The law balances these rights and privileges between culture and the rights and fundamental freedoms of each human being. Below is a comprehensive discussion of these rights and privileges.
Right to Registration of the Marriage
The Marriage Act provides a clear process for registering customary marriages with the Registrar of Marriages. These provisions take note of the fact that the rites and ceremonies under each community may take several years to complete. It thus provides that notification and registration shall be possible at three months and six months respectively from the date of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned.
Registration of customary marriage allows the parties to obtain documentary evidence of their marriage. Proof of the marriage is crucial for asserting the parties’ rights, privileges and other legal claims.
Legal Recognition of the Union
A registered customary marriage is a valid marriage under Kenyan law. An unregistered marriage is voidable.
Right to Dissolution of the Marriage
Customary marriages, like other marriages, can be dissolved under specific circumstances. We have written a comprehensive article on the Divorce Proceedings Under Customary Marriage in Kenya.
Grounds for dissolution may include adultery, cruelty, desertion, or irretrievable breakdown of the marriage. Upon dissolution, both parties retain their rights to a fair share of matrimonial property and continued access to their children, subject to custody agreements.
Right to Equal Treatment in Marriage
Both parties to a customary marriage have the right to equal treatment within the union. The law provides that spouses are entitled to mutual respect, love, and companionship. Neither party should be subjected to discrimination or unfair treatment based on gender or societal norms. This principle is essential in ensuring that cultural practices do not lead to the violation of human rights.
Property Rights
Parties to a customary marriage have rights to property acquired during the marriage in the manner provided for under the Matrimonial Property Act. Matrimonial property is owned jointly by both spouses, irrespective of whose name it is registered under. This includes property acquired through joint efforts or contributions, whether financial or non-financial. The parties are entitled to a fair share of the matrimonial property if they separate or divorce.
Inheritance Rights
Spouses in a customary marriage have the right to inherit each other’s property under the Law of Succession Act. This protects widows and widowers from disinheritance, a common issue in traditional settings. Similarly, children born or adopted within the union have a legal right to inherit their parents’ property. The rights of children apply even when the marriage is not registered.
Parental Rights and Responsibilities
Customary marriage confers equal parental rights and responsibilities to both spouses. They are jointly responsible for the upbringing, education, and welfare of their children. The Children’s Act emphasizes the importance of shared parental responsibilities to ensure prioritization of the best interests of the child.
Protection from Domestic Violence
The law protects spouses in customary marriages from domestic violence or abuse. The Protection Against Domestic Violence Act safeguards individuals from physical, emotional, sexual, and psychological abuse within the family setting. This ensures that cultural practices do not justify or perpetuate harmful acts against a spouse.
Polygamy in Customary Marriages
Customary marriages in Kenya allow for polygamy if it aligns with the traditions of the community involved. However, the law requires that subsequent marriages under polygamous arrangements must also adhere to the customs of the community. Each spouse in a polygamous marriage has the right to fair and equitable treatment, including access to resources and marital rights.
Cultural Identity and Social Privileges
Customary marriages preserve cultural identity and foster stronger ties within communities. Parties to such marriages often gain social recognition and acceptance within their community, which can come with privileges such as social support, participation in communal activities, and inheritance of traditional titles or roles.
Challenges in Customary Marriages
One of the key challenges in customary marriages lies in proving their existence. Without proper documentation or witnesses, disputes may arise over whether the marriage took place. Additionally, customs vary from one community to another, making it difficult to establish a uniform standard.
It’s important to follow both the legal and customary procedures to protect yourself and your rights.
How to Legalize an Existing Customary Marriage
Couples already in customary marriages can formalize their union through registration. This process helps secure legal recognition for purposes like inheritance and succession. The steps to legalize an existing marriage are similar to registering a new one, but additional proof may be required.
Legalizing an existing marriage gives the couple access to full legal rights and protections under Kenyan law.
Conclusion
Customary marriages are a vital part of Kenyan society and are fully recognized by law. Following the necessary steps, including the performance of essential rites and registration, ensures that the marriage is legally binding and protected. While some challenges exist, such as proof of marriage and differing customs, understanding the legal framework and working with a legal expert can help you navigate these complexities. If you’re planning a customary marriage or need help with legalizing one, seeking professional guidance will ensure your rights are fully protected.
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