Every customary marriage must be registered as well as meet several other specific requirements to obtain legal recognition. One of these requirements is registration. Failure to register your customary marriage renders it voidable.

This article serves as a detailed guide on the process of registering a customary marriage, the impact of non-registration and the importance of a legally recognized union.

What is a Customary Marriage?

Kenya’s Marriage Act recognizes and governs five (5) types of marriages: Hindu, Christian, Islamic, Civil and Customary marriages. A customary marriage occurs when the parties marry according to the cultural traditions, customs, and practices of the community to which one or both of the parties belong. They must perform the rites and traditional ceremonies of the specific community and receive community acknowledgement to solemnize the marriage.

Customary marriages hold significant cultural and legal importance. They reflect the traditions and values of the parties’ community and serve as a vital way to preserve cultural identity and heritage. A customary union also confers legal rights and obligations upon the spouses.

To be valid, a customary marriage must adhere to the rites and customs of the specific community, and fulfil the requirements set out in the Marriage Act. One of these key requirements is registration. The registration process concludes with the issuing of a certificate of marriage, an official document that serves as proof of the marriage.

We have written an in-depth article on Customary Marriages In Kenya. In this article, we focus only on registration.

Requirements to Marry Under Customary Law

To marry under customary law, both parties must meet several legal requirements, including:

Consent

Both parties must give full consent to the marriage. Forced marriages are illegal under Kenyan law, and any union without mutual consent is invalid.

Age Requirement

Both parties must at least be eighteen (18) years old. This provision helps to protect minors from forced or early marriages.

Degrees of Consanguinity

The Marriage Act strictly forbids marriage to relatives up to a certain degree of consanguinity. It provides that one cannot marry a grandparent, parent, child (including adopted children), grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew or those of a former spouse.

Observance of Cultural Rites

The marriage must follow the traditional rites of one or both parties’ communities. This may include ceremonies like dowry payment, payment of fines for children born by the couple out of wedlock, blessings from elders, or any other essential cultural step. Each community defines what constitutes a valid customary marriage.

Witnesses

At least two competent individuals must witness and participate in the rites and ceremonies of the customary marriage. These witnesses are crucial to the notification and registration process. Witnesses are competent if they:

• are above the age of eighteen years;
• understand the language the rites and ceremony are conducted in (an interpreter may be used if necessary);
• are mentally sound, and not intoxicated during the ceremony.; and
• are not parties to the marriage.

Not Already Married under Other Types of Marriage

Customary law permits polygamy, a feature exclusive to customary and Islamic marriages. Polygamy is when a man can marry more than one wife. A person who contracts a customary marriage must not already be married under civil, Christian, Islamic, or Hindu laws. They also must not be in a current monogamous customary marriage. This provision safeguards the rights of polygamous marriages.

How to Register a Customary Marriage

The Registrar of Marriages is responsible for the registration of all marriages. Upon registration, the Registrar issue a Certificate of Marriage to the parties involved. All services provided by the Registrar of Marriages are now available on eCitizen. Here are the steps you need to follow to register a customary marriage in Kenya:

Step 1: Complete the Customary Rites and Ceremonies

Before registration, the couple must complete all the necessary rites and customary ceremonies required to confer marital status on the couple. This does not mean that the couple must complete all the rites and ceremonies of their community — only those that allow them to be recognized as each other’s spouses. The rites and ceremonies themselves are specific to each community.

Step 2: Notify the Registrar of Marriages 

A couple must notify the Registrar of their Customary Marriage within three (3) months of the rites and ceremonies that confer the status of marriage through Form CM1 of the Marriage (Customary Marriage) Rules. The Notice is then placed in a conspicuous place within the Registrar’s premises, for fourteen (14) days.

Any person wishing to object to the proposed registration must notify the Registrar of their objection with the grounds of objection within that period. If there are no objections to the marriage or any objections are withdrawn, considered and dealt with by the Registrar, the Registrar issues the parties with an Acknowledgement Certificate in Form CM 2.

Expect to pay approximately Ksh 1400 for the entire notification process as well as convenience charges of convenience charges applicable to the eCitizen platform.

Step 3: Apply for Registration of the Marriage

Parties must apply to the Registrar for a certificate within six months of the rite or ceremony that confers the status of marriage and after obtaining the Acknowledgement Certificate – Form CM 2.

Step 4: Submit Required Documents

The couple must provide the following documents during the application process:

• Copies of the Identity cards (ID) or passports of each spouse;
• Copies of the birth Certificates of each spouse;
• copies of divorce decree or death certificates of previous spouses (if applicable);
• One passport-sized photograph of each spouse’;
• copies of the ID cards of two witnesses present at the time of the ceremony;
• a letter from the Chief confirming that the customary marriage took place;
• a copy of the Acknowledgement Certificate in Form CM 2.

Step 5: Payment of Registration Fees

Registration services are provided at a nominal registration fee of Kshs 2500/-. Payment is made and processed through the eCitizen platform subject to a convenience fee. The system currently accepts RTGS, mobile money payments, debit and credit cards.

Step 6: Book an Interview

To submit and allow verification of original documents, the parties must book an appointment with the Registrar of Marriages. All appointments are booked through eCitizen.

Step 7: Issuance of a Marriage Certificate

Once the Registrar verifies that all requirements have been met, a marriage certificate is issued.

The Benefits of Registering Your Customary Marriage

There are several benefits to registering a customary marriage. These include:

1. Legal Recognition: Registered customary marriages are legally recognized and enforceable under Kenyan law.
2. Proof of Marriage: A marriage certificate serves as official proof of the union, which is essential for inheritance, property claims, and other legal rights.
3. Protection of Spousal Rights: Registration safeguards the rights of spouses, particularly in cases of disputes, separation, or dissolution.
4. Children’s Rights: It ensures that children born within the union are legally recognized and protected.

Our article on Customary Marriages in Kenya provides a deeper analysis of the rights and privileges of spouses and the children of a customary union.

The Impact of Non-Registration – Voidable

As of the writing of this article, various lower courts have rendered decisions on the consequences of the failure to register a customary marriage. The courts have found that the only proof of marriage under the current law is a marriage certificate, a certified copy of a marriage certificate, an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority.

Failure to register your marriage therefore renders it voidable under law. Parties to a voidable marriage cannot get divorced, their marriage can only be annulled. Only one of the parties to a voidable marriage can petition the court to annul it. An annulment puts the parties in the position as if they never got married in the first place, subject to the provisions of the Act. We will cover the process of annulment of marriages in a separate article.

Customary Marriages and Polygamy

As previously stated, customary law allows for polygamy – marriage to more than one wife. Each subsequent marriage must follow the customs of the respective community of one or both of the parties. Each subsequent marriage need not follow the rites and customs of the same community as the previous marriage. To illustrate, one man can marry Kisii, Kikuyu, and Luo women and use the rites and customs of each of those communities in each respective marriage. To ensure the equal legal protection of each wife in a polygamous marriage, each separate marriage must be registered.

Customary marriages are potentially polygamous. Parties are free to choose whether to remain potentially polygamous or to be monogamous. The Act provides that the couple may apply to register a monogamous customary marriage subject to meeting the provisions of the Act. Such a couple is issued with a marriage certificate stating that their union is monogamous.

Frequently Asked Questions (FAQs) on Customary Marriages

Where Can I Get a Customary Marriage Certificate?

Customary marriage certificates are issued by the Registrar of Marriages, which operates under the Attorney General’s office. You can visit the Registrar’s office in person or access some services through the eCitizen platform.

Can a Second Wife Get a Marriage Certificate in Kenya?

Yes, a second wife in a polygamous customary marriage can obtain a marriage certificate, provided the marriage complies with the customs of the community and the first marriage is also legally recognized.

Is a Customary Marriage Valid Without Registration?

Yes, a customary marriage is still valid if it meets all traditional requirements. However, registration is highly recommended as it provides legal proof of the marriage and protects the parties’ rights under the law.

How Long Does It Take to Get a Certified Copy of a Marriage Certificate?

It typically takes a few days to a few weeks to obtain a certified copy of a marriage certificate, depending on the workload at the Registrar’s office and whether the marriage was previously registered.

What Are the Documents Required for Registration?

• National identification cards or passports of each party
• One coloured passport-size photo of each spouse
• National identification cards or passports of each witness
• A letter from the Area chief confirming that the marriage took place
• Registration Fee

Conclusion

In Kenya, registering your customary marriage is essential to the legal recognition of the union. Completing the registration process ensures both parties can enjoy their rights and privileges as a party to a marriage. It also helps to prevent potential legal disputes. The Marriage Act recognizes the importance of the customs and traditions of every person’s community and only comes in to help tackle the previous challenges of customary marriages.

Contact us or Schedule an Appointment with our team of family lawyers for any assistance regarding your customary marriage. We provide a whole spectrum of services including assistance with the registration process.