Customary law, which is based on the customs of the people, is not what used to happen a long time ago but what people customarily do today.
Gone are the days when spouses could just swear an affidavit and automatically be considered as partners.
New reforms in the Marriage Act in Kenya postulates that all marriage unions including those under African Customary law should be registered and marriage certificates issued.
Today, customary law applies insofar as it is not repugnant to justice and morality like child marriages and dissent. Widow inheritance can be contested as well as the Leveratic unions.
Keep reading this article to find out how customary marriage in Kenya works and how you can register one.
What is a customary marriage?
Customary marriage is a marriage that is conducted in accordance with the customs of the community of either one or both of the parties to the marriage in question.
Customary Marriage system is one of the five systems envisaged by the Marriage Act, 2014.
After the enactment of the Marriage Act 2014, the Registrar in consultation with various stakeholders, drafted the Marriage (Customary) Rules 2017 to operationalize the registration of customary marriages pursuant to the provisions of Section 50 (1) of the said Act.
The purpose of the stated rules was to give effect on the equality of status across all systems of marriage and more so, to provide a process of proper registration through certificates to be issued by the Registrar of marriages.
On April 3rd, 2017 the Marriage (Customary) Rules 2017 were gazetted vide Legal Notice No. 46 and its operative date set for 1st of August, 2017.
Formalities to customary law marriages
Presently, registration of customary marriage in Kenya has to proceed after a customary rite ends.
1. The parties have to undergo a betrothal ceremony.
And the nature of the ceremony depends on the customs of the parties, for some communities it is a single event for others it is done in stages.
For some it is a simple ceremony for others it is a very elaborate affair.
Essentially during the betrothal, the intention to get married is expressed and an agreement to that marriage is secured.
During the betrothal, there may also be an exchange of gifts but this is distinguished from dowry. It is just an exchange of gifts.
2. You have the payment of dowry after the betrothal, for customary law to be valid dowry must be paid and the amount will differ among the communities.
For some, it is a standard rate for others it is the prevailing commercial rate.
For example, among the Taveta they reportedly have a fixed dowry of one cow, three female goats, two bulls and a home for the bride’s father.
For the Kisii, it allegedly depends on how educated the woman is and this determines the rate you pay.
Dowry is also dependant on the families involved where you find that if you marry from prominent families, the likelihood of paying a higher bride-price exists.
Forms of customary law marriages
1. A monogamous marriage
This is a marriage between one man and one woman.
This is whereby a man can celebrate marriage with many women at different times.
3. Leviratic marriages.
This type of marriage arises where the husband predeceases the wife and a relative or brother of the deceased husband assumes the role of the deceased.
Any children born out of this union are regarded as children of the deceased.
This is common among the Meru Kamba Kikuyu Kuria Kisii and Nandi tribes.
4. Sororate Unions
This marriage is where the wife dies before the husband.
Her family may offer her younger sister as a replacement and the younger sister assumes the role of the deceased wife.
This may also arise where the family is unable to return the bride price and offer their daughter as a substitute.
Sorarate unions also take place where a wife is not able to have children and she may invite her sister to come and get married by the husband for the purpose of getting children. This is common among the Luo.
5. Widow inheritance
This is a marriage where the husband predeceases the wife and the wife is inherited by one of the husband’s brothers and for all purposes becomes his wife.
It is different from the Leviratic in the sense that any children born out of that union are regarded as children of the brother and not children of the deceased.
This is common in Luo, Luhya Kalenjin tribes and the Maasai.
6. Woman to Woman marriages
These arise where a woman is barren and she then marries another woman for the sole purpose of having children and those children become the children of the barren woman who is the husband in the relation.
This marriage can take place whether the husband of the barren woman is alive or dead.
If the husband is alive the other woman is allowed to have sexual relations with the husband for the purpose of having children.
Any children out of this relationship will be regarded as the children of the barren woman.
Where the husband is dead she must select a man from the husband’s family or leave the decision to the woman to select whom she wants to have children with.
This is common among the Kisii, Taita, and Kuria tribes.
7. Forcible Marriages
These arise in a family where there are only daughters and the last daughter is not entitled to get married.
She remains at home to beget children especially male children with a man of her choice and these children belong to her father’s family.
This common with Nandis and Kipsigis tribe.
Requirements for registration of a customary marriage
1. Both parties must be present at the office of the Registrar
2. Avail identification documents (original and copies)
3. 1 colored passport photo for each party
4. At the time of registration, the parties must not have entered into either a civil or Christian marriage.
5. The registration of a customary marriage is only applicable to Kenyans who have contracted African customary marriage rites.
6. Fee payable is Ksh 3900.
Steps to register a fresh customary marriage
Parties who wish to contract customary marriages after the commencement date i.e after the operative date of 1st August, 2017, are required to notify the Registrar of the status conferred on them as husband and wife within three (3) months of completion of the relevant customary rites pursuant to the provisions of Section 44 of the Marriage Act, 2014. The process entails:
1. Placing a notice
This is meant to establish:
1. The laws and customs applied
2. Date when the customary marriage was conducted
3. The location at which the customary marriage was conducted
4. Whether the basics were met – parents meetings, payment of dowry/token,
5. Legal Capacity (Age)
6. Consent by both parties to register the customary marriage
7. Existing and previous spouse(s)
2. Issuance of an acknowledgment certificate
The notice runs for 14 days and the Registrar shall upon the expiry of the 14 day notice period, issue the parties with an Acknowledgement Certificate once she is satisfied that there was no impediment/objection raised towards the registration in question.
3. Application for registration of a customary marriage
Parties are expected to apply for registration of the marriage in question within 6 months upon receipt of the Acknowledgement Certificate, in accordance with the provisions of Section 55 (1) of the Marriage Act, 2014.
This is vided a prescribed Form and is accompanied by the Acknowledgement Certificate.
4. Issuance of the customary marriage certificate (Form CM4)
The Registrar shall consider the application by the parties and if satisfied that the same meets the legal requirements, shall proceed to issue the Marriage Certificate.
Steps to register an existing Customary marriage
Parties who were already married prior to the gazette notice are required to register the marriage and be furnished with a marriage certificate. The process is as follows:
1.) Collection of application forms by both parties
Both parties present themselves to the Registrar of Marriages office to be interviewed to establish:
1. Marital and mental capacity
2. The laws and customs applied
3. Date when the customary marriage was conducted
4. Whether the basics were met – parents meetings, payment of dowry, the period the couple has been living
5. Existence of the marriage to be registered
6. Existing and previous spouses
7. Consent by both parties to register the customary marriage
8. Check details on identification documents
2.) Filling of forms and registration
1. Parties to receive the form for filling
2. Attach copies of identification cards (ID) and passport photos
3. Parties to register forms in the customary marriage register before taking the forms to the chief and witnesses for attestation (witnesses and chief to indicate phone numbers on forms, witnesses attesting at this stage must be witnesses who were present during the customary rites)
3.) Return of filled forms
1. State Counsel to confirm whether the forms are filled in correctly
2. Can redo the interview in step one to confirm details
3. Give the approval to pay
4.) Payment of registration fees
1. Pay Ksh3900 at the cash office
2. Parties to fill particulars form (mostly parents details as well as contact details)
5.) Issuance of date
1. State Counsel to issue date according to the diary
6.) Typing of customary marriage certificate
1. Certificate to be typed as per the particulars form filled in step four
7.) Issuance of Marriage Certificate
1. Registrar to issue the marriage certificate
2. Vows not necessary but the parties can be reminded of the tenets of customary law marriages
3. Both parties to be present
4. Two witnesses to attest
8.) Registration/data capture of Marriage
1. To be done as soon as the certificate is issued or in the case of a regional office, certificates to be sent to Nairobi office.
Customary marriage divorce in Kenya
Dissolution of marriage in Kenya can be both judicial or extrajudicial.
Also, before any spouses grant a divorce, elders must try to reconcile the two.
However, if the reconciliation process proves futile, the elders have no choice but disband the marriage union.
Some communities in Kenya are against divorce; hence, this is not an option at all such as Kuria and to some degree the Kisii community also.
1. Extrajudicial divorce
This kind of marriage dissolution become instigated by either the husband, the wife or by the wife’s kin.
In case it’s the man initiating it, he must send his wife away to her parents’ house and inform them of his intention to part ways with their daughter.
If it’s the wife instigating it, then she must voluntarily leave her matrimonial home and return to her parents.
The case of the Wife’s parents initiating the divorce occurs when the husband fails to party the entire full bride price and the parents can go and take their daughter with them.
The return of bride price under customary law signifies divorce; however, much depends on whether the two parties had any kids during their union.
In this case, if the husband keeps the children, then no bride price is due, but if the wife decides to leave with the kids, her family must return part of the bride price that will depend on the total number of kids and their gender.
Also, some communities where the woman remarries, the new husband must compensate the old one the bride price he had paid for her.
For a marriage under customary law to undergo a successful divorce, then the elders must prove beyond any doubt that certain factors that are valid to warrant dissolution.
Some of these factors includes; Witchcraft, excessive physical violence, denying one’s conjugal rights for no apparent reason, wife committing adultery, wilful desertion.
Other include the impotence of the husband, habitual theft, failure of the man to maintain his wife and kids.
2. Judicial divorce
Judicial divorces occur when one of the parties in a marriage union fails to comply with an extrajudicial divorce or when the man refuses the return of bride price our when a woman refuses to leave her marital home.
In such a scenario, all the factors listed in the extrajudicial divorce will proceed used, and under section 9 of the Magistrate Court Act, the court must listen to all claims arising from the marriage then decide on the cases accordingly depending on the rules and regulation prescribed on the Marriage under customary law in Kenya.
Similarly, just like in the extrajudicial divorce, the courts also insist on reconciliation for the two parties which if unsuccessful will hear the case and grant the divorce if contented with the cited reasons for divorce.
Source: Law Query Kenya, Kenya Legal Resources
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