Family Law

December 5, 2011 | posted in: Law Insights | by

Family law is the branch of the law that deals with all family related issues and domestic co-relations.

Family law deals with the various issues that occur within a family set up ranging from the union of marriage, to juvenile issues.

Family Law and Marriage

In Kenyan Family Law, there are two main categories of marriage Statutory and customary. Types of statutory marriages include;

  • Civil Marriages

This marriage is based on law and may be conducted at the registrar of marriages at the attorney general chambers. It can also take place at the District commissioner’s office. Civil marriages are monogamous unions (marriage Act chapter 150)

The procedures involved in civil marriages include the parties going to the registrar of marriages (R.O.M) or the DC’s office to state their intention to get married. The DC or R.O.M issue a notice and displays it outside the office door. Anyone with any objection to the marriage should inform the DC or R.O.M in writing within 21 days.

After 21 days the DC or R.O.M issues a certificate allowing the marriage.

Within three months of the notice, the ceremony is conducted by the DC or R.O.M with two witnesses present. A marriage certificate is then issued upon payment of a fee.

  • Christian Marriages

This is a monogamous union and is governed by the African Christian Marriage and Divorce Act. Chapter 151

It is conducted by a church minister after the following due process has been followed.

The parties go to the church and inform the priest/pastor that they want to get married and their application is written and kept in a church register.

The intention to get married is announced on three occasions in Church and anyone who objects to the marriage should tell the priest/pastor.

After 21 days the marriage ceremony can be conducted by the priest/pastor, and must be witnessed by two persons.

The newly wed couple is given a marriage certificate.

However, the couple must not be blood relatives and cannot marry anyone else. Bigamy is a criminal offence and is punishable with a jail sentence of up to five years.

  • Islamic and Hindu marriages

Governed by Islamic and Hindu laws, these kinds of marriages are legally valid as a certificate of marriage is issued. Polygamy is allowed under the Islamic law but not under the Hindu laws.

  • Customary marriages

These kinds of marriages are governed by the customs and traditions of the different communities in Kenya.

Polygamy in customary marriages is allowed but only upon consent by the first wife and if only he has the ability to maintain and support each wife and their children.

A customary marriage can be converted into a statutory marriage under the African Christian Marriage and Divorce Act, by following the procedures set out by that act.

However if the man is married to more than one woman, the other wives can object to this, as it would make their marriages legally invalid. If there is any conflict between customary law and statutory law, statutory law overrules customary law.

There is one other kind of marriage that has only recently been recognized as a type of marriage under Kenyan law. It is widely known as the come we stay marriage and involves a couple living together and possibly having children for a certain period of time.

This kind of marriage is legally unsafe and it can be time consuming and expensive to get the court to recognize them in any eventuality.

The courts normally make a presumption of marriage if the couple lives together in one household for some time, have children and are not legally married to someone else.

However it is important to note that if a man gets a woman pregnant, the court will not automatically presume a marriage. The court will still consider the length of their relationship and whether the couple has shared a household before deciding that there is a marriage.

An affidavit signed by the two parties stating that they are married is not a marriage certificate, and is not by its self legal proof of marriage.

If you are married under the customary and come we stay types of marriages you are advised to do so as statutory marriages lock out polygamy and are recognized above any other types of marriages in Kenya.

For more information on family law or if you need to hire a lawyer , contact us.


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