Time Limits On Annulment Of A Marriage Declared Unconstitutional; Kenya Law

The annulment of a marriage is a legal procedure that voids a marriage and declares it null from its inception. Unlike divorce, the effect of declaring a marriage void is retroactive, meaning that the marriage did not exist at the time it was entered into. Did you know that; Section 73 (1) of the Marriage Act, 2014 provides that a party to a marriage may petition the court to annul the marriage on any of the following grounds: -

1. The marriage has not been consummated since its celebration.
2. At the time of the marriage and without the knowledge of either party, the parties were in a forbidden relationship.
3. In the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person.
4. The Petitioner’s consent was not freely given.
5. A party to the marriage was absent at the time of the celebration of the marriage.
6. At the time of the marriage and without the knowledge of the husband, the wife is pregnant, and the husband is not responsible for the pregnancy; or
7. At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity. 

Further Section 73 (2) of the Marriage Act 2014 restricted the filing of such application to before the lapse of one year from the date of marriage. Accordingly, annulments have been a preserve of marriages under 1 year despite the existence of legitimate grounds to have the marriage annulled.

Recent developments in the law

On 19^th October 2022, the High Court, sitting in Eldoret in Constitutional Petition No. 21 of 2021 Susan Bithe Matuku, FIDA Kenya Vs. The Hon. Attorney General (Judgment) declared that Section 73 (2) (a) of the Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional.

What is the essence of this declaration?

1. A void marriage does not have any legal effect to the parties to the marriage and they cannot enjoy the rights under Article 43 of the Constitution.
2. Any party who finds out the factors that renders the marriage void, has a right to get a decree for annulment of the marriage at the time that the discovery was made.
3. The violation of fundamental rights and subsequent deprivation of the right to equality in Article 27, Freedom of Conscience in Article 32 and access to courts in Article 48 of the Constitution of Kenya.
4. Parties should not be forced/made to remain in marriages or dissolve a marriage that was based on misrepresentation and fraud as it is a further violation of their rights.

What is the implication of such a declaration on parties that have been married beyond 1 year?

The expansion for the period within which one can apply for the annulment of the marriage raises questions on how to handle a matter where there has been longevity and investment in the course of the marriage e.g. acquisition of marital assets and liabilities. The courts would need to grapple with whether they can be considered marital assets and liabilities if the marriage that was the foundation for such investments and commitments has been declared as one that was never in existence. This calls for a lot of thought for parties that may be considering annulling their marriages. Is recognition of the marriage and dissolution of the same better than a declaration that the marriage never existed? It is important to consult with your advocate when making this decision.

Is the marriage Void or Voidable?

A void marriage is one that is contrary to the laws of the country where the marriage was officiated. It is therefore non-existent by operation of the law. Conversely, a voidable marriage is a marriage that is missing one or more elements that makeup marriage provided under Section 12 of the Marriage Act, 2014. In such a case, the couple has the option of cancelling the marriage through annulment.

Difference between an annulment of marriage and a divorce

A divorce recognizes that a valid marriage existed but the same is dissolved/ terminated in law due to various challenges faced by the parties in the marriage. An annulment on the other hand means that in the eyes of the law, the marriage never took place or existed.Please click here to download the alert.

How can we help?

The Wealth & Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters of family law including but not limited to Children matters, Adoptions and Guardianships, Succession & Probate Matters, and Divorce/ Separation/ Annulment and Matrimonial Property Matters spanning across the East African Region and other International Regions. We are practical and innovative in our approach and offer quick turnaround timelines. We offer an edge to our clients based on our legacy of having handled various delicate family matters over the years and therefore are well capable of guiding you through any matter dealing with Family disputes.

Contact Persons & Contributors

Dianah M. Gichuru –Partner & Head of Unit Nelima Walubengo- Senior Associate