Is My Customary Marriage Voidable? A Case Study Of The Kaitany Vs. Linturi Divorce Case

Preamble 

 A customary marriage is one that is conducted in accordance with the customs of communities of either both or one of the parties to the marriage. 

Registration of customary marriages in Kenya is governed by the Marriage (Customary Marriage) Rules, 2017. Under these Rules, all customary marriages are to be registered effective 1st August 2017. This applies to customary marriages existing before 1st August 2017 and new customary marriages conducted after 1st August 2017. 

What is the nature of customary marriages? 

The Marriage Act 2014 as read with the Marriage (Customary Marriage) Rules 2017 provides that a marriage celebrated under Customary & Islamic laws is presumed to be polygamous or potentially polygamous. 

It is important to note that Christian, Civil & Hindu marriages are monogamous in nature. This basically means that a person in a marriage conducted in either Christian, Civil or Hindu provisions cannot contract another marriage unless such current marriage is dissolved. 

On the other side of the coin, persons in a polygamous or potentially polygamous marriage cannot contract another marriage whose form is monogamous i.e. Christian, Civil or Hindu until and unless the polygamous marriage has been dissolved. 

What happens to parties who got married under Customary laws with the intention of having a monogamous union? 

Of interesting note is that some persons get married under customary law with the intention of having a monogamous union, for these people, there is hope! 

The law provides such persons with the option of converting their potentially polygamous marriage to a monogamous marriage so long as each spouse declares such intent. 

For this conversion to take place, the husband has to have only one wife. The husband and wife will then make the declaration to convert their potentially polygamous marriage to a monogamous one in the presence of a marriage officer which declaration will be recorded in writing and signed by each spouse. 

Where such declaration is made, the Registrar takes possession of the Certificate registering the marriage as potentially polygamous and issues a Certificate registering the marriage as monogamous. 

Can I prove my customary marriage if I have not registered the same? 

The ideal situation is to have all marriages in Kenya registered as a Marriage Certificate is best proof of such allegation/assertion. The reality, however, is that there are couples who have long cohabitation without formalizing their union in any way and some have conducted their marriages under customary laws and have not registered them. 

The question arises whether such allegations/assertions are to be dismissed or whether the parties have a chance to prove their assertion that they are married. The courts have over time grapples with these questions. 

We look at some of the landmark decisions that guide when this question arises with the following pointers. 

1. The existence of a Customary marriage is a matter of fact to be proved through evidence. 

In the case of Hortensiah Wanjiku Yawe vs. The Public Trustee, Civil Appeal No. 13 of 1976, the court held:- 

“The onus of proving customary law marriage is generally on the party who claims it. The standard of proof if the one usually for a civil action namely “on the balance of probabilities.” Evidence as to the formalities required for a customary law marriage must be proved to that standard. Long cohabitation as a man and wife gives rise to a presumption of marriage in favour of the person asserting it. Only congent evidence to the contrary can rebut the presumption. If specific ceremonies and rituals are not fully accomplished this does not invalidate such a marriage.” 

2. What happens when parties did not undertake all customs required by their community? 

It is a fact that customs and traditions evolve over time. Some marriage ceremonies or functions that were conducted in yester years no longer take place in today’s society. What does this mean for persons who have conducted their customary marriage with the ceremonies of the current times.  

The courts have dealt with these questions as we shall see in the Case law below; In the case of Kimani vs. Gikanga (1965) EA. 735 the former Court of Appeal for East Africa held as follows; 

“…where customary law is neither notorious or documented it must be established for the court’s guidance by the party intending to rely on it and also that as a matter of practice and convenience in civil cases the relevant customary laws if it is applicable of being judicially notices, should be proved by evidence or expert opinions adduced by the parties.” 

In the case of Mary Wanjiru Githatu vs. Esther Eanjiru Kiarie (Court of Appeal sitting in Eldoret in Civil Appeal No. 20 of 2009), the court stated as follows: - 

“It is important to observe that customary law marriages have some important ingredients without which they cannot possibly qualify as such. The ingredients are essential in the making of a customary law marriage. A customary law marriage is a covenant of marriage sealed by the necessary customary ingredients and for the Kikuyu these ingredients are well known and documented. If the courts were to fail to take this into account, they would be giving recognition to the “come we stay” marriages which are neither customary nor statutory.” 

In the case of Eliud Maina Mwangi vs. Margaret Wanjiru Gachangi (2013) eKLR, Nambuye Karanja & M’inoti JJ. A took note of the evolutionary nature of customary law and stated as follows; 

“Customary law is certainly not static. Like all other human inventions, it is dynamic and keeps evolving from generation to generation. Customary ceremonies cannot therefore be expected to be conducted in 2013 in exactly the same way that they were conducted in, say, 1930. To insist on rigid customary ceremonies at all times is the surest way of rendering customary law obsolete. For example, essential steps likek payment of dowry may be satisfied by payment of the monetary equivalent as such items as goats and cows instead of delivery to the prospective in-laws every item in kind, such as beer, honey, live goats and cows. The bottom line appears to be that the essential steps and ceremonies must be performed, irrespective of the form in which they are performed.” 

3. What happens where the Customary marriage was conducted using only the customs of one of the parties? Does this suffice as a recognizable customary marriage? What if there was only part payment of dowry? 

 Section 43 of the Marriage Act 2014 provides that a Customary marriage is to be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage and that where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage. 

 In the case of Hellen Omwoyo vs. David Ouma Gor (2017) eKLR H.A Omondi J opined as follows; 

“The above provision is clear that both or any customary marriage requirement of either culture is applicable. It further provides that token amount of dowry shall suffice to prove customary marriage.” 

 4. Can a person conduct a marriage under customary law if they are already married under a Christian, Civil or Hindu marriage? 

 Section 11 (c) of the Marriage Act 2014 provides that a union if at the time of the making of the union either party is incompetent to marry by reason of a subsisting marriage. 

Any marriage conducted after one of the parties is married under a Christian, civil or Hindu marriage and before such marriage is dissolved, such subsequent marriage is void/ not valid or legally binding. 

In the case of Re Estate of Lihasi Bidali (Deceased) (2019) eKLR, the court stated as follows: - 

“Under the marriage statutes a man who had contracted a previous statutory monogamous marriage, such as a Christian marriage, has no capacity to contract another marriage, under any system of marriage, during the pendency of the previous statutory monogamous marriage. If he does contract any other marriage despite pendency of the statutory monogamous marriage, that other marriage would not be valid or recognized in law so long as the man is alive.” 

5. Could a presumption of marriage arise where parties did not fully conclude the Customary marriage requirements and one of them is married under a Christian, Civil or Hindu marriage? 

  From the above, it is clear to note that parties may have conducted what they presumed to be a customary marriage but have failed to meet the evidentiary proof required on a balance of probabilities. 

In such a case, one may be tempted to ask the court to find that a presumption of marriage arises based on long cohabitation and the parties’ presentation of themselves as married to society. This is of course to be determined on a case-by-case basis. 

The question then arises where a presumption of marriage is ought and one of the parties to the alleged marriage is already a part of monogamous marriage (Christian, Civil or Hindu). The courts have considered this question as hereunder; 

In the case of Mary Wanjiku Githatu vs. Esther Wanjiru Kiarie (2010) eKLR, Bosire JA., summarized the position as thus: - 

 “The existence or otherwise of a marriage is a question of fact. Likewise, whether a marriage can be presumed is a matter of fact. It is not dependant on any system of law except whereby reason of a written law it is excluded. For instance, a marriage cannot be presumed in favour of any party in a relationship in which one of them is married under statute.” 

From the foregoing, it is essential that parties register their customary marriages. Having the marriage certificate is the best evidence of allegation or assertion of existence of such marriage. It is equally important for parties to note that they cannot claim to have undertaken a Customary marriage where one of them or both parties lack capacity and specifically have already contracted a monogamous marriage which has not been dissolved. 

Registration of Customary Marriages 

Marriages conducted before 1st August 2017 

1. The parties are required to apply for the registration on the e-filing platform. There is need to input the bride and bridegroom details plus their parents details as per the online form and attach the following documents; 

• Copy of National Identity card or Valid Passport. 
• Colored passport size photograph-one each 
• At the time of the registration, the parties MUST NOT have entered into either a Civil or Christian Marriage. 
• After submission of the online application, both parties are to book an appointment on the online platform and appear before the Registrar of marriages for submission of original documents and interview within 7 days.
• Upon approval, the applicants will make a payment of Kshs. 3, 900 fee on the online platform. 
• The Registrar will thereafter issue the Customary Marriage Certificate. 

  Marriages conducted after 1st August 2017 

2. The parties are required to apply for registration on the e-filing platform. There is a need to input the bride and bridegroom details plus their parents’ details as per the online form and attach the following documents; 

• Copy of National Identity card or Valid Passport. 
• Copy of National Identity card of witnesses who were present at the time of the ceremony. 
• Coloured passport size photograph-one each. 
• Letter from the chief confirming that the customary marriage took place. 
• At the time of the registration, the parties MUST NOT have entered into either a Civil or Christian Marriage. 
• After submission of the online application, the notice to is be displayed for 14 days. 
• After the lapse of 14 days, both parties are required to book an appointment on the online platform and appear before the Registrar of Marriages for submission of original documents and interview. 
• Upon approval, the applicants will make a payment of Kshs. 3, 900 fee on the online platform. 
• The Registrar will thereafter issue the Customary Marriage Certificate within 14 days from the date of payment. 

N.B: 

• Parties are to place a notice within 3 months after completion of the necessary steps to confer husband and wife status. 
• Registration must be done within 6 months from the date of marriage. 

  How can we help? 

The Wealth & Private Management 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 assisting with your Customary Marriage Registration issues and related legal advisory. If you require such help. Please contact us on email at privatewealthlawyers@cmadvocates.com

We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas.