Registration Of A Marriage Between A Kenyan Citizen And A Foreign National

Introduction:

The Marriage Act, 2014 laws of Kenya (the “Act”) consolidated all the laws on marriage and divorce in Kenya. It recognizes five types of marriages namely Christian marriages, civil marriages, customary marriages, Hindu marriages and Islamic marriages. Section 22 of the Act provides for recognition of marriages celebrated outside Kenya in so long as they are conducted between competent individuals and in accordance with the laws of the country where the marriage was celebrated. Foreigners, just like Kenyan citizens can contract valid marriages under the Act provided that they are of competent capacity, are not party to a subsisting marriage and have met all the prescribed requirements under the Act.

Frequently Asked Questions.

What are the requirements for registration of a Marriage between a Kenyan Citizen and a Foreigner? The first requirement is to obtain a Special License under section 33 of the Act. The application is made online on the E-citizen account of either party to the marriage. Take note that only Kenyan citizens and foreigners who are residents in the country and hold valid alien IDs qualify to open an E-citizen account. The application for the special license should be made within fourteen days to the date of the marriage. What are the requirements for obtaining a Special License under section 33 of the Act? The requirements for procuring a special license differ between the Kenyan citizen and the foreigner as follows:- Kenyan Citizen:-

1. Copy of National Identity Card or valid Passport or Valid Alien Card for refugees;
2. Copy of Birth Certificate;
3. Coloured passport-size photo –one of each applicant;
4. Duly sworn affidavit as proof of no existing marriage (swear separate affidavits if not married or joint affidavit if married under customary law);
5. Copy of Death Certificate (if widow or widower);
6. Copy of Divorce Decree Absolute (If the partner had been married before and divorced); and
7. A sworn affidavit to confirm marital status in the event that the Divorce Decree or Death Certificate is more than 2 years old.

Foreign national:-

1. Create a visitors E-citizen account;
2. Copy of valid Passport;
3. Copy of Birth Certificate;
4. 1 Coloured passport-size photo;
5. A Certificate of No Impediment to Marriage from the foreigner’s country of nationality to provide proof of no other existing
6. Copy of Death Certificate (if widow or widower)
7. Copy of Divorce Decree Absolute (If the partner had been married before and divorced);
8. A Certificate of No Impediment to Marriage indicating the current marital status in the event that the Divorce Decree or Death Certificate is more than 2 years old;
9. Air ticket and visa or work permit for those working in the country;
10. Copy of license of the Minister of Faith

What are the next steps after applying for the Special License? After submission of the application, both parties should book an appointment on E-citizen and appear before the Registrar for submission and verification of original documents and an interview. Upon successful completion of the interview, in the case of civil marriages, the parties will be required to pay a fee of Kshs. 9700/= on the online platform if the wedding is to take place at the Registrar’s Office or a fee of Kshs. 16,700/= if the wedding is to be conducted at a venue outside of the Registrar’s office. In the case of Christian and Hindu marriages, parties will be required to pay a fee of Kshs 7,200/= on the online platform if the wedding is to be conducted at a licensed place of worship or Kshs. 14,200/= if the wedding is to be conducted outside of a licensed place of worship. The next step after payment is for the parties to book the date of solemnization of marriage. Can a Kenyan Citizen and a Foreigner marry under Customary Law? The Act provides that a customary marriage may be lawfully contracted in accordance with the customs and practices of one or both parties to an intended marriage. The interpretation and implementation of this section by the Office of the Attorney General has been to the exclusion of a customary marriage between a Kenyan citizen and a foreigner. It is argued that while customary marriages are presumed to be polygamous or potentially polygamous; most foreign jurisdictions do not recognize polygamy. Secondly, it has been indicated that at the time of contracting a customary marriage, there is no way to confirm the marital status of the foreign national (as in the case of a civil, Hindu or Christian marriage where the foreigner must obtain a certificate of no impediment) who could be in a monogamous marriage and render the Kenyan customary marriage void. Several other reasons have been advanced for the refusal to register a customary marriage between a Kenyan citizen and a foreign national among them that a customary marriage is only possible if the parties thereto hail form one of the communities in Kenya where their practices and customs are verifiable. Does the law in Kenya recognize foreign marriages? A foreign marriage is recognized in Kenya provided that it was celebrated in accordance with the laws of the foreign jurisdiction in play, the parties thereto had capacity in accordance with the laws of the foreign jurisdiction or if at the time of the marriage either party was domiciled in Kenya. In addition, both Christian and Civil marriages celebrated at the Kenyan embassies, high commissions and consulates shall be registered under the Kenyan Laws subject to the provisions of section 23, 37 and 38 of the Act. What shall be the residency status of Foreigner who wishes to reside in Kenya after the celebration of the marriage? Well upon marrying a foreign national who wishes to reside in Kenya, it would be imperative for one to procure the suitable immigration residency status. It is an offence under section 53(m) of the Kenya Immigration and Citizenship Act, 2011 for a foreigner to continue to reside in Kenya and particularly engage in any form of business or employment without procuring the right residence permit. The following are the key Immigration documents that the Foreigner who wishes to reside in Kenya can procure: - Kenya Dependent’s Pass (KDP) – Mainly applicable to the female spouse married to a Kenyan and who shall not engage in any form of business or employment. It is important to note that it is an offence to engage in any form of employment or business while under KDP. Work Permits – if one wishes to engage in investment, employment, or prescribed profession one should endeavor to obtain the right work permit. Permanent Residency – This shall be applicable at least after three (3) years of continuous marriage. It is also essential to note that in respect of male spouses, in addition to proof of marriage, they should at least be holders of valid work permits. Citizenship by Marriage – This is applicable after at least seven (7) years of continuous marriage. It is also essential to note that in respect to male spouses in addition to proof of marriage they should at least be holders of valid work permits. What is the Immigration/Citizenship Status of Children born as a result of marriage between a Kenyan Citizen and a Foreigner? Children born to such parties shall automatically be Kenyan Citizen by birth pursuant to the provisions of Article 14(1&2) Constitution of Kenya 2010. Can one lose Citizenship or Permanent Residence acquired by marriage upon dissolution of the Marriage? No, citizenship and permanent residence by marriage is not invalidated upon dissolution of the marriage. The Constitution of Kenya 2010 under section 13(3) states Citizenship is not lost through marriage or the dissolution of marriage. The same applies to permanent residence status acquired through marriage.

Conclusion

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