Customary marriages form a significant part of Kenya’s socio-cultural fabric that reflect the diverse traditions and practices of the Country’s ethnic communities. Despite modernization and legal reforms, many Kenyans continue to marry under customary law, making it a vital area of legal and social interest.
What is a Customary Marriage?
A customary marriage is one that is contracted in accordance with the customs of the communities of one or both of the parties to a marriage. It is recognised as a type of marriage under the Marriage Act 2014, which consolidated all previous laws relating to marriage and formally recognized five types of marriages in Kenya. Other types of marriages under the Act are:
Civil marriages
Christian marriages
Hindu marriages
Islamic marriages
Customary marriages are considered valid so long as they adhere to the customs of the respective community and comply with certain statutory requirements.
Features of Customary Marriages
Community-Specific Practices:
The law provided that customary marriages shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage Each Kenyan community has distinct marriage customs. These may include traditional rites, dowry negotiations, and family involvement. For instance, the Kikuyu community involves the ruracio (bride price) ceremony, while among the Luo, the Ayie ceremony is central.
Recognition Under Law:
For a customary marriage to be legally recognized under the Marriage Act, 2014, it must be:
Between two persons who have consented to marry each other;
Conducted in accordance with the customs of one or both communities;
Not contrary to the Constitution or written law.
Within 3 months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned, the parties to the marriage shall notify the Register of their marriage.
The notice shall:
Specify the type of customary law applied in their marriage
Have a written declaration by the parties, that the necessary customary requirements to prove the marriage have been undertaken. This declaration has to be signed by two adult witnesses who must have played a key cultural role in the marriage celebration.
Polygamy:
Customary law permits polygamous unions, unlike civil or Christian marriages which are monogamous. A man may marry multiple wives under customary law, provided the marriage contract allows it.
Registration:
The Marriage Act encourages registration of customary marriages within 6 months of the marriage. Both parties are required to appear in person before the registrar to be issued with a marriage certificate which becomes proof of marriage.
While failure to register does not invalidate the marriage, registration provides legal clarity and is particularly important in matters of succession, property ownership, and child custody.
Legal Implications of Customary Marriages
Succession Rights:
Customary marriages have implications on inheritance. A legally recognized customary wife and her children are entitled to inherit from the husband’s estate under the Law of Succession Act.
Property Rights:
Spouses in a customary marriage may acquire joint or individual rights to matrimonial property. The Matrimonial Property Act, 2013 provides a legal framework for ownership and distribution upon dissolution or death.
Divorce and Separation:
While some communities have traditional mechanisms for resolving disputes and dissolving marriages, the Marriage Act provides that a party to a customary marriage may petition for divorce on grounds such as cruelty, desertion, or adultery. However, the law also encourages the use of community dispute resolution before litigation.
Challenges and Controversies
Ambiguity in Customary Practices: The absence of codified customs can create inconsistencies and disputes, especially where inter-community marriages are concerned.
Proof of Marriage: Where a marriage is not registered or formally documented, proving its existence in court can be difficult, especially in cases involving succession or divorce. This leaves the parties vulnerable to the common law presumption of marriage as it was the case in the matter of JTO v AP [2024] KEHC 10464 (KLR).
Conclusion
With the recognition and integration of customary law into the statutory legal framework, there is a growing effort to harmonize tradition with modern legal principles. However, challenges remain in ensuring that such marriages are conducted and regulated in a manner that respects both culture and constitutional values such as equality and non-discrimination. As Kenya progresses, the need to document, register, and legally structure customary marriages becomes ever more crucial. Couples should recognize the significance of registering their marriages to ensure legal recognition and protection through increased awareness. This will ensure protection of the rights of the parties involved and uphold the cultural heritage of its people.
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