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Thousands of Kenyan couples in unregistered marriages face significant legal vulnerabilities, particularly concerning property rights, inheritance, and child custody, highlighting an urgent need for formalising unions under the Marriage Act, 2014.
Many Kenyan couples, despite undergoing traditional or religious ceremonies, remain legally invisible, exposing them to substantial risks in the event of separation, death, or disputes over matrimonial property. This legal precariousness stems from the non-registration of their marriages, a requirement explicitly outlined in the Marriage Act, 2014.
The Registrar of Marriages, under the Office of the Attorney-General and Department of Justice, is mandated to register all marriages in Kenya. However, data from the Kenya Demographic and Health Survey 2022 indicates a concerning trend: only 19.3% of married women aged 15 to 49 have registered their marriages with civil authorities, with an even smaller percentage (15.6%) possessing an official marriage certificate. This leaves a vast majority in a legally vulnerable position, often unaware of the full implications until a crisis arises.
Kenya's Marriage Act of 2014 recognises five types of marriages: civil, Christian, Hindu, customary, and Islamic. The Act defines marriage as a voluntary union of a man and a woman, whether monogamous or polygamous, that is registered in accordance with the Act. This legislation marked a significant shift, mandating the registration of all marriages, including customary unions, which were previously often recognised through community rituals alone.
For customary marriages, the law requires parties to notify the Registrar of Marriages within three months of completing the ceremonies or steps necessary to confer marital status according to their community's customs. Failure to register a customary marriage, no matter how long the relationship or how many children are involved, renders the union outside legal protection. A recent court ruling by Principal Magistrate C.N. Ondieki underscored this, stating that an unregistered customary marriage is voidable and cannot be dissolved through a divorce in court, but rather annulled without ramifications like property division.
Despite the legal mandate, several challenges hinder widespread marriage registration. These include low awareness among couples about the legal requirements, particularly the need to register unions within six months. The marriage registration process has also faced bureaucratic hurdles, with reports of backlogs at the Registrar of Marriages offices. While the government is moving services to the eCitizen platform, the process for marriage registration has been partly manual, contributing to delays.
Cost barriers have also been cited as a deterrent, with registration fees potentially prohibitive for some Kenyans. For instance, a civil marriage involves a notice fee of KSh 600, followed by KSh 3,300 for solemnisation and certificate issuance. Special licenses, which bypass the 21-day notice period, cost KSh 9,700.
An unregistered marriage leaves both parties legally exposed, making them invisible to the courts and vulnerable to family disputes. In divorce proceedings, proving the existence of a marriage becomes the initial hurdle before any discussion of property division can commence. A marriage certificate is crucial for determining who can claim insurance benefits, make critical medical decisions, or be recognised as the legal next-of-kin in emergencies.
Without a marriage certificate, couples cannot easily prove their marital status, leaving them vulnerable to the common law presumption of marriage, which requires specific parameters to be met, such as long-term cohabitation and mutual intent to marry. This legal ambiguity can lead to lengthy and costly court battles, particularly concerning property rights and inheritance.
The government is actively working to address these challenges through digitisation efforts, including online application and payment via the eCitizen platform. Plans are also underway for mobile registration units and the issuance of digital certificates to streamline the process and improve transparency. The Ministry of Interior and National Administration's State Department for Immigration and Citizen Services is expanding registration offices to all 290 constituencies to enhance access to vital registration services.
Public awareness campaigns are crucial to educate citizens on the importance of marriage registration and the legal protections it offers. As marriage rates among Kenyan women have declined and divorce rates have risen, the need for robust legal recognition of unions becomes even more critical for national policies on family and social services.
The full digitisation of marriage registration services and the expansion of registration offices across all constituencies are key developments to monitor. The effectiveness of public awareness campaigns in encouraging more couples to register their unions will also be critical in mitigating the legal risks associated with unregistered marriages. Further legal reforms to address gaps in customary marriage registration are also anticipated.
