Professional Documents
Culture Documents
Family Law
Strategy:
1. Go through the course outline noting key elements that must be grasped
2. Go through the questions to on past papers to expose your mind to what
is usually tested
3. Go through the relevant statutes noting key provisions anchoring various
topics
4. Go through the articles and case laws sent by Koki to seal any gap left
Synopsis:
The Act is set out in some thirteen parts.
Part Scope
2 General Provisions
3-7 deal with Christian, Civil, Customary, Hindu and Islamic Marriages
respectively
Definition of terms:
Court – means a resident magistrate’s court
Marriage – voluntary union of a man and a woman Sec 3(1)
Child – any individual below the age of eighteen
Equality – both parties to marriage have equal rights all through Sec 3(2)
Note. The trend now is that not all family relationships are created by
marriage ceremonies; e.g. cohabitation and single parents. The law
has developed to recognize some of these relationships.
Blood Relations
10(4)).
Void Marriages (Sec 11(1)) Married parties treated as if there was no marriage
at all –
1. underage,
4. by court order
5. consent parties not been freely given (fraud, coercion, mental disorder,
Voidable Marriage Court has a choice and may void the marriage on the
grounds that–
1. at date of marriage, either party was and has remained incapable of
consummating
2. Recurrent attacks of insanity
1. Each spouse bears same liability in tort to other spouse as if they were
not married
2. Spouses may claim from negligent acts or omissions as well as breach of
14(1)
Agreement to live apart valid and enforceable and must be filed in court
Court can vary or set aside the agreement where circumstances have
of the year
Widow/Widowers
May elect to marry or stay un-married (Section 15)
Duration of Marriage
Marriage to last until
1. death
3. annulment
4. divorce
Christian Marriages
where a party is a Christian (Sec 17)
by a marriage officer, a licensed church minister appointed by the
immediately and
if he considers that the objection requires a further hearing, postpone the
both parties had the capacity to marry, if at the time of the marriage any
party to the marriage was domiciled in Kenya
Civil Marriages
By registrar in place determined by Registrar (Sec 24)
written notice of not less than 21 days or more than three months to Registrar
and person in charge of place of where they intend to marry (Sec 25(1))
Notice to include:
aunt,
4. date and venue of marriage
(Sec 26)
7. objectors to write giving names, relationship and reasons for objecting to
days of hearing
Aggrieved party may appeal to court within seven days
court may hear and determine despite failure of party to appear before it
Certificate of no impediment
Certificate of no impediment where no one objects
so
Before dispensing with notice Registrar to confirm no party is: in a
Kenya
Marriage valid if it was contracted in accordance with the law of the
foreign country, is consistent with the laws of Kenya and the parties had
capacity to marry (Section 40)
Duty to register Marriage
Persons who officiate marriages to deliver copy of marriage certificate to
Registrar
Registrar to enter details of the certificate in the register of marriages
(Sec 46 to 47)
Islamic Marriages
(Sec 48 to 49)
Sec 52
9. may cancel licenses, giving written treasons (Sec 52(5))
10. licenses previously issued to continue as if issued under the Act (Sec
52(6))
Registration of Marriages Sec 53 – Christian marriages a copy of certificate to
be sent to Registrar within fourteen days
Sec 54 – civil marriages record to be sent to Registrar, Registrar to issue
certificate
registration
Registrar to confirm that marriage complies with the law
1. a certificate of marriage;
Kenya
Application to include:
that foreign country witnessing that the decree is effective in that country
Correction of Errors
Sec 63 Registrar, marriage officer or authorised person may correct
details
notify parties of the changes made within a reasonable time
Otherwise may petition court for a dissolution of marriage on the grounds that:
4. exceptional depravity
life or 7+ years)
6. Attempts to reconcile do not matter, a party may still petition for
separation or dissolution
7. Court may refer dispute to a reconciliatory process agreed between the
parties
8. Matrimonial proceedings for the dissolution of a marriage may be
adjourned for a period of not more than six for the court to make further
enquiries or further attempts at reconciliation
Irretrievable breakdown of a marriage
A marriage has irretrievably broken down where (Sec 66(5))
1. a spouse commits adultery
person who takes the parties through the process must file a report in
court
Otherwise party may petition for dissolution citing-
1. adultery;
2. cruelty;
3. desertion
4. exceptional depravity
2. desertion
5. cruelty
Annulment of Marriage
(Parties treated as if they had never been married)
Sec 73
A party to a marriage may petition the court to annul the marriage on the
ground that—
5. a party to the marriage was absent at the time of the celebration of the
marriage;
6. pregnancy at the time of the marriage without the knowledge of the
at the date of the marriage the petitioner was ignorant of the facts alleged
the court.
Sec 74 only one party can ask the court to annul a marriage
Maintenance of Spouse
Sec 77, court may order one to maintain spouse or former spouse
where the person has refused or neglected to provide for the spouse or
former spouse
in case the person has deserted the other spouse or former spouse
herself
Shall automatically lapse on remarriage – Sec 79
spouse
No proceedings may be brought to compel one spouse to cohabit with the
Court may order restitution of conjugal rights where it’s satisfied of the
truth of statements in support and there are no legal grounds why the
application should not be granted Sec 84(3)
Custody and Maintenance of Children
Custody and maintenance of children remains under the Childrens Act and
other law written law relating to children
Criminal Offences
False statement in the notice of intention to marry or notice of objection,
liable to jail for max 2 years or fine max 2 million shillings or to both Sec
86
Marriage to a person under 18 years – liable to jail for max 5 years or fine
5 years or fine max 300,000 Sec 88. Witnesses to such marriages liable
to be charged.
Marrying someone without the person’s consent liable to jail for max 3
max 10,000
Celebrating marriage where one party is below 18 years; a notice of
Secretary
Cabinet Secretary may make rules for celebration of any marriage
Customary marriage – within 3 years (starting 20th May, 2014) (Sec 96(3))
Savings
Ongoing court cases to continue, as far as practicable, in accordance