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Fork Chronicles: Family Law CAT Preparation

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

1 Part one is Preliminary

2 General Provisions

3-7 deal with Christian, Civil, Customary, Hindu and Islamic Marriages
respectively

8-9 Appointments of Registrar’s and Registration of Marriages

10-12 Matrimonial Disputes and Proceedings, Rights of Action and


Maintenance of Spouses

13 Offences and Penalties and Miscellaneous provisions

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)

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Age – A person must be 18 years to marry Sec 4


Faith – any association of a religious nature or any denomination, sect or
school where such exist under a religion
Hindu – a Hindu by religion, a Buddhist of Indian origin or a Jain or Sikh by
religion
Matrimonial proceedings – include proceedings for maintenance or custody of
children instituted independently of a petition for declaration, annulment,
separation or divorce
Witnesses – Any marriage must have 2 witnesses present (Sec 5(1)) excluding
Pastor, Sheikh or Director or the person who officiates the marriage (Sec 5(3)).
Recognition – Christian, civil, customary, Hindu, Islamic marriages recognized
and must be registered (Sec 6(1)).
Monogamy – Christian, Hindu or civil marriages are monogamous (Sec 6(2)
-A person in a monogamous marriage shall not contract another marriage (Sec
9(a))
Polygamy– Islamic and customary marriages are presumed to be polygamous
or potentially polygamous (Sec 6(3)
- A person in a polygamous marriage shall not contract another, monogamous
marriage (Sec 9(b)
Conversion – marriage can be converted from potentially polygamous to
monogamous if both spouses voluntarily agree (Sec 8(1))
1. Husband must have only one wife at the time to convert to monogamy

2. declaration witnessed by marriage officer and signed by the couple

3. New certificate to converted couples

Subsisting Marriages – No one in a monogamous marriage can contract


another marriage. No one in a polygamous marriage can contract a
monogamous marriage (Sec 9).
Family

The family is registered because it serves a number of purposes in society.

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1. It is the basic component of a society organisation; Article 16 of the


Universal Declaration of Human Rights and Article 45 of our
Constitution.
2. It is the basic economic unit of society that and most productive
activities take place within the family set up .
3. The family setup provides for a framework for the parties to have
satisfactory sexual expression.
4. It guarantees perpetuation of society through the bearing of offspring.
5. It provides a framework for companionship between the members of
that family.

THE OBJECTS OF FAMILY LAW

1. It seeks to define status between the parties in that family i.e. it


defines what rights a member of the family can claim over the other or
over the others property. It discusses altering the status of parties in
the family.
2. A remedial role; that is it serves to protect certain weaker members of
that family e.g. children. On termination of a family relationship
there are certain members who may need protection especially
economic protection.

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

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1. prohibited marriage relationship – aunts, cousins, nephews, uncles,

parents, sisters, brothers;


2. grandparent, child, or grandchild of spouses or former spouse

3. a person one has adopted or by whom adopted

4. marriages prohibited by customary law

5. half-blood is a bar to marriage

6. Marriage amongst cousins professing Islamic faith not forbidden (Sec

10(4)).
Void Marriages (Sec 11(1)) Married parties treated as if there was no marriage
at all –
1. underage,

2. parties are within the prohibited marriage relationship;

3. either party is already married;

4. by court order

5. consent parties not been freely given (fraud, coercion, mental disorder,

influence of drugs, intoxication);


6. either party is absent from the ceremony;

7. parties permit knowingly and willfully permitted an unqualified person to

celebrate the union;


8. parties are mistaken about the identity of the other party; or

9. parties enter the marriage for fraudulent purposes.

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

3. No notice was given

4. Notice of objection not yet withdrawn

5. Unlicensed person officiated

6. Failure to register the marriage

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Spouses and the law of tort


A spouse not ordinarily liable for the tort (civil wrongs) of the other spouse

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

duty which causes loss of companionship


I need a break (Sec 14)
 Parties to civil marriages (only) can agree to live apart for one year (Sec

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

changed materially since signing


 Parties may apply for court to determine status of the marriage at expiry

of the year
Widow/Widowers
May elect to marry or stay un-married (Section 15)
Duration of Marriage
Marriage to last until

1. death

2. court declares the presumption of death of a spouse

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

Registrar (Sec 18)


 a person who knows of impediment to intended marriage may give

a written notice of objection to person in charge of the public place of


worship where marriage notice has been posted (Sec 19)

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 written notice to include the name of the objector, relationship with

either party and reasons for objection to the marriage


 Objectors may withdraw the notice at any time in writing

 Person in charge of public place of worship to hear the objection

immediately and
 if he considers that the objection requires a further hearing, postpone the

marriage ceremony until the objection is determined in accordance with


church regulations
 objection must be determined within reasonable period, not more than

seven days after hearing the objection


 report to parties and Registrars on process used to determine objection

within seven days


 Any dissatisfied party to appeal to court within fourteen days

Marriage Certificate (Sec 21)


 3 copies each signed by officiating person, parties and the two witnesses

 copies to the parties, official retain one and another to Director

Recognition of foreign marriages as Christian marriages in Kenya


marriages celebrated outside Kenya may be recognized as a christian marriage
in Kenya if
 it was contracted according to the laws of the country of celebration and
is consistent with provisions on christian marriages under the Act
 at time of marriage, parties had capacity to marry under law of country
where marriage was celebrated or
 both parties had the capacity to marry, if at the time of the marriage any
party to the marriage was domiciled in Kenya Christian marriages at
embassies, high commissions or consulate in Kenya
 Marriages at the embassy, high commission or consulate of a foreign
country in Kenya is a christian marriage where–
 it’s in accordance with that foreign country’s law on christian marriages
 parties had capacity to marry under that foreign country’s law or

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 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:

1. names, age and residence of intended parties

2. names (if known and alive) of parents plus residence

3. declaration parties not in a prohibited relationship e.g. cousins, nephew,

aunt,
4. date and venue of marriage

5. Marital status of each party : if divorced, copy of decree and if widowed,

copy of death certificate of former spouse (Sec 25(2))


6. Registrar to publish notice of intention to marry at the proposed venue

(Sec 26)
7. objectors to write giving names, relationship and reasons for objecting to

Registrar or person in charge of venue


8. Objector may withdraw notice in writing, at any time

Obligation of person a person in charge of the venue of a civil marriage in


cases of objections
1. Person in charge of venue to hear the objection immediately and

2. if he considers that the objection requires a further hearing, postpone the

marriage ceremony until the objection is determined in accordance with


the Regulations
3. objection must be determined within reasonable period, not more than

seven days after hearing the objection


4. report to parties and Registrars within seven on process used to

determine objection days


5. Any dissatisfied party to appeal to court within fourteen days

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6. director to notify officiating person not to proceed, summon parties, and

hear within seven days


Determination of objection by the Registrar
 Similar process on written objection

 Hearing within seven days of receipt and determination within seven

days of hearing
 Aggrieved party may appeal to court within seven days

 baseless or fraudulent objectors risk fine of 1M or 5 years in jail term

Staying effect of appeals (Sec 30)


No marriage until appeal from Registrar’s decision has been heard and
determined
Expeditious disposal
 Court to hear and determine appeals expeditiously

 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

 Kenyans wishing to marry in foreign countries where a certificate of

impediment’s required to apply to Registrar


Registrar’s power to dispense with notice
 Registrar may dispense with notice where there is sufficient reason to do

so
 Before dispensing with notice Registrar to confirm no party is: in a

prohibited relationship; below age; in another marriage


Contraction of civil marriages
 Registrar to complete and sign a marriage certificate

 cause parties plus witnesses to sign,

 give two copies of certificate to parties, retain the third

Civil marriages at Kenyan embassies, high commissions or consulates by


Kenyan citizens/non-citizens (Sect 37 to 40)

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 Kenyan citizens/Non-citizens may celebrate marriages in Kenyan


missions in foreign countries in presence of the Registrar or his delegate
 Marriage abroad valid in Kenya if the parties had capacity to marry in

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

 Failure to register a marriage liable to fine not exceeding five thousand

shillings or to a community service order


Customary Marriages
 according to customs of communities of one or both parties Sec 43
 where dowry required, payment of a token amount’s sufficient to prove
marriage
 parties MUSTnotify Registrar within 3 months of completing steps
required to complete marriage as per the community (Sec 44)
 Notice must specify customary law applied and declare that the
necessary customary requirements completed (Sec 45) and
 contain a declaration by the two parties that necessary customary
requirements have been undertaken
 The declaration to contain signatures or personal marks of two adult
witnesses who played crucial cultural roles in the marriage
 Notification to confirm, Sec 44(3)

 Both parties 18 years old at time of marriage


 Marriage between person outside prohibited relationships
 Both parties freely consent
Hindu Marriages

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(Sec 46 to 47)

 persons professing Hindu faith

 persons authorised by Registrar in accordance with Hindu rituals

 person officiating to deliver record to Registrar

Islamic Marriages
(Sec 48 to 49)

 persons who profess Islamic faith

 Kadhi, sheikh, Imam authorised by Registrar to officiate

 record of marriage delivered to Registrar

Appointment of Registrar and Marriage officers


(Sec 50)

The Registrar of Marriages, appointed by the Cabinet Secretary shall-

1. perform civil marriages

2. register all marriages

3. issue marriage certificates for all registered marriages

4. certificates of no impediment where no objection to marriage

5. determine rules governing customary marriages

6. may appoint marriage officers at national, county levels

7. diplomatic staff of Kenya to celebrate civil marriages abroad (Sec 51)

8. ministers of faith as marriage officers according to traditions of their faith

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

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Sec 55 – Customary marriages


 within 6 months of completing rituals, both to apply to, and appear
before, Registrar for a certificate
 Registrar to register marriage and issue certificate where he is satisfied
that the parties have complied with the law and have appeared before
him in person
Sec 56 – Hindu marriages
 authorised persons to record details and deliver record to register for

registration
 Registrar to confirm that marriage complies with the law

 Cabinet Secretary may make rules on registration of Hindu marriages

Sec 57- Islamic marriages


 Khadhi, sheikh or Imam to record details and issue certificate
 Deliver record plus certificate to Registrar
 Registrar to register marriage where he’s satisfied that part has been
complied with
 Sec 58

 marriages celebrated abroad may be registered on application, where


marriage complies with the Act
 marriage certificate issued in other country may be considered as proof,
certified translation where certificate not in the official languages (Swahili
or English)
Proof of Marriage
Sec 59 Evidences of marriage

1. a certificate of marriage;

2. a certified copy of a certificate of marriage

3. an entry in a register of marriages

4. a certified copy of an entry in a register of marriages

5. where marriage celebrated in public place of worship, and registration

was not required, by an entry in a register kept at that place of worship

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6. an entry in a register of marriages maintained by the proper authority of

the Khoja Shia, Ith’nasheri, Shia imam, Ismaili or Bohra communities, or


a certified copy of such an entry.
Decrees of Divorce or Annulment
 Sec 60 court to deliver a certified copy of decree to Registrar; Registrar to

register in appropriate record


 Sec 61 any party may apply to Registrar to register decree where foreign

court annuls or dissolves a marriage celebrated in Kenya #


 Registrar to register foreign decree if satisfied it should be recognised in

Kenya
Application to include:

 a copy of the decree (certified translation if not in official languages)

 a statutory declaration by a competent practitioner under the laws of

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

clerical errors or omissions on register or certificate of marriage


 person making correction to sign and date correction and register the

details
 notify parties of the changes made within a reasonable time

Matrimonial Disputes and Proceedings


Dissolution of christian marriages
Sec 64 Parties may first seek reconciliation from available church bodies where
marriage was celebrated
Sec 65

Otherwise may petition court for a dissolution of marriage on the grounds that:

1. one or more acts of adultery;

2. cruelty, whether mental or physical on the petitioner or children; or

3. desertion for at least three years

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4. exceptional depravity

5. irretrievable breakdown of the marriage

Dissolution of civil marriage


Parties to civil marriage may not petition court before 3 years since
celebration of marriage (Sec 66(1)
Parties to a civil marriage may only petition court for dissolution, (Sec 66(2))
citing:
1. adultery by the other spouse;

2. cruelty by the other spouse;

3. exceptional depravity by the other spouse;

4. desertion for at least three years; or

5. irretrievable breakdown of the marriage e.g. (insanity, imprisonment for

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

2. a spouse is cruel to the other spouse or child of the marriage

3. willful neglect for at least two years

4. spouses have separated for at least two years

5. desertion for at least three years

6. sentence of life imprisonment or seven years onwards

7. incurable insanity (certified by at least two doctors, one a psychiatrist)

8. any other ground court deems appropriate

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Dissolution of customary marriages


Parties to a customary marriage Sec 68
 may undergo conciliation or traditional dispute resolution

 the process must conform to the Constitution

 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

5. irretrievable breakdown of the marriage or

6. any valid ground under the customary law of the petitioner

7. Cabinet Secretary may make regulations for implementation of provision

on dissolution of customary marriage


Dissolution of Hindu marriages
Parties may petition the court on the grounds that

1. irretrievable broken down

2. desertion

3. conversion to a different religion

4. rape, sodomy, bestiality or adultery

5. cruelty

6. exceptional depravity on a spouse

Dissolution of Islamic marriages


 governed by Islamic law

 copy of decree by Kadhi, sheikh or imam to be delivered to Registrar

Annulment of Marriage
(Parties treated as if they had never been married)
Sec 73

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A party to a marriage may petition the court to annul the marriage on the
ground that—

1. the marriage’s not been consummated since its celebration;

2. parties were unknowingly in a prohibited relationship;

3. in the case of a monogamous marriage, one of the parties was married to

another person at the time of the marriage;


4. consent was not freely given;

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

husband where the husband is not responsible for the pregnancy; or


7. the other party suffers recurrent bouts of insanity at the time of the

marriage and without the knowledge of the petitioner,


Sec 73(2) the court will only grant a decree of annulment if—

 the petition is made within 1 year of the celebration of the marriage;

 at the date of the marriage the petitioner was ignorant of the facts alleged

in the petition; and


 the marriage has not been consummated since the petition was made to

the court.
Sec 74 only one party can ask the court to annul a marriage

 only party ignorant of facts to present, where annulment is sought on the


basis of ignorance of facts)
 Sec 75 Effects of decree of annulment
 Parties treated as if they had never got married
 does not render illegal anything done legally during the marriage and vice
versa
 affect competence of either party as a witness to communications during
the marriage or relieve any party of any debts incurred during the
marriage on behalf of the other

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Effect of a promise to marry


- Sec 76 A promises to marry is not binding (not a contract capable of specific
performances

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

 during the course of any matrimonial proceedings;

 when granting or after granting a decree of separation or divorce; or

 if, after presuming a spouse dead, the person is found alive

 based on the decree of a foreign court (Sec 77(2))

Order of Maintenance to Last Until


Sec 78 Unless revoked

 death of the spouse (unsecured);

 death of the spouse in whose favour it was made (secured); or

 the person being maintained is subsequently able to support himself or

herself
 Shall automatically lapse on remarriage – Sec 79

Revocation and variation of maintenance order


 where court’s satisfied that the order was obtained as a result of a

misrepresentation, mistake or where there has been a material change of


circumstances
 court may vary terms where there’s a material change of circumstances

despite any provision in the maintenance order itself


Assignment of maintenance
Maintenance payable to a person cannot be assigned, transferred, attached, or
levied upon in respect of any debt or claim
Recovery of maintenance arrears

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 no installment is recoverable after a period of three years from the date it

accrued despite any other period of limitation


 arrears of unsecured maintenance is a civil debt recoverable summarily,

provable in bankruptcy and recoverable from the estate of the deceased’s


 personal representative of a person entitled may recover maintenance

arrears summarily as a civil debt


Compounding of maintenance arrears
 Court may set aside or injunct a disposition/intended disposition of

property meant to reduce the means of paying maintenance or depriving


a spouse of property
 Where the sale’s to a bona fide purchaser for value court may grant

orders as though the sale had taken place


Other relief
 Court may order a party to refrain from molesting a spouse or former

spouse
 No proceedings may be brought to compel one spouse to cohabit with the

other Sec 84(2)


 Spouse alleging desertion may refer matter to reconciliatory body

 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

max 1 million shillings or to both Sec 87

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 Marriage of persons within prohibited marriage relationship jail for max

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

years or fine of 300,000 or both Sec 89


 Unauthorized persons celebrating marriage relationship jail for max 3

years or fine of 300,000


 Celebrating marriage without witnesses jail for max 3 months or fine

max 10,000
 Celebrating marriage where one party is below 18 years; a notice of

intention to marry has not been given; or a notice of objection to the


intended marriage has been given and the objection has not been
withdrawn, dismissed or determined jail for max 6 months or fine max
50,000
Offences relating to the celebration or witnessing of union
 It’s an offence to celebrate or witness a union purporting to be a marriage

where one knows or should know that:


 at least one party is below the age of eighteen years

 a notice of intention to marry has not been given where required

 a notice of objection has not yet been withdrawn

 Offenders liable to jail for max 6 months or fine max 50,000

Rules (Sec 93 to 95)


 Marriages to be celebrated in accordance with rules made by the Cabinet

Secretary
 Cabinet Secretary may make rules for celebration of any marriage

 By Cabinet Secretary on forms, fees, notices, explanation to parties,

procedure for registration etc


 By Rules Committee (under the Civil Procedure Code Act) to regulate

court procedure and processes


Registration/Validity of Existing Marriages

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 Customary marriage – within 3 years (starting 20th May, 2014) (Sec 96(3))

 Cabinet Secretary may extend the period for registration

 Subsisting valid marriages under written or customary law are valid

marriages under this Act (Sec 98(1))


Laws that were Repealed
Cap 150 The Marriage Act.

Cap 151 The African Christian Marriage And Divorce Act.

Cap 152 The Matrimonial Causes Act.

Cap 153 The Subordinate Court (Separation and Maintenance) Act.

Cap 155 The Man Marriage And Divorce Registration Act.

Cap 156 The Mohammedan Marriage Divorce and Succession Act.

Cap 157 The Hindu Marriage and Divorce Act.

Savings
 Ongoing court cases to continue, as far as practicable, in accordance

with this Act


Jurisdiction
S 7 of the Magistrate Court Act: A magistrate court shall exercise jurisdiction in
matters of civil nature where the value of the subject matter is as listed:
Less than:
 20 million Chief Magistrate
 15 million senior principal magistrate
 10 million principal magistrate
 7 million senior resident magistrate
 5 resident magistrates
A magistrate’s court has jurisdiction under the following matters under
customary law:
Marriage divorce maintenance dowry

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Intestate succession and administration of intestates, so far as they are not


governed by any written law
Updates
Jurisprudence is slowly but steadily building on the Marriage Act, 2014. Here
are a few pertinent points made by the Courts so far:

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