the marriage bill, 2012

8/12/2019 The Marriage Bill, 2012

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SPECIAL ISSUEKenya Gazette Supplement o. 179 (Bills No. 77)

REPL RUC OF KENYA

K ENY G ZETTE SUPPLEMENTBILLS 2012

NAIROBI 23rd November, 2012

CONTENT

Bill for Introduction into th National AssemblyThe Marriage Bill, 201 601

N TICN L COUNCIL FOR L W REPORTINGRE EVEDS N O V 2 1 2

P.O. Box 10443 00100NAIROBI, KENYA

TEL: 2719231 FAX: 2712694

PRINTED AND PUBLISHED BY THE GOVERNMENT P RINTER, NAIROBI


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5601THE MARRIAGE BILL 2012

ARRANGEMENTS OF CLAUSESClause PART I PRELIMINARY1Short title.2Interpretation.

PART II GENERAL PROVISIONS3 M ewing of marriage.4M inimum age.5Witnesses to a matriage.6 Kinds of marriages.7 Declaration of marriage registration areas.8 Conv ersion of marriages.9 Subsisting ma rriages.10P rohibited marriage relationship.11 Void marriages.12Voidable marriages..13 Spouses and the law of tort.14 Arrangem ent to live apart.15Rights of widow and widowers.16=Duration of marriage.


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5602 he Marriage Bill, 2012

PART III--CHRISTIAN MARRIAGES17Christian marriages.18 Place of .celebration of Christian marriage.19Notice of intention to marry for Christian marriage.20Publication of notice of intention to marry.21Objection to a notice of intention to marry. 22 Obligations of the Directorin relation to objections,23Determination ofobjection.24 Effect of an ap peal to an objection.25 App eal proceedings.26 ertificate of no imp edimen t.27Signing of the marriage certificate.28 Recop ition of foreign marriages as Christian m arriages in Ken ya.29 Christian marriages at the emb assy, high commission or consulate.

PART IVCIVIL MARRIAGE30Celebration of civil marriages.31N otice of intention to marry.32 Power of D irector to dispense with notice.33 Effect of appeal on the findings of an objection.34Contraction of civil marriage.35C ertificate of no impediment.36C ivil marriages at the Ken yan em bassy, high commission or

consulate for non-Keny an citizens.


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56 1

THE MARRIAGE BILL 2012ARRANGEMENTS OF CLAUSES

ClausePART PRELIMIN ARY

1Short title2Interpretation

PART I I GEN ERAL PROVISIONS3Meaning of marriage4Minimum age5Witnesses to a marriage6Kinds of marriages7Declaration of marriage registration areas8Conversion of marriages9Subsisting marriages10Prohibited marriage relationship11Void marriages12Voidable marriages13Spouses and the law of tort14Arrangement to live apart15Rights of widow and widowers16Duration of marriage


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PART IIICHRISTIAN MARRIAGES17Christian marriages.18P lace ofcelebration of C hristian m arriage.19No tice of intention to marry for C hristian marriage.20P ublication of notice of intention to marry.21 Objection to a notice of intention to marry.22 Obligations of the Director in relation to ob jections.23D etermination ofobjection.24 Effect of an ap peal to an objection.25A ppeal proceedings.26 Certificate of no impediment.27 Signing of the ma rriage certificate.28 Recognition of foreign marriages as Christian marriages in Kenya.29 Christian marriages at the embassy, high commission or co nsulate.

PART IVCIVIL MARRIAGE30Celebration of civil marriages.31N otice of intention to marry.32 Power of Director to dispense with notice.33E ffect of app eal on the findings of an objection.34 ontraction of civil marriage.35C ertificate of no impediment.36C ivil marriages at the Kenyan embassy, high commission or

consulate for non-Keny an citizens.


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The Marriage Bill, 2012 603

37 Civil marriages in foreign countries.38 Civil marriages at the Kenyan E mbassy, high commission orConsulate, for Kenya n citizens.39 Recogn ition of foreign marriages as civil marriages in Keny a.40A ppointmen t of diPlomatic staff as celebrants of marriage.41D uty to register marriages.

P A R T V M A R R I A G E U N D E R C U S T O M A R Y M A R R I AG E S42 Governing law for customary marriage.43N otification of customary ma rriage.44C ontents of notification of customary m arriage.

PART VIHINDU MARRIAGES45Application of this Part.46P ersons authorised by Director to solemnize Hindu marriages.

PART VIIM ARRIAGE UNDER ISLAMIC LAW

47 Application of Islamic law.48 Officiation of Islamic marriages.PART VIII APPOINTMENTS OF DIRECTOR OF MAR RIAGESAND MAR RIAGE OFFICERS

49A ppointmen t of Director and Ma rriage officers.50A ppointm ent of marriage officers in foreign coun tries.51Licensing ministers of faith.


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PART IX REGISTRATION OF MARRIAGES52 Registration.of Christian marriages.53 Registration o f c ivi l marriages .54Registration of Customary marriage.55Registration of Hindu marriages.56Registration of Islamic marriages.57 Registration of other marriages.58Registration of marriages contracted abroad.59Evidence of marriage60 Cop ies of decrees of ann ulment and divorce to be sent to Director.61R egistration of foreign a nnulments an d d ivorces.62Endorsement of marriage registers.63Correction of errors.

PART X MATRIMONIAL DISPUTES AND MATRIMONIALPROCEEDINGS

Dissolution of a Christian marriage64--Mediation of disputes in Christian marriages.65 Groun ds for dissolution of a Christian marriage.

Dissolution of a civil marriage66 Right to petition for separa tion or divorce.67Dismissal of petition for deception or non-disclosure.


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37 Civil marriages in foreign countries.38C ivil marriages at the Kenyan E mbassy, high commission or

Consulate, for K.enyan citizens.39 Recogn ition of foreign marriages as civil marriages in Keny a.40A ppointmen t of diplomatic staff as celebrants of marriage.41D uty to register marriages.

P A R T V M A R R I A G E U N D E R C U S TO M A R Y M A R R I A G E S42G overning law for customary ma rriage.43N otification of customary ma rriage.44C ontents of notification of customary marriage.

PART VIHINDU MARRIAGES45Application of this Part.46P ersons authorised by Director to solemnize Hindu marriages.

PART VIIM ARRIAGE UNDER ISLAMIC LAW47 Application of Islamic law.48 Officiation of Islamic marriages,PART VIII APPOINTMENTS OF DIRECTOR O F MARR IAGESAND MAR RIAGE OFFICERS

49Appointment of Director and Marriige officers.50A ppointm ent of marriage officers in foreign countries.51Licensing ministers of faith.


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PART IX REGISTRATION OF MARRIAGES52 Registration of Christian m arriages.53 Registration of c ivi l marriages .54Registration of Customary marriage.55Registration of Hindu marriages.56Registration of Islamic marriages.57Registration of other marriages.58 Registration of marriages contracted abroad.59Evidence of marriage60 Copies of decrees of ann ulment and divorce to be sent to Director.61 Registration of foreign annulmen ts and divorces.62Endorsement of marriage registers.63Correction of errors.

PART X MATRIMONIAL DISPUTES AND MATRIMONIALPROCEEDINGS

Dissolution of a Christian marriage64--Mediation of disputes in Christian marriages.65 Groun ds for dissolution of a Christian m arriage.

Dissolution of a civil marriage66Right to petition for separation or divorce.67Dismissal of petition for deception or non-disclosure.


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Dissolution of a customary m arriage68 Med iation of disputes in customary marriages.69G rounds for divorce of customary marriages.

Dissolution of a H indu Marriage70G rounds for divorce of Hindu marriages

Dissolution of an Islamic marriage71Governing law for Islamic divorce ma tters.72 Registration of divorce und er Islamic law.

Annulment of M arriage73 Grounds for annulment of marriage.74 Party to petition for annulment of m arriage.75 Effect of a decree of annulmen t.

PART XI OTHER RIGHTS OF ACTION

76 Effect of a promise to marry. PART XIIMAINTENANCE OF SPOUSE AND OTHER RELIEFS77 Grounds for order of maintenance.78 Lapsing of maintenance.79 Termination of an orde of maintenance.80R evocation an d variation of an order for maintenance.81Assessment of maintenance.


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5606 The Marriage Bill 2012

82Recovery of maintenance arrears.83Compounding of maintenance.84Other relief.85Order concerning children.

PART XIII OFFENCES AND PENALTIES

86False statement in the notice of intention to marry or notice ofobjection.

87Marriage to a person under minimum age.88Marriage of persons within prohibited marriage relationship.89--Coercion, fraud, etc.90Ceremony performed by unauthorized person.91Absence of witnesses.92 Offence relating to the celebration or witnessing of a union.

PART XIV MISCELLANEOUS PROVISIONS93 Celebration other marriages.94Regulations.95Rules.96Transitional Provisions.97Repeals.98Savings.

SCHEDULE REPEALED ACTS


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T H E M AR R I AG E B I LL, M UA Sill for

AN ACT of Parliament to amend and consolidate the various laws relating to marriage anddivorce and for connected p urpose.ENA CTE D by the Parliament of Keny a as follows

PART IPRELIMINARY1. This Act may be cited as the Marriage Act, Short title.,

2012.2. In this Act, un_ess the context otherwise Interpretation.requires

child means an individual who has not attainedthe age of eighteen years;cohabit means to live in an arrangement inwhich an unmarried coup le lives together in a long-termrelationship that resembles a marriage.conciliatory body means

(a) a body established under this Act forthe purpose of recon ciling parties to amarriage;(b) a echanism f onciliationrecognised under customary or Islamic


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law;(c) any other body designated as such by

the Cabinet Secretary by notice inthe Gazette; or

Cap. 10

(d) any other body established by anywritten law;

court means a resident magistrate's courtestablished under section 3 of the Magistrates' CourtsAct;

Director has the meaning assigned to it underthe Kenya Citizens and Foreign Nationals Mana gementService Act;

dowry mean s any token of stock, goods, mon eysor other property given or p romised in consideration ofan intended marriage;

faith mean s an association of a religious natureand, in the case of an y system of religious beliefs which isdivided into denominations, sects or schools, any suchdenomination, sect or school;

`Hindu' means a person who is(a) a Hindu by religion in any form (includinga Virashaiva, a Lingayat and afollower ofthe Brahmo, Prarthana or Arya Samaj);(b) a Buddh ist of Indian origin; or(c) a Jain or a Sikh by religion;


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matrimonial proceedings means proceedingsinstituted under Part IX and include proceedings for thepayment of maintenance or for custody of childreninstituted independently of a petition for a declaratorydecree or for an nulment, separation or divorce;

monoga mous marriage means a marriage whosecharacter has been converted to a monogamous marriageby a declaration made under section 9, including anoriginally polygamous or potentially polygamousmarriage;

party , in relation to a marriage, an intendedmarriage or a purported marriage, means a spouse in amarriage, or the intended spouse to a marriage orpurported spouse in a marriage;polygamy means the state or practice of a man havingmore than one wife simultaneously;

prohibited marriage relationship has themean ing assigned to it in section 11;

spouse means a husband a or wife;witness means to be present at , to observe, andto attest to the celebration of a ma rriage by signing on esname to orputting ones mark on a marriage certificate.

PART II GENERAL PROVISIONS3.(1) M arriage is the voluntary union of a ma n and

a woman whether in a monogamous or polygamousunion and registered in accordance with this Act.(2) Parties to a marriage ha ve equa l rights at the time

Melining ofmara,ge.


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56,10 he Marriage Bill 2012

of the marriage, during the marriage and at thedissolution of the marriage.(3) All marriages registered under this Act have thesame legal status.

Minimum age.

Witnesses to amarriage.

4. A person shall not marry unless that person hasattained the age of eighteen yea rs.5. (1) A marriage cond ucted under this Act shall bewitnessed by two com petent witnesses.

(2) A person is not competent to act as a witnessif that person is(a) below the age of eighteen years;(b) otherwise not competent to enter into acontract because of

(i) mental disability rendering that personincapable of understanding hat theparties are doing; or

(ii) intoxication;(c) unable to understand, whether through an

interpreter or otherwise, the language inwhich the ceremony is held.

(3) - The person who celebrates a marriage shallnot be a witness to the marriage for the purposes of thissection.

Kinds ofmarriages. 6.(1) A m arriage m ay be registered un der this Act ifit is celebrated--


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Tit Marriage Bill, 2012 611

(a) in accordance wit the rites of a Christiandenomination;(b) as a civil marriage(c) in accordance ith the customary ritesrelating to any of t e communities in Kenya;(d) in accordance ith the Hindu rites and

ceremonies;(e) in accordance wi Islamic law; or(0 in accordance wit the practice of any other

faith or other gro' p as may be designated bynotice in the Gaze te.

(2) A Christian, Hinmonogamous. u or civil marriage is

(3) A marriage celebrat =d under customary law orIslamic law is presumed to b polygamous or potentially 4polyganious.

7. The Cabinet Secret y may, by notice in theGazette declare any area of Kenya to be a registrationarea for the purposes of this ct.

8. (1 ) A marriage may d e converted from being apotentially polygamous m iage to a monogamousmarriage if each spouse volu tarily declares the intent tomake such a conversion.

Declaration ofmarriageregistration a reas.

Conversion ofmarriages.

(2) A polygamous ma iage may not be convertedto a monogamous marriage unless at the time of theconversion the husband has o ly one wife.


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5612 he Marriage Bill 2012

(3) A declaration under subsection (1) shall bemade in the presence of a marriage officer and shall berecorded in writing and signed by each spouse.

(4) A marriage officer before whom a declarationis made under subsection (3) shall forthwith transmit acopy ther eof to the Director.

(5) Where a declaration is made under subsection(1), the Director shall take possession of the certificateregistering the marriage as potentially polygamous andshall issue a certificate registering the marriage asmonogamous.

(6) The D irector shall enter the details of convertedmarriages in the prescribed manner into a registermaintained for that purpose.

Subsistingmarriages. 9. Subject to section 8, a married person shall not,while

(a) in a monogamous marriage, contractanother ma rriage; or(b) in a polygamous or potentially

polygamous marriage, contract anothermarriage in any m onogamous form.Prohibitedmarriagerelationship.

111(1) A person shall not marry(a) that person's grandparent, parent, child,gran dchild, sister, brother, cousin, great aunt,

great uncle, aunt, uncle, niece, nephew, greatniece or great nephew;


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rh Marriage Bill, 201 2 613(b) the grandpa rent, e arent, child or grandchildof that person's sp use or former spouse;(c) the grandpa rent, arent,, child or grand child

of that person's fo er spouse;(d)a person whom th t person has adop ted or bywhom that person as been adopted;(e) any other person where such marriages isprohibited under c stomary law.

(2) For the purp oses of th s section, a relationship ofthe half-blood is a bar to m arri ge.(3) A person who, by th s section, is forbidden tomarry shall be said to be wi hin a prohibited marriagerelationship.(4) The marriage of a person with that person'scousin does not app ly to pers ns who profess the Islamic

faith.11.(1) A un ion is not a m iage if at the time of the oid marriages.making of the union

(a)either party is b low the minimum age formarriage;(b) the parties ithin the prohibitedmarriage relati nship;(c) either party is incompetent to ma rry byreason of a su slating ma rriage;


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(d) by order m ade und er section 25, the courthas directed that the intended ma rriage isnot to be contracted;

(e) the consent of either party has not beenfreely given;(0 either party is absen t from the ceremo ny;(g) both parties knowingly and wilfullypermit a person who is not authorised to

do so to celebrate the union;(h) either party is mistaken about the identityof the other party; or

(i) either party knowingly or wilfullyenters into the marriage for fraudulentpurposes.

(2) Consent is not freely given where the party w hopurports to give it

(a) is influenced by coercion of fraud;(b) is mistaken as to the nature or p urport

of the ceremony; or(c) is suffering from an y men tal disorderor mental disability whetherpermanent or temporary, or is

intoxicated, or is under the influenceof drugs, so as not to appreciate thenature or purport of the ceremony.


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12. Subject to section 50he Marriage Bill, 2012a m arriage is voidable if

5615Voidablemarriages.

(a) at the date the marriage(i) eitsin

co(ii) eit

sinrec(b) there wasintention to

er party was and has evere remained incapable ofsumma ting it;r party was and has evere remained subject torrent attacks of insanity;failure to give notice ofmarry un der section 19;

(c) notice . ofmarriage hwithdrawnbjection to the intendedwing been given was notr dismissed;

(d) a person olawfully en

ficiating thereat was notitled to do so;

(e) the fact thmarriage wofficiate;

t a person officiating thes not lawfully entitled to

(0 a proceduunderminein question;al error that does note essence of the marriageor

(g) failure to re13. Despite the provisi

law

ister the marriage.ns of any other written Spouses and thelaw of tort.

(a) a spouse storts of the

all not be liable for theother spouse by reason of


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5616 he Marriage Bill, 2012being a spouse;

(b) spouses hav e the sam e liability in torttowards each other as if they were n otmarried; and

(c) a spou se shall be entitled to claim, inany a ction resulting from a n egligentact, omission or breach of duty,which causes loss of thecompanionship of the other, ordamages in respect of that loss.

Arrangement tolive apart. 14.(1) The p arties to a civil marriage may agree tol ive apart for one year and any such agreement shall be

valid and en forceable, and shall be filed with the C ourt.(2) Despite subsection (1), the court may vary or

set aside the agreement or any of its provisions if thecourt is satisfied that since the agreem ent was m ade therehas been a material change of circumstances.(3) A party to a civil marriage may apply to thecourt to determine their status after the expiry o f the oneyear period from the date of agreement.

Rights of widowand widowers. 15.(1) A widow or widower may re-marry.(2) A widow or a widower m ay elect not to re-

Duration ofmarriage.

marry.16. A marriage registered under this Act subsistsuntil it is determined by

(a) the death of a spouse;


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he Marriage Bill, 2012 617(b) a decreethe death eclaring the p resumption off a spouse;(c) a decree i f annulment;(d) a decree f divorce; or(e) a decree of divorce or annulment

obtained in a foreign country andrecognized in K enya un der this Act.PART In--CHRISTIAN MARRIAGE

17. This Part app lies to a marriage where a p arty to hristianthe marriage professes the Christian religion. arriages.

18. A marriage under this Part may be celebrated inany p lace as may be perm itted by the Director, includinga p lace of public worship.

19.(l) Where a man and a woman intend to marryunder this Part, they shall give to the Director and theperson in charge of the public place of worship wherethey intend to celebra te the marriage a wr itten notice ofnot less than twenty-one days and not more than threemonths of their Mention to marry.

(2) A notice given under this section shall include(a) the names and ages of the parties to theintended marriage and the places where theyordinarily reside;(b) the names of the parents of the parties, ifknow n and alive, and the places where they

Place ofcelebration ofChristian marriage.

Notice of intentionto marry forChristian marriage.


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Publication ofnotice of intentionto marry

ordinarily reside;(c) a declaration that the parties are not within a

prohibited relationship;(d) the marital status of each pa rty ,and, where a

party is(i) divorced, a copy of the relevantdecree; or(ii) widowed widow or a widower, acopy of the death certificate; and

(e) the date and venue of the marriageceremony.

(3) The notice under subsection (1) shall be signedby b oth parties.

20. After receiving a notice under section 19(a) the Director shall, publish the notice insuch form as may be p rescribed; and

(b) the person in charge of the place of publicworship shall publish such notice in theprescribed manner in the public place ofworship where the marriage is to becelebrated.

Objection to anotice of intentionto marry

21. (1) A person who knows of an impediment to anintended marriage may give a written notice of objectionto a Director and the p erson in charge of a pub lic place ofworship where notice of intended -marriage has beenposted in accorda nce with section 20.


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3620 Yw Marriage Bill 2012Determination ofobjection:

Effect of an ap pealto an objection.

Appealproceedings.

2341) The Director shall hear an objection undersection 22 within seven days of the Director receiving thenotice of objection.

(2) The D irector shall determine an objection undersection 22 within a reasonable period but in any case notmore than seven days after the hearing under subsection(1).

(3) Any party dissatisfied with the decision of theDirector may ap peal to the court within seven da ys of thedecision by the D irector,(4) A person who makes a frivolous, malicious or

fraudulent objection commits an offence and uponconviction is liable to imprisonment for a term notexceeding five years or a fine not exceeding one millionshillings or to b oth.

24. A marriage ceremony may not be performeduntil any appeal that has been made against a decision ofthe Director to permit the marriage ceremony to beperformed is heard and determined.

25.(1) The court shall hear and determine anyapp eal expedit iously.

(2) The court may hear and determine an appealdespite the fai lure of any p arty or other person to ap pearbefore it.Certificate of noimpediment. 26. (1) Where a person does not object to thecelebration of 'a marriage, the Director shall issue the

persons intending to marry with a certificate of noimpediment.


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The Marriage Bill 2012 5621(2) Where a Kenya n wis

outside Kenya and where tobtain a certificate of no impsuch Kenyan shall apply forDirector shall issue the certifithe intended marriage.

es to celebrate a marriageat Kenyan is required todiment from the Director,such a certificate and theate if no person o bjects to

27. (1) When a marriaccordance with the provisioofficiating at the marriage cerge has been celebrated ins of this Part, the personony shall

(a) complete and sithe prescribed n a marriage certificate inrm; and(b) cause it to be s

the witnesses t(2) The person officiatinshall issue

(a) one copy ofthe pa rties;(b) retain onecertificate; an(c) deliver onecertificate to t

gned by the parties and bythe marriage.at the marriage ceremony

e mar riage certificate to

o y of the marriage

copy of the marriagee Director.

Signing of themarriagecertificate.

28. A marriage celotherwise than in accordancerecognized as a marriage unde

brated outside Kenyawith this Part, shall bethis Part if

Recognition offoreign marriagesas Christianmarriages inKenya.(a) it is contracte

law of the coand is consist

in accordance with thetry where it is celebratednt with the requirements


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5622 he Marriage Bill, 2012of this Part;

(b) at the time of the celebration of themarriage, to parties to the marriage hadthe oapacity to marry. under the law ofthe country where the marriage iscelebrated; or(c) at the time of the marriage any p arty tothe marriage is domiciled in Kenya, bothparties had the capacity to marry un derthis Act.

Christianmarriages at theembassy, highcommission orconsulate.

29. A marriage celebrated in the embassy,. highcomm ission or consulate of a foreign country in Ken ya isa Christian marriage under this Part if

(a) it is contracted in acc ordance with the lawrelating to Christian marriages of thatforeign country; or

(b)at the time of the ma rriage, the parties hadcapacity to marry un der the law of thatforeign country and under this Act; or

(c) either of the pa rties is at the time of themarriage domiciled in Kenya both partieshad capacity to marry under this Act.PART IV--CIVIL MARR IAGE

Celebration of civil 0. A marriage un der this Part shall be celebratedmarriages. y the D irector in the place determined by the D irector.


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rhe Marriage Bil l 2012 562331. The provisions of sections 18 to 26 of_ thisAct shall apply w ith the necessary modifications to amarriage celebrated under this Part.32. (1) Subject to section 19, the Director ma y, bylicence in theprescribed form, dispense with the n oticerequired by section 31 where there is sufficient reason todo so.

(2) Before dispensing with the n otice, the D irectorshall confirm that--(a) neither party is within a prohibitedrelationship;(b) either party is below the minimum age formarriage;(c) neither party is married to another person.

33. (1) The p rovisions of section 24 ap ply with thenecessary mod ifications.(2) Unless a notice of objection has been withdrawnthe Director shall not exercise the power con ferred bysection 32 to dispense with a notice.34. When a marriage has been celebrated in thepresence of a D irector, the Director shall--

(a) complete and sign a marriagecertificate in the p rescribed form; and0) cause the marriage to .be signed by the

parties and by the witnesses to themarriage and give two cop ies of the

Notice of intentionto many

Power of Directorto dispense withnotice.

Effect of appeal onthe findings of anobjection.

Contraction ofcivil =Triage.


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5624 he Marriage Bill, 2012marriage certificate to the parties andretain on e copy.

Certificate of noimpediment. 35. 1) If the Director is satisfied that noimpediment to the intended marriage exists, the Directorshall celebrate the m arriage.

(2) If a Kenyan wishes to celebrate a civil marriagein a foreign country in accordance with the law of thatcountry and the law of that country requires a certificateof no impediment, the Director may issue a certificate ofno impediment.

36. A person who i s not a Kenyan may ce lebrate amarriage under this Part in a foreign country if thema rriage is celebrated in the presence of the Director or aperson authorised by the Director for that purpose in an yKenyan embassy, high commission or consulate.

37. A marriage celebrated in a foreign countryotherwise than in accordance with section 36 is valid if

(a) it was contracted in accordance with thelaw of that country;(b) at the time of the marriage the pa rties had

the capacity to marry under the law ofthat country;(c) either of the parties is at the time of themarriage domiciled in Kenya, both

parties had capacity to marry under thisAct; and.

(d) if the Director is satisfied that the partieshave obtained a certificate of noimpediment if the law of that country

Civil marriages atthe Kenyanembassy. highcommission orconsulate for non-Kenyan citizens.

Civil marriages inforeign countries.


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The Marriage Bill, 2012 625requires the parties to an intendedmarriage to ob tain such a certificate.

38. (1) A Kenyan may telebrate a civil marriagein a K enyan em bassy, high commission or consulate in aforeign country if

(a) it is celebrated in accordan ce with the lawof that foreign coun try; or(b) both parties have the capacity to marryunder the law of that foreign country.

(2) Despite subsection (1), a civil marriagecelebrated in a Kenyan embassy, high commission orconsulate in a foreign country is valid in Kenya if theparties were capable of celebrating the marriage inKenya.

39. A civil marriage contracted in a foreign countryshall be recognized as a valid marriage if(a) it is contracted in accordance with thelaw of that country;(b) it is consistent with the provisions of thisPart; and(c) the parties have the capacity to marryunder this Act.

40. (1) The Cabinet Secretary may appoint bynotice in the Gazette a mem ber of the diplom atic staff ofKeny a in a foreign coun try to which this Part app lies tocelebrate marriages under this Act in respect of thatcountry.

(2) The Director shal maintain a register of

Civil marriages atthe Kenyanembassy, highcomm ission orConsulate forKenyan citizens.

Recognition offoreign marriagesas civil marriagesin Kenya.

Appointment ofdiploma tic staff ascelebrants ofmarriage.


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5626 he M arriage 8ili =2012

Duty to registermarriages.

all marriages cond ucted in foreign coun tries.41. (1) A person who celebrates or officiates at a

marriage shall deliver a copy of the marriage certificateto the Director and the Director shall enter the details ofsuch a certificate in a register of marriages maintainedfor that purpose by the Director.

(2) Where the Director officiates at a marriage.the Director shall enter the details of the marriage in theregister of marriages maintained under subsection ( I ).

(3) A person who fails to register a marriagecommits an offence and shall upon conviction be liableto a fine not exceeding five thousand shillings or to acomm unity service order or to both.

(4) The Cabinet Secretary may make regulationsprescribing the registration of marriages.(5) Despite subsection (4), the Cabinet Secretary

may make prescribe different regulations for differentkinds of ma rriage.PART V MARRIAGE UNDER CUSTOMARY

LAWGoverning law forCustomarymarriage.

42. (1) A m arriage under this Part shall be celebratedin accordance with the customs of the communities ofone or b oth of the parties to the intended m arriage.


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(b) that the marriage is between persons who a _not within a p rohibited marriage relationship;(c) that the pa rties freely consent to the m arriage;and(d) in the case .of a second or subsequentmarriage, that the current wife or wives has or

have, as the case may be, been informed ofthe marriage.(4) Despite subsections (1) and (2), if the marriage

is a subsequent =triage, the notification shall alsodeclare whether the current wife or wives has or havebeen informed of the intended m arriage and whether sheor they approve or disappro ve of the intended marriageand her or their reasons for approving or d isapproving ofthe intended marriage.

PART VIHINDU MARRIAGEApp lication of thisPart.

Persons authorisedby, Director tosolemnize Hindumarriages.

45. This Part shall apply only to persons wh o professthe Hindu faith.46.(1) A marriage under this Part is may beofficiated by a person a uthorised by the Director and inaccordance with the Hindu religious rituals of a party to

the marriage.(2) A p erson authorised to officiate at a marriage

under this Part shall record the details of a marriageunder this part in the prescribed form an d shall deliverthe record to the D irector for the registration of such amarriage.


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PART VIIIAPPOINTMEMARRIAGES AND M

T OF DIRECTOR OFAGE OFFICERS

The arriage Bill, 2012 6P

PART VII MARRIAGE U DER ISLAMIC LAW47. This Part shall only app y to persons who profess Application ofthe Islamic faith. slamic law.

48.(1) A m arriage under thby a kadh i, sheikh or imam asDirector.'

(2) A person authorised tunder this Part shall recordunder this part in the pr escribethe record to the D irector for tmarriage.

s Part sha ll be officiated Officiation ofIslamic marriages.ay be authorised by the

officiate at a ma rriagee details of a marriageform an d shall delivere registration of such a

49.(1) There shall be a Dishall be appointed by the Cabin ector of Marriages whoAppointment of

t Secretary. irector andMarr iage officers.(2) The Director shal(a) perform civil m 'ages;

(b) register all marri ges;(c) issue marriage certificates for allregistered mania_ es;(d) issue certificates of no, impediment to

persons who int nd to marry and whoqua lify for such a certificate;(e) determine the es governing customary


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T e Marriage Bill. 2012 563(5) The Director may cancel a license issued to aperson un der this section hall give written reasonsfor such withdrawal.(6) A licence granted n respect of marriages underany law in operation before the commencement of this

Act shall, if the licence h not been cancelled at thecommencement of this Act, be deemed to be a licencegranted under this section

PART IXRiG1STRA ION OF MARRIAGES52.x` l) Where a m arriage is celebrated under Part III

of this Act, the person officiating at the marriage shallforward a copy of the ce ificate of marriage to theDirector within fourteen da s of the celebration of themarriage for the registration f that marriage.

(2) Before the Director register's a ma rriage undersubsection (1) the Directo shall confirm that themarriage com plies with the p ovisions of this Act.

53.(l) Where the Dir- or celebrates a marriageunder Pan IV of this Act, th Director shall register themarriage.

(2) Where a m arriage a icer celebrates a m arriageunder Part IV, the mania , officer shall record thedetails of the marriage in the prescribed form andforward the record to the Di for and the Director shallregister the marriage.

(3) The Director shall iss a certificate of marriageto the parties to a ma rriage c lebrated under Pa rt IV of

Registration ofChristianmarriages.

Registration ofcivil marriages.


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this Act.Registration ofCustomarymarriage.

Registration ofHindu marriages.

54.(1) Wh ere the parties to a marriage und er PartV have completed the necessary rituals for their union tobe recognised as a marriage under the customary law ofany of the parties both shall apply to the Director withinsix months of their marriage for a certificate and bothshall appear in person before the Director to be issuedwith the certificate of marriage.

(2) Where the Director is satisfied that the partiesto a marriage under Part V have complied with theprovisions of this Act, and the parties have appearedbefore him in person, the Director shall register themarriage and issue the parties with a certificate ofmarriage.

55.(1) Where a person authorised by the Directorcelebrates a marriage under Part VI, that person shallrecord the details of the marriage in the prescribed formand deliver the record to the Director and the Directorshall register the marriage.

(2) Before the Director registers a marriagecelebrated under Part VI, the Director shall confirm thatthe ma rriage com plies with the provisions of this Act.

(3) The Cabinet Secretary may make rulesregarding the registration of marriages under Part VI ofthis Act.

Registration ofIslamic marriages. 56.(1) Where a Kadhi, sheikh or imam authorised bythe Director celebrates a marriage under Part VII of thisAct, the Kadhi, sheikh or imam shall

(a) record the details of the marriage;


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he Marriage Bill, 2012 633

(b) issue the pcertificate of

(c) deliver the rDirector.

les to the marriage with aarriage; andcord and certificate to the

(2) Where the Dcertificate of a ma rriage celeDirector is satisfied that thebeen complied with, themarriage.

rector receives a record andrated under Part VII and theprovisions of this Act haveDirector shall register the

57. The Cabinet Secretrelevant stakeholders, makof any other type of marriaAct.

58.(1) A Kenyan who cKenya may apply to the Dregistered and the Directoronly when the Director iscomplies with the provision

ry may, in consultation withregulations for registration

e not provided for under this

lebrates a marriage outsiderector to have that marriage

ay register such a marriagesatisfied that the marriageof this Act.

Registration ofother marriages.

Registration ofmarriagescontracted abroad

(2) The Director may cissued in that country or sumay consider sufficient bcelebrated outside Kenycertificate is not in the oaccompanied by a certifielanguages.

nsider a m arriage certificateh other proof as the Directorfore registering a marriage

and where a marriageicial languages it shall betranslation into the official

59.(1) A marriage be pr ven in Kenya by Evidence ofmarriage.(a) a certificate f marriage issued under this


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5634 he MarriageBill, 2012Act or an y other written law;

(b) a certified copy of a certificate of marriageissued under this Act or an y other writtenlaw;(c) an entry in a register of marriages

maintained under this Act or any otherwritten law;(d) a certified copy of an entry in a register of

marriages maintained undfer this Act orany other written law; or

Copies of decreesof annulment anddivorce to be sentto Director.

Registration offoreign annulmentsand divorces.

(e) an entry in a register of marriagesmaintained by the p roper authority of theKhoja Shia, Ithinasheri, Shia imam,Ismaili or Bohra communities, or acertified copy of such an entry.

(2) Despite subsection (1), a marriage may beproven in K enya if it was celebrated in a public place of .worship but its registration was n ot required, by an entryin any register maintained at that public place of worshipor a certified copy of such an en try.60. Where a court grants a decree of theannulment of a marriage or the dissolution of a marriage,

it shall deliver a certified copy of the decree to theDirector and the D irector shall register the annu lment ordissolution in a register maintained for thepurpose.61.(1) Where a marriage celebrated in Kenya isann ulled or dissolved by a d ecree of a foreign court, anyparty to the annu lled or dissolved marriage ma y app ly tothe Director to register the decree.


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The arriage Bill, 2012 635s satisfied that a d ecreeised in K enya as if theurt, the Director shaller maintained for the

(2) Where the directorunder this section should be recodecree was made by a K enyanregister the decree in a regipurpose.

(3) An application un er this section shallinclude(a) a copy of the dec

is not in an offstranslation of thlanguage and in

ee and where the decreeial language, a certifieddecree in an officiale prescribed form; and

(b) a declaration an din which the deca legal pra ctitionsuch a declaratioeffective in that chad been celebrat

62.(1) The D irector shalldeclaration made under sectioentry in the register of mairiages(2) The Director shall

decree registered under sectionentry in the register of marriagebe sufficient proof that the mainby a foreign decree of armmarriage.

63.(1) A party to a mathDirector or to a marriage officerby the Director to correct a cleriregister of marriage or a c ertific

r the law of the countrye was obtained made tor authorised to witnessthat states the decree isentry as if the marriaged in that country.nter the details of the8 against the relevant

nter the details of the60 against the relevantand such an entry shallge has been determinedent or dissolution of

ge may apply to ther to a person authorisedal error or omission in ato of marriage regarding

Endorsement ofmarriage registers.

Correction oferrors.


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5636 he Marriage_Bill, 2012that person's marriage.

(2) Where the Director, a marriage officer or aperson authorised by the Director makes a correctionunder subsection (1), the Director, marriage officer orperson a uthorised by the director shall sign and d ate thecorrection and shall enter the details of the correctionagainst the relevant entry in the register of marriage.

(3) The Director shall notify the parties to amarriage of any changes mad e in the register of marriageor m arriage certificate within a reasonable period of thechanges being made.PART XMATRIMONIAL DISPUTES AND

MATRIMONIAL PROCEEDINGSDissolution of a Ch ristian m arriage

Mediation ofdisputes inChristianmarriages.

Grounds fordissolution of aChristian ma rriage.

64. The par ties to a marriage celebrated under Pa rtIII may seek the services of any reconciliation bodiesestablished for that pur pose that ma y exist in the p ublicplace of worship where the marriage was celebrated.

65. A p arty to a m arriage celebrated und er Part IIImay p etition the co urt for a decree for the dissolution ofthe marriage on the ground of

(a) one or more acts of adulterycommitted by the other party;(11) cruelty, whether mental or physical,

inflicted by the other party on thepetitioner or o n the ch ildren, if any, ofthe marriage; or


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5637The Marriage Bill, 2012

(c) desertion by either party for at leastthree years immediately preceding thedate ofpresen tation of the p etition,Dissolution of a clvi marriage

66.( 1 ) A party to a ma rriage celebrated under PartIv may not petition the court for the separation of theparties or for the dissolution o f the marriage un less threeyears have elapsed since the celebration of the marriage.

(2) A party to a marriage celebrated under Pa rt IVmay only *petition the court for the separation of theparties or the dissolution of the ma rriage on the followinggrounds

(a) adultery by the other spouse;(b) cruelty b y the other spouse;(c) exceptional dep ravity by the other spouse;(d) desertion by the other spouse for at leastthree years; or(e) the irretrievable breakdown of themarriage.

(3) The petitioner may file the petition with thecourt for the separation of the parties or the dissolution ofthe marriage despite any effort to reconcile the parties.(4) The court may refer a m atrimonial dispute that

arises in a marriage celebrated under Part IV to aconciliatory p rocess agreed between the pa rties.

Right to p etitionfor separation ordivorce.


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5638 The Marriage Bill 2012(5)The proceedings for the dissolution of a marriage

celebrated under Part IV may be adjourned for a periodnot exceeding s ix mon ths as the court may think f it(a) for the court to make further enquiries; or(b) for further attempts at reconciliation to bemade b y the parties to the marriage.

(6)A marriage has irretrievably broken down if(a) A spouse commits adultery;(b) A spouse is cruel to the other spouse or toany child of the ma rriage;(c) a spouse wilfully neglects the other spouse

for at least two years immediatelypreceding the date of presentation of thepetition;

(d) the spouses have been separated for atleast two years, whether voluntary or bydecree of the court, where it has

(e) a spouse has deserted the other spouse orat least three years immediately precedingthe date of presentation of the p etition;

(0 a spouse has been sentenced to a term ofimprisonment of the for life or for a termof seven years or more;

(g) a spouse suffers from incurable insanity,where two doctors, at least one of whomis qualified or experienced in psychiatry,


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The arriage Bill, 2012 639

have certified tha the insanity is incurableor that recovery s improbable during thelife time of the r spondent in the light ofexisting medical owledge; or

-(h) any other ground as the court may deemappropriate.

67. Where a foreign court has granted a decree innatrimonialproceedings whe her arising out of anarria,ge celebrated in Keny a r elsewhere, that decree;hall be recognized in Kenya if

(a) either party is iciled in the countrywhere that court has jurisdiction or hadbeen ordinarily esident in Kenya for atleast twoyears i mediately preceding thedate of institution of proceedings;

(b) being a decree f annulment, divorce orsepara tion, it is e fective in the cou ntry o fdomicile of the p ies or either of them.Dissolution of a custo ary marriage

68.(1) The p arties to maul ge celebrated under P artV m ay un dergo a process of c ncil iation or customarylispute resolution before the court may determine antition for the dissolution o f th marriage.

(2) The p rocess of media ion or traditional disputeesolution in subsection (1) shall conform to thewinciples of the Con stitution.

(3) The person w ho take the parties to a ma rriagecelebrated under Part V t ough the process of

Dismissal ofpetition fordeception or non disclosure.

Mediation ofdisputes inCustomarymarriages.


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conciliation o r traditional dispute resolution sha ll preparea report of the p rocess for the court.Grounds fordivorce ofCustomarymarriages.

Grounds fordivorce of Hindumarriages.

69.(1) A P arty to a marriage celebrated under Part Vmay petition the cou rt for the dissolution of the m arriageon the ground of

(a) adultery;(b) cruelty;(c) desertion; or(d) any valid ground under thecustomary law of the petitioner.

(2) The Cabinet Secretary may. in consultation withthe comm unities make regulations for the implemen tationof this section.

Dissolution of a Hindu Marriage70. A party to a marriage celebrated under Part VImay petit ion the court for the dissolution of the ma rriageon the ground that

(a) the marriage has irretrievably broken down;(b) the other party h as deserted the petitioner for

at least three years before the making of thepetition;

(c) the other party has converted to anotherreligion;(d) since the celebration of the marriage, the

other party has committed rape, sodomy,bestiality or adultery.

11


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72. Where a Kadhi, shauthorised by the Director gdissolution of a marriage celebKadhi, sheikh, imam or authorscopy of the decree to the Direct

Annulment of arriage73.(1) A party to a marriag m ay petition the court to

annul the marriage on the groun that a) the marri ge has not beenconsummat d since its celebration;

ikh, inlarn or personants a decree for theated under P art VII, theed person shall deliver ar.

Registration ofdivorce underIslamic law.

Grounds forannulment ofmarriage.

The arriage Bill 2012 5641

Dissolution of an Isl m ic marriage71. The dissolution of Ill 'age celebrated underPart V II shall be govern ed by Is' is law.

Governing law forIslamic divorcematters.

(b) at the timwithout thparty, the prelationship

of the marriage andknowledge of eitherles were in a prohibited

c) in the cmarriage, aone of thanother per

e of a monogamousthe time of the marriageparties was married to

on;(d) the petition r's consent was not freely given;(e) a party to e marriage was absent atthe time f the celebration of the

marriage;(I) at the ti e of the marriage and


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5642 he Marriage Bill 2012without the knowledge of thehusband , the wife is pregnant an d thatthe husband is not responsible for thepregnancy; or

g) at the time of the marriage andwithout the knowledge of thepetitioner, the other party suffersrecurrent bouts of insanity.

(2) The court shall only grant a decree of annulmentif(a) the petition is made within one year ofthe celebration of the marriage;(b) at the date of the marriage and

regarding subsections (1)(b) and (c),the petitioner was ignorant of the factsalleged in the petition; an d

(c) the marriage has not beenconsummated since the petition wasmade to the court.

Party to petitionfor annulment ofmarriage.

74.(1) A petition for annulment may be presentedonly by one of the p arties .

(2) Where a petitioner alleges facts of which onlyone pa rty was ignorant at the date of that marriage, it maybe presented only by that p arty,(3) Where a petitioner alleges the wilful refusal of

one party to consummate the marriage it may not bepresented by the party against whom the allegation ismade.


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The Marriage Bill, 2012 643Effect of a decreeof annulment.5.(1) The parties to a marriage which has beenannulled by decre e absolute of the court shall be deemed

never to have been married but a decree of annulmentshall not

(2) Renders lawful anything which was doneunlawfully during the marriage or render unlawfulanything wh ich was don e lawfully during the marriage.(3) Affect the competence of either of the pa rtiesas a witness in respect of anything do ne or om itted to be

done, or any privilege in respect of communicationsbetween them, during the

(a) marriage; or(b) relieve either party of any de bt properlyincurred on behalf of the other during

the marriage.PART XJOTHER RIGHTS OF ACTION

76.(1) Except as provided in this section a promiseby a person to marry another person is not binding.

(2) Despite subsection (1), damages may berecoverab le by a party that suffers a loss when the otherparty refuses to honour a promise to marry.

PART XII MAINTEN CE OF SPOUSE ANDOTHER LIEFS77.(1) The court ma order a person to pay

maintenance to a spouse or a ormer spouse

Effect of a promiseto marry.

Grounds for orderof maintenance.


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(a) if the person has refused or neglected toprovide for the spouse or former spouseas required by this Act;

(b) if the person has deserted the other spouseor former spouse, for as long as thedesertion continues;

(c) during the course of any matrimonialproceedings;(d) when gran ting or a fter granting a decreeof separation or divorce; or(e) if, after making a decree of presumption

of death, the spouse or former is found tobe alive.(2) The court may order the payment ofmaintenance to a spouse or former spouse where a d ecreeof separation, divorce or presum ption of death is issued

by a foreign court and the court may declare that thedecree of separation, divorce or presum ption of death iseffective for the purposes of this section.Lapsing ofmaintenance. 78. Except where an order for maintenance of aspouse is expressed to be for any shorter period or whereany such order has revoked a nd subject to section 79, theorder shall lapse

(a) if the maintenance was unsecured, on thedeath of the spouse;(b) if the maintenance was secured, on thedeath of the spouse in whose favour it wasmade; or


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The Marriage Bill 2012 5645 _

(c) where the person being maintained issubsequently able to support himself orherself.

79. An order of maintena nce shall lapse upo n the re-marriage of the beneficiary of the order.

80.(1) The court may revoke or vary a subsistingorder for maintenanc e of any kind, whether secured orunsecured, if it is satisfied that the order was based orobtained as the result of any misrepresentation or mistakeof fact or that there has been a material change ofcircumstances since the order was made.

(2) The court may vary the terms of an agreemen t asto maintenance between spouses wherever made ifsatisfied that there has been a material change ofcircumstances since the agreement was made despite anyprovision to the contrary contained therein.

81. aintenance payable to a person under anorder of the court shall not be assigned or tran sferred orliable to be attache d, sequestrated or levied upo n for, orin respect of, any debt or claim.

82.(1) Despite any other period of limitationprescribed by the Limitation of Actions Act, noinstalment of maintenance shall be recoverable inproceed ings instituted after a per iod of three years fromthe date upon which the instalment accrued due.

(2) Subject to subsection (1), arrears of unsecu redmaintenance, whether payable by agreement under an

Termination of anorder ofmaintenance.

Revocation andvariation of anorder formaintenance.

Assessment ofmaintenance.

Recovery ofmaiktenancearrears.


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order of the court, shall be a civil debt recoverablesummarily or, where they accrued due befdre themaking of a receiving order a gainst the party in d efault,shall be provable in subsequent bankrup tcy proceedingsand where they accrued due before death, shall be adebt from the estate of the deceased.

(3) Subject to subsection (1) arrear s of unsecuredmaintenance w hich accrued due before the death of theperson entitled shall be a civil debt recoverablesummarily by the legal personal representative of thatperson.

Compounding ofmaintenance. 83.(1) The court may, if it is satisfied that adisposition of property has been m ade by the spouse orformer spouse of the person by or on whose behalf theapplication is made, within the preceding three years,with the object on the part of the person making thedisposition of reducing the means to pay maintenan ce orof depriving a spotise of any rights in relation to thatproperty , or is intended to be m ade with any such object,on application, set aside the disposition or grant aninjunction prohibiting that disposition, as the case maybe.

(2) Where the disposition of property undersubsection (1) is by sale to a bona fide purchaser forvalue, the court may grant orders as though the sale hadtaken place.

(3) In this section, disposition includes a sale,gift, lease, mortgage or other transaction wherebyownership o r possession of the property is transferred orencumbered but does not include a disposition madefrom money or monies worth to or in favour of a person


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The Marriage 012 647acting ood faith and in gnorance of the object forwhich the d isposition is made.

84.(1) The court may order a party to refrain frommolesting a spouse or former sp ouse.(2) No proceedings may be b rought to compel one

spouse to cohabit with the other, btit a spouse whoalleges that he or she has been deserted may refer thematter to a con ciliatory body.

(3) W here either the husband or w ife has, withoutreasonable [good] grounds, withdrawn from the societyof the other, the aggrieved party may make anapp lication to the court for restitution o f conjugal rightsand the court, on being sat stied of the truth of thestatements mad e in such application an d there being nolegal ground why the application should not be granted,may order restitution of con jugal rights accordingly.

85. Custody and maintenance of children shall be' dealt with in accordance with the Children Act and anyother written law relating to children.PART XIIIOFFENCES AND PENALTIES

86.(1) Any person who, in a notice of intention tomarry under section 19 or notice of objection to anintended marriage under section 21, makes a falsestatement comm its an offence and shall on conviction beliable to imprisonment for. a term not exceeding fiveyears or fine not exceeding one million shillings or toboth.

(2) A person does not com mit an offense under thissection if that person had reasonable grounds for

Other relief.

Order concerningchildren.

False statement inthe notice ofintention to marryor notice ofobjection.


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believing the statement to be true when that person m adethe statement.

Marriage to aperson underminimum age.

Marriage ofpersons withinprohibitedmarriagerelationship.

Coercion, fraud,etc

87. Any person who marries a person who isbelow the minimum a ge commits an offence and shall onconviction be liable to imprisonment for a term notexceeding five years or a fine not exceeding one millionshillings or to both.

88.(1) A party to a purported celebration of amarriage where the parties are within a prohibitedmarriage relationship commits an offence and shall onconviction be liable to imprisonment for a term notexceeding five years or a fine not exceeding threehundred th ousand shillings or to both.

(2) A person m ay not be con victed of an offenceunder this section if that the person did not know andcould not reasonably have been exp ected to discover therelationship.

(3) A person charged under subsection (1) mayinclude a witness to the purported celebration of themarriage.

89. A party to a ceremony purporting to be amarriage who at the time , knows or has reason tobelieve that the consent of the other party was inducedby coercion or fraud or by a mistake as to the nature ofthe ceremon y or that the other pa rty was suffering fromany mental disorders or mental disability whetherperman ent or temporary or wa s intoxicated or under theinfluence of drugs, so as not fully to app reciate the natureorpurport or the ceremon y, commits an offence and shallon conviction be liable to imprisonment for a term notexceeding three (3) years or a fine of three hundredthousand shillings or to both.


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The Marriage Bill, 2012 649Ceremonyperformed byunauthorizedperson.

90. A person who celebrates a union purpo rting tobe a ma rriage and wh o at the time of the ceremony is notauthorised to do so commits an offence and shall onconviction be is liable to imprisonment for a term notexceeding three years or a fine of three hundred thousandshillings or to b oth.

91. Aperson w ho celebrates a union purporting tobe a marriage at which the 'required witnesses are notpresent commits an offence and shall on conviction beliable to imprisonment for a term not exceeding threemon ths or a fine no t exceeding ten thousan d shillings orto both.

92.(1) A p erson comm its an offence if that personcelebrates or witnesses a union purporting to be ainarriage where that person knows or should know that(a) at least one party is below the age ofeighteen years;(b) a notice of intention to marry whererequired has not been given; or

-(c) a notice of objection to the intendedmarriage has hc.en given and the o bjectionhas not beeri withdrawn, dismissed ordetermined.

(2) A p erson convicted und er subsection (1) isliable to imprisonment for a term not exceeding sixmonths o r a fine n ot exceeding fifty thousand shillings orto both.

Absence ofwitnesses.

Offence relating tothe celebration orwitnessing of aunion.


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PART XIS MISCELLANEOUS PROVISIONSCelebration 01other marriages. 93.(1) A marriage recognised under section 6 may be

celebrated in accordance to the rules made by the CabinetSecretary.

2) The Cabinet Secretary may make rules for thecelebration of any marriage.

Regulations. 94.(1) The Cabinet Secretary may make regulationsfor the better carrying into effect of this Act.

2)Despite subsection 1), regulations may providefor

a) forms to be used and fees to be paidin respect of any application or licencemade or issued;

b) the manner in which notices ofintention to marry are to be madeknown;

c) the form for the giving of any noticerequired under this Act;

d) the form of explanation to be given bya person authorised by the Director tothe parties to an intended marriage incivil form or according to ritesrecognized by customary law as thecase may be before asking themwhether the marriage is to bemonogamous or polygamous or


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5651he Marriage Bill 2012potential ly p olygamous;

(e) the forms of licences and marriagecertificate to be issued y theDirector;

(0 the form of statement of particularsrelating to marriage to be used byregistration officers;

(g) the procedure for registration and theform of returns to be made and theregister to be kep t under this Act;

(h) the payment of fees under this Act;and

(i) anything required to be prescribedunder this Act.95. The Rules Committee established under the

provisions of the Civil Procedure Act may make rulesregulating court pra ctice or procedure under this Ac t.96.(1) A person who, immediately before the date of

commencement of this Act, was a Registrar of Marriagesunder the Marriage Act (now repealed) or the AfricanChristian Marriage and Divorce Act (now repealed), oran assistant Registrar under the Islamic Marriage andDivorce Registration Act (now epealed), shall, as soonas practicable thereafter, send a 1 registers of marriagesand divorces to the Director.

(2) Parties to a marriage contracted under customarylaw, the Hindu Ma rriage and Divorce Act (now repealed)or the Islamic Marriage and Divorce Registration Act

Rules.Cap 21

TransitionalProvisions.Cap. 150Cap. 151Cap: 156Cap 157


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5652 The Marriage Bill, 2012

(now repealed) before commencement of this Act, whichis not registered shall apply to the Director or CountyDirector to assistant Director for the registration of thatmarriage und er this Act within three years of the comingto force of this Act.

(3) The parties to a customary marriage shallregister such a marriage the marriage within three yearsof the coming to force of this Act.

(4) The Cabinet Secretary may extend theregistration period under this section by notice in theGazette.

Repeals. 97. The Acts of Parliament listed in the Schedule arerepealed.


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98. (1) A subsisting ma rriage which under an y Savings.written or customary law hitherto in force constituted avalid marriage irmnediately before the com ing to force ofthis Act is valid for the purposes of this Act.

(2) Proceedings commenced under an y written lawshall, so far as practicable, be continued in ac cordan cewith theprovisions of this Act.

(3) Despite subsection (2), an o rder for judicialseparation or decree of divorce granted under anywritten law shall in relation to the p owers' of the courtregarding maintenance be deemed to be a decree ofseparation or divorce as the case may granted under thisAct.

S C H E D U L ERepealed Acts . 135

The Marriage Act. ap 150The African Christian Marriage And Divorce Act. ap 151

The Ma trimonial Causes Act.ap 152

The Subordinate Court (Separation and M aintenance)Act. ap 153The Man Ma rriage And D ivorce Registration Act. ap 155The M ohammedan Marriage Divorce and Succession A ct. ap 156The Hindu M arriage and Divorce A , ap 157


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MEMORANDUM OF OBJECTS AND REASONSThe principal object of this Bill is to consolidate the variousexisting marriage laws applicable in Kenya into one Act ofParliamen t. The Bill proposes to repea l seven pieces of legislationnamely, The Marriage Act, (Cap. 150), The African ChristianM arriage and Divorce Act, (Cap. 151), The M atrimonial CausesAct, (Cap. 152), The Subordinate Courts (Separation andM aintenance) Act, (Cap. 153), The Moham medan M arriage andDivorce Registration Act, (Cap. 155), The MohammedanMarriage, Divorce and Succession Act, (Cap. 156), The HinduMarriage and Divorce Act, (Cap. 157). The amendment andconsolidation of the marriage laws is important in order tominimize the complexity, unpredictability and inefficiencyoccasioned by the current multiplicity of laws on the subject.PA RT II of the Bill contains a definition of marriage and sets outthe various kinds of marriage that may be contracted or celebratedin Kenya. It also prescribes the minimum age of marriage andprovides for circumstances under which a marriage may bedeclared void or voidable. The Pa rt stipulates preliminaries to thecomp lied with before marriage and a lso provides for the mann er,time, place and procedure to be followed when contracting amarriage. The P art also provides for void and voidable ma rriages.PART III of the Bill deals with the celebration of Christianmarriages, the place of celebration of Christian m arriage, notice ofintention to marry, objection to a n otice of intention to marry an dthe effect of customary marriage on Christian marriages.PA RT IV of the Bill deals with the celebration of civil mar riages,civil marriages in foreign countries, gazettement of marriageregistration areas and the appointment of diplomatic staff ascelebrates of marriage.


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MEMORANDUM OF OBJECTS AND REASONSThe principal object of this Bill is to consolidate the variousexisting marriage laws applicable' in Kenya into one Act ofParliame nt. The Bill proposes to repeal seven pieces of legislationnamely, The Marriage Act, (Cap. 150), The African ChristianM arriage and Divorce Act, (Cap. 151), The M atrimonial CausesAct, (Cap. 152), The Subordinate Courts (Separation andM aintenance) Act, (Cap. 153), The Moh amm edan M arriage andDivorce Registration Act, (Cap. 155), The MohammedanMarriage, Divorce and Succession Act, (Cap. 156), The HinduMarriage and Divorce Act, (Cap. 157). The amendment andconsolidation of the marriage laws is important in order tominimize the complexity, unpredictability and inefficiencyoccasioned by the current multiplicity of laws on the subject.PA RT II of the Bill contains a definition of marriage an d sets outthe various kinds of marriage that ma y be contracted or celebratedin 'Kenya. It also prescribes the minimum age of marriage andprovides, for circumstances under which a marriage may bedeclared void or voidable. The Pa rt stipulates preliminaries to thecomp lied with before marriage and also provides for the manne r,time, place and procedure to be followed when contracting amarriage. The P art also provides for void and voidable m arriages.PART III of the Bill deals with the celebration of Christianmarriages, the place of celebration of Ch ristian m arriage, notice ofintention to marry, objection to a notice of intention to marry a ndthe effect of customary marriage on Christian marriages.PA R T IV of the Bill deals with the celebration of civil mar riages,civil marriages in foreign countries, gazettement of marriageregistration areas and the appointment of diplomatic staff ascelebrates of marriage.


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PAR T V provides for the celebration of customary marriages andthe contents of a notice of a customary marriage.PAR T VI dea ls with the celebration of hindu marriages, sets outthe conditions for hindu marriages and specifies that a hindumarriage must be solemnised by a hindu M inister.PART VII provides for the celebration of Islamic marriages,provides for the app lication of Islamic law, officiating at Islamicmarriages and specifies that the Cabinet Secretary may m ake rulesrelating to Islamic marriages.PART VIIIprovides for the appointment of marriage celebratesand the registration of marriage. The Part provides for theappointmen t of a Director Of M arriages who shall be responsibleforperformin g civil marriages, registration of all marriages, thedetermination of the rules governing customary marriages, creatingawareness among members of the public on registration ofmarriage and determining matters relating to objections of noticeto marry. The P art also provides for the appointment of m arriageofficers and the registration of m arriages and a nnulmen ts anddivorce.PART IX of the Billprovides for the registration of marriages andevidence of marriage.PART X provides for matrimonial disputes and matrimonialproceedings and sets out general principles of matrimonialdisputes. The Part prov ides for divorce under christian marriages,civil law, customa ry law, Hind u law, Islamic law.PART XI deals with the effect of a promise to marry, and thedamages that may be recovered when a party refuses to honour apromise to marry.PART XII deals with maintenance of spouses and other. reliefs.The Part sets out the power of the court to order division of


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5656 he Marriage Bill, 2012matrimonial assets, goods for order of maintenance and criteria forcalumniating maintenance. The P art also provides for the custodyand m aintenance of children.

PAR T XIII sets out offences and pen alties.PART XVI contains miscellaneous provisions relating to themaking of Ru les under the Civil Procedure Act, Cap.21, and thesaving of subsisting marriages.The Sched ule specifies the Acts of Parliament to be repealed uponenactment of this Bill. These are The Marriage Act, (Cap.150),The African C hristian M arriage and Divorce Act, (Cap. 151), TheMatrimonial Causes Act, (Cap. 152), The Subordinate Court(Separation and Maintenance) Act, (Cap.153), The MohammedanMarriage and Divorce Registration Act (Cap.155), TheMohammedan Marriage Divorce and Succession Act (Cap.156)and Th e Hindu M arriage and Divorce Act (Cap. 157).The implementation of this Bill will not occasion additionalexpenditure from the exchequer.

Dated the 9th November, 2012.

GITHU MUIGAI,Attorney-General.


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PAR T V provides for the celebration of customary m arriages anthe contents of a notice of a customary m arriage.PAR T VI dea ls with the celebration of hindu marriages, sets outthe conditions for hindu marriages and specifies that a hindumarriage must be solemnised by a hindu M inister.PART VII provides for the celebration of Islamic marriages,provides for the application of Islamic law, officiating at Islamicmarriages and specifies that the Cabinet Secretary may ma ke rulesrelating to Islamic marriages.PAR T VIII provides for the appointmen t of marriage celebratesand the registration of marriage. The Part provides for theappointment o f a Director Of M arriages who shall be responsiblefor performing civil marriages, registration of all marriages, thedetermination of the rules governing customary marriages, creatingawareness among members of the public on registration ofmarriage and determining matters relating to objections of noticeto marry. The P art also provides for the appointment of marriageofficers and the registration of marriages and a nnulments an ddivorce.PA RT IX of the Bill provides for the registration of marriages andevidence of marriage.PART X provides for matrimonial disputes and matrimonialproceedings and sets out general principles of matrimonialdisputes. The Part provides for divorce under ch ristian m arriages,civil law, customa ry law, Hind u law, Islamic law.PA RT . XI deals with the effect of a prom ise to marry, and thedama ges that may. be recovered when a p arty refuses to honour apromise to marry.PAR T XII deals with maintenance of spouses and other rel iefs.The Part sets out the power of the court to order division of


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5656 he Marriage Bill, 2012matrimonial assets, goods for order of maintenance and criteria forcalumniating maintenance. The P art also provides for the custodyand ma intenance of children.

PAR T XIII sets out offences and p enalties.PART XVI contains miscellaneous provisions relating to themaking of R ules under the Civil Procedure Act, Cap.21, and thesaving of subsisting marriages.The Sched ule specifies the Acts of Parliament to be repealed uponenactment of this Bill. These are The Marriage Act, (Cap.150),The African C hristian M arriage and Divorce Act, (Cap. 151), TheMatrimonial Causes Act, (Cap. 152), The Subordinate Court(Separation and Maintenance) Act, (Cap.153), The MohammedanMarriage and Divorce Registration Act (Cap.155), TheMohammedan Marriage Divorce and Succession Act (Cap.156)and T he Hindu M arriage and Divorce Act (Cap. 157).The implementation of this Bill will not occasion additionalexpenditure from the exchequer.

Dated the 9th November, 2012.

GITHU MUIGAI,Attorney-General.

the marriage bill, 2012

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