INTRODUCTION
In an interesting case of EMM v PMK ; Divorce Cause E023 of 2023 delivered on 15/05/2024. Facts are as follows:
The petitioner contracted a marriage with the respondent in June 1987 as per Kamba Customary Law, within Machakos County in the Republic of Kenya. The parties lived as husband and wife at their matrimonial home at Katelembo until 2018 when several issues wore down the union.
The petitioner alleged that the respondent was a person of ungovernable temper and had been committing acts of cruelty through physical and emotional violence. The respondent had attempted to stab the petitioner using a knife in May, 2018 and had frequently threatened to kill the petitioner. The petitioner further alleged that she was forced to move out of the matrimonial home in December, 2018 together with the children and that the respondent had since sold the land upon which the matrimonial home stood.
It was also alleged that the respondent had committed acts of exceptional depravity since 2018 through failure to maintain and educate their two children, denial of conjugal rights and desertion for 5 years. The petitioner attempted to salvage the marriage including use of traditional dispute resolution mechanisms with her brother and aid of elders but failed due to rejection by the respondent.
Consequently, the petitioner filed the present divorce petition.
COURT ANALYSIS AND DETERMINATION
In the Akamba community, a wife needed only to return mbui ya ulee (bridal rejection goat) to the parents of the husband, to mark a conclusive divorce, notwithstanding the fact that full dowry may not be returned. Some of the notable exceptional circumstances were whenever the desirous party was frustrated or the attempt to divorce under the said rites was rejected or impossible.
After the Marriage Act came into force, the trajectories available for divorce of a customary marriage were reduced from two to only one; a court action by filing a divorce petition as per the Marriage Act,2014. In respect to customary marriages, it marked a fundamental shift from the varied and uncodified divorce grounds based on marriage customary laws of individual communities, to standardized and statute-based grounds that were common to all communities.
Upon the enactment of the Marriage Act,2014 parties married under customary law were to produce as evidence a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority.
Although the customary marriage between the petitioner and the respondent was said to have been contracted in June of 1987 which was before the Marriage Act, 2014 came into force, both parties were supposed to produce either a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority which they did not hence the purported marriage was rendered voidable effective August 1, 2020.
CONCLUSION
Customary marriages that have not been registered are voidable and liable to dissolution. The Petition and cross petition was struck out. The parties could only petition to court for annulment of the customary marriage.
NEED ANY LEGAL INQUIRIES?
Ruth Rotich & Company Advocates are legal experts on matters pertaining to family law. We don’t hesitate to provide quality and tested legal services and consult.
We will be more than glad to receive your feedback and input to offer excellent services to your satisfaction.
