Divorce: A Customary Marriage That Has Not Been Registered Is Not Legally Binding, Court Rules

A Machakos woman who had sought divorce accusing her husband of denying her conjugal rights for five years and threatening to kill her has suffered a major blow after a court declined to dissolve the customary marriage.

In a landmark judgement rendered by Magistrate Charles Ondieki rejected a plea by the woman (name withheld) on grounds that a customary marriage that has not been registered is not a marriage to be dissolved.

Ondieki found that all parties to a customary marriage who have not registered their marriages with effect from August 1, 2020 when the Marriage Act 2014 took effect can only petition the court for annulment and not divorce.

A customary marriage that is not registered with the Registrar of Marriages cannot be annulled through divorce process in court.

In legal terms, a divorce holds that the spouses were previously married but chose to legally separate while an annulment, however, legally determines the marriage was never valid.

Customary rites

Ondieki declined to dissolve the marriage of the Machakos couple noting that although the woman and the husband admitted that they were married in accordance with the customary rites of the kamba community, by force of Section 12(e) of the Marriage Act, 2014, it follows that the purported marriage was rendered voidable effective August 1, 2020.

Ondieki ruled that although all marriages enjoy the same legal status, unions contracted under customary law and are not registered with the Registrar of Marriages as required by the Act, cannot be dissolved by court.

The magistrate explained that Section 96 of the Marriage Act, 2014 requires parties to a marriage contracted under customary law before commencement of the Act to apply to the Registrar for registration of their marriage.

He also noted that failure to show a marriage certificate meant that they could not prove their marriage. “Turning to the evidence adduced by both parties, this court finds that neither the petitioner nor the respondent, exhibited the documentary evidence contemplated by section 59 of the Marriage Act, 2014,”

Ondieki stated Further, the court held that with effect from August 1,2020, having been rendered voidable, the Machakos Couple were deprived of the right to Petition or Cross Petition for divorce (dissolution of the purported marriage).

“Having failed to surmount the test of sections 59 read with sections 3, 12(e), and 96 (2) & (3) of the Marriage Act, 2014, leads this Court, that neither the Petitioner nor the Respondent has generated persuasion in my mind that the subject marriage is neither void or voidable, as to entitle any of them to petition for divorce. This court so concludes,” Ondieki stated.

According to the magistrate, the grounds for divorce of a marriage are a world apart from the grounds for nullification adding that nullification of marriage is completely absent in both the Petition and Cross-Petition lodged by the couple.

The court’s decision comes after a Machakos woman on June 8,2023 filed a divorce petition in court seeking the customary marriage between her and her husband be dissolved.

The woman known as EMM sought for a divorce claiming that she contracted a marriage with the husband in June 1987, in accordance with the Kamba Customary Law on marriage, within Machakos County.

She averred that they lived as husband and wife after the said celebration at their matrimonial home at Katelembo until December 2018.