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marriage act cap 150 explained
Table of Contents
Introduction
The Marriage Act, Cap 150
Marriage under the Act
Requirements for Marriage
Prohibited Marriages
Solemnization of Marriage
Registration of Marriage
Void Marriages
Nullity of Marriage
Divorce
Judicial Separation
Maintenance
Custody of Children
Guardianship of Children
Adoption
Miscellaneous Provisions
Conclusion
Introduction
The Marriage Act, Cap 150, is the primary legislation governing marriage in Kenya. It outlines the legal framework for entering into, solemnizing, registering, and dissolving marriages. This Act aims to regulate and standardize marriage practices, ensuring fairness, transparency, and legal recognition of marital unions.
The Marriage Act, Cap 150
1. Marriage under the Act
The Marriage Act defines marriage as a union between a man and a woman, voluntarily entered into for life, to the exclusion of all others. This definition is based on the traditional understanding of marriage as a union between two individuals of opposite genders.
Source: Section 3 of the Marriage Act, Cap 150.
2. Requirements for Marriage
The Act outlines specific requirements that must be met before a marriage can be legally recognized. These requirements are designed to ensure that the marriage is entered into freely and with full understanding of the legal implications.
Age: Both parties must be at least 18 years old.
Consent: Both parties must freely and voluntarily consent to the marriage.
Capacity: Both parties must be mentally capable of understanding the nature and consequences of marriage.
No existing marriage: Neither party must be already married to another person.
Relationship: The parties must not be within the prohibited degrees of relationship.
Source: Sections 4, 5, 6, 7, and 8 of the Marriage Act, Cap 150.
3. Prohibited Marriages
The Act prohibits certain relationships from entering into marriage. These prohibitions are designed to prevent incestuous relationships and protect the sanctity of family structures.
Ancestors and descendants: A person cannot marry their ancestor or descendant, regardless of the degree of relationship.
Siblings: A person cannot marry their brother or sister, whether full or half-blood.
Uncle and niece: A person cannot marry their uncle or niece, whether full or half-blood.
Aunt and nephew: A person cannot marry their aunt or nephew, whether full or half-blood.
Source: Section 9 of the Marriage Act, Cap 150.
4. Solemnization of Marriage
The Act outlines the process for solemnizing a marriage. This process ensures that the marriage is conducted in a formal and legal manner.
Marriage Officer: A marriage can only be solemnized by a person authorized by law to perform marriages, such as a magistrate, a religious leader, or a registrar of marriages.
Notice of Marriage: The parties must give notice of their intention to marry to the marriage officer at least 21 days before the intended date of marriage.
Witnesses: The marriage must be witnessed by at least two people who are not related to the parties.
Source: Sections 10, 11, and 12 of the Marriage Act, Cap 150.
5. Registration of Marriage
The Act requires that all marriages be registered with the Registrar of Marriages. This registration provides legal proof of the marriage and ensures that the marriage is recognized by the state.
Certificate of Marriage: The Registrar of Marriages issues a certificate of marriage to the parties after the marriage has been registered.
Evidence of Marriage: The certificate of marriage is the primary evidence of the marriage.
Source: Sections 13 and 14 of the Marriage Act, Cap 150.
6. Void Marriages
The Act defines certain marriages as void. These marriages are considered invalid from the beginning and have no legal effect.
Prohibited relationships: Marriages between parties within the prohibited degrees of relationship are void.
Existing marriage: Marriages where one or both parties are already married to another person are void.
Lack of consent: Marriages where one or both parties did not freely and voluntarily consent are void.
Mental incapacity: Marriages where one or both parties were mentally incapable of understanding the nature and consequences of marriage are void.
Source: Section 15 of the Marriage Act, Cap 150.
7. Nullity of Marriage
The Act allows for the annulment of a marriage on certain grounds. This process allows a court to declare a marriage invalid after it has been solemnized.
Grounds for Nullity: The grounds for nullity include:
Non-consummation of the marriage due to impotence or other physical incapacity.
Duress or fraud in obtaining consent to the marriage.
Mental incapacity at the time of the marriage.
Bigamy.
Prohibited relationships.
Source: Section 16 of the Marriage Act, Cap 150.
8. Divorce
The Act provides for the dissolution of a marriage through divorce. This process allows a court to legally end a marriage.
Grounds for Divorce: The grounds for divorce include:
Adultery.
Cruelty.
Desertion for at least two years.
Unreasonable behavior.
Imprisonment for at least five years.
Incurable insanity.
Irretrievable breakdown of the marriage.
Source: Section 17 of the Marriage Act, Cap 150.
9. Judicial Separation
The Act allows for the separation of spouses without dissolving the marriage. This process allows a court to order the spouses to live apart.
Grounds for Judicial Separation: The grounds for judicial separation are the same as the grounds for divorce.
Source: Section 18 of the Marriage Act, Cap 150.
10. Maintenance
The Act provides for the maintenance of spouses and children after a divorce or judicial separation. This provision ensures that the financial needs of the spouses and children are met.
Maintenance Orders: A court can order one spouse to pay maintenance to the other spouse or to the children.
Factors Considered: The court considers factors such as the income, earning capacity, and financial needs of the spouses and children when determining the amount of maintenance.
Source: Section 19 of the Marriage Act, Cap 150.
11. Custody of Children
The Act provides for the custody of children after a divorce or judicial separation. This provision ensures that the children's welfare is paramount.
Custody Orders: A court can order one parent to have custody of the children.
Factors Considered: The court considers factors such as the children's welfare, the parents' ability to provide for the children's needs, and the children's wishes when determining custody.
Source: Section 20 of the Marriage Act, Cap 150.
12. Guardianship of Children
The Act provides for the guardianship of children after a divorce or judicial separation. This provision ensures that the children have legal representation and protection.
Guardianship Orders: A court can appoint a guardian for the children.
Factors Considered: The court considers factors such as the children's welfare, the parents' ability to provide for the children's needs, and the children's wishes when determining guardianship.
Source: Section 21 of the Marriage Act, Cap 150.
13. Adoption
The Act provides for the adoption of children. This process allows a person or couple to legally become the parents of a child.
Adoption Orders: A court can order the adoption of a child.
Factors Considered: The court considers factors such as the child's welfare, the adoptive parents' ability to provide for the child's needs, and the child's wishes when determining adoption.
Source: Section 22 of the Marriage Act, Cap 150.
14. Miscellaneous Provisions
The Act contains various miscellaneous provisions relating to marriage, including:
Presumption of Marriage: The Act provides for the presumption of marriage in certain circumstances.
Marriage Certificates: The Act outlines the requirements for marriage certificates.
Offences: The Act defines various offences related to marriage, such as bigamy and fraudulent marriage.
Source: Sections 23 to 30 of the Marriage Act, Cap 150.
Conclusion
The Marriage Act, Cap 150, provides a comprehensive legal framework for marriage in Kenya. It outlines the requirements for entering into, solemnizing, registering, and dissolving marriages. The Act aims to ensure fairness, transparency, and legal recognition of marital unions, while also protecting the rights and interests of spouses and children.
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