Can one have two marriages? Customary and Christian one? Suppose the first marriage was a Christian one; should I get a divorce first before marrying another woman under customary law?
Marriages are defined and characterised by legal parameters to reduce misrepresentation and confusion. This clarity also aims to enhance opportunities for individuals seeking genuine relationships.
The family is identified in Article 45, Clause (1) of the Constitution as the natural and fundamental unit of society and the essential foundation of social order. The state shall recognise and protect this unit without prejudice.
In this context, every adult, as stated in Clause (2), has the right to marry a person of the opposite sex based on their free consent. Thus, it follows that all adults have the right to choose whether to enter into a polygamous or monogamous family relationship. Clause (3) emphasises that the individuals involved are viewed as equals in the subsistence of the marriage, even at the time of its dissolution or termination; no one is inferior to another.
The Marriage Act allows every adult to choose and engage in the form and style of union they desire. The drafters of this law acknowledged the diverse circumstances surrounding marriage, particularly recognising various cultures and mainstream religions such as Hindu, Islam and Christianity. In Section 3(1), marriage is defined as the voluntary union of a man and a woman who choose to live together as husband and wife, which may be either monogamous or polygamous. However, this union must align with the character stipulated in the law, especially concerning its registration.
The text references Christian and customary marriages, which are recognised under Section 6 of the Marriage Act. Christian marriages, along with Hindu and civil marriages, are strictly monogamous. In contrast, customary marriages are commonly associated with polygamy. Sub-section (3) clarifies that any marriage celebrated under customary or Islamic law is presumed to be polygamous or potentially polygamous.
The first point of conflict regarding the concerns raised is that a person cannot be in two marriages simultaneously. Therefore, one must terminate a Christian marriage before entering another, regardless of its form. There is a process for dissolving a marriage through conversion to another type, but this is only permitted for those in potentially polygamous unions.
According to Section 8 of the Marriage Act, this must be done voluntarily, requiring an evidentiary agreement that demonstrates clear consensus between the parties. Section 9 further seals the fate of Christian marriages by prohibiting any married person in a monogamous union from entering into another marriage.
The termination of a Christian marriage is outlined in Section 65 of the Marriage Act, which clearly articulates the grounds for dissolution. However, mediation is an option before finalising the decision to dissolve the marriage.
Potential grounds for divorce include adultery, various forms of cruelty (mental, physical, or verbal) inflicted by one spouse upon the other or their children, desertion for a minimum of three years by either party, and exceptional depravity. In certain circumstances, the union may be considered irretrievably broken down, making it eligible for dissolution.
Several court cases have addressed the various grounds for divorce mentioned in the Marriage Act. In the civil case of HWMJ vs. MWM, petition number 79 of 2023, the court cited an irretrievable breakdown of the marriage.
In Divorce Cause E363 of 2022, Justice Aduke noted that the grounds outlined in Section 65 of the Marriage Act were demonstrated, leading her to issue a decree nisi. However, it has also been emphasised that a fault-based law should not sustain unviable marriages, which remains a central theme in discussions about divorce in Kenya.
Justice Nyakundi has frequently made rulings that prioritise the freedom of couples to part ways if the marriage is not functioning as expected. In the case of RNO v. BJK, Divorce Cause number E1 of 2020, Justice Reuben Nyakundi expressed concern over the court's ongoing role in seeking reasons for failed marriages.
While he acknowledged denial of consummation as a significant issue, he believed it was not the court's responsibility to compel two unwilling partners to remain together. If it is clear that your marriage is not working satisfactorily for both you and your spouse, the law permits divorce before exploring other relationships.
