There are a number of formalities to be followed if one is getting married under statutory law. The African all requirements as to formalities will apply under the African Christian Marriage and Divorce Act.
The first formality is that of notice,
Parties who seek to get married under statutory law must give notice of their intention to get married and this is provided for under Section 8 of the Marriage Act. This notice is given at the office of the registrar of marriages in the District where the parties reside. Always saving that notice the registrar then enters it in a marriage notice book that he or she maintains and he is also required to publish that notice by affixing a copy of the notice outside his office and the notice stays there for a maximum period of 3 months or until the marriage certificate is issued to the parties. This requirement mainly arises from the fact that in evolution of marriage under common law it was demanded that a marriage be a public act and should not be celebrated in private but in a public place.
When giving notice the parties must attach an affidavit stating the following
(a) that at least one of the parties has been resident within that district for at least 15 days;
(b) that the parties have attained the age of 21 years but if the parties range between 16 and 21 years they must attach a consent in writing from their parents or guardians.
(c) That they are not related in any way i.e by blood or marriage
(d) That they are not married to any other person under any law at the time of issuing such notice.
These requirements are found in Section 11 of the Marriage Act.
Under Section 15 - if any person is dissatisfied with that notice, he or she either places a caveat in the marriage notice book giving his or her reasons for challenging the intended marriage and this caveat is placed by entering the word FORBIDDEN opposite the entry of the notice. The person who places the caveat then appears before a judge or a magistrate whereby he or she is then required to show why the marriage should not take place and the decision of the court in this regard is final.
Matter of the marriage of Alfred Nderi & Charity Kamweru
EF & EC
The facts in these two cases are very similar but the rulings were quite different. In both cases the man gave notice of his intention to marry a lady and a caveat was then placed by the Respondent in both cases claiming that the man was already married to the Respondent and therefore had no capacity to contract the intended marriage. In Nderi’s case it was actually 2 caveats and it was held that the common knowledge that Nderi had in fact been married to both women under Kikuyu Customary Law while one of the marriages had been dissolved the other one had not. It was held that the registrar should therefore not issue the certificate of marriage because Nderi did not have capacity to marry under statutory law.
In the matter between EL AND EC the caveator claimed that she had eloped with a man and therefore he had no capacity to marry another woman. In this case it was found that the formalities under customary to contract a marriage had not been met and especially the consent of her family to that marriage had not been given and therefore she could not invalidate the intended marriage because she did not have a marriage with the man and the caveat was thus removed from the notice book.
if the registrar is however satisfied with the notice and is satisfied that no caveat has been registered, then he may issue a certificate of compliance and in that certificate indicate that a marriage should take place within three months of the notice being given. If the marriage does not take place within the 3 months, then the notice and all proceedings consequent to that notice shall be void and if the parties still intend to get married, fresh notice must be given.
The role of the registrar is sometimes performed by church ministers whereby rather than give notice at the registrar’s office the church minister announces in the church which the parties attend that the parties intend to get married better known as bans of marriage and this is a recognise and valid way of publishing the notice to get married..
If below 21 years consent in writing from parents or guardian is required.
Re Bennet (1974) 45 DL.R 409
H v H (1954)Probate Report 158
In Re Bennet a 16 year old girl sought an order to dispense with her parental consent to her intended marriage and the court refused to give that order insisting that consent must be given for the marriage to proceed.
C. CELEBRATION OF THE MARRIAGE
The requirements about celebrations are found in Sections 23 – 25 of the Marriage Act. The Marriage must be celebrated by a licensed by a licensed person either a registrar of marriages or a church minister. The marriage should also be celebrated in a licensed place. Again this is the registrar’s office or in a church though there are certain exceptions. The marriage should take place between 8 am and 6 p.m in public and in the presence of two witnesses. However if the marriage is being celebrated in the registrar’s office it should take place between 8 am and 4 p.m.
Section 24 provides that if the person celebrating that marriage knows of an impediment in respect to that marriage then he shall not celebrate the marriage.
Under Section 31 of the Marriage Act, the Minister incharge of Marriages may authorise a marriage to be celebrated in a different place upon request and he or she has to authorise a licensed person to celebrate that marriage.
After compliance with all the requirements the parties then register their marriage and they are issued with a marriage certificate. They are required to sign the marriage certificate in duplicate and their signatures must be witnessed by two witnesses.