Marriages under statutory law are celebrated under the Marriage Act and the African Christian Marriage and Divorce Act. These two Acts reflect the inherited English law provisions and are strictly monogamous. Under the Acts polygamy is prohibited and Section 11 (1) (d) of the Marriage Act and Section 35, 49 and 50 of the Marriage Act, these are the Sections that make polygamy illegally.
Under Section 171 of Penal Code the offence of bigamy is provided for. Bigamy is defined as going through a ceremony of marriage when having another husband or wife living and the first marriage has not been rendered void by a court of law. The offence of Bigamy is punishable by 5 years imprisonment.
Case Law both English and Kenyan case – the cases reiterate that these marriages are required to be Monogamous
Hyde v. Hyde (1886) L.R. 130
The case provides the classic definition of marriage –
Marriage under Christendom is the voluntary union for life of one man and one woman to the exclusion of all others.
The Kenyan cases of K v. K
In 1970 the petitioner went through a form or ceremony of marriage with the respondent, at the District Commissioner’s office, Nairobi. At the time, the respondent was married to one Grace Waiyaki Kang’ara in accordance with Kikuyu customary law. That marriage had never been dissolved or annulled but was still subsisting. Counsel for the petitioner argued that under the Matrimonial Causes Act, under which the petition had been brought, a monogamous marriage is the union of one man and one woman to the exclusion of all others and as such if there existed another marriage contracted under customary law, this one was null and void.
The court held that only a monogamous marriage could be created by a ceremony under the Marriage Act and as the husband was already married, the ceremony was valid and created no marriage status. Therefore the respondent had committed adultery with the co-respondent. And Decree nisi was granted.
There were rulings that where a person is already married they cannot contract a statutory marriage. In both cases the men had married under Kenyan Customary Law and it was held that they had no capacity to contract a marriage under statutory law.
CONDITIONS RELATING TO CAPACITY
1. The first condition is that the parties must be biologically man and woman. This is found under common law as a requirement and in
Corbett v. Corbett (1970) 2 All E.R. 33
In this particular case the parties went through a ceremony of marriage at the time of the marriage the petitioner knew that the respondent had been registered at birth as being of the male sex and had undergone a sex change operation and since that operation had lived as a woman. After 14 days of marriage the petitioner filed a petition for a declaration that that marriage was null and void on the ground that the respondent was a person of the male sex or alternatively for a decree of nullity on a decree of non consummation of marriage. It was held among other things that marriage is essentially a relationship between a man and a woman the respondent having been a biological male from birth rendered the so called marriage void. It was held that the Respondent was incapable of consummating the marriage and that it was a nullity.
Right now there is a lot of controversy on the issue of definition of marriage with some states allowing gay marriages.
2. The parties must be single meaning they can be single, divorced or widowed.
LK v. CK
K V K
Section 3 of the Marriage Act and the other sections that outlaw bigamy.
Parties must be of Age to contract a marriage. Under our current laws the parties must be at least 16 years of age that is the minimum age of marriage under statutory law. There are however still some conditions when it comes to age but minimum age is 16. the authority on age is
Pugh V. Pugh (1951)
A man of age over 16 years married a girl aged 15 years and it was held that that marriage was void and in his ruling the judge gave the reasons why requirement as to age is provided for by stating that
It is considered socially and morally wrong that a person of an age at which we believe them to be immature should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth.
4. PROHIBITED DECREES OF RELATIONSHIPS
Relationship by way of consanguinity or affinity.
Relationship by consanguinity is where you have blood relationships and affinity is relationship by way of marriage. These marriages are regarded as incestuous and are prohibited for health reasons and inbreeding. Inbreeding gives one imperfect stock and that is why these marriages are prohibited.
Section 35 of the Marriage Act refers us to English Law as related to the prohibited decrees. This English Law is found in the first schedule of the UK Marriage Act of 1945. This schedule gives a list of what are the prohibited relationships and in that list a man may not marry his mother, including step mother and mother in laws or adopted mothers, his daughter, including step daughters, daughters in law and adopted daughters. He cannot marry his sisters including step sisters, grandmother including step grandmother, he cannot marry his granddaughter including step granddaughters, he cannot marry his aunts or his nieces.
The woman likewise may not marry her father, step father, father inlaw and adopted father, son, step son, son in law, grandfather, grandson, uncles and nephews all these include step and adopted.
Under English law the list does not prohibit marriage between cousins.