REGISTRATION OF CUSTOMARY MARRIAGES IN KENYA: A LEGAL SOLUTION FOR A SOCIAL PROBLEM?

Abstract

Kenya’s Marriage Act, 2014 made registration of customary marriages mandatory for the first time. This article reviews the relevant legal provisions and judicial decisions for clarity and coherence. Against the backdrop of inconsistency in judicial pronouncements on the legal consequences of non-registration, and low compliance with the legal requirement, this article examines whether mandatory registration secures rights or exacerbates vulnerability of parties in undocumented relationships. The article also examines factors that might account for low uptake of registration, which include gendered imbalance in the power to define relationships, lack of clarity in the legal provisions, administrative challenges, limited public awareness, and mistargeting of the intended beneficiaries. Approaches taken in other African jurisdictions are discussed, distinguishing between those that take a permissive approach (where non-registration does not invalidate a marriage), and those that employ a punitive approach (where non-compliance invalidates a marriage), drawing lessons for Kenya. Acknowledging the limited role of formal law in directing relationships, the article offers recommendations toward an approach that balances the pursuit of legal compliance with actually facilitating people’s ability to use the law as a tool for securing rights in customary marriages.