TO: Judy Chebet

FROM: Allan Kiprotich

DATE: 4/2/2019

RE: The place of Islamic marriages contracted before the onset of the marriage act, 2014

Question Presented.

What is the status of an Islamic marriage that was contracted into before the onset of the new marriage
act, 2014 in Kenya? Did the parties’ failure to register the marriage render it void/voidable? Does failure
to pay mahr render the marriage invalid?

Brief Answer

Before the marriage act 2014 was passed, Islamic marriages were conducted under the auspices of the
Mohammedan marriages and divorce registration act.it regulated the entry and also the exit of parties
in a marriage. The new marriage act, 2014 recognizes Islamic marriages in Kenya, including those
contracted before it came into force. The Mohammedan marriages and divorce registration act required
marriages to be registered seven days after they were celebrated (section 9) .however, section 24 of the
act stated that failure to register the marriage does not invalidate it as long as the other formalities have
been met.

Statement of facts.

Ms. Fatouma Sahra allegedly contracted an Islamic marriage with Fahad Jama Yussuf on July 7th 2012 in
Migori Kenya before an Imam. The marriage was celebrated but not registered. There was also no
payment of mahr.

Applicable law

The Mohammedan Marriage and Divorce Registration Act.

The Marriage Act, 2014.

Discussion.

For an Islamic marriage to be valid, some formalities have to be met:

1. Offer and acceptance must be entered into by the parties

 A declaration or offer firstly made by one party and the other party must accept
 The words in the declaration or offer must show a clear intention to contract a marriage
 This declaration and acceptance should be made in the presence of sufficient witnesses
 The declaration and acceptance should be made in one meeting or in the same meeting
 2. The man is required to pay some form of compensation known as ‘Mahir’. This is paid to the
wife either before parties enter into conjugal cohabitation, during the course of the marriage or
even after the dissolution of the marriage.
In N A H v S B K [2016] eKLR the court stated that;

The court attention was drawn to Holy Quran Chapter 4, verse 4 where it is stated that:

“And give to the woman (whom you marry) their Mahr (obligatory bridal – money given by
the husband to his wife during marriage) with good heart.................”

It is the opinion of the court based on the above source that dower is enjoined by the law merely
as a token of respect for its object (the woman) therefore the mention of it is not absolutely
essential to the validity of a marriage and for the same reason, a marriage is also valid although
the man is obliged in the contract to give out consideration as an essential condition for the
validity of marriage.
3. Registration: Under Section 9 of Mohammedan Marriage and Divorce Registration Act, it is
required that once a Muslim marriage has been contracted, it should be registered within 7 days
and this should be done at the office of the registrar of Islamic marriages.
However, Section 24 of the same Act says that the fact that parties omit to register their
marriage does not invalidate that marriage and where marriage is invalid, registration will not
validate it.

The marriage act, 2014.

The aim of the marriage act was to consolidate the law regulating all forms of marriages. The act
does not create one single system of marriage. It rather puts regulation of all forms of marriage
under one consolidated system. The act therefore repeals all the laws that regulated
matrimonial relationships between diverse groups. However, it does not do very much to
change the content of the various legal systems insofar as marriage is concerned.
This therefore includes the Mohammedan marriage and divorce registration act that was
repealed by the marriage act. The marriage act did not however change the content of the
Mohammedan marriages and divorce registration act.

Conclusion.

In this case therefore, failure to pay mahir cannot be a ground to invalidate the marriage. The parties’
failure to register the marriage does not also invalidate the marriage. Therefore in the above scenario
there would be a valid marriage in place by virtue that all the other formalities on an Islamic marriage
were met, even though there was neither registration nor payment of mahir.