31 Jul ANNULMENT
What is Annulment?
An annulment is a declaration by a court that a marriage was never validly established, that is, the marriage
never occurred or existed in the first place. This can be because the parties, at the time of making the
union, lacked the capacity to do so.
Notably, the annulment and dissolution of a marriage (or divorce) are fundamentally different. An annulment
renders a marriage invalid from the beginning while the dissolution of a marriage terminates the marriage
as of the date of the judgment of dissolution.
Grounds for Annulment
Section 73 of the Kenyan Marriage Act, 2014, sets out the following grounds that would justify the
annulment of a marriage:
- The marriage has not been consummated since its celebration
- In the case of a monogamous marriage (Civil and Christian marriages), at the time of the marriage, one of the parties was married to another person
- The petitioner’s consent was not freely given
- A party to the marriage was absent at the time of the celebration of the marriage
- At the time of the marriage and without the knowledge of the husband, the wife is pregnant and the husband is not responsible for the pregnancy; or at the time of the marriage and without the knowledge of the petitioner, the other party suffer recurrent bouts of insanity
- At the time of the marriage, and without the knowledge of either party, the parties were in a prohibited relationship
Prohibited relationships
What are these prohibited relationships that can warrant the annulment of a marriage? According to
Section 10 of the Marriage Act, these are relationships where a person has married:
- Their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew
- The grandparent, parent, child or grandchild of their spouse or former spouse
- A person whom they have adopted or who has adopted them
- Any other person where such marriages are prohibited under customary law
- A person with whom they have a half-blood relationship with
However, if a person marries their cousin, that marriage is not a prohibited relationship if they profess the
Islamic faith.
The Process of Annulment
In Kenya, a party seeking an annulment of their marriage must file a petition for annulment in the Chief
Magistrate’s Court. The other spouse may respond, if they wish, by filing an Answer to Petition. The case
will be set for hearing when the Petitioner will have to testify.
Afterwards, the magistrate will issue a judgment. If the magistrate is satisfied that the marriage should be
annulled, they will issue a decree of annulment and provide for a period of usually 30 days before the
decree of annulment can be made absolute. If no one challenges the annulment within the 30–day period, the decree of annulment will be made absolute and a certificate of making the decree of annulment absolute will be issued.
Requirements for a court to grant an annulment
A court will only grant an annulment if the following conditions are met:
- It has not been more than one year since the celebration of the marriage,
- The Petitioner was not aware that their spouse was in a prohibited relationship or they were already married to someone else, if they are relying on those grounds, and
- The marriage has not been consummated since the petition was made to the court
Effects of an annulment
The parties to a marriage which has been annulled by the decree absolute of the court shall be deemed
never to have been married.
The information above is not nor is it intended to be specific legal advice. This website is designed for
general information only. You should consult an advocate for advice regarding your specific situation. We invite you to contact us about your family law situation and welcome your calls, letters and emails.