This is a legal process through which a court declares a marriage to be invalid. Under Kenyan law, annulment is principally concerned with either void and/or voidable Marriages. Annulment therefore concludes a marriage legally by declaring it null and void.

Although annulment and divorce both bring a marriage to an end, they are legally distinct. This is because divorce legally terminates a valid marriage unlike annulment which is focused on establishing that a marriage was invalid or capable of being declared invalid on specified legal grounds.

 When is a marriage Void or Voidable?

The distinction between a void and a voidable marriage is important.

Void Marriage

A void marriage is one that is legally invalid from the outset. Simply put, the law does not recognize it as a valid marriage. It is therefore commonly described as being void ab initio. This means that the union has never existed legally as a marriage and Section 11 of the Marriage Act 2014 enumerates on the grounds rendering a marriage void.

Voidable Marriage

A voidable marriage, is treated as a valid marriage unless and until it is challenged and annulled via a Court decree. Section 12 of the Marriage Act 2014 provides on voidable marriages.

The distinction between a void and voidable marriage is therefore significant. Whilst a void marriage is invalid from its inception, a voidable marriage remains legally effective until a competent court grants the appropriate relief.

The Grounds for Annulment of Marriage

Sections 73 to 75 of the Marriage Act 2014 speak to annulment of marriage. Pursuant to Section 73(1) of the Marriage Act, a party to a marriage may petition the court for annulment on specified grounds. The grounds include:

a)    Non-consummation of the marriage– where the marriage has not been consummated since its celebration;

b)   Prohibited Marriage Relationship – This is where at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;

c)    Existing marriage in a monogamous marriage – This is where at the time of the marriage, one of the parties was already married to another person;

d)   Absence of free consent – This is where the petitioner's consent to the marriage was not freely given;

e)    Absence of a party– This is where one of the parties was absent at the time the marriage was celebrated;

f)     Pregnancy unknown to the husband – where, at the time of the marriage and without the husband's knowledge, the wife was pregnant and the husband was not responsible for the pregnancy; and/or

g)    Recurrent insanity attacks unknown to the petitioner – where, at the time of the marriage and without the petitioner's knowledge, the other party suffered recurrent bouts of insanity.

How is a Marriage Annulled in Kenya?

A marriage is annulled through a petition to the Court seeking an annulment on one or more of the aforementioned statutory grounds. Section 73(2) of the Marriage Act provides for circumstances concerning the timing of such petitions. In particular, the Act contemplates a petition being presented within one year of the celebration of the marriage, subject to the circumstances contemplated by the statute.

However, and importantly, the Courts have recognized that the passage of one year does not necessarily prevent a party from seeking annulment where the relevant facts giving rise to the annulment were not known to the petitioner within that period. Accordingly, Courts recognize that a party may seek annulment after discovering facts amounting to grounds for annulment which were previously unknown to them.

Conclusion

If you believe that your marriage may be void or voidable, obtaining personalized legal advice at an early stage can help determine whether annulment, divorce or another legal remedy is appropriate in your circumstances.

Find the best family lawyers at Musa & Musa Advocates where we provide legal advice and representation in family and matrimonial matters, including but not limited to annulment, divorce, judicial separation, matrimonial property disputes and related proceedings.

Feel free to contact us for personalized advice at your earliest convenience.