Court's Holding:
On 19th October 2022, the High Court, sitting in Eldoret in the above-cited case declared that Section 73 (2) (a) of the Marriage Act as to the limitation of a one-year limit period to apply for annulment of marriage is unconstitutional.
Conclusion and Analysis:
Conclusion and Analysis:
What is the essence of this Judgment?
A void marriage does not have any legal effect to the parties to the marriage and they cannot enjoy the rights under Article 43 of the Constitution.
Any party who finds out the factors that renders the marriage void, has a right to get a decree for annulment of the marriage at the time that the discovery was made.
Any party who finds out the factors that renders the marriage void, has a right to get a decree for annulment of the marriage at the time that the discovery was made.
The violation of fundamental rights and subsequent deprivation of the right to equality in Article 27, Freedom of Conscience in Article 32 and access to courts in Article 48 of the Constitution of Kenya.
Parties should not be forced/made to remain in marriages or dissolve a marriage that was based on misrepresentation and fraud as it is a further violation of their rights.
WHAT IS THE IMPLICATION OF SUCH A JUDGMENT ON PARTIES THAT HAVE BEEN MARRIED BEYOND 1 YEAR?
The expansion for the period within which one can apply for the annulment of the marriage raises questions on how to handle a matter where there has been longevity and investment in the course of the marriage e.g. acquisition of marital assets and liabilities.
The courts would need to grapple with whether they can be considered marital assets and liabilities if the marriage that was the foundation for such investments and commitments has been declared as one that was never in existence.
This calls for a lot of thought for parties that may be considering annulling their marriages. Is recognition of the marriage and dissolution of the same better than a declaration that the marriage never existed? It is important to consult with your advocate when making this decision.
Parties should not be forced/made to remain in marriages or dissolve a marriage that was based on misrepresentation and fraud as it is a further violation of their rights.
WHAT IS THE IMPLICATION OF SUCH A JUDGMENT ON PARTIES THAT HAVE BEEN MARRIED BEYOND 1 YEAR?
The expansion for the period within which one can apply for the annulment of the marriage raises questions on how to handle a matter where there has been longevity and investment in the course of the marriage e.g. acquisition of marital assets and liabilities.
The courts would need to grapple with whether they can be considered marital assets and liabilities if the marriage that was the foundation for such investments and commitments has been declared as one that was never in existence.
This calls for a lot of thought for parties that may be considering annulling their marriages. Is recognition of the marriage and dissolution of the same better than a declaration that the marriage never existed? It is important to consult with your advocate when making this decision.
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