Annulment of Marriage and its legal grounds

 Definition of an 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.

It can also be described as a court decree that a marriage is null and void and has been since the marriage was celebrated. A marriage shall be annulled within one year of the marriage and the Petitioner must show they were ignorant of the facts necessitating the annulment and further the parties must not have consummated their marriage.

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.  

The Grounds for an Annulment

Section 73 (1) of the Marriage Act, 2014 provides that a party to a marriage may petition the court to annul the marriage on any of the following grounds: -

1.      The marriage has not been consummated since its celebration

2.      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

3.      The petitioner’s consent was not freely given

4.      A party to the marriage was absent at the time of the celebration of the marriage

5.      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 

6.      At the time of the marriage, and without the knowledge of either party, the parties were in a prohibited relationship

7.      At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

Further Section 73 (2) of the Marriage Act 2014 restricted the filing of such application to before the lapse of one year from the date of marriage. Accordingly, annulments have been a preserve of marriages under 1 year despite the existence of legitimate grounds to have the marriage annulled.

Analysis of 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:

1.  

1. Their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew
2. The grandparent, parent, child or grandchild of their spouse or former spouse
3. A person whom they have adopted or who has adopted them
4. Any other person where such marriages are prohibited under customary law
5. 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:

1.  It has not been more than one year since the celebration of the marriage,
2.   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
3.   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.

Difference between an annulment of marriage and a divorce

A divorce recognizes that a valid marriage existed but the same is dissolved/ terminated in law due to various challenges faced by the parties in the marriage. An annulment on the other hand means that in the eyes of the law, the marriage never took place or existed.