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Workers in a fix as employers demand fresh proof of marriage

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The Registrar of Marriages says that persons whose marriages are currently not legally recognised due to termination of affidavits can seek proper registration with the office. PHOTO | FILE

Kenya’s formal sector workers who have not formalised their marriages according to the newly enacted matrimonial law are headed for turbulent times as employers move to comply with the tough rules that came into force in May.

Some employers have dispatched letters to their workers warning that they will no longer accept sworn affidavits as proof of marriage, leaving many employees at the risk of losing privileges they currently enjoy as married persons.

Kenya’s third-largest lender, Co-operative Bank of Kenya has, for instance, warned its employees that it will no longer recognise affidavits as proof of marriage but will only deal with unions that are registered in line with the Marriage Act 2014.

“It has been the bank’s practice to accept sworn affidavits from members of staff who are in customary marriages in updating their marital status. It has also been the practice to accept sworn affidavits to nullify such marriages when need arises.

“We, however, wish to inform you that following the enactment of Marriage Act 2014 earlier this year, the process of registration and nullification of marriages is now clearly provided for in the new Act,” Co-op Bank told its staff in a December 9 circular, adding that affidavits are no longer acceptable as proof of marital status.

Compliance with the law is expected to trigger mass formalisation of cohabitations that have previously been presumed to equal marriages based on a sworn statement by couples under the Oaths and Statutory Declarations Act.

Failure to register such unions with the Registrar of Marriages exposes couples to the risk of losing an array of benefits, including access to credit, medical insurance and pension that accrue to married employees and their families.

Rejection of affidavits is also expected to curb fraud and foster social justice by taking away an individual’s latitude to determine who is listed as his or her spouse in formal transactions, including employment contracts.

READ: AG raises marriage fees ahead of registration surge

Co-op Bank’s stance is expected to be replicated in many workplaces, triggering a frenzy of registration of unions that have enjoyed legal and economic rights for decades based on sworn affidavits alone.

New employees seeking to list their dependants and spouses as next of kin but have no formal proof of marriage as spelt out in the Act are expected to feel the heat first.

The Marriage Act 2014 states that a marriage is proven if there is a certificate or a certified copy of the same. An entry in a register of marriages or a copy of the same also serves to confirm a marriage.

Under the Act, religious marriages are deemed to exist by an entry in a register kept at a place of worship where the union was celebrated.

Records by religious authorities, including the Khoja Shia, Ith’nasheri, Shia imam, Ismaili and Bohra communities, can also be relied on to validate a marriage.

The new legal regime, therefore, centralises certification of all kinds of marriages in the office of the Registrar of Marriages and a few religious insti,utions who act as its agents.

The law recognises monogamous Christian, Hindu, and civil marriages as well as polygamous Islamic and customary marriages. Marriages contracted abroad can also be registered locally.

The matrimonial law requires details of marriages celebrated in places of worship to be forwarded to the Registrar of Marriages by the respective religious leaders while those participating in customary marriages are required to notify the registrar within three months of completing the steps required as per the community’s traditions.

The registrar is to be notified of civil marriages at least 21 days ahead of the establishment of such unions.

Dissolution of certified marriages is now by a judicial decree, which must be communicated to the registrar of marriages.

These are the requirements that employers are now asking their workers to comply with or lose the benefits enjoyed by married individuals.

Employees who have relied on sworn affidavits to certify their marriages are expected to formalise the unions according to the new law to continue enjoying the benefits accruing to those in legally registered relationships.

Failure to do so means such a range of entitlements, including employment benefits, can only be accessed on a de facto basis and can be withdrawn any time pending formal registration of the unions.

Many couples in Kenya have relied heavily on the affidavits as proof of marriage, according to the World Bank and Economic Commission for Africa.

In a recently published report, the authors of a book on Kenyan marriages say lack of recognition and validation of cohabitations is the main driver of the sorry state of affairs.

“Thus, whenever a couple married under customary law is required to produce proof of their marriage, they swear an affidavit to that effect,” the book says.

“A common use is in employment situations where proof of status may be critical for enjoyment of certain economic benefits.”

The authors note that an affidavit swearing that a customary law marriage exists has been widely accepted in official circles.

But the line between customary law marriage and cohabitation, they say, is rather thin and largely artificial in the contemporary setting.

“Those in cohabitation unions have therefore figured out a way of getting around both systems using the affidavit,” the authors say.

“Whenever they want their union to be treated as a marriage, they use the affidavit. The affidavit usually serves the particular purpose for which it is intended.”

Couples, they note, are hardly investigated to determine if the formalities of customary marriage were complied with.

This lack of verification has also opened the door for individuals to commit fraud against their employers, insurers, and creditors by falsifying their marital status or that of their spouses.

The new law has, however, nullified use of affidavits in favour of a government-controlled process.

An official at the office of the Registrar of Marriages told the Business Daily that those whose marriages are currently not legally recognised due to termination of affidavits can seek proper registration with the office.

All they need is to apply for a special licence for which they will pay Sh7,000. They will then wait for seven days or less and go back to the registrar’s office to be issued with a marriage certificate upon filing their records.

Such couples can also be issued with documents recognising their union in the interim as they await the marriage certificate, the official said.

Alternatively, they can have their union recognised by going through the civil or religious ceremonies that are ultimately certified by the Registrar of Marriages and attract various fees.