The High Court in Nairobi has ruled that a woman can be recognised as a wife in succession matters even if she married a man whose monogamous marriage to another woman had not been dissolved.

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In a judgement obtained by Kenyans.co.ke , Justice Hilary Chemitei held that Section 3(5) of the Law of Succession Act protects succession rights in such circumstances, allowing the spouse and her children to benefit from the estate of the deceased despite the marriage being legally invalid.

“Since the Act declared a customary marriage to be valid despite the existence of a monogamous marriage being alive, then, by the same breath, any second monogamous marriage like the case at hand will be deemed valid for purposes of the Succession Act and in particular section 29 and 40 thereof,” the judgement read.

The decision clarifies the distinction between the legal validity of a marriage and the recognition of a spouse’s rights under succession law, an issue that has often been contested in courts.

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In the case, the objector’s marriage to the deceased was challenged after it emerged that his first monogamous marriage had not been dissolved when they got married.

The deceased first married another woman in 1987 before the marriage was later dissolved through divorce proceedings in 2020.

The court established that he underwent a customary marriage ceremony with the objector in 2015 before contracting a civil marriage in Tanzania.

“In this case the deceased indeed underwent a customary marriage ceremony and later validated it through a civil union. My position is that the same, to the extent that the first marriage was still subsisting, was null and void legally speaking,” the judge stated.

Although the second marriage was legally void, the court found that the deceased had treated the woman as his wife, introduced her as his spouse and had two children with her.

Justice Chemitei ruled that Parliament intended Section 3(5) of the Succession Act to protect spouses in such unions for inheritance purposes despite other legal limitations on the validity of the marriage.

📰 Source: Kenyans.co.ke