My name is Beldine Achieng Odhiambo. I am 32. I am secondary school teacher. I got married in November last year under come-we-stay arrangement. Since getting married, my husband has been pressuring me to drop my father’s surname and adopt his name instead.

He argues that adopting his surname is sufficient proof that I am his wife even though we have not formalized our marriage. Although I don’t foresee a divorce, I still want to be on the safe side.

Can this name change stand as evidence that we are man and wife? Can the court consider me as his legal wife in the event of a divorce based on the adoption of his name? Should we divorce, how will reverting to my father’s surname affect me?

Sheila Sabaya, a family law practitioner and the managing partner at Sabaya and Associates Company Advocates

Marriage is a very unique contract between adults. The Marriage Act No. 4 of 2014 defines marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.

The Act also gives types of recognized marriages to include; marriages celebrated in accordance with the rites of a Christian denomination; civil marriages celebrated before the Registrar of marriages; customary marriage celebrated according to cultural rites belonging to any of the many communities in Kenya; Hindu marriages; and Islamic marriages. Voluntariness of marriage points to the intention to be bound in marital union.

Since passing of regulations to the Marriage Act, the legal standpoint is that the only conclusive proof of marriage is a Marriage Certificate.

However, this requirement has been found to be impractical since not all couples have registered their marriages. Now what happens when the marital ship hits an iceberg before the marriage is registered? How has courts interpreted the requirement of Certificates of marriage where one is lacking?

Decided court cases show that our courts is aware of the unique nature of the marriage Contract, some couples do not rush to have their marital union registered so as to get a certificate of marriage.

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This is why in cases of intestate Succession, Matrimonial property proceedings and child custody and maintenance cases, courts have gone beyond the strict requirement of Certificate of Marriage and considered the intention of parties to be bound in marriage. At that point, any evidence that points to the voluntary intention to be bound in marriage comes in handy.

This evidence can take the form of an Affidavit of marriage; listing with Insurance provider as a spouse; and/or an identification card bearing the name of the spouse and spousal Consent acceding to the name change.

For legal advise and consultation on family matters, you may reach out to Sheila Sabaya on [email protected]