Understanding the Legal Consequences of Marrying While Still Married

What the Law Says

Under Kenya's Marriage Act, 2014, a Christian, Civil, or Hindu marriage is considered monogamous by law. This simply means you can only have one legally recognised spouse at any given time.

“If you marry under Christian rites, your marriage is strictly one-to-one. Getting another spouse while that marriage still exists is bigamy,” explains family lawyer Wanjiku Kamau.

Section 171 of the Penal Code clearly classifies bigamy as a criminal act. This holds true even if the second marriage was conducted under customary law or done completely in secret.

Why It’s Still Happening

Despite these clear laws, bigamy remains surprisingly common. It's particularly prevalent in informal settlements and rural areas, but we also see it among the urban elite. Here are some key reasons why:

1. Extra-Marital Affairs That Escalate

Sometimes, what starts as an affair turns into a second household. In these situations, one person – usually the man – goes on to formalise this new union without legally ending the first one. They might even cite cultural or emotional reasons for doing so.

“He said our marriage wasn’t working and moved in with someone else. But we never divorced,” says Faith, whose husband remarried in secret.

2. Unresolved Marital Conflict

Couples might separate, but then fail to complete a formal divorce. Later, one person remarries, wrongly believing that a verbal agreement or a local community separation is enough.

“They think if elders blessed the separation, it counts. But until the court dissolves it, the law sees you as married,” says Kamau.

3. Lack of Legal Awareness

Many people simply don't know their constitutional or marital rights, especially in informal settlements. Others don't understand that church ceremonies or traditional rites alone don't legally dissolve a marriage.

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4. Dismissive Attitude Toward Court Processes

Some Kenyans actively avoid the courts. They see them as slow, expensive, or intimidating. This leads to informal separations and agreements made by local elders, which aren't recognised by law.

“Some men remarry because they don’t want to go through court processes with the first wife. They just disappear and start afresh,” notes Pastor Ndung’u of a Nairobi-based church.

5. Cultural Pressure or Confusion

In certain communities, cultural norms might encourage multiple unions, even when the initial marriage was registered under a monogamous system like Christian or civil law. This creates confusion between traditional expectations and legal obligations.

Legal and Social Consequences

The consequences of bigamy are significant and far-reaching:

Jail Term: Offenders can face up to 5 years in prison for bigamy.

Nullification of Second Marriage: The second marriage may be declared legally invalid.

Loss of Property Rights: This often leads to painful disputes over inheritance and spousal rights.

Emotional Damage: Spouses and children from both unions frequently suffer significant psychological and social harm.

What Needs to Change

To tackle this ongoing issue, several key areas need focus:

Civic Education: Many Kenyans still lack a basic understanding of marriage law. More public awareness campaigns are crucial.

Affordable & Simplified Divorce Processes: Making divorce procedures easier and less costly could help reduce the number of informal separations.

Religious & Cultural Leaders: These influential figures must ensure their practices and advice align with the law when guiding couples.

Legal Aid & Court Outreach: Providing legal aid and court services in local languages, especially in rural areas, could help bridge the justice gap.