My name is Beldine Achieng Odhiambo. I am 32 and a secondary school teacher. I got married in November last year under come-we-stay arrangement. Since we got 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 formalised our marriage. Although I don’t foresee a divorce, I still want to be on the safer side. Can the 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
Sabaya Sheila, a family law practitioner and the managing partner at Sabaya and Associates Company Advocates Photo | Pool
“Marriage is a 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 recognised marriages to include— marriages celebrated in accordance with the rites of a Christian denomination, civil marriages celebrated before the Registrar of marriages, or customary marriage. Voluntariness of marriage points to the intention to be bound in a 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.
Court cases show that our courts are aware of the unique nature of the marriage contract and that some couples do not rush to get a certificate. 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 or an identification card bearing the name of the spouse and spousal Consent acceding to the name change.
Why go the mile to change just a name?
The name change in itself is not evidence of marriage but the affidavit of marriage and the consent from the spouse is what points to the intention to be married. Upon separation, nullification of the marriage or divorce, the process is similar except that the applicant will have to furnish the Registrar with decree of separation or certificate from an advocate certifying the separation. In case one is widowed, a death certificate is warranted.
Process of changing name
You can either change your name as provided under the Registration of Documents (Change of Name) Regulations (Cap. 285) or under the Registration of Persons Act, Cap 107 Laws of Kenya. The application will be advertised in the Kenya gazette and a new Identification Card issued thereafter. Under the registration of Persons Act, you will fill a form provided in the 5th Schedule to the Act. Your spouse is also required to give his written consent in the same form. You will then pay fees of Sh1, 000 and await issuance of new Identification card.”
Moses Tumu, an Advocate of the High Court and the Partner in charge of Litigation at Musa Boaz & Thomas Advocates.
Moses Tumu Moses Tumu, an Advocate of the High Court and the Partner in charge of Litigation at Musa Boaz & Thomas Advocates. Photo | Pool
“If you decide to change your surname from your father’s to your husband’s, this change will be made with the consent of the husband by filing a specific statutory declaration on the changes proposed and attaching a birth certificate, identity card, marriage certificate and his consent. The registration of names is governed by the Registration of Persons Act while marriages and divorce are governed by the Marriage Act. Adopting your husband’s name has no bearing when it comes to proving you were married to him.
The dictates of the Marriage Act say that a certificate of marriage must be issued for all marriages including customary. Courts have severally indicated that a change of surname by a woman to adopt husband’s name cannot be proof of marriage. For instance, in a 2005 case of Florence Wairimu Kanyora vs Njoroge Kinyanjui, the High Court was of the emphatic view that the change of name or failure to change a name cannot affect one’s marital status. There is no law that requires a person to adopt the husband’s name. Same way the change of name above cannot confer one with marital status. Also, in the 2020 ruling on the Estate of Stephen Ngigi Karwigi, the High Court declared that the change of father’s name to husband’s surname by a woman who claimed to be the deceased’s wife was not proof of a Gikuyu customary marriage.
If a woman had adopted the husband’s name and needs to revert to her father’s name, she may choose to do a deed poll. She could also file with the registrar of persons several forms provided for in the Act and therein attach a statutory declaration on the proposed changes. BY DAILY NATION