What you need to know:
- It is appropriate to say that marriages are contracts that tether the parties therein to certain obligations.
- Separation is only available if the court is moved by couples who are legally married.
- Bigamy is marrying another person while one is still in the undissolved marriage.
I would like to know how I can remove my former husband’s name from my ID. We separated seven years ago, and he is now married to someone else.
There are many encouraging stories about marriages. Unfortunately, the public mostly gets to hear of the ugly stories. Be that as it may, a response to your question is premature if preliminary issues that emerge from it remain unanswered. Though you seek to remove your former husband’s name from your national identity card, four points need to be contextualised before understanding the path for such removal. The first is marriage. This is a legal concept where man and woman voluntarily come together in a registrable union that transforms them into husband and wife. This is found at Section 3 (1) and 6 (1) of the Marriage Act. It is appropriate to say that marriages are contracts that tether the parties therein to certain obligations celebrated and committed to, either in a civil registry, religious institution, or homesteads within the customary confines of such events.
The second is the terminology you refer to as separation. This should be seen and understood as a legal construction offered as a relief by the court to feuding couples, who are likely experiencing effects of incompatibility, to stay away from each other for a specific time. Often, the court considers this to be an opportunity for married partners who may need time to reflect on the tenability of their union and may prefer reconciliation rather than divorce. Therefore, let it be noted that separation is only available if the court is moved by couples who are legally married. In the absence of a valid marriage, as provided for by law, living apart in a come-we-stay relationship is not a departure from singlehood. You have alluded to a seven-year separation period. This is a significant ground for ending your marriage because Section 73 of the Marriage Act flags this out, among other reasons that could occasion termination of the marriage.
The third is a short conversation on the issue of divorce. This is the official process by which married couples end their union. It is the moment, upon a decision by the court when wife and husband cease referring to each other as so. It is the time that couples admit the difficulty of keeping up with each other as partners to a union whose goal many at times is creating happiness in good and bad times.
Bigamy is illegal
Fourth is the question of your husband being married to another woman. Although there is no way to tell what kind of marriage you were in, there should be a reality of bigamy if the union you had was monogamous. Should it happen that your husband had married in a civil registry or took vows within the Christian church, and official divorce hadn’t happened, he must be aware of the offence he has committed. Bigamy is marrying another person while one is still in the undissolved marriage.
For the amendment of your national identity card, which is the gist of the question, you will be required to do a name change process, which allows removal, addition, and replacement of name. Section 9 (2) of the Registration of Persons Rules directs that you complete a form known as “Change of particulars,” and in this case, the National Identity Card, where the reason thereof will be the dissolution of marriage. You will then present the form to the Registrar with support documents that must consist of the decree of divorce or an affidavit (if the marriage was customary and unregistered), indicating annulment of the marriage, a certified copy of your birth certificate and National Identity Card, upon payment of the required fee. This process is straightforward.
Should it be that your marriage remained unregistered and the separation seems to date back to 2014 when the Marriage Act came into effect, then the pathway of a name change by way of a deed poll will be the option for you. This process requires you to visit the Registrar of Persons and complete a deed poll, provided under the Registration of Documents (change of name) Regulations. The deed poll, which announces the name you seek to renounce, will also reflect the one you prefer. As you present this deed poll to the Registrar, other support documents will be called for, which include a certified copy of your birth certificate, current national identity card and an affidavit (statutory declaration) by a person resident in Kenya, and who knows you by the name you seek. This should be gazetted for at least 30 days, and if no petition contesting the name change is received within that period, you will be allowed to drop your husband’s name from your Identity card. As it has been said, “Starting over is not a sign of failure, but a mark of courage, such as a willingness to give self another chance in life.”
Mr Mukoya is a lawyer with over 17 years’ experience. He’s the Executive Director, Legal Resources Foundation. Legal query? E-mail DN2Parenting@ke.nationmedia.com