LEGAL REVIEW: THE GROUNDS AND PROCESS OF DIVORCE IN KENYA

INTRODUCTION

In Kenya, the divorce process in Kenya is governed by Marriage Act No. 4 of 2014., which provides specific grounds upon which a marriage can be dissolved. To initiate divorce proceedings, one must establish valid grounds recognized by Kenyan law.

The Marriage Act does not expressly define what a divorce is. However, in summary, the Black’s Law Dictionary defines a divorce as the legal separation of two people by the judgment and decree of a court. A divorce is the process you undertake to dissolve the marriage permanently.

THE GROUNDS FOR DIVORCE IN KENYA:

A spouse can file for divorce based on the following grounds; adultery, cruelty, desertion, and irretrievable breakdown of a marriage. One has to prove beyond reasonable doubt that their spouse committed either of the mentioned grounds.

HAS v AAL [2020] eKLR: The plaintiff prayed for the dissolution of her marriage because her husband had neglected his parental duties, treats her with cruelty, insults her with vulgar words, and assaults her. Upon analysis of the evidence, the court entitled the plaintiff to divorce. The judge declared the marriage dissolved and ordered the issuance of a divorce certificate.

FAO v MB [2021] eKLR: The plaintiff filed for divorce because the defendant is negligent, assaults her, insults her, and treats her with cruelty. She also claimed that the defendant threatened to kill her. After successfully proving her case, the court granted the plaintiff entitlement to divorce since it was proved that she suffered psychological treatment and was denied her fundamental rights to marriage under Islamic law.

 1.   Adultery:

One spouse engaging in sexual relations with someone other than their spouse is considered adultery.

Adultery is a commonly cited ground for divorce in Kenya, and it is essential to provide evidence to substantiate the claim.

2.   Cruelty:

If one spouse subjects the other to physical or mental cruelty or harassment, it can be considered grounds for divorce.

Cruelty may include physical violence, emotional abuse, or any behavior that endangers the well-being of the other spouse.

3.   Desertion:

Desertion occurs when one spouse abandons the other without reasonable cause for at least three years.

The deserted spouse can file for divorce on the grounds of desertion.

 4.   Long Separation:

If a couple has lived apart for at least four years and can demonstrate that they have been living separate and independent lives during this period, it can be grounds for divorce.

This separation must be voluntary, and both spouses should be in agreement that the marriage has broken down irretrievably.

5.   Incurable Insanity:

If one spouse has been declared incurably insane by a qualified medical practitioner and has been in such a condition for at least five years, it can be grounds for divorce.

6.   Venereal Disease:

If one spouse has a venereal disease that is both incurable and communicable, and the other spouse was unaware of the disease at the time of marriage, it can be grounds for divorce.

7.   Impotence:

 If one spouse is impotent and unable to consummate the marriage, and this fact was not known to the other spouse before marriage, it can be grounds for divorce.

 8.   Presumption of Death:

If one spouse has been missing for seven years or more, and there is a presumption of their death, the other spouse can seek a divorce.

 9.   Non-Compliance with Court Orders:

Failure to comply with a court order regarding maintenance, custody, or any other court-issued directives can also be a ground for divorce.

 Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

 (a) Where the marriage has not been consummated since celebration.

 (b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

 (c) In the case of monogamous marriages, one of the parties was married to another person.

 (d) The Petitioner’s consent was not freely given

 (e) A party to the marriage was absent at the time of celebration of the marriage.

 (f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

 (g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

THE DIVORCE PROCESS IN KENYA

 The divorce process in Kenya is governed by the Marriage Act, the Matrimonial Property Act, and various other legal provisions.

1.  To file for divorce in Kenya, you must meet certain eligibility criteria, including having a valid marriage recognized under Kenyan law.

 2.   Grounds for Divorce: You must have valid grounds for divorce.

 3.   Consulting an Attorney: It is advisable to consult with an attorney who specializes in family law to guide you through the divorce process and ensure that you meet all the legal requirements.

 4.   Filing a Petition: The process typically begins with one spouse (the petitioner) filing a divorce petition in the High Court of Kenya. The petition should outline the grounds for divorce and other relevant details.

 

The Legal process for Divorce in Kenya

 Step 1

A Person seeking the Divorce is referred to as the Petitioner while the person against whom a divorce is sought is referred to as the Respondent. The divorce process begins with the petitioner preparing a divorce petition which sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. The Petition is filed together with a Verifying Affidavit, a Notice to Appear, a List of Witnesses and their statements and a List of Documents the Petitioner wishes to rely on.

Step 2

Once the divorce petition has been prepared and filed in court, it served together with a Notice to appear upon the respondent so that he/she can enter an appearance and file their response to the Divorce Petition. The notice to appear will normally direct the Respondent to appear and answer to the Petition within 15 days. Where the Respondent does not contest the divorce, he/she may opt to not file a response to the Petition and the divorce will proceed as uncontested. If the Respondent contests the grounds for divorce set out by the petitioner, he/she may file a response to the Petition also includes a cross-petition in which the respondent sets out their own grounds for divorce against the Petitioner.

Step 3

After the lapse of the 15 days, the Petitioner will request the court to issue a certificate allowing parties to move to the hearing stage. If the court is satisfied that the Divorce Petition is ready for hearing, it will issue the certificate and grant a hearing date. Both Parties will then get an opportunity to present their facts and evidence before the court during the hearing.

Step 4

After the hearing is completed, the court will issue a separate date where it will deliver its judgement. If the court finds that there are sufficient grounds to dissolve the marriage, it will then issue a Decree Nisi. The Decree Nisi is a temporary order that runs for 30days and gives the Parties time to make a final decision on whether they still wish to proceed the divorce and have the marriage dissolved. If the parties change their minds and choose not to proceed with the divorce, they are free to notify the court of their decision.

Step 5

If the Parties still wish to have their marriage dissolved after the 30 days of the Decree Nisi have lapsed, the court will issue a Decree Absolute which is the final decree of divorce to dissolve the marriage. At this point, the parties are no longer considered married to each other and are in fact both free to remarry.

 

 5.   Property Division: If there is matrimonial property involved, the court may determine how it should be divided between the spouses. The Matrimonial Property Act provides guidelines for the equitable distribution of property.

 

 6.   Child Custody and Support: If there are children involved, the court will also address issues of child custody, visitation rights, and child support. The best interests of the child are considered in these matters.

 

 7.   Hearing and Judgment: The court will schedule a hearing where both parties can present their case. After considering all the evidence and arguments, the court will issue a judgment either granting or denying the divorce.

 

 8. Decree Absolute: Once the court grants the divorce, a decree absolute is issued, officially terminating the marriage.

 

9. Appeals: Either party has the right to appeal the court's decision if they believe it is unjust.

 

10. Finalizing Financial Matters: After the divorce, the parties may need to finalize financial matters, including the division of assets and payment of any support or maintenance as per the court's orders.

 

Conclusion

Divorce proceedings are exhausting and time-consuming. Parties can simply use other alternative dispute resolution mechanisms to solve their marital issues. 

 However, heading to court is a good option because the decree made by a judge is usually final and binds all parties, meaning that there will be some understanding between the two parties. Courts should come up with better ways of solving divorce cases faster and more efficiently to reduce the workload and the number of unresolved cases.