27 Jul DIVORCE
What is Divorce?
Divorce is defined as the legal dissolution of a marriage by a court. In Kenya, a person seeking a divorce
has to petition a court for one and is required to prove to the court that their spouse committed a
matrimonial offence to justify being granted the divorce.
Grounds for Divorce
The Marriage Act, 2014 recognises five types of marriages: Christian, Hindu, Islamic, Customary and Civil
marriages and has provided the requirements for the dissolution of each type of marriage.
Before one can be granted the dissolution of a Civil, Customary, Hindu and Christian marriage, they must
prove that their spouse committed adultery, was cruel to them, or has desertion them for at least 3 years, or
has shown exceptional depravity and/or the marriage has irretrievably breakdown. For Customary
marriages, you can also obtain a dissolution of the marriage if you have met a requirement under your
customary laws for the dissolution of your marriage.
For Hindu marriages, in addition to the above requirements, a person can also obtain a divorce after
proving their spouse has converted to another religion or has committed rape, sodomy or bestiality.
For Islamic marriages, the Act does not provide grounds for dissolution only stating that dissolution of an
Islamic Marriage shall be governed by Islamic law.
Definitions of grounds
What amounts to adultery is voluntary sexual intercourse between a man and a woman, one or both of
whom is married. Mere suspicion or intimacy that does not involve sexual intimacy will not amount to
adultery.
Cruelty is the intentional and malicious infliction of suffering whether it is mental, emotional or physical.
Courts have avoided the formulation of an exhaustive definition of cruelty as it is sometimes subjective;
conduct that may undoubtedly be cruel in one case may clearly not be cruel in another on account of
differing circumstances
Desertion occurs when one spouse leaves the marital relationship or home without the knowledge or
consent of the other spouse. To successfully prove that your spouse has deserted you, you have to show
that there is actual separation for at least three years, for no good reasons, and without your consent.
Exceptional depravity has been described by courts as unusual moral corruption or wickedness that causes exceptional hardship on an innocent spouse. The hardship or depravity suffered must be shown to be something out of the ordinary, judged by prevailing standards of acceptable behaviour between spouses and there must be evidence of the hardship caused.
According to the Marriage Act, a marriage has irretrievably broken down if a spouse: commits adultery, is
cruel to the other spouse or their child, neglects the other spouse for at least two years, has deserted the
other spouse for at least three years, has been sentenced to imprisonment for seven years or more, suffers
from incurable insanity or where the parties have been separated for at least two years.
The Process of Divorce
In Kenya, a party seeking a divorce must file a divorce petition in the Chief Magistrate’s Court. The other
spouse may respond by filing an Answer to Petition in which case the divorce will proceed as a defended
cause. If the other spouse chooses not to respond to the divorce petition, the divorce will proceed as an
undefended cause. In either case, the Petitioner must testify in court during the hearing. Afterwards, the
magistrate will issue a judgment. If the magistrate is satisfied that the marriage should be dissolved, they
will issue a decree nini dissolving the marriage and provide for a period of usually 30 days before the
decree nisi can be made absolute. The said period of 30 days is to allow anyone who wishes to challenge
the divorce to do so. If no one challenges the divorce within the period, the decree nisi is made absolute
and a certificate of making the decree nisi absolute is issued.
Barriers to a divorce
Where it is shown that there was connivance, condonation and/or collusion between spouses, a court can
decline to grant parties a divorce. Connivance is where the spouse allowed or encouraged the marital
offence to occur. Condonation occurs when the spouse already forgave the marital offence and they
reconciled with their spouse despite full knowledge of the marital offence. Collusion is where parties agree
to petition for a divorce which can lead to concealment of facts from the court or in some cases, intentional
commission of a marital offence in order to procure a divorce.
The information above is not nor is it intended to be specific legal advice. This website is designed for
general information only. You should consult an advocate for advice regarding your specific situation. We
invite you to contact us about your family law situation and welcome your calls, letters and emails.