FOR BETTER OR FOR WORSE?

THE DIVORCE PROCESS IN KENYA

No couple willingly gets married with the intention of separating. But as life would have it, things don’t always go as planned. One of the outcomes is that couples end up going their individual ways. It could be temporarily or for good. 

ANNULMENT v DIVORCE 

Many people fail to distinguish between divorce and annulment of marriage. Annulment proceedings are brought to challenge the validity of a marriage as opposed to divorce proceedings which presume a valid marriage that is now subject of dissolution. In annulment proceedings, once a court gives an order annulling the marriage, the court is pronouncing that the marriage did not exist in the first place. 

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. It should be noted that a petition for annulment of marriage can only be filed within 1 year of marriage. 

DIVORCE 

The Kenyan divorce system, unlike in many other countries, is fault based in nature. This means that persons seeking to divorce must prove a matrimonial offence on the part of the other partner or spouse. This is different from most Western countries, including the United Kingdom that operate a 'no-fault' divorce system that permits divorce by consent. The Kenyan Divorce process is governed by the Marriage Act Number 4 of 2014. Section 6 of the Act recognizes 5 different types of marriages as follows:

i. Christian Marriages 

ii. Civil Marriages

iii. Customary Law Marriages

iv. Hindu Marriages

v. Marriages under Islamic Law. 

 Each of these types of marriages have unique requirements for registration as well as for their dissolution. Christian Marriages Under Section 65 of the Act, persons who contracted a Christian marriage can petition for divorce on the following grounds; 

a. One or more acts of adultery committed by the other party;

b. Cruelty, whether mental or physical, inflicted by the other party on the Petitioner, or on the children, if any of the marriage;

c. Desertion by either party for a period of at lead three years before the presentation of the divorce petition;

d. Exceptional depravity by either party

e. The irretrievable breakdown of marriage. These must be offences done by the other person other than the one seeking divorce. Thus, one cannot commit adultery and then rush to court for divorce on the basis of his/her own matrimonial fault. It must be a fault on the part of the other party. 

Civil Marriages Unlike in Christian marriages, a party to a Civil marriage may only petition the court for separation or divorce after 3 years of being married. The grounds for dissolution of a civil marriage are identical to the grounds for dissolution of a Christian marriage discussed above. A marriage is deemed to have irretrievably broken down when any of the other grounds for dissolution of the marriage have been proven, where the parties to the marriage have been separated for at least 2 years, where a spouse has been sentenced to imprisonment for a term of more than 7 years, or where a spouse suffers from incurable insanity. Customary Marriages The grounds for dissolution of a customary marriage are similar to that of civil and Christian marriage, with the added provision recognizing any other ground for divorce under the customs of the particular community. 

Hindu Marriages Hindu divorces have unique grounds as such: 

a. Where the other party has converted to another religion.

b. Where since the celebration of the marriage, the other party has committed rape, sodomy, bestiality, or adultery 

Islamic Marriages Islamic marriages are celebrated under Sharia Law. The Act does not set down grounds for dissolution of Islamic Marriages only stating in Section 71 that dissolution of an Islamic Marriage shall be governed by Islamic law. 

PROCEDURE

It starts with the filing of a Divorce Petition to the Chief Magistrate's Court. The Petition sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. A Petition will be accompanied by:

1. Verifying Affidavit – a sworn declaration by the Petitioner saying the contents of the petition are true to the best of their knowledge, information, and belief.

2. Notice to Appear- a document that alerts the Respondent (the other party) that a Petition has been filed against them.

3. Acknowledgement of Service- a document signed by the Respondent personally to acknowledge that they have received the Petition.

4. List of Witnesses – A list of witnesses that the Petitioner intends to call to testify at the hearing of the Petition.

5. Witness Statements – The witnesses must give their sworn statements 

6. List of Documents – If a Petitioner wishes to rely on documents, they must give a list of them and attach copies to the Petition. Once 15 days lapse, the Petitioner moves the court to declare the Petition uncontested. If the Respondent contests the divorce petition, they will have to file an Answer to the Petition and Cross-Petition and serve the Petitioner. After 15 days, the Petitioner will ask the court to issue a Registrar’s Certificate. This means that the petition is ready to go for hearing. 

The petition is fixed, and a hearing takes place. During the hearing, the Petitioner will bring evidence to show the court that the marriage has broken down irretrievably. If the Respondent contests the petition, they will also call witnesses and bring evidence to support their case. 

Once this is done, the court will set a date for judgment. During delivery of judgment, the court will decide whether there is sufficient grounds to for the divorce to be granted. If it finds sufficient grounds, it will issue the first divorce decree, known as Decree Nisii. The couple will then have a month to decide if they want the divorce to be made final or not.  

Once a month is over and there has been no change of heart, the court issues a Decree Absolute. This confirms that the marriage has been dissolved. 

Other issues that may be arise during court proceedings include: i. Custody and maintenance of the children of the marriage – This is governed by the Children’s Act and will therefore be referred to the Children’s Court ii. Maintenance of one spouse by the other – The Marriage Act under Section 77 provides that the court may order a person to pay maintenance to a spouse or a former spouse— a. if the person has refused or neglected to provide for the spouse or former spouse as required by this Act;

b. if the person has deserted the other spouse or former spouse, for as long as the desertion continues;

c. during the course of any matrimonial proceedings;

d. when granting or after granting a decree of separation or divorce; or

e. if, after making a decree of presumption of death, the spouse or former is found to be alive.

iii. Division of matrimonial property – This is governed by the Matrimonial Property Act (2013) and dealt with in the High Court. 

SEPARATION Seeing as getting a divorce decree is an ultimate end to the marriage, Section 14 of the Marriage Act provides that the parties to a civil marriage may agree to live apart for one year and any such agreement shall be valid and enforceable, and shall be filed with the court. This is what is referred to as judicial separation and an alternative to couples who are not sure of the status of their marriage to consider.