Divorce Law in Kenya

Marriage is a legal agreement between two consenting adults to marry and be a husband and/or wife, and like any other agreement, it may be ended in different situations.

However, the law is committed to safeguarding and supporting the institution of marriage as it is the fundamental source of a healthy society, community, and country. Accordingly, divorce is a mandatory legal process for the dissolution of the marriage by a party owing to certain faults by their spouse. There are some of the guiding principles in divorce proceedings are: –

1. that the parties to a marriage that may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or mediation or reconciliation otherwise, to save the marriage;
2. a marriage that has irretrievably broken down and is being brought to an end should be brought to an end—
   • with minimum distress to the parties and to the children affected;
   • the dissolution process should endeavour to promote a good continuing relationship between the parties and any children affected as possible in the circumstances; and
   • the process should not be unreasonably costly.
3. that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.

Therefore, the Kenyan divorce system is fault-based, and a party intending to annul a marriage must prove some matrimonial faults on their spouses.  A marriage is ended by a decree which comes into two parts, decree nisi, and decree absolute. A divorce decree nisi is an order issued by the family court declaring that the petitioner of the divorce is entitled to the decree after establishing the other party’s fault.

A divorce decree absolute is the final order issued by the family court ending the marriage. It is usually given after 4 weeks of the decree nisi.  Once the decree absolute has been issued, parties to that relationship are deemed to have never been married. For void and voidable marriages, see the above discussion on void and voidable marriages; the courts usually give a decree of annulment if the petition is made within one (1) year of the celebration of the marriage.

The grounds for annulment of marriage include: –

• the marriage has not been consummated since its celebration;
• at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;
• in the case of a monogamous marriage, at the time of the marriage, one of the parties was married to another person;
• the petitioner’s consent was not freely given;
• a party to the marriage was absent at the time of the celebration of the marriage;
• at the time of the marriage and without the knowledge of the husband, the wife is pregnant, and the husband is not responsible for the pregnancy; or
• at the time of the marriage and without the petitioner’s knowledge, the other party suffers recurrent bouts of insanity.

The general grounds for divorce in Kenya are: –

1. adultery by the other spouse;
2. cruelty by the other spouse;
3. exceptional depravity by the other spouse;
4. desertion by the other spouse for at least three years; or
5. the irretrievable breakdown of the marriage.

Adultery as a ground for divorce

‘Adultery’ means voluntary sexual intercourse between a married person and a person of the opposite sex, whether married or not, who is not that married person’s spouse.

A petitioner for divorce on this ground must establish that the respondent has committed adultery, and (b) the petitioner finds it intolerable to live with the respondent, not necessarily because of the adultery.

Proof of adultery is majorly a mechanical process as the person who is alleging that their spouse committed adultery needs to prove beyond the civil standard of proof, beyond the balance of probability to a higher and almost equal to beyond reasonable doubt standard.

Some of the methods of proofing adultery include: –

1. Circumstantial evidenceg., where the parties have been sleeping in the same room.
2. Living with another partner— it is one of the easiest methods of all since, whether or not the new partner is named in the petition, if the court sees that the respondent has set up a house away from the petitioner with a new partner, adultery will be presumed, especially if a child has also been born.
3. Confession statement where the respondent confesses to adultery to avoid the incriminating evidence being publicized.
4. Birth of a child as a result of the adultery may be proved by entry on the birth register if the third party has signed the Register of Births in place of the father or if the spouses have not had any intercourse preceding the pregnancy.
5. DNA or blood tests

Cruelty as a ground for divorce

• There has not been any conclusive and comprehensive definition of cruelty as much depends on the matrimonial life of the spouses, their characters, behaviors, and habits.
• To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than the “ordinary wear and tear of married life.”
• The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion of whether the conduct complained of amounts to cruelty in the matrimonial law.
• Conduct has to be considered, as noted above, in the background of several factors such as parties’ social status, education, physical and mental conditions, customs, and traditions.”
• For cruelty to constitute a ground for divorce in law, it must be grave and weighty and must cause injury to the Petitioner’s health or reasonable apprehension of such injury.
• Therefore, cruelty is willful and unjustifiable conduct of such a character as to cause danger to life, limb, or health, bodily or mental or so as to give rise to a reasonable apprehension of such a danger.
• Some of the acts that would constitute cruelty in a marriage would include; –
  • Physical or verbal violence against the other spouse.
  • Insensitivity, lack of communication, excessive unsociability or general neglect.
  • Bullying or constant criticism.
  • Financial irresponsibility or excessive financial restriction that adversely affects the family.
  • Emotional disunification that is linked to the respondent’s conduct.
  • Denial of spousal companionship.
  • Denial of conjugal rights or sexual dissatisfaction.

Desertion as a ground of divorce

• Desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause.
• It is a total repudiation of the obligations of marriage.
• There can be desertion without previous cohabitation by the parties or without the marriage having been consummated.
• For desertion as a ground for divorce, it must be that the husband or wife has been living separately for more than 3 years with no intention to live together.
• The elements of desertion as a ground for divorce are: –
• actual separation;
• intention to desert by the respondent to desert permanently called animus deserendi;
• lack of consent to the separation by the petitioner; and
• that the separation is without just cause.

Irretrievably broken-down marriage as a ground for divorce

• Irretrievable breakdown of the marriage is understood to mean the situation where one or both spouses are no longer able or willing to live together, and as a result, the husband-and-wife relationship is irreversibly destroyed with no hope of resumption of spousal duties.
• It is worth noting that although adultery, cruelty, and desertion are distinct and separate grounds for divorce, those matrimonial offenses also constitute evidence of the irretrievable breakdown of a marriage.
• Other determining factors for irretrievably broken marriage include, without limitation;
• the length of the period of physical separation;
• the levels of antagonism, resentment or mistrust between the parties;
• the concern of the parties for the emotional needs of each other;
• commitment of the parties to the marriage;
• chances of the parties resuming their spousal duties;
• chances of the marriage ever working again, among others.
• The Kenya Marriage Act[1] states that a marriage is irretrievably broken down if –
  • a spouse commits adultery;
  • a spouse is cruel to the other spouse or to any child of the marriage;
  • a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
  • the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;
  • a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
  • a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more;
  • a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
  • any other ground as the court may deem appropriate.