Legislative changes often hit close to home, and family law is no exception. The Kenya Marriage Amendment Bill, 2023, has drawn significant attention, especially from those who have experienced the challenges of divorce. This bill aims to modify the Marriage Act of 2014 by adding Section 75A after Section 75, introducing provisions for mutual-consent divorce for all marriages under the Marriage Act, including civil, Christian, customary, Hindu, and Islamic marriages. Sponsored by Suna West MP Francis Masara, the bill is currently before the National Assembly. If approved, it would provide a more amicable alternative to the lengthy and contentious court divorce process.
Now, let’s explore the implications of this proposed bill.
Understanding the Amendment
The core proposal of the amendment is the introduction of divorce through mutual consent. Traditionally, divorce processes in Kenya have been and are still fault-based, meaning that a party can only acquire a divorce approval if they can prove that the other spouse is at some matrimonial fault. The leading faults for the dissolution of a marriage under the Marriage Act include: –
- one or more acts of adultery committed by the other party;
- cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage;
- desertion by either party for at least three years immediately preceding the date of presentation of the petition;
- exceptional depravity by either party; or
- the irretrievable breakdown of the marriage.
This fault-based system has often led to extensive, expensive legal battles, emotional strain, and acrimonious divorce proceedings as parties seek to prove the other spouse’s fault.
Mutual-Consent Divorce
This type of divorce allows both spouses to end their marriage without going through a lengthy petition process. It’s seen as a faster, more cost-effective, and emotionally easier way to dissolve a marriage.
Under the proposed Section 75A(1), the court can grant a divorce on mutual consent if:
- The marriage has irreparably broken down.
- The parties have lived separately for at least a year.
- Both parties agree to the divorce.
- Both parties present the petition together.
- Both parties attend the petition hearing.
This proposal recognizes that couples might want to separate amicably. It could reduce emotional distress, minimize conflict, and ease the burden on the legal system.
Moreover, the Bill aims to simplify separation by mutual consent, avoiding prolonged and messy divorce proceedings. Its goal is to provide an easier and more affordable way for couples to agree on property division, child custody, and support.
The Importance of Mutual-Consent Divorce
- Personal Autonomy: The proposed change highlights individual autonomy in making major decisions about relationships. Couples can mutually choose to end their marriage without legal battles or societal pressure.
- Increased Efficiency: Long divorce battles have been a common issue. Mutual-consent divorce can significantly speed up the process, taking months instead of years.
- Cost-effectiveness: Divorces are financially draining, along with the emotional toll. Mutual consent can reduce the financial strain, making divorce accessible to more Kenyans in toxic or irreparable marriages.
- Emotional Well-being: Recognizing that marriage can be emotionally taxing and expectations may change, this provision safeguards mental well-being.
Available Safeguards of Divorce by Mutual Consent
Stable marriages are vital for society, and protecting families is key. The Kenyan Constitution stresses the importance of families. The bill proposes safeguards against coercion, fraud, or undue influence in obtaining mutual consent. The court can overturn a divorce granted under duress, fraud, or undue influence, and the innocent party can claim damages.
In Conclusion
The Kenya Marriage Amendment Bill, 2023, reflects society’s evolution. It acknowledges that couples can agree to end their marriage without blame or fault-finding. This is a significant step in Kenya’s approach to divorce and could ease the process for amicable separations, reducing judicial backlog.
At Njaga & Co Advocates, we’re dedicated to keeping you informed and offering legal guidance. If you’re curious about how this amendment might affect you or need advice on legal or family matters, don’t hesitate to reach out to us.
