In recent years, Kenya has witnessed growing conversations around reforming its divorce laws to allow for divorce by mutual consent, reflecting global trends toward modernising family law. However, on 24 April 2025, the High Court of Kenya at Nairobi issued a judgment in Constitutional Petition No. E075 of 2022 firmly restated that divorce by mutual consent is not yet recognised under Kenyan law, reinforcing the country’s existing fault-based divorce system.
This article explores the Court’s reasoning, examines its implications on divorce proceedings in Kenya, and compares it to the now-stalled Kenya Marriage (Amendment) Bill, 2023, which had proposed to formally allow mutual consent divorces.
The Coppler Attorneys Case: A Petition for Divorce by Mutual Consent
In Coppler Attorneys & Consultancy v Attorney General & National Assembly, the petitioner argued that Section 3 (1) of the Marriage Act defines marriage as a voluntary union between a man and a woman, either in a monogamous or polygamous set up. They therefore challenged the constitutionality of Part X of the Marriage Act, 2014, arguing that it unfairly forces couples seeking to end their marriages to go through a fault-based, adversarial process. They contended that this approach leads to unnecessary acrimony, damages co-parenting relations, increases costs, and often worsens already broken marriages, adversely affects the children of such parties who bear shame and public humiliation as their parents battle their case in court.
The petitioner sought a radical solution:
- A declaration that Part X of the Marriage Act contravenes the provisions of Articles 2, 10, 36, 45, and 259 of the Constitution and is thus unconstitutional.
- A declaration that parties to a marriage should be allowed to dissolve the union by mutual consent, and
- An order compelling Parliament to amend the Marriage Act accordingly.
However, the High Court dismissed the petition, making several key findings:
Key Highlights from the Judgment
- Marriage is a societal institution deserving of protection
- The Court emphasized that marriage is not merely a private arrangement between two individuals, but a foundational unit of Kenyan society protected under Article 45 of the Constitution.
- The law seeks to protect marriage from casual dissolution and safeguard societal stability by ensuring that even when there are challenges between couples, there is an opportunity to intervene and rescue the marriage by reuniting the couples through counselling, reconciliation, mediation, or another form of intervention. Thus, agreeing to a divorce by consensus would erode the leverage that society has created to preserve the institution of marriage, which is key to society’s survival.
- Fault-Based Divorce System Upheld
- Under the Marriage Act, 2014, which was enacted under Article 45 (3) of the Constitution, parties can seek divorce based on specific grounds such as adultery, cruelty, desertion, or irretrievable breakdown of marriage.
- Although the Act introduced irretrievable breakdown as a ground in 2014, parties must still prove factual circumstances showing breakdown, not just file a mutual agreement.
- No Right to Divorce by Mutual Consent under Current Law
- The Court found that mutual consent alone is not recognised as sufficient ground to dissolve a marriage.
- The absence of a “mutual consent” pathway in the law is not unconstitutional; rather, it preserves the societal value placed on marriage
- Separation of Powers Doctrine
- The Court reiterated that it cannot compel Parliament to legislate in a particular manner. Amending the Marriage Act is within Parliament’s exclusive domain under Article 94(1) of the Constitution. A court cannot direct the Parliament to legislate in a particular way, but can only stop Parliament from legislating unconstitutionally.
- Public Interest over Private Preference
- While individual autonomy in exiting marriage is essential, the Court held that public interest in protecting the family unit outweighs private interests of individuals seeking easy exits from marriage.
Parliament’s Attempted Reform: The Marriage (Amendment) Bill, 2023
The High Court’s decision comes against the backdrop of the Marriage (Amendment) Bill, 2023, which sought to modernise Kenyan divorce laws by introducing divorce by mutual consent.
Under the proposed amendment:
- Couples could jointly petition the Court to dissolve their marriage without the need to prove fault.
- The Court would have been empowered to grant a decree of divorce based solely on mutual agreement and settlement of ancillary matters like custody and property division.
However, Parliament paused further discussions on the Bill, meaning the legal framework remains unchanged.
Thus, Kenya retains its fault-based divorce system, requiring proof of wrongdoing or irretrievable breakdown for a court to grant dissolution.
Practical Realities: How Lawyers Navigate Divorce Today
Despite the legal framework, practitioners have found intelligent ways to achieve amicable divorces, even in the absence of a formal mutual consent law:
- Parties often cite the irretrievable breakdown of marriage as the primary ground for divorce.
- If both parties are cooperative, they can present uncontested evidence (such as separation for over two years) to satisfy the Court without engaging in an aggressive blame game.
- Where uncontested, divorce proceedings in Kenya can conclude within six months, offering relatively swift and civil exits from marriage.
This creative use of the law balances the legislative intent to protect marriage with the practical need to dissolve non-functional unions peacefully.
Future Outlook: Is Reform Still Necessary?
The High Court’s judgment undeniably affirms the current legal status quo. Yet, the growing debate over divorce by mutual consent highlights evolving societal values:
- Human dignity, autonomy, and mental well-being are becoming increasingly important.
- Kenya remains one of the few jurisdictions where mutual consent is not a recognised standalone ground for divorce.
- Many countries, including England, Australia, and Canada, have either fully adopted or partially recognised no-fault divorce systems, significantly reducing litigation acrimony.
In time, Kenya may revisit this conversation. Legislative reform may still happen, balancing the protection of marriage with respect for individual choice and dignity.
Conclusion
The High Court judgment in Coppler Attorneys v Attorney General has reaffirmed that divorce by mutual consent remains unavailable under Kenyan law. Divorce is still fault-based or through proof of irretrievable breakdown, ensuring that marriage is not treated casually but remains a protected societal institution.
However, skilled legal practitioners can still help parties navigate the system effectively, securing swift, peaceful, and dignified divorces within the current legal framework.
At Njaga & Co. Advocates, we stand ready to guide you through every step of the divorce process, ensuring your rights are protected while minimising conflict, cost, and stress. Contact us today for professional, compassionate, and efficient legal representation.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
