Understanding Divorce Laws and Grounds for Dissolution in Different Marriages in Kenya
Although marriage is a sacred and beautiful union, often considered a divine institution across various religions, it is also the only war where you sleep with your enemy. In some instances, the war becomes unbearable, leading to the union’s dissolution. This dissolution is commonly referred to as divorce and specific laws are put in place to govern the entire process. This article focuses on the grounds for divorce in different forms of marriages in Kenya.
Grounds for dissolution of a Christian marriage
Christian marriages are the most common form of marriage in Kenya due to the huge Christian population. They are officiated and conducted in churches by ordained and qualified religious leaders. Unfortunately, not every couple lives happily ever after. As such, a large number of them file for divorce, turning over a new leaf in life. The divorce process is officiated through a petition.
The grounds for filing for divorce are restricted. The Marriage Act, 2015 provides five specific grounds that an aggrieved party may use to file for divorce successfully from their partner. These grounds are provided as follows;
- When one or more acts of adultery have been committed by the other partner
- Cruelty, whether mental or physical, on the other partner or their children
- Desertion by the other partner for at least three years immediately preceding the date of presentation of the petition
- Exceptional depravity/cruelty by either partner
- Irretrievable breakdown of the marriage
Grounds for dissolution of a civil marriage
Civil marriages are also common in Kenya as they are easier to plan compared to Christian marriages. The marriage is usually conducted and registered by a government official, specifically the registrar. Just like any other marriage, civil marriages also come with a fair share of challenges and disappointments. As such, parties petition the court for either separation or dissolution of marriage. To successfully succeed in your petition, you have to file for dissolution using either of the following grounds;
- Adultery by the other spouse
- Cruelty by the other partner
- Exceptional depravity by the other partner
- Desertion by the other partner for at least three years
- Irretrievable breakdown of marriage
Grounds for divorce of customary marriages
Customary marriages are conducted differently from the Christian and civil marriages. They are celebrated according to the customs of the communities of one or both of the parties. Customary marriages often involve the payment of dowry to serve as evidence of the said ceremony. Their dissolution is also done through a process called conciliation or customary dispute resolution. Nonetheless, these processes have to conform to the principle of the constitution. The dissolution proceeds to court if the customary dispute resolution does not solve the issues presented.
The person who takes the parties through the conciliation process is the same one who prepares a report and takes it to court. Grounds for divorce in customary marriages include the following;
- Adultery
- Cruelty
- Desertion
- Exceptional depravity
- Irretrievable breakdown of the marriage
- Any other valid ground under the customary law of the party suing
Grounds for divorce of Hindu marriages
Hindu marriages are done according to the Hindu religious rituals. The person conducting the marriage should be authorized by the registrar. Dissolution of Hindu marriages is done by way of petition to the court. The following grounds can be used to file the application;
- If the marriage has irretrievably broken down
- If the other party has deserted the petitioner for at least three years before the making of the petition
- If the other party has converted to another religion
- If since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery
- If the other party has committed cruelty on the other
- If the other party has committed exceptional depravity on the other
Grounds for divorce of Islamic marriages
Islamic marriages are usually officiated by a Kadhi, Sheikh or Imam and are celebrated in accordance with Islamic law. The person officiating the marriage records the details of the marriage and delivers them to the registrar for registration. Unlike the civil, Christian and customary marriages, any provisions in the Marriage Act, 2015 which is inconsistent with Islamic law and practices shall not apply to persons who profess the Islamic faith
The dissolution of Islamic marriages is governed by the Islamic law. A decree for dissolution is usually granted by the Kadhi, Sheikh, or Imam. A copy of the decree is then delivered to the registrar.
Grounds for divorce for Islamic marriages include the following;
- If the marriage has not been consummated since its celebration
- At the time of the marriage and without 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 that the husband is not responsible for the pregnancy
- At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.
Conclusion
It is important for anyone navigating the complexities of divorce to understand the grounds mentioned above, as they offer a proper framework for resolving marital disputes. It is essential for people to stay informed to ensure that their rights are protected and their cases handled accordingly. Nonetheless, the legal provisions for dissolution of marriages don’t only end relationships but also support parties in finding new beginnings, promote justice, and foster a more equitable society.
For more insights pertaining to this matter, you can reach the writer at nyala@mmsadvocates.co.ke . You can also contact us at MMS Advocates, Lower Duplex Apartments, Lower Hill Road, or email us at info@mmsadvocates.co.ke