DIVORCE OF A FOREIGN MARRIAGE IN KENYA
In Kenya, marriages are governed by the Marriage Act (Act No.4 of 2014). The Act defines a marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union registered in accordance with the Act. Similarly, divorce in Kenya is governed by the provisions of the Marriage Act.
A marriage that is celebrated outside Kenya may be registered in Kenya by an application to the Registrar to have that marriage registered. This is on condition that the Registrar is satisfied that the marriage complies with the provisions of the Act. The Registrar may consider the marriage certificate issued in the foreign country or such other proof that may be considered sufficient.
The Marriage Act implies that a marriage celebrated outside the country is valid if it was contracted in accordance with the law of the country and is also consistent with the laws of Kenya. Also, if at the time of the marriage, the parties had the capacity to marry under the laws of that country and is consistent with the laws f Kenya. It is valid in Kenya if, either of the parties is at the time of the marriage domiciled in Kenya and both parties had the capacity to marry under the Act.
Divorce of a foreign marriage in Kenya may be granted in Kenya but subject to certain considerations by the courts. The key consideration therefore in determining whether a foreign marriage divorce can be determined in Kenya is the place of domicile of the parties. This is during the marriage or prior to the institution of divorce proceedings.
An assumption of jurisdiction by the Kenyan courts is guided by either the Kenyan Constitution or Statute. Jurisdiction is the power to make legal decisions and judgements. It is basically everything and the moment a court discovers that it lacks the jurisdiction, it steps aside and downs its tools. This was the decision laid down in the case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (LTD) (1989) eKLR.
The assumption of jurisdiction by the Kenyan courts to hear a divorce of a foreign marriage can thus be derived from whether the marriage has been registered or is valid in Kenya. In the case of M N M –v- P N M (2016) eKLR, Justice Musyoka held that in personal matters, such as marriage, domicile is critical. Domicile is all about residency. Crucially, the court will only have jurisdiction over a suit for the dissolution of marriage where the parties have been domiciled within the jurisdiction for the period allowed by the relevant law.
The Act does not have clear provisions on the domicile of parties seeking dissolution of marriages in Kenya. The only reference in the Act to domicile is in Section 67 of the Marriage Act which states that where a foreign court has granted a decree in matrimonial proceedings in a local or foreign marriage, the decree will be recognized in Kenya if:
- Either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;
- Being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of them.’
In conclusion, the dissolution of a foreign marriage in Kenya is on a case-to-case basis. The court in determining whether it has the jurisdiction to hear a foreign divorce matter, shall look into the Constitution of Kenya, relevant pieces of legislation as well as judicial precedents.
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