Marriage is defined as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered; it is governed by the Marriage Act, 2014.
The Marriage Act, 2014 provides for the various forms of marriages, their definitions and their processes of dissolution which include Christian marriage, Civil marriage, customary marriage, Hindu Marriage, Islam marriage.
Divorce is defined as a judicial declaration dissolving a marriage in whole or in part, especially one that releases the marriage partners from all matrimonial obligations.
Alternative dispute resolution is recognized in the Marriage Act 2014 as a means of resolving disputes in a marriage before one initiate the process of divorcewhich this procedure must be in conformity with the provisions of the Constitution of Kenya 2010.
DIVORCE UNDER THE MARRIAGE ACT, 2014.
The Marriage Act, 2014 provides for dissolution of the different forms of marriages established under the Act as follows;
- Christian Marriage
Section 65 of the Marriage Act, 2014 sets out the grounds for dissolution;
- If a party to the marriage commits one or more acts of adultery;
- Cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children of the marriage;
- Exceptional depravity by the other spouse;
- Irretrievable breakdown of the marriage , Section 66(6) of the Marriage Act states that a marriage is considered 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 voluntarily or by a decree of the
- a spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition;
- If a spouse has been sentenced to a term of life imprisonment or for a term of seven years (7) or more;
- Where 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.
- Desertionby either party for at least three (3) years immediately preceding the date of presentation of the petition. It must be proved the spouse left without a reasonable cause.
A party relying on the ground of desertion needs to prove the following:
- The fact of separation. The parties must physically separate;
- There has to be intention of the deserting spouse to remain separated, known as the Animus deserendi which is inferred from words and actions to permanently cease the matrimonial union; and
- Lack of a reasonable or justifiable cause for withdrawing from cohabitation.
- Civil Marriages
Section 66(1) of the Marriage Act, 2014 establishes a restriction to petitioning for separation or divorce for parties to a civil marriage to be unless three (3) years have elapsed since the celebration of the marriage.
The court can refer the matter to a conciliatory process agreed between the parties. The petitioner can however proceed to file for separation or divorce even where the conciliation process is ongoing.
The grounds for divorce in a civil marriage are the same as those in a Christian marriage as stated above.
- Hindu Marriage
Dissolution of a Hindu Marriage is provided for under section 70 of the Marriage Act, 2014.
It provides for the following as grounds for divorce;
- that the marriage has irretrievably broken down;
- the other party has deserted the petitioner for at least three years before the making of the petition;
- the other party has converted to another religion;
- since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;
- the other party has committed cruelty on the other; and
- The other party has committed exceptional depravity on the other.
- Customary Marriage
Provided for under Section 68 of the Marriage Act , 2014.
The parties to a customary marriage may undergo a process of conciliation or customary dispute resolution before the court determines a petition for the divorce. The process of mediation or traditional dispute resolution has to conform to the principles of the Constitution.
The person who takes the parties to a customary marriage through the process of conciliation or traditional dispute resolution is required to prepare a report of the process for the court.
Under Section 9 of the Magistrates Court Act the court is entitled to hear claims arising out of marriage or divorce under customary law and the courts are required to determine the cases before them in accordance with the Customary Law of the parties. Normally the courts will insist on reconciliation procedures and it is only after proof that reconciliation has failed that the courts proceed to hear the divorce petition and grant it.
Grounds for divorce in customary marriages are provided for under section 69(1) of the Marriage Act, 2014 as follows:
- Exceptional depravity;
- Irretrievable breakdown of the marriage; or
- Any valid ground under the customary law of the petitioner.
- Islamic Marriages
Sec 71 of the Marriage Act, 2014 states that the Islamic divorce shall be governed by Islamic law.
Where a Kadhi, sheikh, imam or person authorised by the Registrar grants a decree for the dissolution of a marriage the Kadhi, sheikh, imam, Mukhi or authorised person shall deliver a copy of the decree to the Registrar.
PROCEDURE OF FILING A DIVORCE SUIT IN KENYA
Divorce proceedings in Kenya are commenced by filing a divorce petition. The person filing this document is known as a petitioner.
The Petition signifies that a spouse desires to end their marriage which subsequently initiates the process of divorce. The Petition outlines the grounds for divorce and is accompanied by the following documents: –
- Verifying Affidavit– this is a legal document that sets out the petitioner reaffirms the contents of the divorce petition that they have brought before the court and which is made by
- Notice to Appear– this is a legal document that is served to the respondent to be reminded that they are supposed to appear in court failure to which the case will continue and judgment will be given in their absence.
- List of Witnesses and their statements– this is a legal document that sets out the persons that the petitioner wishes to use in the divorce petition that will testify on their behalf
- List of Documents– this is a legal document that sets out the supporting documents that the petitioner will use in their divorce
Once the Petition is filed, it is served together with the Notice to Appear, notifying the Respondent of the case. Once the Respondent acknowledges receipt, he is required to enter appearance and file a Defense and/ or a Cross Petition.