Introduction
Presently, divorce has become a common word in society. People are no longer shocked by the thought of it since it is no longer seen as a taboo or a curse, as some communities define it. Furthermore, the world has evolved to accept that not all marriages work out in the end. However, for a spouse to be granted a divorce, a court procedure has to be followed. This article aims to talk about these court procedures to enlighten the readers on matters regarding divorce proceedings.
Divorce
It is a legal dissolution of a marriage by a competent court. The Marriage Act, of 2014 defines marriage as a voluntary union of a man and a woman. As such, it approves of the dissolution of marriages, but only if the parties seeking divorce can prove that their spouses committed matrimonial offences.
Grounds for divorce
A spouse can file for divorce based on the following grounds; adultery, cruelty, desertion, and irretrievable breakdown of a marriage. One has to prove beyond reasonable doubt that their spouse committed either of the mentioned grounds.
HAS v AAL [2020] eKLR: The plaintiff prayed for the dissolution of her marriage because her husband had neglected his parental duties, treats her with cruelty, insults her with vulgar words, and assaults her. Upon analysis of the evidence, the court entitled the plaintiff to divorce. The judge declared the marriage dissolved and ordered the issuance of a divorce certificate.
FAO v MB [2021] eKLR: The plaintiff filed for divorce because the defendant is negligent, assaults her, insults her, and treats her with cruelty. She also claimed that the defendant threatened to kill her. After successfully proving her case, the court granted the plaintiff entitlement to divorce since it was proved that she suffered psychological treatment and was denied her fundamental rights to marriage under Islamic law.
Divorce proceedings
The court process often begins with a party filing a petition based on the grounds mentioned above. The party can choose to file the petition if they intend to represent themselves or their petition can be filed by an advocate. This petition should be accompanied by a verifying affidavit, witness statement, list of witnesses, and a list of documents containing evidence. Afterwards, the advocate should prepare and submit to the court a notice to appear to direct the respondent to inform the court whether they contest the divorce. The respondent is usually given fourteen days to respond.
The next step is the petitioner’s lawyer making an application to the court for it to issue a registrar’s certificate. This process is essential as it signifies that the court has certified the petition for hearing. Hearing is done after fourteen days during which a party is supposed to provide evidence showing that their marriage is irretrievable by calling witnesses. The respondents will also be called to provide evidence by calling their witnesses to rebut the claims that will be brought forth. After the hearing, the court will set a judgement date.
Judgement
It is usually issued after twenty-one days. The court decides whether there are sufficient grounds to dissolve the marriage. In case sufficient grounds are observed, the court will issue the first divorce decree. Afterwards, the petitioner will be given a month to decide whether they still want the divorce to be final or not. If they end up changing their minds, the court will do away with the initial decree. If the petitioner decides to go on with dissolving their marriage after a month has lapsed, the court will issue a final decree to dissolve the marriage.
Divorce cases are supposed to take a maximum of two months to be resolved based on the information provided herein. However, these cases take so long to be resolved due to court workload. Courts often have inadequate time to solve divorce cases because the matters to be handled are usually too many. Furthermore, the cases are often dragged on due to a lack of cooperation among some witnesses and improper coordination of the parties and their advocates. As such, a divorce case can take up to two years to be resolved.
Reforms
It is presumed that couples who opt to have a civil wedding must wait for three years before they may start divorce proceedings if they wish to dissolve their marriage, according to the Marriage Act, of 2014. However, on 7th July 2022, the court of appeal termed this law as unconstitutional after a Kenyan advocate brought a legal action to test the three-year limitation.
Other findings
In the United Kingdom, the new laws governing divorce state that instead of blaming one party, a couple can cite the irretrievable breakdown of their relationship as grounds for wanting to dissolve their marriage as a joint statement or by an individual.
Conclusion
Divorce proceedings are exhausting and time-consuming. Parties can simply use other alternative dispute resolution mechanisms to solve their marital issues. However, heading to court is a good option because the decree made by a judge is usually final and binds all parties, meaning that there will be some understanding between the two parties. Courts should come up with better ways of solving divorce cases faster and more efficiently to reduce the workload and the number of unresolved cases.
In case of any questions regarding divorce cases, you can reach us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD or email us at info@mmsadvocates.co.ke JANUARY 18, 2023 BY: VALLARY NYALA