DIVORCE PROCESS IN KENYAN COURTS.

INTRODUCTION 

Human beings are social beings with an ability to interact and form relationships. For this reason, the Constitution of Kenya recognizes an institution known as marriage. Marriage is defined as a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Marriage Act. There are two laws that regulate the marriage institution, that is, the Constitution of Kenya and the Marriage act CAP.150 Laws of Kenya.
In Kenya, every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. Furthermore, the Constitution confers these adults in marriage equal rights at the time, during and even at dissolution of the marriage. For a marriage to be legally constituted, it must be witnessed by two competent witnesses and registered with the Registrar of marriages. There are four types of marriages recognized under the Marriage Act, these include; Christian marriage, civil marriage, Hindu marriage, Islamic marriage and marriage under the customary law. The civil, Christian and Hindu marriages are monogamous in nature whereas the customary and Islamic marriages are presumably / are polygamous.
For the purposes of this discussion, the following would mean;

a. Dowry means any token of stock, goods, moneys or other property given or promised in consideration of an intended marriage.
b. Matrimonial proceedings mean proceedings instituted for the payment of maintenance or for custody of children instituted independently of a petition for a declaratory decree or for            annulment, separation or divorce.
c. Polygamy means the state or practice of a man having more than one wife simultaneously
d. Spouse means a husband or a wife; and
e. Witness means to be present at, to observe, and to attest to the celebration of a marriage by signing one’s name to or putting one’s mark on a marriage certificate. 

Once a marriage relationship has been instituted, there may be challenges here and there that may occur during the subsistence of the marriage thereby chocking this marital relationship. Where the parties to a marriage feel that they can no longer hold onto their marriage and seek exit from such relationship, the Marriage Act has provided an avenue to provide solutions to toxic marriages. Such avenues are known as divorce proceedings.
For a divorce proceeding to be entertained before a court of law, there must be an existing or subsisting marriage between the partners seeking the divorce. Grounds for annulment of these marriages vary and thus discussed below.

GROUNDS FOR DISSOLUTION OF A MARRIAGE

CHRISTIAN MARRIAGE -
Adultery
Cruelty
Desertion
Depravity
Irretrievable breakdown of the marriage

CIVIL MARRIAGE -
Adultery
Cruelty
exceptional depravity
Desertion by the other spouse for at least 3 years;
Irretrievable breakdown of the marriage

HINDU MARRIAGE-
Irretrievable breakdown of the marriage
Desertion by the other spouse for at least 3 years
Other spouse has converted to another religion
Exceptional depravity
Cruelty
Since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery

 ISLAMIC MARRIAGE-
Marriage has not been consummated since its celebration
Parties were in a prohibited relationship at the time of marriage and without the knowledge of either party.
Petitioner’s consent was not freely given
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 petitioner, the other party suffers recurrent bouts of insanity
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

 CUSTOMARY MARRIAGE-
Adultery
Cruelty
Desertion
Exceptional depravity
Irretrievable breakdown of the marriage
Any valid ground under the customary law of the petitioner

WHAT YOU NEED TO KNOW

1. Only one of the either parties in a marriage can petition the court for the dissolution of the marriage through divorce proceedings.
2. The petition should be based on the grounds provided for in law depending on the type of marriage the party celebrated.
3. For Islamic marriages, the divorce is registered under the Islamic law, granted by the Kadhi, Sheikh, imam or mukhi and a copy of the divorce is delivered to the Registrar of Marriages.
4. The petitioner may file the petition with the court for the separation of the parties or the dissolution of the marriage despite any effort to reconcile the parties.
5. The court may refer a matrimonial dispute that arises in a civil marriage to a conciliatory process agreed between the parties.
6. The proceedings for the dissolution of a civil marriage celebrated may be adjourned for a period not exceeding six months as the court may think fit to enable the court to make further enquiries and for further attempts at reconciliation to be made by the parties to the marriage.
7. The Marriage Act defines the ground of irretrievable breakdown of marriage to mean;

8. For a marriage under customary law, the parties may undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage.
9. Once the court confirms the divorce and issues a decree of annulment (Decree Absolute), the parties are deemed to have never been married.

CONCLUSION

Marriages are beautiful institutions for an individual to be part of. However, where the other party does not fulfill his/her marital obligations and leads to a toxic relationship, then divorce is available to remedy such menace.

Courts have tried their best to ensure that divorce proceedings are fast, easy and discrete. Proof of any of the grounds is enough to result to dissolution of said marriage.
Further, during most divorce proceedings, the parties in question and their advocates are the audience of such matters, in fact only the initials of the parties are used in case citations in court.

It is important to note that recent developments have brought about conversations that insinuate that divorce may take place where the parties agree on their own to dissolve their marriage and present said consent to court for adoption.

Keep it here with us as we explore further on matters divorce across the week.

By: MICELL CHERUTO
info@alakonyalaw.co.ke
21st May 2024