The Court of Appeal in Malindi on 10th June 2022 suspended the effect of the declaration of unconstitutionality of Section 66 of the Marriage Act for a period of three years from the date of judgment to enable parliament to make the necessary amendments to the Marriage Act. The Court of Appeal further held that whereas section 66(1) was not discriminatory it was still unconstitutional.
We are nevertheless cognizant of the constitutional purpose of the section, and therefore reach the conclusion that while section 66(1) of the Marriage Act of 2014 is not discriminatory, it is unconstitutional for the reason of, and to the extent of its disproportionate effect in cases where divorce in a civil law marriage may be necessary and justified before the three-year limitation. We however suspend the effect of this declaration of unconstitutionality for a period of three years from the date of this judgment, to enable Parliament to make the necessary amendments to the Marriage Act of 2014. Reads part of the Court of Appeal Judgment.
This suit was pursuant to an appeal lodged by the National Assembly of Kenya against the judgment of the High Court of Kenya at Malindi in Constitutional Petition No. 6 of 2018. Earlier Honourable Justice Ruben Nyakundi had in the High Court declared Section 66 of the Marriage Act as unconstitutional to the extent that it limits the presentation of a petition for separation or divorce in a civil marriage until the expiry of 3 years. The learned judge had while making his decision opined that marriage is a union of willing parties, hence they should be at liberty to leave any time they feel irreconcilably discontent.
The upshot of the Court of Appeal judgment is that parties’ married through the civil process cannot freely divorce at any time as they have to wait for the lapse of three years before presenting a petition for divorce. However, such couples have not been left without any reprieve as the Court of Appeal has in the interim directed that Regulation 4 of the Matrimonial Proceedings Rules, 2020 would apply in the meantime. This means that parties to civil marriage would have to first approach the court seeking leave to enable them to petition for a divorce before the lapse of three years.
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