The divorce process, much like any other, can be tasking to navigate, especially without accurate and complete information. In this article, we aim to educate you on the divorce process in Kenya, down to the core.
Unlike many western countries, Kenya has a fault-based divorce system. This means that for two people to get divorced in Kenya, they must prove a matrimonial fault on the part of the other spouse. Kenya does not recognize divorce by consent.
General grounds for divorce include adultery, cruelty, desertion, and irreversible breakdown of marriage. It is worth noting that all these must be offenses done by the other person other than the person seeking a divorce.
Thus, one cannot commit adultery and then rush to court for divorce on the basis of his/her own matrimonial fault. It must be a fault on the part of the other party.
The Marriage Act Number 4, or “The Act,” simply put, is a provision in the constitution that governs the divorce process in Kenya. To better understand the formalities in the divorce process, it is important to first understand marriages acknowledged by the law in Kenya that are eligible for divorce.
Section 6 of The Act recognises 5 different types of marriages:
Christian Marriage
Civil Marriage
Customary Law Marriage
Hindu Marriage
Marriages under Islamic Law
Divorce requirements for individual types of marriages are as follows:
Christian marriage:
Christian marriages are performed and registered where a party to the marriage professes the Christian religion. They are often officiated by a church minister who is licensed to officiate such a marriage in a registered religious centre such as a church building.
Under Section 65 of the Act, persons who contracted a Christian marriage can petition for divorce on the following grounds:
(a) One or more acts of adultery committed by the other party;
(b) Cruelty, whether mental or physical, inflicted by the other party on the Petitioner, or on the children, if any of the marriage;
(c) Desertion by either party for a period of at least three years before the presentation of the divorce petition;
(d) Exceptional depravity by either party
(e) The irretrievable breakdown of the marriage.
Civil marriage:
Civil Marriages, unlike Christian marriages, are celebrated by the Registrar of Marriages as set out in PART IV of the Act. Just like Christian Marriages, they are monogamous in nature.
Under Section 66 of the Act, unlike in Christian marriages, a party to a Civil marriage may only petition the court for separation or divorce after 3 years of being married.
This provision has come under intense judicial scrutiny of late where some courts have held it to be very prohibitive in nature. However, the law still stands as such.
- Three-year divorce wait law ruled unconstitutional
- Divorce hearing casts the spotlight on court reporting
- Experts make the case for divorce by mutual consent
The grounds for dissolution of civil marriage are identical to the grounds for dissolution of a Christian marriage discussed above.
Under Section 66 (6), marriage is deemed to have irretrievably broken down when any of the other grounds for dissolution of the marriage have been proven, where the parties to the marriage have been separated for at least 2 years, where a spouse has been sentenced to imprisonment for a term of more than 7 years, or where a spouse suffers from incurable insanity.
Customary marriage:
Customary marriages are marriages celebrated in accordance with the customs and practices of the ethnic communities that either party to the marriage belongs to.
The grounds for dissolution of a customary marriage are similar to that of civil and Christian marriage, with the added provision recognizing any other ground for divorce under the customs of the particular community.
Hindu marriage:
These are marriages conducted where the spouses both profess the Hindu Religion. Hindu divorces have unique grounds as such:
(a) Where the marriage has irretrievably broken down
(b) Where the other party has deserted the Petitioner for at least 3 years before the making of the Petition
(c) Where the other party has converted to another religion.
(d) Where since the celebration of the marriage, the other party has committed rape, sodomy, bestiality, or adultery
(e) Where the other party has committed cruelty to the other
(f) Where the other party has committed exceptional depravity on the other.
Islamic marriage:
Islamic marriages are celebrated under Islamic Law. The Act does not set down grounds for dissolution of Islamic Marriages only stating in Section 71 that dissolution of an Islamic Marriage shall be governed by Islamic law. Such divorce processes are processed and presided over by the Kadhi Courts.
Difference between divorce and annulment of marriage:
In Kenya, divorce and annulment are distinct legal processes for ending a marriage. Divorce dissolves a valid marriage based on grounds such as adultery, cruelty, desertion, or irretrievable breakdown, allowing both parties to remarry and addressing issues like child custody and property division.
Annulment, however, declares a marriage null and void from the start due to reasons that include issues like one or both parties being underage, lack of consent, mental incapacity, bigamy, incest, fraud, coercion, or the marriage not being consummated.
Annulment basically means that the marriage is considered never to have existed. While annulment also deals with child custody, it generally does not involve property division since the marriage is deemed invalid. Both processes are governed by the Marriage Act of 2014.
Divorce in Kenya
The divorce process in Kenya is expected to take a maximum of two months. However, there is no set time frame for a divorce to be finalised. If a judge notices a divorce case has been in the system for almost a year, they may schedule a hearing to try and resolve any outstanding issues.
The divorce process in Kenya can be summarised into seven steps:
Filing of the Petition:
In this step, your lawyer, or you if self-representing, will draft the divorce petition along with all necessary documents. These include an affidavit verifying the petition, your witness statement, a list of documents (evidence), and a list of witnesses. Your lawyer will also prepare a Notice to Appear and submit these documents to the court.
Signing of the Notice to Appear:
It typically takes about two weeks for the Magistrate to sign the Notice to Appear. This formal notice directs the respondent (the other spouse) to inform the court whether they are contesting the divorce. If the respondent contests the divorce, they have 15 days to submit their response.
Respondent’s Response:
Upon receiving the Divorce Petition and Notice to Appear, the respondent has 15 days to decide whether to contest the divorce.
Since divorce in Kenya cannot be by consent, couples who mutually agree to divorce often have one party file the petition while the other ignores it. If the respondent contests, they must file a response and serve it to the petitioner.
Registrar’s Certificate:
After 15 days, your lawyer will apply for a Registrar’s Certificate from the court, certifying that the petition is ready for hearing. Once issued, your lawyer will schedule the petition for a hearing.
Hearing:
During the hearing, you will present your evidence to demonstrate that the marriage has irretrievably broken down. If the divorce is contested, the respondent will also present their evidence and call witnesses. The court will then set a date for judgment.
6. Judgment/Initial Decree
On the judgment day, the court will decide if there are sufficient grounds to dissolve the marriage. If so, it will issue a decree nisi, the initial divorce decree. You then have one month to reconsider if you want the marriage dissolution to become final. If you change your mind, you can inform the court to cancel the initial decree.
7. Final Decree
If after one month you still wish to proceed with the divorce, the court will issue the final divorce decree, officially dissolving the marriage.
— Compiled by Ann Precious Kinyua