Separation Does Not Amount To A Divorce
In Kenya, marriage is the union between two adults of the opposite sex who have consented to be so bound to the exclusion of the rest of the world. We always encourage marriages to last until the promise of death do us part.
However, the marriage institution is dogged and threatened by so many internal and external factors. Some are self-invited while others are beyond one's control. Since marriage is a creature of the law,then the same law must be followed when parties in a marriage want to bring it to an end. The lawmakers appreciated the fact that parties cannot be compelled to remain in an ailing marriage when they legislated and came up with divorce laws. An example is the Matrimonial Causes Act and the African Christian Marriages and Divorce Act of Kenya.
These pieces of legislation have made room for a party who wants to be completely liberated from the marriage. Indeed marriage is not a cage nor what people refer to jokingly as life imprisonment. The same statutes have made room for parties who feel that they need a holiday away from matrimonial obligations. This temporary break is provided for. The court can upon application grant an aggrieved party what is in law known as judicial separation. The parties matrimonial cord that binds the spouses together in such a case is not severed unlike in the case of the divorce and or dissolution of the marriage.
In the case of judicial separation, parties can go back to the matrimonial home and cohabit since they actually never ceased being married couple. You cannot get married to someone else during the judicial separation period. In the case of a divorce, parties can and are free to marry once they get a decree absolute.
We must make a distinction between separation and judicial separation. Many people make the mistake of believing that once the walk out of the matrimonial home then they are separated. This is not the case. You have to get an order from the court that can legitimately be said to give you a ticket to leave home. If you don't get a court order,then the aggrieved spouse can still enforce his/her matrimonial rights. Your matrimonial obligations are not suspended unless you have a separation order. This goes without saying,the other spouse can still claim their conjugal rights irrespective of wherever you will have relocated to.
A walk out can end up forming a ground for divorce. It can be termed as desertion after three years. If there were children to the marriage that you left behind,then the offense of child neglect sets in. You can easily earn your self some accommodation in prison. The court can also issue custody orders in favour of your spouse and seal that with an exclusion order that will in effect deny you access to the children.
Before the court grants a divorce, the judge has to be convinced that you have made enough efforts to salvage the marriage. The court will not grant a divorce as of right. The court has to be satisfied that there is nothing left of the marriage and that the marriage fibre is no more. The court has to be convinced that the marriage has broken down irretrievably. We always encourage couples to remain in the marriage and think twice before taking the step especially where there are innocent children involved. However this does not mean that one has to watch as they die in the hands of an abusive spouse. There is an exception to each rule. To the married,have a happy day.