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Divorce in Kenya: What the law says

Wednesday, April 4, 2012 - 00:00 -- BY JOHN CHIGITI

Whenever a couple gets married, divorce is the last thing that crosses their mind. However with the changing times, divorce is becoming very frequent. People have woken up to their family rights and unlike in the olden days, people do not stay in abusive and cruel relationships. They are opting to embrace the option of divorce. Divorce therefore comes in aid of those people who cannot sustain their relationships and therefore want the marriage nullified.

In some countries, divorce may be granted by the courts by consent of the parties. This is not the case in Kenya. The parties have to prove to the court that there is no collusion or conspiracy tailored at divorcing. Divorcing is not as easy to get as it sounds in Kenya. A party seeking divorce is known as a petitioner while the one against whom the petition is filed is known as the respondent .The petitioner must illustrate or prove to the court why he or she wants the court to grant the divorce. The party must prove that their case fits within one of the few grounds for divorce as stipulated in the law. For example, the petitioner has to demonstrate to the satisfaction of the court that a matrimonial offence has occurred, and hence the marriage should no longer continue.

Section 8 of the Matrimonial Causes Act provides divorce proceedings may be commenced either by the husband or the wife on the ground that the respondent:

(a) has since the celebration of the marriage committed adultery; or

(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or

(c) has since the celebration of the marriage treated the petitioner with cruelty; or

(d) is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition, and by the wife on the ground that her husband has been guilty of rape, sodomy or bestiality.

The court can also dissolve a marriage if parties show that the marriage has irretrievably broken down, and that there is no love between the parties anymore. These are the only grounds upon which parties can seek to have a marriage dissolved.

Section 9 of the Matrimonial Causes Act provides that on the petition for divorce presented by the husband or in the answer of a husband praying for divorce, the petitioner or respondent, as the case may be, shall make the alleged adulterer a co-respondent unless he is excused by the court on special grounds from so doing. On a petition for divorce presented by the wife the court may, if it thinks fit, direct that the person with whom the husband is alleged to have committed adultery be made a respondent.

Kenyan law prohibits the presentation of a divorce petition to a court of law before three years after the marriage, unless good reasons are shown to the court as to why the petition should be entertained. Parties have to remain within the marriage for a minimum of three years before they lodge a divorce petition. However, the lawmakers took cognizance of the fact that at times exceptional events can occur within the first three years of the marriage. As such the court may, upon an application, allow a petition to be presented before three years have passed on the ground that the case is one where the petitioner is facing some form of exceptional hardship. The petitioner can also argue that there is some exceptional depravity on the part of the respondent.

Most people do not understand the difference between judicial separation and divorce. They are certainly not similar. A decree of judicial separation only allows the parties to a marriage not to cohabit together, but does not sever the matrimonial bond. The process can always be reversed. During judicial separation, parties are still in a marriage, until the court grants them a divorce. On the other hand, divorce breaks the matrimonial bond completely. It is interesting to note that a person has the liberty to commence divorce proceedings where an order for judicial separation has been granted or is in force. On any such petition for divorce, the court may treat the decree of judicial separation as sufficient proof of the adultery, desertion or other ground on which it was granted, but the court shall not pronounce a decree of divorce without receiving evidence from the petitioner.

There have been suggestions from some quarters that divorce laws in Kenya be relaxed so as to make it easier for parties to dissolve their marriages, as it is in other jurisdictions. When doing this, it should be noted that marriage is a constitutional and a divine institution and touches down on the core of society, and therefore due care should be taken in any attempt to do this.