Skip to main content
November 17, 2018

What the law says about dissolving a marriage

Putting a ring during wedding ceremony means a lot because it binds the two love birds. Photo Elkana Jacob
Putting a ring during wedding ceremony means a lot because it binds the two love birds. Photo Elkana Jacob

Marriages are supposed to last till the death of involved parties. However sometimes this is impossible. One of the parties might be a victim of inhuman and degrading treatment in the hands of their spouse. In such situations the court has to intervene and bring the marriage to an end.

Before this happens, the court must be satisfied that the marriage should be dissolved. The party who alleges that they are suffering in the marriage must prove to the court that there is a situation that will amount to a ground for divorce.

In Kenya the process of dissolving marriages is guided by the Marriage Act. The Act takes care of the dissolution of marriages contracted in different forms. Some of the grounds for dissolving marriages are similar under all the forms of marriages.

A party to a Christian marriage may petition the court for a decree for the dissolution of the marriage on the ground of one or more acts of adultery committed by the other party, cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage or desertion by either party for at least three years immediately preceding the date of presentation of the petition ,exceptional depravity by either party or the irretrievable breakdown of the marriage.

A party to a Civil marriage may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage. A party to a civil marriage may only petition the court for the separation or the dissolution of the marriage on the following grounds; adultery by the other spouse cruelty by the other spouse, exceptional depravity by the other spouse, desertion by the other spouse for at least three years or, the irretrievable breakdown of the marriage. 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. The court may refer a matrimonial dispute that arises in a marriage celebrated to a conciliatory process agreed between the parties.

The proceedings for the dissolution of a civil marriage may be adjourned for a period not exceeding six months as the court may think fit (a) for the court to make further inquiries or (b)for further attempts at reconciliation to be made by the parties to the marriage.

A marriage has irretrievably broken down if (a) a spouse commits adultery; (b)a spouse is cruel to the other spouse or to any child of the marriage (c) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition; (d)the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has; (e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition; (f) a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more; (g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or (h) any other ground as the court may deem appropriate.

The parties to dissolution of a customary marriage may undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage. The process of mediation or traditional dispute resolution in subsection shall conform to the principles of the Constitution. The person who takes the parties such a marriage through the process of conciliation or traditional dispute resolution shall prepare a report of the process for the court. The Act is silent as to the time line for the preparation of the report.

A party to a Customary marriage may "petition the court for the dissolution of the marriage on the ground of ,adultery,cruelty,desertion,exceptional depravity,irretrievable breakdown of the marriage or any valid ground under the Customary law of the petitioner.

A party to a Hindu Marriage may petition the court for the dissolution of the marriage on the ground that the marriage has irretrievably broken down, the other party has deserted the petitioner for at least three years before the making of the petition, the other party has converted to another religion, since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery, the other party has committed cruelty on the other and the other party has committed exceptional depravity on the other.

Dissolution of an Islamic marriage shall be governed by Islamic law. Where a Kadhi, sheikh, imam or person authorised by the Registrar grants a decree for the dissolution of a marriage. The Kadhi, sheikh, imam, Mukhi or authorised person shall deliver a copy of the decree to the Registrar.

The parties must at all times try to salvage their marriages as opposed to breaking them.

Poll of the day