Whenever people get married, the vows they take are to remain in the marriage 'till death do us part'. We all know that marriages are not always rosy. However, the fact that the marriage is not working out as expected is not always a reason to walk out of it.
Most of the times, loving couples try their best to solve the problems that might be threatening their marriages. Some talk to their friends, family, pastor and even the best man.
The law presupposes that the marriage should always be given a chance since it is a divine arrangement.
The court will not just grant divorce orders unless the petitioner satisfies the court that they are suffering from cruelty, desertion, adultery and so on in the hands of a rogue spouse.
The law is always intended to protect the victims of domestic violence. The repealed Matrimonial Causes Act had a window that allowed parties to a marriage to file a divorce petition even within a month of contracting a marriage. In situations where the spouse was suffering from extreme hardship and depravity, then the court had the powers to grant a party the permission to move the court and seek for a divorce before the expiry of the statutory period of three years. This made a lot of sense.
The Marriage Act 2014 Section 66 (1) and (2) (c) of the Marriage Act 2014 provides that a party to a marriage celebrated under Part IV 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.
Article 48 of the constitution provides for an avenue to access justice. Asking a spouse to remain in a home where there is domestic violence as they wait for three years amounts to denying them the right to the benefit of the law, which is a guarantee under Article 27. Waiting for redress for three years is asking for too much from a spouse who is being beaten every day by their unloving spouse.
Justice M.Thande dealt with a situation like this in JAC versus PW in case No.22 of 2015-www.kenyalaw.org, where, the applicant, JAC was seeking permission of the court to commence divorce proceedings for dissolution of a marriage solemnised less than three years preceding the filing of the intended divorce petition.
According to the counsel for the petitioner, the parties entered into a civil marriage on January 18, 2014. They cohabited as man and wife in Mombasa county until the applicant returned to the United States of America where he resides and works for a living. That the respondent has committed adultery and has even openly admitted doing so. A picture of the respondent and her alleged lover has been annexed to the affidavit. That she has deprived the applicant conjugal rights, companionship and the whole essence of marriage among other things.
This conduct by the respondent, the applicant averred, caused him extreme cruelty and depravity. Efforts to reconcile the parties have been futile and the marriage has irretrievably broken down and hence the need to seek leave to file a petition for divorce before the lapse of the statutory period of three years since the celebration of the marriage.
In the judgment, the judge made the following observations.
The Marriage Act 2014, unlike the repealed Matrimonial Causes Act, does not give power to this court to allow a petition for divorce to be presented before three years have passed. Section 66 clear states that a party to a marriage may not petition the court for dissolution of the marriage unless three years have elapsed since the celebration of the marriage. There is no proviso to this section as there was in Section 6 in the repealed Matrimonial Causes Act empowering a judge, on application, to allow a petition to be presented before three years have passed.
The judge went on to observe that the effect of the repeal of an Act on subsidiary legislation, the Interpretation and General Provisions Act provides at Section 24:
"Where an Act or part of an Act is repealed, subsidiary legislation issued under or made in virtue thereof shall, unless a contrary intention appears, remain in force, so far as it is not inconsistent with the repealing Act, until it has been revoked or repealed by subsidiary legislation issued or made under the provisions of the repealing Act, and shall be deemed for all purposes to have been made thereunder."
From the above provision, it is clear that subsidiary legislation shall only remain in force if it is not inconsistent with the repealing Act. It is my view that in the absence of a specific provision in the Marriage Act 2014 to allow a petition for dissolution of marriage to be presented before three years have passed, then Rule 2 of the Matrimonial Causes Rules is inconsistent with the Marriage Act 2014 and cannot therefore remain in force pending the promulgation of rules under the Marriage Act 2014. The same cannot therefore be relied upon.
The judge further observed that, Section 66 of the Marriage Act does not grant the court powers to grant leave to present a petition for dissolution of a marriage unless three years have elapsed since the celebration of the marriage. It appears that when passing the Marriage Act 2014, Parliament was of the view that marriage is a serious institution and parties should not be allowed to enter into and out of it trivially or on a whim. Had Parliament wanted to give to the courts power to allow the filing of divorce petitions before the expiry of three years, it would have done so. It chose not to.
From the record, the applicant and the respondent entered into a civil marriage on January 18, 2014, barely two years ago. While it may be true that the applicant has by reason of the respondent’s conduct been subjected to extreme cruelty and depravity, the law has not opened a window for him to present a petition for the dissolution of his marriage before three years have elapsed since the celebration of the marriage. The judge dismissed the application.
Can the legislator do something please and fast? We need that 'safety valve' so that like in the past, a couple who is a victim of cruelty can escape from the home that is the hotbed of inhuman degrading treatment. Justice cannot be postponed.