Men cheating is normal? No, it’s grounds for divorce

I recently witnessed an interesting situation. The scenario revolves around a married woman whose husband had been having an extramarital affair. Women can make good investigators. It was not long before she found out about it.

Stung by this, she decided to leave the matrimonial home and went over to stay with her sister. She then communicated to her husband her desire to end the marriage. Soon, the news reached their circle.

Many of the parties who received the news were of the view that she was ‘overreacting’. That men cheating was a ‘normal’ thing that was bound to happen and that what she ought to have done was reconcile with him. In the religious circles, they said she should pray for him. That he was probably tempted by the devil and she was to be a prayerful woman who stands by her family, not one who leaves.

One of her friends even told her that leaving her husband because he ‘strayed’ would be akin to leaving a place because it rains. “It rains everywhere,” the friend said.

So, what is the legal position on this? Adultery is a marital fault, according to the Marriage Act.

Unlike the perception generally held in society, that it is ‘normal’, the Marriage Act outlines it as one of the grounds for the dissolution of a marriage. In Kenya, for one to be able to successfully file for a divorce, they need to prove the commission of a marital fault. Adultery is one such fault. It is insignificant whether it is a habit that has gone on for a while or if it happened only in one instance. A single instance is enough for one to file for divorce.

Closely linked to the same, courts recognise the defence of provocation in cases where the offended spouse walks in on the parties in flagrante delicto (in the act). Should it happen that in the heat of the moment the offended spouse does something that leads to the death of either party, the defence of provocation may be successfully pleaded. It may not absolve the party of committing the offence of murder, but it may lead to their sentence being greatly reduced.

In some instances, the sentence has been reduced greatly to as little as four years. For an offence where convicted persons are usually sentenced either to life imprisonment or to the death penalty, such a reduction is a big deal.

Society tends to condone this habit, terming it as ‘normal’, particularly when it is committed by men. A woman caught on the offensive will be subjected to all kinds of vilification and her husband will be advised to immediately leave her.

The law, however, does not consider it acceptable, regardless of the party committing it. Whereas often, the whims of love and affection see many parties make a truce, to forgive or not to forgive is up to the party offended. It is worth noting that, should the adulterous habit continue, constantly forgiving it may be seen as tolerating it.