Many decades ago, divorce in Kenya was considered as a foreign concept. In recent
times, reports have showed that over the past decade, divorce and separation rates
have grown.
The Daily Nation Newspaper in January 2023 reported that at least one in every 18
households in Kenya is headed by someone who has been divorced or separated.
The chances of married people divorcing or separating are 1.3 times higher than a
decade ago.
What are the risk factors that can lead to divorce in Kenya?
Relationship counsellors have reported risk factors noticed over the years that make
divorce more likely, but not inevitable. These factors include:- Insecure behavior and
violence, narcissistic personality disorder, lack of sexual intimacy, criticism and
contempt, age factor, financial issues and education levels.
Many couples exchange vows hoping to live happily ever after. However life does not
always go as planned. The couple may subsequently decide to part ways. This step
eventually leads to a divorce process.
What is the meaning of divorce?
Divorce is the legal dissolution of a marriage, bringing to an end the union between two
people.
What is the difference between separation and divorce?
A separation provides for spouses who are not sure if they want to divorce, the time to
reflect and make a decision about their marriage while a divorce is the legal dissolution
of a marriage PERMANENTLY.
What law governs marriages in Kenya?
The Marriage Act, 2014 (simply referred as The Act) is the law that provides for all
marriages recognized and conducted in Kenya after 2014 and the grounds of their
dissolution as follows:
1. Grounds for divorce in Christian Marriage
This type of marriage is monogamous in nature and is celebrated in accordance with
the Christian denomination. Section 17 of the Act describes it as a marriage where a
party to the marriage professes the Christian religion.
Section 65 of the Act states a party to a Christian marriage may approach the court for
dissolution of marriage for the following reasons:
a) An act or acts of adultery committed by the other party.
b) Mental or physical cruelty inflicted on the spouse or children (if any).
c) Desertion of a spouse for at least three (3) years before presenting the divorce
petition to court.
d) Exceptional depravity by either party.
e) The irretrievable breakdown of the marriage.
2) Grounds for divorce in Civil marriage
This type of marriage is a non-denominational monogamous marriage conducted by an
official from the Registrar of Marriages office. Section 24 of the Act describes it as a
marriage celebrated by the Registrar in the place determined by the Registrar.
Section 66 of the Act states that a party to a Civil marriage may approach the court for
the separation of the parties or the dissolution of the marriage for the following reasons:-
a) Adultery by the other spouse,
b) Cruelty by the other spouse
c) Exceptional depravity by the other spouse,
d) Desertion by the other spouse for at least three (3) years
e) The irretrievable breakdown of the marriage.
Under Section 66 of the Act, the Civil marriage is deemed to have irretrievably broken
down in the following circumstances:-
a) Where any of the reasons above for the dissolution of marriage has been proven.
b) Neglect by a spouse for at least two years before the divorce.
c) The couple have been separated for at least two years.
d) A spouse has been sentenced to an imprisonment term of seven (7) years or
more.
e) A spouse suffers from incurable insanity
f) Any other reason that the courts may deem appropriate.
3) Grounds for divorce in Customary marriages
Section 43 of the Act defines Customary marriage to be celebrated in accordance with the
customs of the communities of one or both of the parties to the intended marriage.
Parties to a customary union are required to notify the Registrar of marriages within
three (3) months of completion of the relevant ceremonies or steps conferring their
status of marriage.
Section 69 provides that the parties may dissolve a marriage for the following reasons:-
a) Adultery b) Cruelty c) Desertion d) Exceptional depravity e) Irretrievable
breakdown of the marriage f) Any valid ground under the customary law of the
Petitioner to the divorce.
The parties to a customary marriage may undergo a process of customary dispute
resolution before a court determines a petition to dissolve the marriage. This process
must conform to the principles of the Constitution.
4) Grounds for divorce in Hindu marriages
This type of marriage is conducted where both spouses profess the Hindu religion.
Section 47 of the Act provides that this marriage will be officiated by a person
authorized by the Registrar and in accordance with the Hindu religious rituals of a party
to the marriage.
Under Section 70, the parties may dissolve the Hindu marriage on the following
grounds:
a) The marriage has irretrievably broken down.
b) Desertion by the spouse for at least three (3) years before the divorce.
c) One spouse has converted to another religion.
d) During the marriage, one of the parties commits rape, sodomy, bestiality, or
adultery.
e) Cruelty against a spouse.
f) Exceptional depravity on the other spouse.
5) Grounds for divorce in Islamic Marriages
This type of marriage applies to persons who profess the Islamic faith.
Section 49 of the Act states that the marriage shall be officiated by a kadhi, sheikh, or
imam authorized by the Registrar and celebrated in accordance with Islamic law.
The Act does not set down the grounds for divorce on the marriage. However, under
Section 71, it only states the dissolution of a marriage under Islamic law shall be
governed by Islamic law.
Where an authorized person by the Registrar grants a decree for the dissolution of an
Islamic marriage, they shall deliver a copy of the decree to the Registrar.
PROCESS FOR DIVORCE IN KENYA
The first step to filing a divorce in Kenya is by filing a divorce petition. The person filing
the petition is known as the Petitioner. The divorce petition is a document that initiates
the divorce process while outlining the grounds for divorce.
The Petition is filed together with the Notice to Appear directing the Respondent to
appear and answer to the Petition within fifteen (15) days.
The Respondent is required to respond by entering an appearance by filing his/her
response to the Petition.
If the Respondent does not enter appearance, the Petitioner moves to court to declare
the Petition uncontested, the Petitioner is heard by giving his/her evidence and a
Decree is subsequently issued by the court.
If the Respondent enters appearance, a date is set by the court for hearing of both
parties. The Petitioner, Respondent together with their witnesses (if any) give evidence
on the hearing date. Subsequently, the court will give a judgment.
Please contact us on +254 703 741276 or Email: legal@ombogo.co.ke for a
divorce lawyer in Kenya to represent you in divorce matters.
