Introduction
Marriage is considered a sacred institution by all the major religions in the world. The union of matrimony between two consenting adults is expected to be made asunder by death. However, there are exceptional circumstances in the course of matrimony which necessitate the need for divorce and the dissolution of marriage. Kenya does not have a no fault- divorce system and as such a party seeking the dissolution of marriage must prove that the other party has committed a marital fault to warrant the dissolution of marriage. The grounds for divorce in Kenya are outlined in the Marriage Act. This article will highlight the grounds for divorce and the process of divorce in Kenya.
Grounds for Divorce
The grounds for divorce in a Christian Marriage are set out under Section 65 of the Marriage Act. These grounds are as follows;-
(a) One or more acts of adultery committed by the other party;
(b) cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage;
(c) desertion by either party for at least three years immediately preceding the date of presentation of the petition;
(d) exceptional depravity by either party; or;
(e) The irretrievable breakdown of the marriage.
Section 66 (6) of the Marriage Act provides the circumstances which a marriage is considered to have 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;
(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 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.
Grounds for Dissolution of a Customary Marriage
A party seeking for dissolution of a customary marriage may do so pursuant to Section 69 (1) on the grounds that;
(a) adultery;
(b) cruelty;
(c) desertion;
(d) exceptional depravity;
(e) irretrievable breakdown of the marriage; or
(f) any valid ground under the customary law of the petitioner.
The Process of filing for Divorce
The process of filing for divorce begins with the drafting of the divorce petition. The divorce petition will capture the grounds for divorce depending on the specific circumstances of your case. Your advocates will then draft the Notice to Appear which will be filed in court and eventually served upon the Respondent (who is your soon to be ex-spouse). The Respondent will prepare and file their response within 15 days. The next stage is the issuance of Registrar’s Certificate where the Court will certify the matter ready for hearing. The next step will be the hearing where each party will present their case. After that the court will issue a decree nisi if there are sufficient grounds for the dissolution of marriage.
If the 30 days pass and both of the parties have not had a change heart concerning the dissolution of marriage, the Court will issue a Decree Nisi Absolute which effectively dissolves the marriage.
Conclusion
The issuance of the Decree Nisi Absolute is the final stage in the divorce process in Kenya. The next step is the division of the matrimonial property which the couple acquired during their marriage.
This article is free of charge for information purposes only. It does not constitute legal advice and it should be not relied on as such. WNK Advocates LLP takes no responsibility for the accuracy and /or correctness of the information and commentary as set out in the article. If you have any query regarding the same, please contact us at legal@wnkadvocates.com
