When two people exchange marriage vows, they hope to be together for the rest of their lives. However, life doesn’t always go as planned and some couples might decide to part for one reason or another.
As discussed in this article, the Marriage Act in Kenya recognizes 5 systems of marriages – Civil, Christian, Hindu, Customary and Islamic. Similarly, the Marriage Act outlines how these different forms of marriage should be dissolved.
Divorce in Kenya is fault-based. This means that the law allows for dissolution of marriage if the person asking for the divorce proves that their partner/spouse committed a matrimonial offence.
Below, we will look at the different circumstances under which divorce is granted in Kenya:
Grounds for divorce in Christian, Civil and Customary marriages
The common grounds for the dissolution for Christian, Civil and Customary marriages in Kenya are:
- Acts of adultery committed by either spouse
- Cruelty, whether mentally or physically, caused by their spouse to them or their children
- Abandonment by either spouse for at least 3 years before the date when they present their divorce petition
- Exceptional moral corruption or wickedness.
- The permanent breakdown of the marriage.
Under Kenyan law, a marriage has broken down irretrievably when:
- a spouse commits adultery,
- a spouse is cruel to the other spouse or to any child of the marriage.
- a spouse willfully neglects the other spouse for at least two years.
- The couple have been separated for at least two years.
- A spouse has deserted their partner for at least three years.
- A spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more.
- A spouse has been diagnosed with a severe mental health disorder This is to be certified by two doctors and one of them must be a psychiatrist.
Additional provisions for divorce in civil marriages
A couple that got married under civil marriage cannot ask the courts for a separation or a divorce if they have been married for less than three (3) years.
The court may refer a dispute that comes about in a civil marriage to a Court-annexed mediation is a voluntary process and is recognized by the judicial system. This means that once the court refers the dispute to the mediation process and the couple agrees to it, they are expected back in court after a maximum of 60 days with a report from the mediator. After the mediation, the couple can choose to work things out or to proceed with divorce.
Additional provisions for divorce in customary Marriages.
- Additional grounds for divorce under customary marriage may include any other reasons under the customs of the community that the couple belongs. For example if the person has been caught committing a crime such as theft or robbery, this can be a reason to get a divorce since some cultures believe that this could run in the family and children gotten from that marriage will be criminals and social misfits.
- A couple married under customary marriage may go through a reconciliation process or customary dispute resolution before the courts give a decision on their petition to divorce. In most communities, elders will try to reconcile the couple before a divorce is granted. However, if this does not work, the elders will then give a go-ahead for the marriage to be disbanded.
- The person who takes the couple through the dispute resolution process will prepare a report of the process for the court.
Divorce in Hindu marriages.
A person married in a Hindu marriage may ask the courts for a divorce if:
- The marriage has irretrievably broken down.
- Their spouse has deserted them for at least three (3) years.
- Their spouse has converted to another religion.
- Their spouse has committed rape, sodomy, bestiality, or adultery during the period that they have been married.
- Their spouse has committed cruelty on them.
- Their spouse has committed exceptional depravity on them.
Divorce in Islamic marriages
Divorce for Islamic marriages is governed by Islamic law. Couples
Some grounds for divorce under Islamic Marriages include:
- Adultery or Infidelity by a spouse
- Any form of violence - physical, financial, or emotional harm by the spouse
- Where a spouse suffers certain physical defects, such as impotency.
- Where there is difference of religion.
When a Kadhi, sheikh, imam or other person authorized by the Registrar of marriages grants a couple married under Islamic marriage a divorce, he should deliver a copy of the divorce decree to the Registrar.
The divorce process starts when the person seeking the divorce (petitioner) files a petition for divorce in a court of law. In the petition they will outline why they are asking for a divorce, and include:
- A Verifying Affidavit – a sworn declaration by the petitioner saying the contents of the petition are true to the best of their knowledge, information, and belief.
- Notice to Appear- a document that alerts the respondent (the other party) that a petition has been filed against them.
- Acknowledgement of Service- a document signed by the respondent personally to acknowledge that they have received the petition.
- List of Witnesses – A list of witnesses that the petitioner intends to call to testify at the hearing of the petition.
- Witness Statements – The witnesses must give their signed statements ( an account of the facts as argued by the petitioner
- List of Documents – If you wish to rely on documents, you must give a list of them and attach copies to the petition.
Step 2: Notice to appear
Once the petitioner files the petition, the magistrate will sign the Notice to Appear. This is a document that alerts the Respondent (the other party) that a petition has been filed against them and that they should enter appearance (give a formal notice that they or their lawyer plan to maintain or contest the issue) within fifteen (15) days.
Step 3: Respondent’s response
If the Respondent contests the divorce petition, they will have to file a response and serve the Petitioner.
Step 4: Registrar’s certificate
After 15 days, the Petitioner will ask the court to issue a Registrar’s Certificate. This means that the petition is ready to go for hearing.
Step 5: Hearing of the Petition
The petition is fixed, and a hearing takes place. During the hearing, the Petitioner will bring evidence to show the court that the marriage has broken down irretrievably. If the Respondent contests the petition, they will also call witnesses and bring evidence to support their case.
Once this is done, the court will set a date for judgment.
Step 6 : Decree Nisii
On the day that was set for judgment, the court will decide whether there is sufficient grounds to for the divorce to be granted. If it finds sufficient grounds, it will issue the first divorce decree, known as decree Nisii.
The couple will then have a month to decide if they want the divorce to be made final or not. Once this is issued, you will have 1 month to determine whether you really want the marriage dissolution to be made final or not.
Step 7: Decree Absolute
Once a month is over and there has been no change of heart, the court will now issue a Decree Absolute.
This is the final stage of the divorce process and confirms that the marriage has been dissolved.
Refugees and asylum seekers re encouraged to seek legal advice on divorce proceedings due because the process can be complicated.
For legal advice on divorce, you can contact:
Refugee Consortium of Kenya
- Call RCK on +254733860669 OR +254720943164
- Visit RCK Offices located at Haki House on Ndemi Road, Off Muringa Road in Kilimani, Nairobi.
RCK Offices are open at 8:00 am – 5:00 pm from Monday to Friday
Refugee Consortium of Kenya (RCK)
Call toll free lines - 0800720262 and 0701414978 OR Visit RCK offices.
Services are available from Monday to Thursday at RCK office at LWF compound.
On Thursday at RCK office in Kakuma 4, opposite Kakuma 4 Police Post.
Refugee Consortium of Kenya
Visit RCK offices in Hagadera Refugee Camp.
The offices are open at 8:00 am – 5:00 pm from Monday to Friday.
Kituo Cha Sheria is a legal aid organization in Kenya that provides free legal services to those who cannot afford them. The organization has offices in Nairobi, Mombasa, and a branch office in Nairobi's Pangani area, providing accessible legal support to individuals and communities across the country.
Kituo Cha Sheria’s head office is located at the junction of Ole Odume road and Argwings Kodhek road, opposite the Bangladeshi High Commission. You can contact the head office by calling 0734 874221 or 0727 773991, or by emailing email@example.com.
For those living in Mombasa, Kituo's Coast Region office is located on Taratibu Street in Tudor, near the Technical University of Mombasa and adjacent to the White Rhino Hotel. You can reach the team by calling 0731 129739 or 0700 638379, or by emailing firstname.lastname@example.org.
Pangani Branch Office
Kituo Cha Sheria also has a branch office in Nairobi's Pangani area, located at KCDF House, 4th Floor, Chai/Pamba Road, off Juja Road. The Pangani branch office can be contacted by calling 0736 867241 or 0720 806531, or by emailing email@example.com.
You can also send your legal concern as a text message in English or Swahili to 0700777333 and wait for a response from Kituo’s legal experts.
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