Hi Wakili,
Marriage, as well as the steps leading to its creation, continuation, and dissolution, is clearly defined by law. Legally, marriage is considered a union between two consenting adults of the opposite sex, as stipulated in Section 3 of the Marriage Act (2014), even though it is also influenced by social factors. In Kenya, the importance of marriage is emphasised in Article 45(1) of the Constitution, which recognises it as the natural and fundamental unit of society, forming the basis of social order and receiving recognition and protection from the state.
The unions referenced herein are characterised by strict monogamy, specifically comprising one-wife, one-husband arrangements as delineated in Section 6, subsections 1 and 2 of the Marriage Act. These marriages are legally distinct and non-convertible to any other form, as underscored by the provisions of Section 8. Consequently, Section 9 expressly forbids individuals engaged in such marriages from entering into another marriage unless the existing union is formally dissolved through a legal decree of divorce. Despite judicial recognition that irretrievably broken marriages should not be artificially sustained by the rigidity of the law, it remains a legal imperative that any dissolution is effected through a court declaration concluding the divorce.
Justice Reuben Nyakundi’s approach in the case of LCS vs SKC (Divorce Cause 4 of 2016) clearly reflects these sentiments. In his judgment, he noted, “I have considered the submissions by both parties, and it is evident that the parties herein are no longer able to maintain a loving relationship. The proceedings reveal that the Petitioner wishes to end the marriage because she believes the Respondent has been unfaithful and cruel to her over the years. I agree with the Petitioner that attempting to revive this marriage would be pointless.”
Terminating a marriage in Kenya involves several steps, many of which have been criticised as being fault-based. Part X of the Marriage Act outlines the procedures for handling matrimonial disputes and the process for dissolution. Section 66 specifies the requirements for ending a civil marriage. Notably, sub-section (1) was declared unconstitutional, allowing parties to a civil marriage the right to separate or divorce at any time, without the previous three-year waiting period. Sub-section (2) lists additional grounds for dissolving a civil marriage, including adultery by either spouse, cruelty, exceptional depravity by one spouse, desertion by a spouse for at least three years, or when the marriage has irretrievably broken down.
When a marriage is said to be irretrievably broken down, it means there is no realistic chance of saving the relationship. Even after attempts at mediation, negotiation, or reconciliation, the marriage cannot be fixed. There are several reasons a marriage may be dissolved. These include situations where one spouse is cruel to the other or to their children, or where one spouse commits adultery. A marriage can also be dissolved if one spouse willfully neglects the other for at least two years before filing for divorce, or if the spouses have been separated for at least two years, whether by mutual agreement or by court order. Desertion is another ground, where one spouse has left the other for at least three years before filing for divorce. Additionally, if one spouse has been sentenced to life imprisonment or more than seven years in jail, the marriage can be ended. Finally, a marriage may be dissolved if one spouse suffers from incurable insanity, provided that this is confirmed by at least two doctors, one of whom must be a psychiatrist, using the latest medical knowledge.
Once you have completed the legal separation process that ends your civil marriage, you are free to enter into a new marriage. The termination of your previous marriage must be officially recorded in the civil marriage register. Justice Reuben Nyakundi has emphasised that marriages should not be treated as traps, forcing people to stay together when they would rather live independently.
