My divorce has been delayed for eight years

Hi Eric,

I am not Kenyan, but my husband is a Kenyan. I am considering pushing the divorce that was delayed for eight years. I have been married for eight years, and it happened in Nairobi. I would like to hear from you so I can learn from you about this matter. Thank you.

Dear Reader,

Eight years is a long time to wait for relief. Since the marriage was celebrated in Kenya, it is only prudent that your divorce matter be prosecuted in the country. You haven’t mentioned the type of marriage you are in, which provides an opportunity for a comprehensive response as regards divorce within the framework of the different unions. In Kenya, there are five legally recognised unions, including customary, Christian, Islamic, Hindu and Civil marriage.

Let us begin by cognisance of the power of Article 27 of the Constitution, which gives the couple and anyone else equal opportunity before the law. Therefore, either you or your husband can initiate the prosecution of the matter.

This Article prohibits discrimination of any and every nature, particularly mentioning religion, gender, race and ethnicity, not to become obstacles for any person who may seek redress of the law. You mention the divorce delayed eight years, yet the marriage is the same age. It begs the question of consummation. No assumption nor conclusion will be alluded to here. Be it as it may, you are sure the marriage is irredeemable and must be terminated.

The Kenyan law anticipates that either of the parties or both will commit a matrimonial offence so that such matter is evidenced before a court of law. Section 65 of the Marriage Act, under which Christian marriages are provided for, offers the following grounds for divorce; 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 (leave the marriage without permission and without communicating the problem) by either party for at least three years before the presentation of the divorce petition; d) Exceptional depravity by either party; (e) the irretrievable breakdown of the marriage. On the specificity of this ground, the law anticipates that a marriage is considered as such (to be irretrievably broken down) when the other grounds are cited and proven, besides the parties should have stayed apart for at least seven years. Further, a spouse has been convicted to a jail term exceeding seven years, and sometimes when the spouse suffers from incurable insanity.

Under section 66 of the same Marriage Act, where Civil Marriages are provided for, only an addition to the grounds under Christian marriage is made as to when a separation or divorce may commence, which is three (3) years of being married. Similarly, customary marriages are served with the same grounds, only with addition to consider other settings that may be peculiar within the confines of a community’s customs.

Divorce starts with filing a divorce petition in the Chief Magistrate’s Court. The petition sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. The petition is filed with a notice directing the respondent to appear and answer the petition within 15 days. Once 15 days’ lapse, the petitioner moves the court to declare the petition uncontested, after which the Petitioner gives evidence, and the court pronounces two decrees. Decree Nisi or interim decree to confirm that the person seeking a divorce is entitled to bring the marriage to an end, and within a month, an absolute or final decree is given ending the union. However, should the Respondent appear, then the petition settles down for an oral hearing.

Worthy of note, divorce proceedings may turn out to be complex, long, tiring and expensive owing to high fees charged by divorce lawyers, besides the mental anguish litigants go through. The complexity is further exacerbated by the questions of matrimonial property, spousal maintenance and custody of children. Should property sharing issues arise, the Matrimonial Property Act directs that contributory attribution be employed as a threshold in law to ascertain justify the weight of ownership claims.

However, you can avoid the acrimony that often accompanies divorce cases by agreeing with your spouse all is not well and plan for voluntary or consensus-driven divorce. This could contribute to the courts' emerging jurisprudence, which is nibbling the fault-driven divorce law.

This can be gotten from the judgement in Civil Appeal No. 49 of 2017, in which Justice Mrima said that parties can part ways if levels of mistrust are too high to manage. Further legal reasoning can also be read from the Judgement in succession Cause 9 of 2018, in which Justice Nyakundi said thus, “the law cannot attach obligations upon persons who have decided to part ways but fail to formalise the same, because that is not the true reflection of what they want.”

Eric Mukoya is the Executive Director of Undugu Society of Kenya. Please email your queries to [email protected]