This legal guidance shows that while divorce from a foreign national has specific legal hurdles, Kenyan law provides a clear path for individuals seeking to end an irretrievably broken marriage.
Hello,
I would like some guidance on how to proceed with a divorce. I married a Norwegian citizen in 2017, but we have lived apart since then. He returned to Norway while I have been residing here in Kenya. Please advise me on the steps I should take. I need to leave this marriage and move on with my life.
Dear Estranged Spouse,
To initiate divorce proceedings involving a foreign national, the court must verify two key factors related to jurisdiction.
First, the court needs to establish whether it has territorial jurisdiction, which pertains to the geographic area within which it holds authority.
Consequently, divorce cases are handled by the High Court of the Family Division, which has the exclusive right and responsibility to make decisions in such matters within the country.
To address the matter at hand, the court will first evaluate whether the troubled union is recognised and permissible in Kenya, even if it was celebrated in Norway.
It will also assess whether the marriage, supported by legal documents, aligns with Kenya's legal and policy framework. Additionally, the court will determine if the issues surrounding the marriage arose from this framework.
In the case of MNM v. PNM, Justice Musyoka provided guidance on territorial jurisdiction, stating, "In personal matters such as marriage, domicile is critical." The court will only have jurisdiction over a dissolution of marriage suit if all parties have been domiciled within the jurisdiction for the period specified by the relevant law. In Kenya, this legal framework is established by the Marriage Act of 2014.
The dissolution of any marriage that is registered and recognised in Kenya falls under the provisions of the Marriage Act, specifically Sections 64 to 72.
These sections address each of the five types of marriages recognised in the country. A common aspect, however, is the fault-based approach emphasised by the law when it comes to spousal separation or divorce.
There are specific grounds for divorce that have been standardised in court proceedings, which judges consider when granting a divorce.
It is important to recognise that, even though grounds for divorce are cited in this text, courts are not tools for enforcing unwanted marriages.
The role of the court is not to coerce couples into staying together if their relationship has fundamentally broken down.
Justice Reuben Nyakundi has repeatedly emphasised in his judgments that courts cannot impose marriage on unwilling individuals or force one partner to remain in a troubled union.
Most recently, in the case of JKS v. JGI, Judge Nyakundi expanded one of the grounds for divorce by declaring that withdrawal of affection is a valid reason for seeking a divorce.
Legally, under the Marriage Act, there are several grounds for dissolution. These include one or more acts of adultery committed by one or both spouses.
The court will carefully examine whether either party has experienced mental, physical, or any form of cruelty, and will also consider whether any unkind acts have been directed at children. Importantly, Article 53, Clause 2 states that nothing can be done that does not serve the best interest of the children involved. Additionally, the court will assess whether desertion has occurred, whether initiated by one or both parties.
It may also take into account any evidence of exceptional depravity exhibited by either party. Ultimately, the court will declare the union irretrievably broken down, as defined in the Marriage Act.
The law has sought to clarify the term "irretrievable breakdown." Some reasons that do not fall under the usual grounds include a consistent physical and emotional separation lasting two years, a situation where one spouse has deserted the other for at least three years, or willfully neglecting the other for two years immediately preceding the filing of a petition in court.
Additionally, if one spouse has been sentenced to imprisonment for a term ranging from seven years to life, or if one spouse suffers from incurable insanity—certified by at least two doctors, one of whom must be qualified or experienced in psychiatry—these also qualify as grounds for an irretrievable breakdown.
Your marriage exemplifies the grounds provided by law and reinforces what Justice Reuben Nyakundi has consistently advocated: unwilling couples cannot be forced to stay together. That is not the purpose set in the law, nor is it the objective of the courts.
