My wife and I filed for divorce five years ago and it went through last year. However, spending time apart rekindled our love. I feel like we rushed the decision to divorce. Can we undo it?
Section 66 Sub-Section (1) of the Marriage Act gives either spouse in a union of marriage the right to petition the court for a divorce. However, such marriage must have been officialised by the legal parameters stated in the same Act.
First, an accusation that the person from whom divorce is sought has, within the existence of the marriage, committed adultery.
Secondly, allegation of abandonment without justifiable reasons for a period not less than three years, particularly before the time of filing the divorce petition.
Thirdly, a claim by the spouse seeking departure from the union having experienced exceptional depravity by their partner.
Fourthly, a contention that the marriage has experienced an irretrievable breakdown.
A marriage can be said to have broken down irretrievably if one or both spouses commit adultery or demonstrate cruelty to the other spouse or children, if any are in the union.
This is in addition to either spouse wilfully neglecting the other for at least two years before the commencement of the divorce petition, besides them having voluntarily or involuntarily separated for a similar time. Such separation could be directed by the court or the personal couple’s decision to stay apart.
It also applies where a spouse has been sentenced to life imprisonment or a term of seven years or more. The breakdown could also be attributed to a spouse suffering from an incurable mental health challenge, certified by two expert doctors. One of the two doctors must be qualified or experienced in psychiatry, asserting the improbability of recovery from the mental health malady.
This legal background presents divorce as a process that courts must sanction. While that is the correct position, the Constitution in Article 22 Clause 1 gives people the power to commence and terminate proceedings or any matter since the court is only an adjudication forum.
It states that every person has the right to institute court proceedings, claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. This empowers individuals to assert their rights.
Recall that marriage is recognised in Article 45 Clause 2, which affords every adult the right to marry a person of the opposite sex, based on their free consent. In Clause 3 of this Article, equal powers have been accorded to parties in a marriage within its lifetime and even during dissolution.
Once a divorce petition has been filed, the parties involved, especially the mover of the case, have an opportunity to withdraw it. This process of withdrawal is crucial and gives the parties control over the proceedings. It can be done at five levels.
First, the petitioner writes to the court not to proceed when the notice to appear in court has yet to be served to the person from whom the divorce is sought.
The second level is when the case has moved forward, and the need to terminate proceedings emerges. This requires the petitioner or case mover to engage the respondent (the partner from whom a divorce is sought) and agree to a withdrawal.
In this instance, the court will only be interested in the consent of both parties that the matter should be withdrawn.
The other semblance of a divorce reversal is to leave the matter to proceed in court until the parties receive their first divorce decree.
At this point, the court gives the couple time to finally decide whether their desire to part ways is irreversible. Should they change their mind, the court will have no obligation but to cancel its previous judgment, hence the divorce decree.
The fourth is when we are still having sober conversations about saving a marriage. Still, fearing that a continued stay in the same house could lead to fatal outcomes, the petitioner must make judicial separation one of the prayers the court may grant.
Though extremely practical, the last and uglier alternative is to let the divorce proceedings take their natural course up to termination. This frees the couple, who then assume their bachelorhood and spinsterhood, leaving them available to each other.
Mr Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya.
