Discontented unions: Number of divorce cases rising steadily

The second floor of Milimani Law Courts’ civil registry in Nairobi is a beehive of activity with clerks and advocates jostling for space.

There’s shouting and shoving as scores of clerks try to file cases or get a court assistant to assess their documents and tell them the fee to be paid. This is where divorce cases are filed. Of interest is the number of divorce cases filed every month.

In February alone, 149 cases were filed, court documents show. In January, about 95 people petitioned the court to dissolve their marriages.

The numbers keep rising.

DISSOLVE UNIONS

Last year, when the register was closed on December 31, some 1,108 people had filed petitions to dissolve their unions. In December 2017 they were 909 and, two years later, the number had risen to 1,009.

Part of the reason for the growing number of divorce cases is the ease in ending sour marriages, following a ruling by a high court judge last year. In September, Justice Reuben Nyakundi quashed a section of the law that barred couples from divorcing before three years of marriage.

WILLING PARTNERS

In his judgment, Justice Nyakundi said marriage is a union of willing partners, hence they should be at liberty to leave any time they feel not contented.

Mr Tukero ole Kina argued that Section 66 (1) of the Marriage Act, 2014, which provides that a party to a civil marriage may not petition the court for the separation or for the dissolution of the marriage, unless three years have elapsed since the celebration of the marriage, is unconstitutional, null and void.

CIVIL MARRIAGE

“It is, therefore, my finding that Section 66 (1) is discriminatory and in violation of Article 27(4) to the extent that it arbitrarily limits parties that have celebrated a union under the auspices of a civil marriage to a three year wait period before such a union may be dissolved,” the judge said.

According to the law, a marriage is irretrievably broken down if a spouse commits adultery, a spouse is cruel to the other spouse or to any child of the marriage or a spouse wilfully neglects the other spouse for at least two years.

When spouses who have been separated for at least two years, whether voluntary or by a decision of the court, or where a spouse has deserted the partner for at least three years or where one of the spouses has been sent to prison for a term of seven years or more or any other ground, the court may grant them a divorce. Cruelty does not only amount to physical abuse.

In one case, a man told the court that their marriage was never a happy one. Among the claims he listed included her leaving the house without his permission, denial of conjugal rights and desertion.

DRUNKARD

He said the wife was fond of going to night clubs and that she was a drunkard who came home late and in the company of strange men who also threatened to kill him.

The woman admitted that the marriage was irretrievably broken down, but denied his claims. She said they had tried to settle the matter amicably, in vain. In a harsh example of cruelty, a farmer in Eldoret told a court how he had suffered 12 years of cruelty at the hands of his wife.

His divorce was, however, rejected by a magistrate and later the High Court, but succeeded on the second appeal.

The man moved to court in 2004, accusing his wife of committing acts of cruelty bordering on witchcraft and hypnotism.

According to the man, his wife would use dirty water to cook his tea and food. He argued that the acts had caused him mental anguish.

One judge discounted the evidence of an employee who witnessed the incident, saying the man was a busybody and had no business intruding into the couple’s privacy.

CRUELTY

Later, two judges of the Court of Appeal granted the man his wish. The judges said the actions of the wife “of washing underpants in cooking utensils, and using the utensils and the dirty water to cook the petitioner’s food, was repulsive, unhygienic, and such as to cause reasonable apprehension of injury to the appellant’s health.”

In another dispute where a husband successfully petitioned the court to annul his marriage on cruelty, he said that his wife had been sending letters to his family claiming that he was insane; she unjustifiably denied him his conjugal rights, had failed to provide him with emotional and psychological support, and negatively influencing the children against him.

Although the woman denied the claims, the court said in the judgment that he cannot be compelled to associate with her, when it was clear that he no longer had the desire to consort with her.

“It was clear from her statement that the respondent (wife) did not wish, under any circumstances, to be divorced from the petitioner. This court cannot grant the respondent’s wish because to do so would amount to subjecting the petitioner to a relationship which he is categorical he does not desire or wish to be party to,” the ruling read.

In another case, a woman accused her husband of deserting her for 16 years. The woman told the court that the husband, whom she married in church, became adulterous and denied her conjugal rights. She cited the other woman in her divorce papers.

She mother-of-two said the man was also quarrelsome and fond of hurling abuses at her.

DISSOLUTION

She told the court that he had been cruel by failing to provide for her and their child.

“It is now 16 years and the parties have never lived together. It is the petitioner’s evidence that there is no hope or possibility of reconciliation or compromise between the parties. The differences between the two are irreconcilable and the marriage has irretrievably broken down. Nothing can salvage the marriage,” the court ruled.

In some instances, couples have appealed the dissolution of their marriage because of grounds raised, arguing that they had not been proved.

A case in point is a divorce of parties described as JMN vs JWM. The wife had successfully petitioned for the dissolution of their marriage, which was conducted under customary law, to be annulled on claims of cruelty and adultery.

The magistrate who heard the case said she had proved her claims but on appeal, the High Court went ahead and confirmed the dissolution but removed the ground of cruelty.

“With the result that the decision of the lower court dissolving the marriage on grounds of cruelty and adultery is set aside and substituted thereof with an order dissolving the marriage herein on grounds of adultery,” Justice A. K. Ndung’u said in a judgment last year.