The term 'amicable divorce' is often used to describe a separation that appears calm and cooperative, and is free from courtroom drama. However, family lawyers say that the reality is more complicated.
Although some couples manage to avoid open conflict, Kenya’s legal system does not formally recognise the concept. Even so-called peaceful separations unfold within an adversarial process defined by blame, procedure, and legal strategy.
Couple breaking up.
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Clarise Osore, a family lawyer, challenges the common description of separation as “amicable”. In her view, the term often masks a more complex legal and emotional reality.
“There really is nothing like an amicable divorce in the strict sense of the word. Divorces hurt everyone involved. A party may choose not to participate because they would rather pursue peace, are still healing, or lack the resources to fight back in court,' she says.
Osore explains that, even when couples appear to be separating amicably, the legal system itself is not designed to reflect that.
"Legally, there is no such thing as an amicable divorce. Ours is an adversarial legal system. That is why, in pleadings, we include a clause stating that the parties did not collude to file. You must assign blame, and the other party chooses whether to participate or not," she says.
The man filed for divorce, saying that the marriage had irretrievably broken down and that the differences were irreconcilable.
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Nevertheless, she notes that some cases proceed with minimal conflict, largely depending on how the parties and their lawyers approach the matter from the outset.
"I am not a judicial officer, but I would definitely prefer an uncontested divorce process. It is best for everyone involved," she adds.
She says that the tone of a case is often set early on, particularly through legal strategy and how allegations are framed at the filing stage.
"Cases are won and lost at the pleadings stage. As advocates, we should help clients solve disputes swiftly and early on, without airing dirty laundry or unnecessarily escalating conflict.”
Regarding the role of mediation in divorce, Osore distinguishes clearly between the process of separation itself and related disputes.
"We do not use alternative dispute resolution (ADR) in divorce cases. We use it for matrimonial property or child custody issues. There is nothing to mediate over when a party wants to end the marriage,” she says.
Where agreement is possible, she says it is often around practical issues, such as property division or parenting arrangements, which can be settled without prolonged litigation.
"Court-annexed mediation can guide parties towards agreements that they can record as consent orders. A good lawyer can make divorce easier, ensuring the division of matrimonial property is straightforward and free from unnecessary conflict,” she says.
When children are involved, she notes that emotional factors often determine whether proceedings remain restrained or become contentious.
“People mostly fight because they haven’t healed or because of ego. An amicable arrangement occurs when the parties work on a parental responsibility agreement that is adopted as a judgement or recorded as a consent order,” she says
Judge says marriage is a partnership, but it is not a free-for-all where one spouse automatically walks away with half of everything.
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However, she warns that disputes can quickly escalate even in cases that begin cooperatively.
"The main issues are an unhealed party, alimony demands, disputes over matrimonial property, personality issues and sometimes the lawyers chosen. There is no winner in a family court.”
Beyond the legal process, Osore also highlights the emotional and professional toll that divorce work can take, particularly when clients are intent on fighting.
"My clients pay extra for peace of mind and a smooth process. It requires more input to protect a client from emotional exposure in court. No amount of money can compensate for a difficult, draining case."
