Will we be safe if I divorce my spouse?

Hi Wakili

I am thinking of filing for a divorce, but my husband is very vengeful. How do I ensure my children and I are safe after the divorce?

The divorce process is straightforward in law, but it should be clearer in the mind and shoes of the person hurting in a marriage. The law has ensured that mechanisms are availed through which a disgruntled spouse can be safeguarded after vacating a marriage.
The Kenyan High Court, especially referring to several of Justice Nyamweya's judgments, has continuously indicated that no person nor institution can coerce two unwilling individuals legally residing in a marriage to live as husband and wife.
That said, it is upon you to recognise three critical issues that, have a typical and progressive relationship. The divorce court can address the claim that you are insecure despite wanting out of this marriage. What kind of union you are in needs to be clarified in your text. The response to what kind of divorce proceedings you require is covered in Sections 64-74 of the Marriage Act.
However, the grounds upon which one can petition the court for a divorce have never been in dispute. This includes desertion for at least three years, adultery, cruelty, and depravity by the non-complaining spouse, in addition to scenarios where the marriage is irretrievably broken down.
The circumstances that qualify the irretrievably broken-down marriage are described in Section 66, subsection 6: If a spouse is cruel to their significant other and children. If a spouse wilfully neglects the other for at least two years before a divorce petition is filed.
If the spouses are living separated lives for a time of not less than two years. This could be voluntary or an order of the court if a spouse has deserted the other for at least three years.
If the spouse is serving a life sentence or their term is for seven years upwards.
If a spouse suffers from incurable mental illnesses. This position must be affirmed and certified by two medical practitioners, one of whom must be qualified and experienced in psychiatry, claiming that the mental illness is incurable or the recovery is improbable over the lifetime of the respondent.

Courts have declared that no one should be made to stay in a marriage they find less value, motivation, and commitment. This is good ground to request the judge for a protection order as part of your prayers against the likely violence or threats to be caused by your estranged husband. However, such an allegation must be supported by clear evidence, as Sections 107-109 of the Evidence Act demands. Upon reviewing the evidence, the court will likely provide you with a restraining order that should keep your husband away.

Regarding children's safety, you must move the children's court. In this court, you will ask for two things: first is the custody of the children guided by Sections 101-121 of the Children's Act, and two is the restraint order for him to stay away from children or refrain from any actions that may cause uncertainty, fear, or injury to the children. On both sets of requests, you will be expected to produce enough evidence to compel the court to grant you.
While making the decision, the court will be guided by Article 53 Clause 2 of the Constitution, which demands that action, programme or decision must be driven by the best interest of the children in such parental disputes.

Schedule 1, in operationalising Section 8 of the Children's Act of 2022, has outlined what comprises the child's best interest as fundamental principles. Some of these include: consideration of a child's age, maturity, stage of development, background, and any other characteristics of the child. Distinct special needs (if any) arising from chronic ailment or disability. The state of the relationship of the child with the child's parent(s) and guardian(s) and any other persons who may significantly affect the child's welfare. The preference of the child, if old enough to express a meaningful preference. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity. The stability of any proposed living arrangements for the child; The motivation of the parties involved and their capacities to give the child love, affection and guidance. The child's adjustment to the child's present home, school, and community. The capacity of each parent or guardian to allow and encourage frequent and continuing contact between the child and the other parent and guardian(s), including physical access. The capacity of each parent and guardian(s) to cooperate or to learn to cooperate in childcare.

The law protects you and people in similar circumstances from being bullied to stay in cruel, unsustainable relationships. Let your fears be handled by the court, but remember to have enough evidence on all the allegations you make.