The High Court has delivered a landmark judgment declaring that courts should not compel couples to remain in irretrievably broken marriages, emphasising that such unions should not function as emotional or social imprisonment.
In the ruling, the court stated that where love and companionship have ceased, divorce should be granted rather than forcing couples into judicial separation with no realistic hope of reconciliation.
"The law does not require spouses to endure emotional, psychological, or social imprisonment under the guise of marriage," the court declared while dissolving a 21-year marriage between Mr S.K.K and Ms E.W.K.
The case stemmed from a divorce petition filed by Mr S.K.K, who accused his wife of cruelty, desertion and adultery. He claimed the marriage had become unbearable, forcing him to leave the matrimonial home to protect their children after failed mediation attempts.
Ms E.W.K, however, opposed the divorce on religious grounds, stating that as a Catholic, her faith does not recognise divorce. She accused her husband of cruelty, alleging that he withdrew conjugal rights and physically abused her in front of their children and domestic workers. She stated that it is the man who moved out of the home.
She said the man had not called anyone to intervene in their differences and that her parents, siblings and even their best couple were not aware of the court case.
A magistrate’s court in Machakos had initially dismissed the divorce petition in 2023, instead granting judicial separation on the grounds that the marriage could still be salvaged.
Dissatisfied, Mr S.K.K appealed, arguing that the union had long collapsed and that he had a right to legally exit it.
Upon review, the High Court found that the couple had lived apart since July 2020 and had not shared marital intimacy for five years—clear indicators of an irreparable breakdown.
“For close to five years, the parties have not consummated the marriage and have not seen eye to eye,” the judge noted, overturning the lower court’s decision.
The court ruled that judicial separation is only appropriate where reconciliation is feasible, not when one party seeks a definitive end to the marriage.
“Judicial separation is a provisional remedy aimed at giving parties space to reconcile. It cannot be imposed where reconciliation is no longer feasible,” the judge stated.
The court further emphasised that the fundamental elements of marriage—companionship, intimacy and shared life—had long vanished in this union. It said the evidence showed both partners were unwilling or unable to resume cohabitation or rebuild their union.
“The very essence of marriage being companionship, intimacy, and shared life has long ceased to exist. There is no legitimate purpose served by retaining the marital covenant, which is better dissolved to set each spouse free,” the judge said.
The court also noted that while Ms E.W.K opposed divorce on religious grounds, she had acknowledged living separately for years—further proof of the marriage’s irreversible breakdown. It concluded that there was no legitimate reason to preserve the union.
The judge found that the trial court had misdirected itself by granting judicial separation instead of addressing the reality of the parties’ situation.
He stated that retaining the legal bond in such circumstances would only prolong hardship, especially for a party seeking closure.
“Forcing the parties to remain legally bound serves no rational purpose where the matrimonial bond has collapsed,” he ruled, stressing that marriage is a voluntary union that cannot be sustained by law alone once its foundation has collapsed.
Ultimately, the High Court allowed the appeal, set aside the magistrate’s ruling, and granted the divorce, affirming that forcing couples to remain legally bound in a dead marriage serves no rational purpose.
“Marriage is a voluntary union,” the court concluded. “Once its foundation has collapsed, it cannot be sustained by law alone.”
