The number of Kenyans seeking divorce has increased every year in the past decade, suggesting a crisis in families.
Statistics from the courts covering 2013 to 2022 indicate that there is a surge in divorce cases arising from the character of the spouses.
By 2022, divorce and separation cases stood at 5,611 up from 1,194 filed in 2013.
Lawyers say from divorce and dissolution of marriages, new battlefronts between the ex-spouses are emerging in regard to matrimonial property, alimony (court-ordered financial support to a former spouse) and child maintenance and custody disputes.
Professionals below the age of 50 are divorcing their spouses more than those working in informal sectors, family lawyers add, while also blaming the country's adversarial judicial system
“Apart from the traditional grounds of divorce, social media and the use of mobile phones are emerging as a factor in divorces. There are spouses looking online for evidence that their partner is unfaithful,” says lawyer Danstan Omari.
“Others check the phones and social media accounts (such as Facebook, WhatsApp, Twitter and Instagram) of their wives or husbands to discover who they were talking to and to search for evidence to demonstrate flaws in the character of their partners,” Mr Omari adds.
But some lawyers say the divorce cases are increasing as spouses seek liberation from unhealthy marriages.
“Social media is contributing to an increase in divorce cases for the reason that it is educating people and exposing them to what healthy marriages look like. Equipped with this knowledge, people in unhealthy marriages are able to liberate themselves and leave the union,” argues lawyer Nelius Njuguna.
Dr Ruth Aura-Odhiambo, the Egerton University Law faculty dean and former chairperson of the Federation of Women Lawyers in Kenya (Fida-Kenya), notes:
“Social media has been a major contributor to divorce. When couples go back home they are too busy chatting with their friends on social media. They need to find time for themselves but rarely will you find them doing that.”
Statistics from the courts covering 2013 to 2022 indicate that there is a surge in divorce cases arising from the character of the spouses.
Photo credit: Photo I Pool
Veteran family lawyer Judy Thongori, the rise in divorces is due to many factors, including non-alignment, lack of trust and money.
“Social media could contribute to these factors becoming more visible and pronounced. Further, time to sort out the issues becomes less available when people are glued to social media. Money matters become more pronounced when family members consume social media where other families appear to be doing well and to be happier,” says Ms Thongori.
According to court documents, among the top reasons cited by spouses seeking divorce is abuse, cruelty (physically and emotionally), violence, infidelity or extramarital affairs, desertion, change of religion, infertility and denial of conjugal rights.
Some spouses are also seeking dissolution of marriages because their partners are addicted to pornography, have procured abortions or have been denied emotional support, love, affection and companionship. Intrusion by parents-in-law has also been cited.
Wilfully neglecting a spouse for at least two years can also lead to divorce. A partner can also seek divorce when they have been separated for at least two years or when a spouse has deserted the partner for at least three years, according to Section 66(2) of the Marriage Act 2014.
In 2013 there were 1,194 cases of divorce and separation, with the number rising to 1,566 in 2014. This was followed by drops in 2015 and 2016 with 1,433 and 883 cases, respectively. In 2017, the cases doubled to 1,643.
In 2018 the number of divorce and separation cases rose slightly to 1,675 before more than doubling in 2019 with 3,783 cases filed.
The numbers continued to surge in 2020 when 3,476 were recorded while in 2021 there were 4,987 cases. In 2022, the cases jumped to 5,611.
With the surge in marital splits and divorce cases, is the rise of single-parent homes, the majority of them headed by women.
Mr Omari says private investigators have been making a kill as a result of broken marriages. Others reaping from the acrimony are litigation lawyers. So good is the litigation business that one of the lawyers recently engaged his client’s former husband in an altercation outside a court.
According to Mr Omari, courts have made divorce easy.
“There is a huge appetite for divorce because initially a divorce case would take several years and courts were delaying the matter to allow the spouses to reconcile, reunite and settle their differences. Today, courts are expediting the process and some marriages are being dissolved a few months after the filing of the divorce case,” he says.
The divorce numbers in Kenya continued to surge in 2020 when 3,476 were recorded while in 2021 there were 4,987 cases. In 2022, the cases jumped to 5,611.
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The court documents further indicate that upon suspecting cheating, the financially able elect to hire private investigators to monitor the movements and communication of their spouses.
Others install surveillance gadgets in their compounds, inside their houses and in personal vehicles to track each other.
“People are involving strangers as private investigators in their marriages. Although courts have since held that illegally obtained evidence is not permissible, spouses are leaving marriages based on information provided by private investigators,” says Mr Omari.
“The private investigators have made a killing in marriages, mostly among the rich and middle-class couples. Men and women are hiring private investigators to investigate their own marriages and whoever has employed them, man or woman, cannot handle the videos or photos brought to them by the investigator, whether true or manufactured,” he explains.
“The evidence required to establish adultery must be more than the mere suspicion and opportunity. Evidence of a guilty inclination or passion was undisclosed, nevertheless, the evidence of a single witness might suffice to establish adultery,” former Chief Justice Zacheaus Chesoni stated.
Various judgments and case laws have since been made in regard to divorces and there is a holding that granting of divorce orders is not automatic; the allegations must be proved.
However, courts hold that where parties are no longer interested in the marriage, letting them go their separate ways is a human rights reality in a marriage set-up. They further hold that adultery is a serious matrimonial offence but mere suspicion is not sufficient to justify a finding of adultery, though it is not necessary to adduce direct evidence to prove the same.
Justice John Onyiego, while dissolving the marriage of a Nairobi couple married for 15 years, stated that “marriage is a voluntary union, and a sexual contract based on trust, honesty, mutual agreement and understanding of each other’s weakness and strengths, tolerance, love and happiness as the bedrock of that institution”.
“Anything short of that would breed disaster with serious repercussions which might even lead to death. To insist on a relationship whose love and care for each other has nosedived is an exercise in futility. The most prudent fact and appropriate thing a court should do is to dissolve the marriage so as to let the parties have the freedom to enjoy their life elsewhere instead of being held in bondage,” he stated.
The courts further hold that separation due to work commitments cannot amount to desertion. Justice Lilian Mutende added that after chasing a spouse away, it cannot then be alleged that he/she deserted the matrimonial home.
Another judge, Reuben Nyakundi ruled that “marriage is considered sacrament and parties who have consented to fulfil the obligations are encouraged to preserve it as a social institution for the well-being of mankind”.
“If a marriage has broken irretrievably, let the courts set it asunder and leave the rest of the residual judgement to God, the Alpha and Omega of a marriage institution. Putting asunder what God has joined would not have attracted the wrath of God over the trial magistrate. For the appellant and the respondent had torn apart their institution of marriage as a whole,” he said in determining a divorce case.
Courts also hold that misconduct related to cruelty must be proved to be of a grave and weighty nature and it must be more than mere trivialities since in many marriages there are occasional outbursts of temper, and occasional use of strong language and offended silences. These are not sufficient to amount to cruelty in ordinary circumstances, though if carried to a point that threatens the health of the other spouse, the law will not hesitate to give relief.
Three years ago, Justice Reuben Nyakundi stated that marriage is a union of willing partners and they should be at liberty to leave at any time.
Nullifying section 66(1) of the Marriage Act that barred couples in civil marriages from divorcing within the first three years, the judge held that a couple married in civil court can divorce at any time without waiting for the lapse of the limitation.
“By imposing the three-year limitation, the impugned section had the effect of forcefully keeping parties in a situation they no longer wished to be part of. So that while Section 66(2) of the Marriage Act contemplated cruelty and exceptional depravity as a ground for dissolution of marriage, a petition could not be entertained until the time limit was reached. This, in my view, is a case of an affront to a person’s human dignity preserved by Article 28 and I have no hesitation in holding as much,” he stated.
