Desertion or bigamy? Why the law sides with those who remarry after spouse disappears
A woman who has been deserted by her husband. Legal experts say abandoned spouses need not wait indefinitely to remarry.
What you need to know:
- After decades missing, a Bungoma man’s return reignited debate on desertion, remarriage and Kenya’s marriage laws.
- Legal experts say abandonment, not just death, can justify remarriage under evolving interpretations of Kenyan law.
In 2021, a man in Bungoma County resurfaced after disappearing for nearly five decades, only to discover that his two wives had long moved on and remarried.
Can anyone blame the wives? Probably not. But the law may still raise questions. Under Kenya’s Penal Code (Cap 63) and the Marriage Act (2014), bigamy remains a criminal offence, though the law provides limited exceptions.
Section 171 of the Penal Code recognises that in specific circumstances, a person may remarry after a prolonged, unexplained absence of a spouse. Particularly, where the spouse has been continuously absent for seven years and has not been heard of as being alive within that period.
But legal practitioners say one does not have to wait that long. Eric Mukoya, an experienced lawyer and executive director of the Undugu Society of Kenya, says the law already provides a practical route for abandoned spouses through divorce.
Under the Marriage Act, desertion is recognised as a ground for dissolving a marriage across different systems. For Christian marriages, abandonment for at least three years immediately before filing a petition is sufficient grounds for divorce.
Hindu marriages also recognise desertion for at least three years before filing. Customary marriages recognise abandonment as a basis for divorce, though without a clearly defined statutory timeframe.
Eric explains that, in legal practice, prolonged absence is treated as desertion. “So if there’s something called desertion, just like in the army, if you desert, you become a deserter,” he says. “You are unavailable. If I don’t see you for seven years, then I can remarry without looking for a divorce.”
He adds that even shorter periods of abandonment can justify divorce proceedings. “If you stay out of the house for three years, I can also remarry,” Eric says. “And if you took me for bigamy, I will say you were even unavailable for me to serve you divorce papers because you have not been in the house for the last three years.”
At the same time, Eric notes that courts are increasingly adopting more flexible interpretations of marriage breakdown. “We have progressive decisions by Justice Reuben Nyakundi [at the High Court in Vihiga]. But the law has not changed,” he says. “Justice Nyakundi says, ‘You don’t have to wait for seven years to divorce. You don’t have to wait for three years.’”
