I couldn’t bear children, hubby kicked me out and now wants divorce

I have been married since 2014 through a Christian wedding. We have no children and in the course of the union, my husband frequently told me it was the cause of his adulterous behaviour. I was laid off at the height of the Covid-19 and have been jobless since. He has been the breadwinner, so I was patient. However, this led to mental stress. He bought several properties in the last three years. Two years ago, he kicked me out. Last week, he served me with divorce papers claiming I deserted my matrimonial home. I informed him I am no longer interested in the marriage; however, I need a share of the properties and for him to take care of me. What should I do?
Sally Makori,
Kajiado

Dear Sally,
I can understand how this is confusing for you. Since divorce in Kenya cannot be by consent, couples who have agreed to end their marriage allow for one person to file the Petition.

Nevertheless, it is important to know that for a union such as yours to come to an end, a court proceeding must be conducted.

The process is known as annulment of marriage, which is initiated by either party. The Petition cites the grounds for divorce. You have the option to respond or not.

Should you choose to respond, the law gives you 15 days from the date of service to put in your response.

The issue of property will not come up at this stage. This is because you will be required to finalise the divorce proceedings for you to commence the Division of Matrimonial Property case.

This will be a separate court process where the court will determine several issues, among them contribution, both monetary and non-monetary.

You should be glad to know that domestic work and management of the matrimonial home; companionship; management of family business or property and farm work are all considered as contributions.

The courts have yet to pronounce themselves fully on the percentage of the shared property; however, the Constitution provides for equality during, and at the dissolution of the marriage.

On maintenance, the court may order spousal maintenance if you prove that your husband has refused or neglected to provide for your upkeep. The court may order long-term maintenance or short-term rehabilitative maintenance, which is temporary.

Please, note this provision of the Marriage Act is enforced to ensure the deserving spouse enjoys spousal support to maintain the standard of life enjoyed before the separation.

The last straw is concerning your mental health. Infidelity and cruelty in marriage is bound to cause both emotional and psychological torture. I, therefore, recommend that you see a counsellor or join group therapy sessions to help you cope with the stress and make an informed choice on this issue.

I wish you all the best,

Vivian

Vivian Mwende Wambua is an Advocate of the High Court of Kenya. [email protected]