While most people enter a marriage expecting it to last until death do them part, unfortunately, there comes a time when it is no longer feasible to continue in it.
A judge has dismissed a petition to allow couples to leave their marriages without going through the court process to formalise their divorce.
In the petition filed by Copler Attorneys and Consultancy, Justice Lawrence Mugambi had been asked to declare that couples could dissolve their marriage through mutual consent without fulfilling any of the grounds for divorce stipulated in the Marriage Act, 2014.
"The formulation of the grounds of divorce is to ensure the marriages succeed and are not dissolved casually. Failure to recognise a mutual consent in the dissolution of marriage is not unconstitutional, but is intended to safeguard marriage. The court declines to issue the declarations sought," said Justice Mugambi.
It was the petitioner's argument that Kenyans desirous of quitting marriage should be allowed to do so without any form of restrictions or qualifications of whatever nature.
They wanted court to declare that couples were "at liberty to terminate their marriage through written consent and upon filing the consent in court, a decree shall issue to the Registrar of Marriages cancelling the union and deeming the marriage dissolved".
But the court rejected the request and ruled that mutual separation was against the society’s interest in preserving the family unit, which enjoys the recognition and protection of the State as provided in Article 45 of the Constitution.
"The society interest in marriage is to ensure success of the family unit not failure. The interest of society in marriage need to be safeguarded. Marriage brings together not only the parties but also the entire society and even the government," stated Justice Mugambi. He added that marriage is a critical component of the family unit.
Justice Lawrence Mugambi.
The petitioner wanted court to nullify Part X—Matrimonial Disputes and Matrimonial Proceedings of the Marriage Act for restricting divorce and separation of couples.
According to their lawyer Boniface Akusala, the existing law and the grounds stipulated for a divorce to be granted by court were embarrassing to the couples, their children and society.
The said grounds include adultery, cruelty to the spouse or children, desertion of a spouse for at least three years, irretrievable breakdown of a marriage, imprisonment of more than seven years, venereal diseases, presumption of death, conversion to a different religion and incurable insanity.
Grounds for divorce
The Act says that the person petitioning for annulment of marriage must outline the grounds for divorce to court.
Mr Akusala stated that the Act needed amendment to allow dissolution of marriages through a written consent, which would filed in the Family court.
He added that the Act made divorce an adversarial process setting partners against each other and with financial implications. The petition was filed in February 2022.
His case was backed by lobby group Legal Aid Clinic, which argued that married people willing to leave their partners should be granted their wishes without being required to meet any qualifications. It also stated that courts should adopt a consent written by the parties who do not wish to explain their reasons for divorce.
However, the court ruled that the prayers sought on repealing of the law were untenable.
"This was is invitation for the court to infringe the separation of powers. The petitioner asked court to direct Parliament to amend the Act and recognize mutual separation of parties in marriage. The court has no authority to direct Parliament to legislate in any particular way. There is no merit in this petition and is dismissed on its entirety," said the judge.
The court sided with the Attorney-General and Parliament who opposed the petition and stated that allowing casual separations would destroy families in the country.
"As provided in Article 45 of the Constitution, a family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State. It is, therefore, fair to have the said institution protected as opposed to allowing people to enter at will and leave at will," said the AG in his written submissions.
For its part, Parliament said the court lacked powers to direct the National Assembly on its legislative duties.
