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Divorce In Kenya: Grounds For Divorce

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Family Law (Divorce)

INTRODUCTION

Kenya has a fault-based divorce system. This is unlike many western countries. Thus, for two persons to divorce, they must prove a matrimonial fault on the part of the other spouse. Kenya does not recognize divorce by consent.

The purpose of this article is to introduce the reader to the legally recognized grounds for divorce in Kenya.

The Marriage Act

The Marriage Act Number 4 of 2014 (simply referred to as “the Act”) governs the Kenyan Divorce process. Section 6 of the Act recognizes 5 different types of marriages as follows:

  1. Christian Marriages
  2. Civil Marriages
  3. Customary Law Marriages
  4. Hindu marriage
  5. Marriages under Islamic Law

Each of these types of marriages has unique requirements for registration as well as dissolution. Thus I will discuss the individual types of marriages mentioned above under their own headings for purposes of understanding their divorce and dissolution processes.

Christian Marriages

These marriages are performed and registered. A party to the marriage professes the Christian religion. Often they are officiated by a church minister. Who is licensed to officiate such a marriage in a registered religious centre such as a Church building.

Under section 65 of the ACT, persons who contracted a Christian marriage can petition for divorce on the following grounds:

  1. One or more acts of adultery committed by the other party;
  2. Cruelty, whether mental or physical, inflicted by the other party on the petitioner;
  3. Desertion by either party;
  4. Exceptional depravity by either party;
  5. The irretrievable breakdown of marriage.

It is worth noting that all these must be offences done by the other person. Other than the person seeking a divorce. Thus one cannot commit adultery and then rush to court for divorce on the basis of his /her own matrimonial fault. It must be a fault on the part of the other party.

Civil Marriages

Civil marriages unlike Christian marriages the registrar of marriages officiates these marriages. As set out in Part (IV) of the Act. Just like Christian marriages, they are monogamous in nature.

Under Section 66 of the Act, unlike Christian marriages. A party to a civil marriage may either petition the court for separation. Or divorce after 3 years of marriage. This provision has come under intense judicial scrutiny of late where some courts have held it to be very prohibitive in nature. However, the law still stands as such.

In addition, the grounds for dissolution of civil marriage are identical to the grounds for dissolution of a Christian marriage discussed above.

Under Section 66 (6), marriage is deemed to have irretrievably broken down. If there is any proof of the other grounds of dissolution of the marriage. Such as where the parties to the marriage have been separated for at least 2 years. When a spouse is serving a sentence of more than 7 years. Or where a spouse suffers from incurable insanity.

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Customary Marriages

The celebration of these marriages is in accordance with the customs and practices of ethnic communities. That either party to the marriage belong to.

The grounds for the dissolution of a customary marriage are similar to that of civil and Christian marriage. With the added provision recognizing any other ground for divorce under the customs of the particular community.

Hindu Marriages

In these marriages, both spouses profess the Hindu Religion. Hindu divorces have unique grounds such as:

  1. Where the marriages has irretrievably broken down;
  2. Where since the celebration of the marriage, the other party has committed rape, Sodomy, bestiality or adultery;
  3. When the other party has deserted the petitioner for at least 3 years before making of the petitioner;
  4. Where the other party has converted to another religion;
  5. When the other party has deserted the petitioner for at least 3 years before making of the petitioner;
  6. Where the other party has committed cruelty to the other; also
  7. Where the other party has committed exceptional depravity to the other.

Islamic marriages

Islamic marriages are celebrated under Islamic Law. The Act does not set down grounds for the dissolution of Islamic marriage. Only stating in section 71 that dissolution of an Islamic Marriage shall be governed by Islamic Law. The Kadhi courts process and preside over such divorce processes.

Written by Wakili David Kamau

Email: dkamauthika@gmail.com

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