DIVORCE IN KENYA

INTRODUCTION

Divorce in Kenya is determined under the newly amended Marriage Act 2014 which law seeks to consolidate the various laws relating to marriage and divorce and for connected purposes.

The same law under section 3 (1) provides for what can be defined as marriage by stating that “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.

The same law in section 3(2) provides that “Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. And that (3) All marriages registered under this Act have the same legal status.

The only distinction in regards to the rights so envisaged, apply to the Islamic marriages where the law provides under section 3 (4), that “Subject to sub-section (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law.

The Marriage Act also provides for the following types of marriages:

• One celebrated in accordance with the rites of a Christian denomination

• Civil marriage

• Those in accordance with customary rights relating to any of the communities in Kenya.

• Those in accordance with Islamic law.

For that reason, the law also provides that Christian, Hindu or civil marriage is monogamous, whileas a marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.

It is also important to note that a marriage registered under this Act subsists until it is determined by among others a decree of divorce; or a decree of divorce or annulment obtained in a foreign country and recognized in Kenya under this Act.

DISSOLUTION OF MARRIAGE

Any party interested in the dissolution of marriages contracted under Christian rites can rely 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 or on the children, if any, of the marriage; or

3. desertion by either party for at least three years immediately preceding the date of presentation of the petition;

4. exceptional depravity by either party;

5. The irretrievable breakdown of the marriage.

Civil marriages can be petitioned for dissolution on the following grounds;-

1. adultery by the other spouse;

2. cruelty by the other spouse;

3. exceptional depravity by the other spouse;

4. desertion by the other spouse for at least three years; or

5. the irretrievable breakdown of the marriage.

Grounds for dissolution of Customary marriages

1. adultery;

2. desertion;

3. exceptional depravity;

4. irretrievable breakdown of the marriage; or

5. any valid ground under the customary law of the petitioner.

Grounds for dissolution of Hindu marriages

1. the marriage has irretrievably broken down;

2. the other party has deserted the petitioner for at least three years before the making of the petition;

3. the other party has converted to another religion;

4. since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;

5. the other party has committed cruelty on the other; and

6. the other party has committed exceptional depravity on the other.

MITIGATING CONSEQUENCES OF DIVORCE ON PROPERTY ENTITLEMENTS

This aspect of marriage and divorce is managed under the newly amended law THE MATRIMONIAL PROPERTY ACT, 2013 which is an act of Parliament to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes.

This law under section 6(1) defines Matrimonial property to mean:-

• the matrimonial home or homes;

• household goods and effects in the matrimonial home or homes; or

• any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

This law provides what is popularly known as pre-nuptial agreements to be negotiated between couples by providing that “…the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.”

However the law does also provide that any party to an agreement made under the pre-nuptial clauses may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

In any event and subject to section on prenuptial agreement, ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

Any spouse whether in a monogamous or polygamous relationship and who has an interest in the matrimonial property capable of protection may create a caveat, caution or any such protective measure to safeguard their interest in relation to registration of title to land or of deeds.

The law also provides that a spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court.

However there are instances that may cause a spouse to be evicted from the matrimonial property such as:

1. Sale of any estate or interest in the matrimonial home in execution of a decree;

2. By a trustee in bankruptcy; or

3. By a mortgagee or chargee in exercise of a power of sale or other remedy given under any law.

ISSUES FOR DETERMINATION IN DIVORCE PROCEEDINGS

There are largely three main issues for determination during a divorce proceeding and they touch on among others:-

• Care, custody an control of the children (where applicable)

• Division of matrimonial property

• Spousal Support

The matters dealing with children rights and entitlements are well adjudicated under the Children’s Act Chapter 141 of the Laws of Kenya where the extents of parental responsibilities towards the children can be defined and determined.

HOW DOES KENYA COMPARE IN DIVORCE TRENDS

A Kenya bureau of statistics published in the last quarter of 2015, shows that out of 38,412,088 Kenyans, 11,158,890 were registered under monogamous marriages and 1,436,865 persons in polygamous marriages. Another 212,972 reported to be divorced.

This rate of divorce roughly translated reflects about a 2% rate of divorce to the married persons; and when compared to statistics for countries such as Norway where divorce rates are pegged at about 9%, Kenya would seem to be relatively better.

However, the registry record in the High Court of Kenya may reflect a different trend. In succeeding years, the number of reported divorce cause matters coming up before the judiciary has risen.