Legal Reasons for Divorce in Kenya: When is Divorce Allowed?

Divorce in Kenya is a legally regulated process, and the grounds for divorce vary depending on the type of marriage. It's crucial to understand these grounds if you're considering ending your marriage. In this article, we shall explore the different types of marriages and the grounds under which they can be legally dissolved.

Christian Marriages:

Christian marriages, common in Kenya, are officiated in churches. Divorce is initiated through a petition, and the Marriage Act of 2015 outlines five specific grounds:

• Adultery: This refers to a spouse engaging in voluntary sexual intercourse with someone other than their marriage partner. To prove adultery, evidence must be presented to the court demonstrating that this act occurred.

• Cruelty (physical or mental) to the spouse or children: This encompasses a wide range of behaviors that cause harm. Physical cruelty includes acts of violence or physical abuse. Mental cruelty involves actions that inflict emotional distress, such as persistent verbal abuse, intimidation, or a pattern of controlling behavior. Cruelty towards children within the marriage is also a valid ground.

• Desertion for at least three years: This occurs when one spouse abandons the matrimonial home and terminates cohabitation with the intention of permanently ending the marriage, without a justifiable reason, for a continuous period of at least three years.

• Exceptional depravity: This refers to conduct by a spouse that is considered extremely immoral or wicked, and that makes it intolerable for the other spouse to continue living with them. This is a high threshold and requires evidence of particularly egregious behavior.

• Irretrievable breakdown of the marriage: This ground recognizes that sometimes, relationships simply break down beyond repair, even without one specific act of wrongdoing. It requires evidence that the marriage has deteriorated to a point where reconciliation is impossible, and that the spouses can no longer live together as husband and wife.

Even if a ground seems clear-cut, proving it in court can be challenging. A lawyer can advise you on what evidence is necessary to support your claim and help you gather it.

Civil Marriages:

Civil marriages, performed and registered by government officials, also have specific grounds for divorce:

• Adultery

• Cruelty

• Exceptional depravity

• Desertion for at least three years

• Irretrievable breakdown of marriage

The grounds for divorce in civil marriages are similar to those for Christian marriages. A lawyer's assistance is just as crucial in these cases to help you build a strong case and navigate the legal procedures.

Customary Marriages:

Customary marriages, celebrated according to community traditions, are dissolved through conciliation or customary dispute resolution. If these processes fail, the matter goes to court. Grounds for divorce in customary marriages include:

• Adultery

• Cruelty

• Desertion

• Exceptional depravity

• Irretrievable breakdown of the marriage

• Any other valid ground under the relevant customary law**

**Customary law can be complex and vary between communities. A lawyer familiar with both customary law and formal court procedures can help you navigate the process, whether it involves conciliation or court proceedings.

Hindu Marriages:

Hindu marriages, performed according to religious rituals, are dissolved through a court petition. Grounds for divorce include:

• Adultery

• Cruelty

• Desertion

• Exceptional depravity

• Irretrievable breakdown of the marriage

• Desertion for at least three years

• Conversion to another religion: Unlike the other types of marriages discussed above, Hindu marriages can be dissolved if either spouse elects to convert to a different religion.

• Rape, sodomy, bestiality: Hindu marriages also allow for dissolution where one spouse commits any of these acts.

Islamic Marriages:

Islamic marriages, officiated by religious leaders, are governed by Islamic law. The Marriage Act's provisions that conflict with Islamic law do not apply to Muslims. Dissolution is typically granted by a religious leader, and the decree is registered. In Islamic law, the grounds for divorce are distinct and rooted in religious principles:

• Non-consummation of the marriage: This occurs when the marriage has not been physically consummated, meaning sexual intercourse has not taken place. This can be a ground for divorce if it persists and indicates a fundamental breakdown of the marital relationship.

• Prohibited relationship between the parties (unknown at the time of marriage): This refers to situations where it is discovered after the marriage that the parties are related in a way that prohibits marriage under Islamic law, and this relationship was unknown to either party at the time of the marriage.

• Prior marriage of one party (in a monogamous marriage): In a marriage intended to be monogamous, if it is discovered that one party was already married at the time of the new marriage, without the knowledge or consent of the other party, this is a valid ground for divorce.

• Lack of free consent to the marriage: This ground applies when one party was coerced or forced into the marriage and did not give their free and voluntary consent.

• Absence of a party at the marriage ceremony: If one party was not physically present at the marriage ceremony, and their presence was a requirement for the validity of the marriage under Islamic law, this can be a ground for divorce.

• Wife's pregnancy by another man (unknown to the husband): If, at the time of the marriage, the wife is pregnant with a child fathered by another man, and this fact was unknown to the husband, this is a valid ground for divorce.

• Recurrent insanity of a party (unknown to the petitioner): If one party suffers from recurrent bouts of insanity, and this condition was unknown to the other party at the time of the marriage, this can be a ground for divorce, as it may prevent the fulfillment of marital responsibilities.

Islamic law regarding divorce can be complex and requires specialized knowledge. A lawyer familiar with both Islamic law and general family law can guide you through the process, ensuring it is conducted according to both religious and legal requirements.

In Conclusion:

Understanding the grounds for divorce is essential for anyone considering ending a marriage in Kenya. The specific grounds vary depending on the type of marriage. Regardless of the type of marriage, legal counsel is highly recommended. A lawyer can provide invaluable assistance by explaining your rights, helping you gather evidence, navigating the legal procedures, and advocating for a fair outcome. Divorce is a complex legal process, and professional guidance is essential to protect your interests and ensure a smoother transition to the next chapter of your life.

Reach out to us today on achieng@aga-advocates.com for a free consultation to discuss your options.

Important Note: This information is provided as a general overview and does not constitute legal advice to you. To get advice that is tailored to your specific situation and learn more, please contact us.