Marriage, Separation and Divorce Law in Kenya

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Marriage is a binding agreement between a wife and a husband, but after some time the couple may decide to divorce or separate. In Kenya, there is a law that states conditions for marriage, divorce and separation, the processes which normally occur in court or at the Attorney General’s office.

Before marriage takes place, either party may decide to nullify the union. The process of nullification occur due to the following reasons:

A husband or wife may present a petition to the court praying that his or her marriage may be declared null and void.

Grounds for decree of nullity

(1) The following are the grounds on which a decree of nullity of marriage may be made—

(a) that either party was permanently impotent, or incapable of consummating the marriage, at the time of the marriage; or

(b) that the marriage had not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or

(c) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; or

(d) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such previous husband or wife was then in force; or

(e) that the consent of either party to the marriage was obtained by force or fraud in any case in which the marriage might be annulled on this ground by the law of England; or

(f) that either party was at the time of the marriage of unsound mind or subject to recurrent fits of insanity or epilepsy; or

(g) that the respondent was at the time of the marriage suffering from venereal disease in a communicable form; or

(h) that the respondent was at the time of the marriage pregnant by some person other than the petitioner:

Dissolution of Christian marriages

  • Marriage can undergo dissolution, and the reasons for this are as follows:
  • one or more acts of adultery;
  • cruelty, whether mental or physical on the petitioner or children; or
  • desertion for at least three years
  • exceptional depravity
  • irretrievable breakdown of the marriage

 

Parties to civil marriage may not petition court before 3 years since celebration of marriage (Sec 66(1)

Dissolution of civil marriage

  • Parties to a civil marriage may only petition court for dissolution, (Sec 66(2)) citing:
  • adultery by the other spouse;
  • cruelty by the other spouse;
  • exceptional depravity by the other spouse;
  • desertion for at least three years; or
  • irretrievable breakdown of the marriage e.g. (insanity, imprisonment for life or 7+ years)

Attempts to reconcile do not matter, a party may still petition for separation or dissolution. Court may refer dispute to a re conciliatory process agreed between the parties. Matrimonial proceedings for the dissolution of a marriage may be adjourned for a period of not more than six for the court to make further enquiries or further attempts at reconciliation

Irretrievable breakdown of a marriage

A marriage can be considered  irretrievably broken down where:

  • A spouse commits adultery
  • A spouse is cruel to the other spouse or child of the marriage
  • A spouse willful neglects the other for at least two years
  • spouses have separated for at least two years
  • A spouse deserts another for at least three years
  • A spouse is sentenced of life imprisonment or seven years on-wards
  • A spouse is diagnosed with an incurable insanity (certified by at least two doctors, one a psychiatrist)
  • any other ground court deems appropriate

Dissolution of customary marriages

Parties to a customary marriage Sec 68 may undergo conciliation or traditional dispute resolution the process must conform to the Constitution. Person who takes the parties through the process must file a report in court Otherwise party may petition for dissolution citing-

  • adultery;
  • cruelty;
  • desertion
  • exceptional depravity
  • irretrievable breakdown of the marriage or
  • any valid ground under the customary law of the petitioner
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