Don’t even think of a divorce if you are not married for at least three years. Section 6 of Matrimonial Causes Act, Chapter 152 of the Laws of Kenya, the principal divorce statute, provides that no petition for divorce shall be presented unless three years have passed since the date of marriage. Dear readers, honey moon tantrums cannot grant you a divorce; you got to take more tantrums for at least three years. This section of the law is supposed to protect the sanctity of marriage institution.
Like most rules, there is an exception to the three year rule since it is not intended to punish. A party intending to divorce before three years may ask the court to allow him or her to file the divorce. The court shall only allow such filing if the party shows “exceptional hardship he/she suffers or has suffered or depravity on the part of the other party”. This simply means that you should tell the court of the exceptional circumstances that make you not wait for three years; marriage is for thick skinned. Such circumstances may include emotional break down, violence and physical insecurity arising from the marriage.
After a three year wait or if granted permission by the court to file a divorce, you may now commence the divorce proceedings.
The Divorce Petition and its Grounds
Divorce proceedings are commenced by way of a petition supported by an affidavit, the party may in person or through an advocate draw and file a petition for divorce.
The petition shall, most importantly, state the grounds which the divorce is granted. In Kenya, parties are not just allowed to divorce, there must be a reason why the court should allow the parties to divorce, these reasons are what are commonly known as grounds for divorce. Section 8 of the Matrimonial Causes Act provides five grounds of divorce namely:
d) Incurable insanity and having been under care at treatment for at least five years; and
e) By wife, where the husband has been guilty of rape, sodomy or bestiality.
The petition should also indicate that the parties have not colluded to file the divorce. This is based on the fact that family unit is to be protected. This is further bolstered by Article 45(1) of the Constitution that recognizes family as a fundamental unit of society which shall enjoy protection of the state. Kenyan law does not provide for a case of “No-fault divorce”. You can have a marriage which is legal fiction but parties must evince the above grounds.
The petitioner shall then serve the petition (together with Notice to Appear) to the Respondent personally or by registered post. The Respondent shall then File Answer to Petition, if need be. The Respondent may also file a Cross-Petition seeking to dissolve the very marriage. After the parties have exchanged the papers, the registrar of the court satisfied, the parties may set the case of hearing.
Decree of Divorce
If the court is satisfied that the party has evinced a ground of divorce, it shall order dissolution of the marriage. At the first instance, the court shall issue what is called decree nisi meaning that the marriage is not completely dissolved yet.
The decree nisi shall only come to full force or to use legal jargon, be made absolute after six months from the date of dissolution of marriage. The decree absolute brings to an end to the marriage and the parties are free to re-marry or call themselves single again, divorcees or whatever name they choose.
Attendant to divorce are issues of custody and maintenance of the children of the marriage, matrimonial property, custody of the pets and alimony. These are to be discussed another day. In the meantime have a painless divorce.