Separation, divorce and annulment of marriages in Kenya are governed by the Marriage Act and the Matrimonial Property Act. The Marriage Act specifically deals with the process of dissolution of marriages while the Matrimonial property Act deals with the separation of property after the process of dissolution is complete.
In Kenya 5 systems of marriage are recognized being Civil, Christian, Hindu, Customary and Islamic marriage. The Marriage Act outlines how these different forms of marriage should be dissolved.
It is essential that we outline the difference between the annulment and dissolution of a marriage. The annulment of a marriage is where proceedings are instituted to challenge the validity of a marriage. A marriage can only be annulled within a year of marriage. Where a marriage is annulled the same is to say that the marriage did not exist. This is different from divorce where the marriage is valid and is now subject to dissolution.
Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:
- The marriage has not been consummated since its celebration;
- At the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;
- In the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;
- The petitioner’s consent was not freely given;
- A party to the marriage was absent at the time of the celebration of the marriage;
- At the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy; or
- At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.
Divorce in Kenya is fault-based, this means that the law allows for dissolution of marriage if the person asking for the divorce proves that their partner/spouse committed a matrimonial offence. Below, are the different circumstances under which dissolution of marriages is granted in Kenya:
- Grounds For Dissolution Of A Civil, Christian And Customary Marriages.
A party to a marriage celebrated through these systems may petition for dissolution of the marriage on the grounds of:
- Acts of adultery committed by either spouse;
- Cruelty, whether mentally or physically, caused by their spouse to them or their children;
- Abandonment by either spouse for at least 3 years before the date when they present their divorce petition;
- Exceptional moral corruption or wickedness;
- The permanent breakdown of the marriage;
- In a customary marriage any valid ground under the customary law of the petitioner.
Section 66 (6) of the Marriage Act outlines irretrievable breakdown of marriage to include where:
- a spouse commits adultery;
- a spouse is cruel to the other spouse or to any child of the marriage;
- a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
- the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;
- a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
- a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more;
- a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or
- any other ground as the court may deem appropriate.
Once any of the above criteria is proved, the court may direct parties to undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage.
Pronouncement on dissolution of civil marriages before 3 years lapse.
The Marriage Act at section 66 stipulates that a party to a civil marriage may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.
The Kenyan courts have made pronouncements on allowing parties to dissolve a civil marriage before 3 years are up. The most recent being the determination by the Court of Appeal in the case of National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019).
The Court of Appeal in the aforementioned case was invited to uphold the declaration by the High Court that section 66 (1) of the Marriage Act, 2014 is unconstitutional. Section 66 (1) provides that parties to a civil marriage may not petition the Court for separation or dissolution of the marriage unless three years have elapsed since the celebration of the marriage. However, the same does not apply with regards to petitions to dissolve a Christian, Customary, Hindu or Islamic marriage. It was the petitioner’s contention that the section thereby contravenes Article 27(4) of the Constitution which forbids discrimination on any grounds.
The Court of Appeal upheld the decision of the High Court that section 66 (1) is unconstitutional and proceeded to state as follows:
“It is our view that notwithstanding the legitimate constitutional purpose for the time limitations in divorce proceedings arising from civil marriages, as an exception to the general rule, divorce should be allowed for situations which are unavoidable and unendurable for reasons of exceptional hardship or depravity, irrespective of the duration of the marriage for, and to protect the rights of the parties involved.
We have found that the limitation in section 66(1) of the Marriage Act of 2014 falls short of the proportionality test. We are nevertheless cognizant of the constitutional purpose of the section, and therefore reach the conclusion that while section 66(1) of the Marriage Act of 2014 is not discriminatory, it is unconstitutional for reason of, and to the extent of its disproportionate effect in cases where a divorce in a civil law marriage may be necessary and justified before the three-year limitation.”
Further, the Court of Appeal in this matter was of the opinion that “there are three tests that require to be met by legitimate differentiation that are derived from the provisions of Article 24. Firstly, the rationality test, under which there must be a legitimate purpose for the differentiation, and reasonable connection between the differentiation and its purpose. If the answer to this test is affirmative, then one moves to the second test, namely, the proportionality test, which is implied by the provisions of paragraphs (a) to (e) of Article 24(1). Under the second test, the question asked is whether the differentiation is proportional, namely is it to the extent necessary. In Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others (2017) eKLR this Court noted that: “Even after establishing the existence of a law limiting any specific right and accepting that it is reasonable and justified the means chosen to achieve the objective must pass a proportionality test by considering;
(a) The nature of the right or fundamental freedom:
(b) The importance of the purpose of the limitation:
(c) The nature and extent of the limitation;
(d) The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
It was held in this respect in Harksen vs Lane NO (supra) that the analysis to be undertaken in this respect involves “a weighing of the purpose and effect of the provision in question and a determination as to the proportionality thereof in relation to the extent of its infringement of equality”. The third and final test is whether the differentiation is necessary in an open and democratic society. If the answer to any of these tests is negative, then it means that the differentiation is discriminatory, or a limitation of a right or freedom is not constitutional.
- Grounds for divorce of Hindu marriages
These grounds are outlined in Sections 70 of the Marriage Act. A party to a marriage celebrated under this system may petition for dissolution of the marriage on the grounds that:
- the marriage has irretrievably broken down;
- the other party has deserted the petitioner for at least three years before the making of the petition;
- the other party has converted to another religion;
- since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;
- the other party has committed cruelty on the other; and
- the other party has committed exceptional depravity on the other.
- Grounds for divorce of Islamic marriages
Dissolution of Islamic marriages are governed by Islamic law. Some of the grounds for dissolution include:
- Adultery or Infidelity by a spouse;
- Any form of violence – physical, financial, or emotional harm by the spouse;
- Where a spouse suffers certain physical defects, such as impotency;
- Where there is difference of religion.
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