Someone is being violent or emotionally abusive and the children are getting caught in the middle and you are thinking about separation or divorce, but the house is still shared, the tension is unbearable and you are wondering whether you really have to live like this while waiting for the court to catch up. The law does not expect you to sit in a boiling pot and call it home. In Kenya, the law allows you to apply for what is called an exclusive occupation order. It means the court can order your partner out of the shared residence even if their name is on the title. You can do this without filing for divorce first. It can be temporary or longer-term and it is usually meant to protect the safety and wellbeing of those left in the house, especially children.
The legal basis sits in two places. One is the Children Act and the other is the Protection Against Domestic Violence Act. Let us walk through what each says and what you need to do if you are ready to file.
When Children Are Involved
Under the Children Act, the child’s best interest is the rule. Courts are legally bound to prioritise it. Section 76 tells us the court must consider any harm the child has suffered or is at risk of suffering. So if you can show that the child has been exposed to violence, or even just living in an environment where tension and hostility are the norm that is grounds enough to apply.
Section 135 of the Act goes further. It allows the court to exclude someone from the home if they have used or threatened violence against a child. This applies even if they are a parent. It even applies if they are not living in the home full-time. If the court believes exclusion is necessary for the child’s protection, it can make the order. The order may also stop that person from being around the child or from entering areas near the home.
However, the court does not make this decision lightly. Section 11 of the same Act says children have a right to be cared for by both parents. So the court has to weigh safety against the value of parental contact. If your child is old enough to express a view their voice might also be taken into account. You might be asked for evidence from a psychologist etc. If you are building your case, this is the moment to get proper assessments done.
Under The Protection Against Domestic Violence Act
The Protection Against Domestic Violence Act defines emotional abuse to include insults, humiliation and repeated threats. You do not need to wait until someone has laid a hand on you to seek help.
Section 19 of the Act allows the court to give you exclusive rights to the shared home, even if it is registered in your partner’s name. It does not matter who is paying rent or who built the house. If the court is satisfied that your safety or your children’s safety is at risk, it can remove the abusive partner and let you stay. Of course, you will need to present your case properly. You will need to provide enough evidence to show that staying together is causing serious harm. This can include witness statements, therapy reports, past police reports, or even your own written affidavit/witness affidavit explaining the patterns of behaviour and what effect it is having on you or the children.
Take away
If your home has become a battleground, the law does not ask you to stay there and smile through it, it has the power to help you. Exclusive occupation orders exist for a reason. Whether your situation involves children, emotional abuse, or both know that you do not have to wait for divorce papers to move forward. You can go to court, ask for help and you can get your home back.
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