Grounds for Divorce in Kenya

In Kenya leaving your spouse is less about parting ways peacefully and more about building a legal case. Kenya operates a fault-based divorce system (read my thoughts on this here). That means you cannot walk into court say you both gave it a good shot and wish each other luck. No, you must point a finger and someone must be blamed and unless your partner has done something legally offensive enough to qualify, you are stuck.

This is very different from places like Sweden, Canada, etc and some states in the united states, where one can simply sign the divorce papers. In Kenya, the idea of divorce by consent is legally non-existent and courts are not interested in whether both parties agree that the marriage has come to an end. What matters is whether someone did something wrong.

What does the law say?

Different Marriages Different Rules

The law that governs divorce in Kenya is the Marriage Act Number 4 of 2014. Section 6 of the Act lists five recognised types of marriages. These are Christian, Civil, Customary, Hindu and Islamic. The law provides for different processes and grounds for dissolving each of these, although there is quite a bit of overlap.

Grounds Under Christian Marriage

Christian marriages are usually conducted in churches by ministers licensed to officiate. If you were married under this system and wish to file for divorce, you must prove that your spouse did one of the following things. Committed adultery. Inflicted cruelty on you or your children. Abandoned you for at least three years. Engaged in some form of exceptional depravity. Or that the marriage has broken down irretrievably. It is not enough to say the marriage is unhappy or unfulfilling. The court wants proof that your spouse misbehaved and you cannot be the one who misbehaved and then try to use that as your reason to leave. That would be legally illogical and courts do not entertain it.

Grounds Under Civil Marriages

Civil marriages are similar in many ways but differ in a few key areas. First, they must be celebrated before a registrar. Second, you must wait at least three years after your wedding before you are allowed to file for divorce. Some courts have criticised this rule as unnecessarily harsh, but it remains in force. Once that period has passed, the grounds for divorce mirror those of Christian marriages. In addition, if your spouse has been imprisoned for more than seven years or suffers from incurable insanity, the marriage can also be dissolved.

Grounds under Customary Marriages

Customary marriages follow the traditions and practices of the communities involved. The law allows dissolution on the usual statutory grounds but also respects cultural variations. So, if your community recognises a specific practice as a ground for divorce, the courts may consider it.

Grounds under Customary Marriages

Hindu marriages have their own set of criteria which include desertion, conversion to another religion, cruelty, exceptional depravity, or if your spouse commits sexual offences such as sodomy, bestiality, or adultery. Irretrievable breakdown of the marriage also applies.

Grounds under Customary Marriages

Islamic marriages are governed entirely by Islamic law. The Marriage Act leaves this area to the Kadhi Courts and does not impose statutory grounds. If you are in an Islamic marriage and seek divorce, the process will be guided by Islamic principles.

Notes that divorce is NOT annulment

People often confuse divorce with annulment. The difference is simple. Divorce is what you seek when the marriage existed but went wrong and an Annulment is what you seek when you believe the marriage was never valid to begin with.

According to Section 73 of the Act, a court can annul a marriage if certain conditions existed at the time of the wedding. For example, if the marriage was never consummated. Or if your spouse was already married to someone else, or if you were tricked into marrying. Or if someone involved was insane. In some cases, being pregnant by someone other than the husband, without the husband’s knowledge, also qualifies. Annulment petitions must be filed within one year of the marriage. Wait too long and you lose the opportunity.

Summary of Grounds for Divorce in Kenya

To file for divorce in Kenya, the following grounds must be proved, depending on the type of marriage.

Adultery
Cruelty (mental or physical)
Desertion for at least three years
Exceptional depravity
Irretrievable breakdown of the marriage
Separation for two years (in civil marriages)
Imprisonment for seven years or more (in civil marriages)
Incurable insanity (in civil marriages)
Conversion to another religion (in Hindu marriages)
Sexual offences such as rape, sodomy, or bestiality (in Hindu marriages)
Other grounds recognised under customary or Islamic law, depending on the community or faith involved

In future pieces, we shall look at each individual ground for divorce and what one needs to show in court (one already done is a discussion on irretrievable breakdown of marriages).

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