Many people often wonder whether they can get divorced after contracting a customary marriage. The short answer is yes. However, for the union to be capable of obtaining a divorce decree, it must be legally recognizable. 

In Kenya, customary marriages are provided for and recognized under Section 43 of the Marriage Act. These marriages follow specific cultural practices of a Kenyan community to which one or both parties belong.  It must meet certain requirements to be legally valid.

Like civil and Christian marriages, a customary marriage can face challenges that lead to divorce. However, the divorce process differs from that of a civil or Christian marriage.

In this article, we delve into how divorce proceedings work under customary law to guide those considering ending their marriage within this framework. We outline the key legal principles and explain the role courts play in the customary marriage divorce proceedings.

1. Understanding Customary Marriages

We have previously written articles on understanding customary marriages and the customary marriage registration process. To sum up these two articles: A customary marriage is entered into following the cultural traditions of a specific community in Kenya. These include bride price negotiations and various ceremonies as prescribed by each community’s traditions. It is only after all traditional requirements are met, that the marriage is considered valid.

Customary marriages are provided for under Section 43   of the Marriage Act and the registration of a customary under Section 55. Registration provides proof of the marriage and ensures that the legal rights and obligations of the parties are enforceable in court.

However, many customary marriages remain unregistered, which can complicate divorce proceedings.

2. Grounds for Divorce in Customary Marriages

Unlike civil marriages, where the law provides specific grounds for divorce such as adultery or cruelty, customary divorces often follow traditional practices. The exact grounds for divorce vary depending on the community’s customs.

Common grounds for divorce under customary law include:

• Infidelity: Adultery can lead to divorce in many communities, as it is seen as a violation of marital trust.
• Desertion: If one spouse abandons the other without reason, the aggrieved party may seek divorce.
• Incompatibility: In some traditions, couples may seek divorce if they cannot resolve personal differences.
• Failure to Provide: If a husband fails to provide for his wife and children, the wife may initiate divorce under customary law.

While cultural practices guide the grounds for divorce under customary law, the Marriage Act allows parties to approach formal courts to resolve their disputes. This is particularly important when there are children or matrimonial property involved. Courts apply statutory law when customary remedies are insufficient or unclear.

3. The Divorce Process in Customary Marriages

Divorce under customary marriage follows a different route compared to civil divorce. The traditional process usually involves several steps:

Family Mediation

Before formal divorce proceedings, the couple’s families often try to mediate. The aim is to resolve the issue amicably and preserve the marriage if possible. If these efforts fail, the couple may proceed to divorce.

Role of Elders

In many Kenyan communities, elders play a significant role in the divorce process. They listen to both sides of the dispute, consider the evidence, and decide whether the marriage should end. Their decisions are usually respected within the community.

Returning of the Bride Price

One of the common elements of customary divorce is the return of the bride price. The bride’s family typically returns part of the dowry paid by the husband as a sign that the marriage has ended. However, if the divorce is due to the husband’s fault, the bride price may not be returned.

4. Court Intervention in Customary Divorces

While traditional processes are important, some divorce cases may require court intervention. This is especially true where issues like child custody, division of property, or spousal support arise. In such cases, the courts apply statutory law to protect the rights of both parties.

Legal Precedent

The case of M.M. v. B.M. (2015) highlights the role of the court in resolving customary divorce disputes. The court ruled that while traditional practices should be respected, the court must ensure fairness, especially regarding child custody and property division.

Court Procedures

When one or both spouses decide to formalize the divorce through the court, they must file a petition. The petition outlines the reasons for the divorce and any claims regarding children or property. The court then assesses whether the traditional process was followed and ensures that both parties’ rights are protected.

5. Division of Matrimonial Property

In many customary marriages, property is acquired jointly by the couple. Upon divorce, dividing this property can be contentious. The Matrimonial Property Act, provides that both parties are entitled to a share of the property based on their contribution. Contributions can be monetary or non-monetary (like homemaking).

Case Law: E.N.K. v. J.N.M (2017)

In this case, the court ruled that a wife was entitled to 40% of the matrimonial property, despite her contribution being non-monetary. The court held that non-financial contributions such as child-rearing and managing the home were valid contributions that must be considered in dividing property.

6. Child Custody and Support

Divorce under customary law can also lead to disputes over child custody and support. While traditional systems may favor one parent (often the father), courts prioritize the best interests of the child. Kenyan courts have the final say on custody and may award it to either parent based on who is better able to provide for the child.

Legal Considerations

Under the Children Act, courts base custody decisions on the welfare of the child and the best interest of the child. In cases of divorce, both parents remain responsible for their child’s upkeep. This principle was reinforced in A.W.K. v. J.K. (2018), where the court awarded joint custody and ordered both parents to contribute to the child’s maintenance.

7. Spousal Support After Customary Divorce

In some cases, the court may award spousal support after a customary divorce. This typically applies when one spouse cannot support themselves immediately after the marriage ends. Courts assess the financial circumstances of both parties before making any awards.

Relevant Law: Matrimonial Property Act

The Matrimonial Property Act gives courts the power to award spousal support. However, the court’s primary concern is the needs of the children. Spousal support may only be awarded if the spouse seeking support can prove they are financially disadvantaged due to the marriage.

8. Challenges in Customary Divorce Proceedings

Customary divorces come with unique challenges, especially when the traditional process conflicts with statutory law. For example, the requirement to return the bride price can be controversial in court proceedings. Courts, while respecting cultural practices, must ensure that the divorce is fair to both parties.

Case Study: W.N.K. v. M.G. (2019)

In this case, the husband demanded the return of the bride price upon divorce, claiming that his wife had left the marriage without cause. The court ruled that while the return of the bride price is a traditional practice, it would not compel the wife’s family to return the dowry as it would result in undue hardship.

Conclusion

Divorce under customary marriage in Kenya follows traditional practices but may require court involvement, especially in cases involving property, children, or spousal support. Kenyan courts respect cultural traditions while ensuring that the rights of both parties are protected. Consulting a lawyer familiar with both customary and statutory law is essential for navigating this complex process.

By understanding the steps involved and the legal protections available, couples can navigate divorce proceedings under customary marriage in a fair and transparent way.