Can one get divorced from a customary marriage? The short answer is yes. However, for the union to be capable of obtaining a divorce decree, it must be legally recognisable.
In this article, we delve into how divorce proceedings work under the current law to guide those considering ending their customary marriage within this framework. We outline the key legal principles and explain the role courts play in the divorce proceedings of a customary marriage.
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 by following the cultural traditions of a specific community, including introductions, bride price negotiations, payment of dowry and various other ceremonies as prescribed by each community’s traditions.
In previous times, a couple were considered legally married upon fulfilling all or part of the traditional rites of their community. For example, payment of all or part of the bride price is a common mark of the beginning of the union.
Today, Customary Marriages are recognised under Section 43 of the Marriage Act, and after celebrating the marriage under custom, the parties must then register it with the state under Section 55. Registration is a relatively new requirement and is a positive move by the lawmakers to assist couples in obtaining proof of their marriage so that the legal rights and obligations of the parties are enforceable in court. However, many customary marriages remain unregistered.
Grounds for Divorce in Customary Marriages
Unlike in Civil and Christian marriages, where the law has always defined the grounds for divorce, Customary divorces followed undocumented traditional practices. This means that the exact grounds for divorce were unknown, undocumented or both and left to the discretion of the elders. They were also varied, with each community’s customs following a different set of rules.
Some of the grounds, as documented in case law, included:
- 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 and Irretrievable Breakdown of the Marriage: 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.
The Marriage Act now provides for a consistent list of grounds for divorce for customary marriages which allows clarity for all the parties concerned. These include:
- Adultery
- Cruelty
- Desertion
- Irretrievable Breakdown
- Exceptional Depravity
- Customary Grounds: Specific grounds unique to the community’s traditions
The Divorce Process
In the past, when a customary marriage ended, it was the elders who officiated the dissolution, just as they had done during the marriage ceremony. They would consider the community’s traditions and allow the couple to separate if they found that the marriage had truly ended.
Today, while cultural practices may still influence the reasons for divorce under the Marriage Act, couples must now file a formal divorce petition in court to end their marriage. This shift means that having a marriage certificate is not just helpful but essential. Courts often turn parties away if they cannot present this certificate.
However, there are various interpretations of these requirements. Although it might be challenging to prove the existence of the marriage without the certificate, the courts may still recognise that the union took place and may provide assistance to the separating parties.
Use of Mediation and Elders
The courts may also utilise some or all of the traditional aspects of the customary divorce process during the divorce proceedings. This includes ordering the parties to submit to:
- Family Mediation: sending the couple to their families, who try to mediate. and resolve the issues between the parties in an attempt to preserve the marriage if possible.
- Elders: In many Kenyan communities, elders still 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.
- Return 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 all or part of the dowry paid by the husband as a sign that the marriage has ended.
If these efforts fail, the court may then continue the divorce proceedings.
The rest of the divorce process follows the usual procedure. You can learn more about this from our article Divorce in Kenya: A Comprehensive Guide.
Division of Matrimonial Property
In many customary marriages, property is often acquired in the name of one of the spouses. 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).
Child Custody and Support
Divorce under customary law can also lead to disputes over child custody and support. Traditional systems placed financial responsibility on one parent (often the father) and care responsibilities on the other (often the mother). Under the Children Act, courts prioritise the best interests of the child and have final say on custody and support.
A court may award custody to either parent based on who is better able to care for the child, including arrangements for joint custody. Similarly, the court will award maintenance to either party, giving orders on shared child maintenance obligations.
Spousal Support
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.
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.
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.
In W.N.K. v. M.G. (2019), a 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 fairly and transparently.