The divorce process in Kenya is governed by various laws, including the Marriage Act and the Matrimonial Property Act. It can be emotionally taxing, but understanding the legal steps can make it more manageable.
If you are considering a divorce, this guide will walk you through the legal process and what to expect.
Types of Marriages Recognized in Kenya
Kenya recognizes five types of marriages:
- Civil marriages
- Customary marriages
- Hindu marriages
- Christian marriages
- Islamic marriages
Each type of marriage has different grounds and procedures for divorce. Therefore, it is important to know which type of marriage you contracted and the options available to you before proceeding.
Grounds for Divorce in Kenya
To file for a divorce, you must prove at least one ground of divorce. As with all civil cases, your petition will be decided on a balance of probabilities. Common grounds for divorce include:
- Adultery – If one spouse is unfaithful, the other may file for divorce.
- Cruelty – Physical, emotional, or psychological abuse is a valid reason to seek divorce.
- Desertion – When one spouse abandons the other for at least three years.
- Irretrievable breakdown – When the couple can no longer live together, and reconciliation is impossible.
For Islamic marriages, additional grounds may include failure to provide for the family or incompatibility.
To illustrate this point, in Nderitu v Nderitu (1997), case, the court emphasized that for a marriage to be dissolved, there must be convincing evidence of the irretrievable breakdown of the marriage. The court ruled that mere incompatibility, without proof of misconduct or breakdown, was insufficient for divorce.
Steps in the Divorce Process
1. Filing for Divorce
In this section, we will focus only on marriages that can be dissolved in a court.
The first step after deciding to part ways with your spouse is to file a divorce petition in the appropriate court. For civil and Christian marriages, the petition is filed in the High Court or Chief Magistrate’s Court. For customary, Islamic, and Hindu marriages, the divorce must follow the specific traditions and laws governing the marriage before being ratified by the courts.
Ensure to include all the necessary prayers that you may want the court to decide on including the division of matrimonial property, custody of children, child support and alimony. In the case of M N M v A M K (2021), the court ruled in favour of the wife, citing cruelty and financial desertion. The court emphasized the importance of protecting vulnerable spouses in divorce proceedings, especially in cases of financial abuse.
Once the petition is filed, the court issues a summons to the other spouse, who must respond within a set period. Failure to respond can lead to a determination without the spouse’s input.
2. Mediation and Reconciliation
Kenyan law encourages mediation and reconciliation before granting a divorce. Couples may be required to attend counselling sessions or mediation to resolve their issues. If mediation fails, the divorce process continues. This step ensures that divorce is a last resort after all efforts to save the marriage have been exhausted.
3. The Court Hearing
After mediation, if the couple still wishes to divorce, the court schedules a hearing. During the hearing, both parties present their case, providing evidence to support their claims. The court considers factors such as the welfare of any children involved and the division of matrimonial property.
4. Decree Nisi and Decree Absolute
If the court is satisfied with the evidence presented, it issues a Decree Nisi, which is an interim order stating that the court sees no reason why the marriage should not be dissolved. After six months, if no one contests the Decree Nisi, the court grants a Decree Absolute, officially ending the marriage.
In the case of R v R (2014), the court clarified the timeline for issuing a Decree Absolute, emphasizing that the six-month period ensures all parties have ample time to reconsider their decision. This case highlighted the court’s commitment to providing a “cooling-off” period before finalizing a divorce.
The Division of Matrimonial Property
The division of property after divorce is a critical aspect of how property acquired during marriage is shared governed by the Matrimonial Property Act. Kenyan law follows the principle of equitable distribution, meaning that property is divided fairly, though not necessarily equally.
The court takes into account each party’s contribution to the marriage, both financial and non-financial. For instance, homemaking, child-rearing, and other non-monetary contributions are considered. In P N N v Z W N (2017), the court ruled that both monetary and non-monetary contributions, such as child care and house management, were crucial in determining the share each spouse received. This case set a precedent for fair and balanced property division.
Child Custody and Support
If the couple has children, the court’s primary concern is the best interests of the child. Custody may be awarded to one parent or shared between both, depending on the circumstances. Kenyan courts favour shared custody if both parents are deemed fit.
Child support is determined based on each parent’s financial ability. In A M M v J M M (2022), the court reiterated that both parents have an equal responsibility to provide for their children, regardless of who has physical custody.
Alimony / Spousal Support
In some cases, one spouse may be required to provide spousal support or alimony to the other. The court assesses factors such as the length of the marriage, each party’s financial standing, and contributions made during the marriage. Spousal support is often awarded in long-term marriages where one spouse is financially dependent on the other.
How Long Does the Process Take?
The time it takes to finalize a divorce in Kenya depends on several factors, including the complexity of the case, whether mediation is successful, and the court’s workload. On average, a divorce case can take anywhere between 6 months to 2 years.
The timeline can be shorter if both parties are co-operative and reach an amicable agreement, or when the divorce is undefended. An undefended divorce occurs where the Respondent, the party served with a summons, chooses not to file a defence.
Hiring a Divorce Lawyer
Navigating the divorce process without legal assistance can be overwhelming. A lawyer guides you through the legal procedures, protects your rights, and ensures you receive a fair settlement. We specialize in divorce cases and are committed to supporting you through this difficult time.
Our lawyers will help you file the correct documents, represent you in court, and offer valuable advice on child custody, property division, and spousal support. We aim to ensure that you receive the best outcome for your case.
Conclusion
Divorce is never easy. Understanding the legal process can help ease the burden, reduce anxiety and help smoothen the process. Whether you are dealing with how to handle property disputes, child custody or spousal support.
Remember you do not have to go through this alone. Reach out to our team of experienced family lawyers to help you through the planning and eventual implementation of your plans.