The Divorce Process in Kenya: A Comprehensive Guide

Introduction

Kenya’s divorce process is mainly governed by the Marriage Act and the Matrimonial Property Act. Another key statute in handling divorce matters is the Children’s Act, which provides for all matters concerning children and maintenance of the standard of “…the best interests of the child.”

In this article, we provide a comprehensive overview of the law on divorce in Kenya.

Types of Marriages Recognized in Kenya

Kenya recognizes five types of marriages:

• Civil marriages
• Christian marriages
• Customary marriages
• Hindu marriages
• Islamic marriages

While similar, each type of marriage has different implications thereby different grounds and procedures for divorce. When considering a divorce, the type of marriage and whether or not you have proof of that marriage are important considerations.

Grounds for Divorce in Kenya

To file for a divorce, you must prove one or more grounds for divorce. Divorce matters are civil cases – a dispute between two individual persons, not involving the state. In a civil case like a divorce petition, the court decides based on the balance of probabilities. This means the evidence from one side must be more convincing than the other’s, establishing that a claim is more likely true than not (over 50% likelihood). This standard is less strict than the “beyond a reasonable doubt” standard used in criminal cases.

The Marriage Act provide the following as grounds for divorce:

• 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.

Customary marriages allow polygamy, which complicates infidelity as a ground for divorce. On the other hand, in Islamic marriages, failure to provide for the family or incompatibility are valid grounds for divorce.

The Divorce Process

This article primarily focuses on the types of marriages that a court can dissolve. These are civil marriages, Registered Customary Marriages and Christian marriages. Under Islamic and Hindu marriages, the parties must follow the specific traditions and laws governing the marriage before the divorce is ratified by the courts.

Unregistered Customary Marriages raise the unique issue of proof of marriage. If proof exists and the court accepts it, the court can dissolve the marriage. However, if there is no proof or the court rejects it, the court makes no orders and dismisses the petition.

1. Filing the Divorce Petition

To initiate a divorce, one party applies to the court by filing a divorce petition. The petition is filed in the High Court or the Chief Magistrate’s Court allowed to hear divorce matters. The petition must include proof of the marriage and a valid ground for the party’s application to dissolve the marriage.

Ensure to include all the necessary orders that you may want the court to decide on including the division of matrimonial property, custody of children, child support and alimony. Since the court must grants the divorce first, it handles the divorce matter before addressing the additional prayers.

If necessary, it is also important to make additional applications together with the petition for any temporary orders that the applicant may need. These may include retraining orders, child maintenance and spousal support orders.

After you file the petition, the court sends a summons to the other spouse, who must respond within a specified timeframe. If the spouse fails to respond, the court may hear and determine the petition without that spouse’s input.

2. Mediation and Reconciliation

Kenya’s constitution, and thereby all its laws, encourages alternative dispute resolution mechanisms, particularly in family matters. Therefore, the courts may recommend mediation and reconciliation if it see fit to resolve disputes among the couple before granting a divorce. These may also be used later in handling property division, child custody and maintenance.

Counselling may also be recommended if necessary.

Divorce as a process is a last resort mechanism. Before deciding to break up a family, all efforts to save the marriage should be exhausted.

3. The Court Hearings

If all attempts at reconciliation fail, the matter proceeds for 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. A Decree Nisi is temporary. It states 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.

To apply for a Decree Absolute, you must wait six months to give both parties time to rethink their decision.

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 custody 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.

Spousal Support – Alimony

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.

The Cost and Duration of Divorce in Kenya 

Divorce processes in Kenya can vary significantly in both cost and duration, primarily depending on whether the divorce is contested or uncontested.

Contested Divorce

A contested divorce occurs when spouses cannot agree on key issues, such as child custody, property division, or spousal support. This type of divorce tends to be more expensive due to the extended court battles and the need for comprehensive legal representation. Legal fees for contested divorces can start from KES 200,000, with costs escalating based on the complexity of the case. The duration of contested divorces can range from one to three years, depending on court schedules and the intricacies involved. 

Uncontested Divorce

In contrast, an uncontested divorce takes place when both parties agree on all aspects of the separation, including asset division, child custody, and support arrangements. This agreement results in a more straightforward and less costly process. Legal fees for uncontested divorces typically start from KES 100,000. The timeframe for finalizing an uncontested divorce is considerably shorter, usually ranging from six months to a year, due to fewer court appearances and streamlined procedures. **Overall Timeline**  The time taken to finalize a divorce in Kenya can depend on various factors, including the complexity of the case, the success of mediation, and the court’s workload. On average, a divorce case can take anywhere between six months to two years. The timeline may be shorter if both parties are cooperative and can reach an amicable agreement or in cases of undefended divorces, where the Respondent does not file a defense.  By understanding the type of divorce and the associated costs and timelines, individuals can make more informed decisions during this challenging time.

Contested Divorce

A contested divorce arises when spouses cannot agree on key issues such as child custody, property division, or spousal support. This type of divorce is typically more expensive due to prolonged court battles and the need for extensive legal representation. Legal fees for contested divorces can vary widely, often starting from KES 200,000 and increasing based on the complexity of the case. The duration is also extended, with proceedings potentially lasting from one to three years, depending on court schedules and the intricacies involved. ​

Uncontested Divorce

In contrast, an uncontested divorce occurs when both parties agree on all aspects of the separation, including asset division, child custody, and support arrangements. This consensus leads to a more straightforward and less costly process. Legal fees for uncontested divorces generally start from KES 150,000. The timeframe for finalizing an uncontested divorce is significantly shorter, often ranging from six months to a year, as it involves fewer court appearances and streamlined procedures.

Emerging Issues: Divorce by Mutual Consent

​In June 2023, the Kenyan National Assembly introduced the Marriage (Amendment) Bill, 2023, aiming to amend the Marriage Act of 2014 to include provisions for divorce by mutual consent. The amendment seeks to allow couples to simplify the divorce process by jointly petitioning the court for a decree of divorce without assigning fault. To qualify, the couple must have been separated for at least one year and mutually agree that their marriage has irretrievably broken down.

As of the time of writing this article, March 2025, the bill remains under parliamentary consideration, with ongoing debates reflecting the complexities of balancing legal reforms with societal values.

Conclusion

Divorce is never easy. It’s an overwhelming process that requires good preparation and patience. It is especially useful to handle property disputes, child custody or spousal support soon after completing the process.

Navigating the divorce process can be overwhelming. Our goal is to help ease the burden, reduce anxiety and help smooth the process. Our experienced team will guide you through the process and help you work towards a fair settlement.

If you are considering separating from your partner or divorce and need legal help, Schedule A Consultation with our team, Email Us or fill out the form on our Contact Us page.