Divorce in Kenya: A Comprehensive Guide

Introduction

In Kenya, the divorce process is governed by the Marriage Act and the Matrimonial Property Act. The Children’s Act also applies if the couple have any children.

In this article, we provide a comprehensive overview of the law and the formal process of filing for a divorce in Kenya.

The Legal Framework for Divorce in Kenya

The Marriage Act, 2014, provides for the various types of marriages recognized in Kenya. It provides the grounds and procedure for divorce under each type of marriage. It is also the primary source of law on spousal maintenance, commonly referred to as alimony or spousal support.

On the other hand, the Matrimonial Property Act provides for the division of property among spouses. It also provides for Prenuptial Agreements. The purpose of the Act is to create rules for the fair and equitable distribution of property at the end of marriages.

Finally, the Children’s Act provides for all matters concerning children. Its main purpose is to ensure that all decisions made are in “…the best interests of the child(ren).”

Types of Marriages Recognized in Kenya

Kenya recognizes five types of marriages:

• Civil marriages;
• Christian marriages;
• Customary marriages;
• Hindu marriages, and
• Islamic marriages.

To file for a divorce in Kenya, the parties must have a legally recognized marriage. This is especially important for foreigners resident in Kenya and Kenyans who got married in a different country.

The type of marriage determines the grounds for divorce and the process applicable to that type of marriage.

Proof of the marriage is also an important consideration. The divorcing couple must produce proof of their marriage through a marriage certificate, a copy of an entry in the register of marriages and/or witnesses.

Grounds for Divorce in Kenya

Kenya operates on a fault-based divorce system. This means that to file for a divorce, you must have evidence and proof of one or more of the five grounds for divorce. The Marriage Act provides for the following grounds for divorce:

• Adultery;
• Cruelty;
• Desertion;
• Exceptional depravity; and
• The irretrievable breakdown of the marriage.

It is noteworthy here that customary marriages and Islamic marriages permit polygamy. Additionally, failure to adequately provide for the family or incompatibility are valid grounds for divorce under Islamic marriages.

The Standard of Proof

Divorce matters are civil cases. A civil matter is a dispute between two persons which do not involve the state. In a civil matter, like a divorce petition, the court makes its findings based on a balance of probabilities. This means that the evidence from one side must be more convincing than the other’s.

The Divorce Process

This article focuses on the types of marriages that can be filed in court for immediate dissolution. These are Civil marriages, Registered Customary Marriages and Christian marriages. Under Islamic and Hindu marriages, the parties must first follow the specific traditions and laws governing that type of marriage before the divorce is ratified in the courts.

Unregistered Customary Marriages raise a unique issue under the current Marriage Act. Under the Act, all customary marriages are required to be registered. After registration, the couple is issued a marriage certificate. Therefore, if the marriage is unregistered, it is more difficult to provide 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 in the High Court’s Family Division or an authorized Chief Magistrate’s Court. The petition must include proof of the marriage and at least one valid ground for the party’s application to dissolve the marriage.

Additional Orders

Ensure to include any requests for other temporary or necessary orders that you may want the court to decide on, such as:

Some examples of temporary orders include:

• Retraining orders (referred to as injunctions under Kenyan law), and
• Interim child maintenance and spousal support orders.

Examples of additional long-term orders are those relating to:

• The division of matrimonial property,
• Custody of children and child support, and
• Spousal maintenance.

Since the court must grant the divorce first, it handles the divorce matter before addressing the additional issues.

After you file the petition, the court issues a summons, which must be served on the other spouse. A summons lets them know that the matter has been filed and gives a timeframe in which they must respond. 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 (ADR) mechanisms. ADR is particularly encouraged in family matters. Therefore, the courts may recommend mediation either at the parties’ request or if it sees fit that the couple try to resolve any disputes among them before or after granting the divorce.

3. The Court Hearings

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.

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 makes its decision on a balance of probabilities.

4. Decree Nisi and Decree Absolute

If the court is satisfied with the evidence presented, it grants the divorce and issues a Decree Nisi. A Decree Nisi is temporary. It states that the court sees no reason why the marriage should not be dissolved.

The parties can apply for a Decree Absolute after 30 days from the date of the first decree, officially ending the marriage. The mandatory 30-day waiting period after the Decree Nisi is issued exists to allow any person who wishes to do so to show cause why the decree should not be made absolute.

The Cost and Duration of A Divorce in Kenya 

The cost and amount of time a divorce takes can vary significantly due to the availability of court dates, availability and completeness of documents and whether the divorce is contested or uncontested.

Contested Divorce

A contested divorce occurs when spouses cannot agree on key issues, such as the grounds for divorce, 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 150,000, 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 three to six months, due to 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 to include a provision for divorce by mutual consent. The amendment will simplify the divorce process by allowing couples to jointly petition the court for a divorce decree without assigning fault. To apply for a divorce by mutual consent, the couple will be required to 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.