In Kenya, the law allows divorce on various grounds including when a marriage has irretrievably broken down. This ground is an important feature of Kenya’s divorce laws. This is because it empowers the court, in the exercise of its discretion, to dissolve a marriage “…on any other ground as the court may deem appropriate.”
In this article, we aim to offer a useful guide for persons seeking a divorce on the grounds that their marriage has irretrievably broken down.
What Is the Irretrievable Breakdown of Marriage?
The term “irretrievable breakdown” refers to a situation where a marriage has so badly broken down that it cannot be repaired. The couple no longer get along, they can no longer live together, and there is no possibility of reconciliation.
Section 66 of the Marriage Act defines the irretrievable breakdown of marriage as where”… a spouse commits adultery; a spouse is cruel to their spouse or their children; a spouse wilfully neglects their spouse; where spouses have been separated for 2 years or more; where a spouse has deserted their family; where a spouse has been sentenced to imprisonment for seven years or more; or any other ground as the court may deem appropriate.”
Kenya operates on a fault-based divorce system. By including the irretrievable breakdown of a marriage as a ground for divorce, the Marriage Act allows the court to grant a divorce outside of the traditional grounds for divorce and instead make its determination on any other ground that it may deem appropriate.
The Irretrievable Breakdown of the Marriage as a Ground for Divorce
To prove that a marriage has irretrievably broken down, the party seeking the divorce must prove the conditions spelt out in the Marriage Act. Let’s explore them below.
a) Adultery, Cruelty and Desertion
Adultery, Cruelty and desertion are stand-alone grounds for divorce. These are outlined separately from the irretrievable breakdown of a marriage as well as under it. Therefore, a marriage may be found to have irretrievably broken down due to adultery, cruelty, and desertion. The courts have on various occasions granted divorces due to the irretrievable breakdown of those marriages on the grounds of adultery, cruelty and desertion.
In the case of N v N (1979), the court ruled that continued adultery by one spouse was sufficient proof of its irretrievable breakdown.
Cruelty that causes physical, emotional and or psychological harm, is also proof of the breakdown of a marriage. The court, in D.K. v. R.K. (2015), granted a divorce on the grounds of cruelty, noting that the abusive behaviour led to the irreparable breakdown of the relationship.
With desertion, a spouse is deemed to have deserted their spouse if they have done so for at least three years immediately preceding the date of presentation of the petition. The law views abandonment as a sign that the marriage cannot be salvaged.
b) Neglect
A marriage can irretrievably break down due to neglect. Neglect is defined as when a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the divorce petition. Neglect can include desertion, a failure to perform spousal duties and a failure to cater to one’s family duties despite having the ability to do so.
c) Separation
If a couple has lived separately for at least two years, whether voluntarily or by decree of the court, it may be clear that the marriage is beyond repair. This was highlighted in the case of M.K. v. J.M. (2017), where the court considered prolonged separation as evidence that the marriage had irretrievably broken down.
d) Imprisonment for 7 years or more
Where one spouse has been sentenced to a term of imprisonment for seven years or more or has been imprisoned for life, the other party may file for divorce on the ground that their marriage may be dissolved.
e) Insanity,
This allows a spouse to petition the court for a divorce on the ground that the marriage has irretrievably broken down as one of the spouses suffers from insanity confirmed by two doctors, at least one of whom is qualified or experienced in psychiatry. The physicians must have certified that the insanity is incurable or that recovery is improbable during the lifetime of the spouse in the light of existing medical knowledge.
f) Any Other Ground the Court Deems Appropriate
Courts are not keen to force parties to remain married when their relationship is destroyed. Therefore, in the exercise of its discretion it may make an order for dissolution of the marriage based on the degree of :
- Animosity\Resentment
- Mistrust
- Disrespect
- Disharmony
- Communication breakdown
- Lack of willingness to try and resolve issues
- Duration of physical separation
- Desertion from the marital home
- Failure to meet the emotional needs of a spouse
- Failure to carry out matrimonial/marital duties
Proving the Irretrievable Breakdown of a Marriage
The court does not automatically grant a divorce based on a mere claim of a breakdown of the marriage. The petitioner must prove to the court the relationship between the spouses cannot be recovered. To this end, parties must procure evidence such as:
- Witness Testimony: witnesses who can testify to the conduct of the offending spouse may be required. For example, in cases of adultery or cruelty, someone who has witnessed the cruelty or adultery.
- Documentation: Records such as police reports or medical evidence in cases of abuse help build the case.
Before granting a divorce, the court often requires that the couple make genuine attempts at reconciliation. The court, under Section 66(6) of the Marriage Act, may refer the parties to counselling. If reconciliation efforts fail, the court may then proceed with the divorce.
Read more on the Divorce Processes in Kenya: A Comprehensive Guide.
Relevance of Case Law in Divorce Cases
Case law plays a significant role in interpreting the provisions of the Marriage Act. By looking at past rulings, courts decide whether a marriage has irretrievably broken down and how to handle related issues. Case law ensures that legal decisions are consistent and fair.
- Case Law Example: In E.W.K. v. J.K. (2020), the court applied the precedent set in earlier cases to determine that prolonged separation and failure to reconcile proved an irretrievable breakdown.
Conclusion
The irretrievable breakdown of a marriage in Kenya is a valid legal ground for divorce under the Marriage Act. Specific acts like adultery, desertion, cruelty, and long-term separation can lead to the conclusion that a marriage cannot be salvaged. By understanding the legal framework and consulting an experienced family lawyer, you can navigate the complex divorce process and protect your rights. Legal guidance is key to ensuring that issues such as property division, child custody, and spousal support are handled fairly.