Marriage is intended to be a lifelong union, but sometimes, it reaches a point where reconciliation is impossible. In Kenya, the law allows divorce when a marriage has irretrievably broken down. This concept is central to the dissolution of marriages under the Marriage Act. Understanding what constitutes an irretrievable breakdown and how the courts assess it is crucial for couples seeking divorce.
1. What Is Irretrievable Breakdown of Marriage?
The term “irretrievable breakdown” refers to a situation where the marriage has broken down to a point where it cannot be repaired. The couple can no longer live together, and there is no possibility of reconciliation. In such cases, the court can grant a divorce.
Legal Basis: Marriage Act, 2014
Section 66 of the Marriage Act outlines the grounds for divorce in Kenya. One of the primary grounds is the irretrievable breakdown of the marriage. The Act provides specific circumstances that the court considers to determine if the marriage has reached this point.
2. Grounds for Divorce due to the Irretrievable Breakdown of the Marriage
While the irretrievable breakdown of a marriage is a ground for divorce on its own, the Marriage Act further specific situations that prove the irretrievable breakdown of the marriage. These include:
- Adultery: If one spouse commits adultery, the other can petition for divorce. Adultery is often seen as a betrayal that leads to the collapse of trust in a marriage. In the case of N v N (1979), the court ruled that continued adultery by one spouse was sufficient proof of an irretrievable breakdown.
- Desertion: If one spouse abandons the other for at least three years, the deserted spouse can file for divorce. The law views abandonment as a sign that the marriage cannot be salvaged.
- Cruelty: Cruelty, both physical and mental, is another reason for divorce. 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.
- Separation: If the couple has lived apart for at least two years, 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.
3. Proving the Irretrievable Breakdown
The court does not automatically grant a divorce based on a mere claim of breakdown. The petitioner must prove to the court that the marriage cannot be saved. Evidence of any of the above grounds strengthens the divorce case.
Legal Evidence
- Witness Testimony: In cases of adultery or cruelty, witnesses who can testify to the conduct of the offending spouse may be required.
- Documentation: Records such as police reports or medical evidence in cases of abuse help build the case.
4. Reconciliation Attempts
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.
- Case Law: In W.M. v. P.M. (2016), the court ruled that despite attempts at reconciliation, the marriage had irretrievably broken down due to continued conflict, paving the way for divorce.
5. Legal Process for Divorce on the Grounds of Irretrievable Breakdown
The process of filing for divorce in Kenya is a legal process that must be followed strictly. Below are the steps:
- Filing a Petition: The aggrieved spouse files a divorce petition, outlining the reasons for seeking divorce. This petition should include evidence of the irretrievable breakdown.
- Court Hearing: Both parties will attend court hearings. The petitioner must present proof of the marriage breakdown.
- Ruling: If the court is convinced that the marriage cannot be saved, it will grant the divorce.
It is advisable to consult a family lawyer to guide you through the process. Lawyers ensure that the proper legal grounds are presented, and the process is followed correctly.
6. Effects of Divorce Due to Irretrievable Breakdown
Once the court grants a divorce, it also makes rulings on several key issues. These include the division of matrimonial property, child custody, and spousal support.
- Matrimonial Property: Under the
- Child Custody: The court’s primary concern is the welfare of any children from the marriage. Custody arrangements depend on the best interests of the child.
- Spousal Support: The court may award spousal support if one spouse needs financial assistance after the divorce.
7. 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.