What is divorce law in Kenya
Divorce law in Kenya, like in many other jurisdictions, is governed under a strict legal framework. In Kenya, the Act that governs marriages and divorce is The Marriage Act, 2014 (Laws of Kenya, Revision 2015). The provisions that specifically deal with divorce are under Part VIII of the Act, provides for divorce and judicial separation. These provisions are only applicable to marriages conducted after the Act came into force. Marriages that took place prior to the enactment of the Act, will have to fall under the provisions of The Matrimonial Causes Act (Cap 158). The Matrimonial Causes Act is the legislation that provides for dissolution and annulment of civil marriages contracted under English Law. A marriage that falls under the Act, but was contracted under customary law or Islamic law must be dissolved under the Matrimonial Act under the Marriage Act.
Divorce is addressed under Part VIII of the Marriage Act, specifically sections 66-68. Divorce can be filed on the basis that the parties have lived apart for at least two (2) years and there is no reasonable prospect of reconciliation. The Act does not provide for the concept of irreconcilable differences as grounds for divorce, but "no reasonable prospect of reconciliation" encompasses a variety of situations including: unreasonable behaviour; adultery; desertion and physical abuse. The Act also provides for a judicial separation, which is an order of the court that permits the spouses to live apart but does not finally dissolve the marriage.
In applying for a divorce under the Marriage Act , a party must be able to demonstrate that the marriage has irretrievably broken down and that there is no further hope for the marriage to be salvaged. This interpretation of section 66 has been buttressed by the Kenyan court in the case of Bishop Stephen Njongon Ng’iti -Vs- Mary Njeri Njongon where the court held that: "Breaking down of the marriage does not mean something specific, like adultery, mental or physical cruelty e.t.c. But it means the whole range of complaints and grievances to show that the truly the marriage is over. Irreparable injury brought about by one spouse to the other that there is no hope by whatsoever of salvaging the marriage. That remedy is a total severance of the bond."
The Act provides certain timeframes for parties seeking to dissolve their marriage. One of the grounds for divorce is when the parties have lived apart for more than six (6) months. However, the marriage must be dissolved within one (1) year from the time the divorce application is filed in court. If the divorce is filed on the grounds of adultery, the divorce application must be made within three (3) years from the date of discovery. A divorce that is based on desertion must be applied for at least three (3) years from the time of desertion.
To dissolve a marriage, an application for divorce must be filed in either the magistrate’s court or the High Court. The magistrate’s court has jurisdiction to divorce marriages that fall under The Marriage Act for those contracted under customary law while the high court has jurisdiction to dissolve marriages of those that fall under The Matrimonial Causes Act.
Grounds for divorce in Kenya
An important question to ask your divorce lawyer is what the grounds for divorce in Kenya are because no two divorces are alike. When the court is satisfied that you and your spouse have lived apart, and that the marriage has broken down irretrievably the court will grant the decree.
In Kenya, the following are the grounds for divorce:
Adultery – where the respondent has committed adultery. This can be proved by cohabitation with a third party, a child born by a third party, or an HIV test results. The consent of the person with whom adultery was committed is however required. Adultery can also be proved by the diminished respect, neglect, failure to have sexual relations or decreasing frequency;
Cruelty – where the respondent has behaved in a way that is cruel and is no longer safe for the applicant to continue living with the Respondent. Incidents of cruelty include psychological, physical torture or infection with a sexually transmitted disease;
Desertion – where the respondent has deserted the Applicant. This is where a party intentionally leaves the other and refuses to return. The desertion must be without consent for a period of at least three years;
Anxiety and Despair – where the spouse is in anxiety and despair as a result of his or her partner’s failure to recognize his or her earnest efforts to mend a broken relationship.
Where the petition is made by the wife, it must be proved that she has not remarried and has never been divorced nor married through customary law.
Divorce procedure in Kenya
The process of filing for divorce as outlined under the law is as follows:
Filing of Petition
A petition for divorce is filed at the registry of the High Court. This can be done either by a lawyer or in person. The petitioner will then pay the requisite court filing fees and obtain a receipt. The petition will then be entered into the registry and a date isted for the hearing. The petition will be served upon the respondent at his or her physical address.
The hearing
At the hearing, the petitioner will seek to satisfy the court why the marriage should be dissolved. The petitioner will have to call witnesses to testify on the grounds and, in addition, produce evidence to support the grounds of divorce. If the court is satisfied then an order will be granted. Sometimes the Petitioner may not be aware where the Respondent is, and may not therefore serve the Petition upon them. A Notice of Hearing is then published in the Kenya Gazette. If however the other spouse seeks to dispute the grounds then the matter will proceed to full hearing.
Exceptions to Filing a Petition
If both parties are in agreement on the breakdown of the marriage, a divorce by consent can be filed. There are specific procedures to follow and a consent order obtained by the parties that must be registered in the court records in order for them to have the status of a dissolved union.
Child custody and maintenance following divorce
Divorce Law In Kenya: From Start To Finish
Child custody and support after divorce:
At dissolution of a marriage, the main concern of the court is how to deal with the children. Family law advocates are very familiar with the Family Matters Court which is is a non-adversarial, trauma-free, client focused court that hears matters relating to children as a priority. The Family Matters Court also deals with spousal maintenance and matrimonial property matters. Law 72 of 2014 repealed the Judicature Act Cap 8, Laws of Kenya which included the Magistrate’s Courts. The Family Court requires Judges specialized in family law. The Family Court hears all disputes relating to children, spouses and guardianship which means that all appeals will be moved to the High Court from the sub-ordinate courts. There is a gradual transition of the Family Court which will eventually replace the Family Matters Court. At divorce, custody of children is addressed by the new Children Act, 177 of 2016. At the dissolution of a marriage, the question of custody of the children of the family is always paramount. The Constitution of Kenya guarantees that a child’s best interest is the basis of all decisions made relating to children. At divorce, the fate of the children must be considered along with other issues such as maintenance and property division. The Constitution of Kenya defines a child as every human being who has not attained the age of eighteen (18) years. Child custody provisions in the new Children Act are comprehensive. Primary caregiver, sole custody, joint custody and guardianship are provided for. The issue of access is provided for in terms of contact between a parent and child. Full details of custody and guardianship is contained in the new Children Act, but the key aspect is that the welfare of the child is paramount. Spousal maintenance and property at the time of divorce or separation has traditionally been dealt with under the Law of Marriage Act, 2011. The Law of Marriage Act provided that either spouse may petition for maintenance. In determining maintenance the following factors are considered namely the requestor’s own means, the means and needs of the respondent, the needs of the children, obligations of the parties, duration of the marriage, standard of living prior to divorce, the age of the parties and solicitor fees. The new Maintenance Orders Bill 2014 rests with the Child Maintenance Tribunal which will hear maintenance cases and make orders. Where necessary, the Tribunal may make an order of guardianship or custody. At the time of the divorce a spouse, who demonstrates a need for it, would be able to apply for an interim order of maintenance pending the determination of the matter. Although the new laws are progressive, they do not address how maintenance and divorce will be calculated. In doing preparation for a divorce and maintenance case the widely used Divorce Request Form contains a section for particulars of maintenance requests such as schooling interests and health care. Speaking with your divorce lawyer about these details will save time.
Matrimonial property
Upon the dissolution of the marriage, the next issue that follows is how to divide the property between the spouses. Once again, this issue is discussed in sections 75 and 80 of the Law of Succession Act. The law of succession recognizes two kinds of property, matrimonial property and non-matrimonial property but with respect to the matrimonial property, Section 79 of the Law of Succession Act defines it as "the assets and liabilities that were owned by either spouse or both of them, irrespective of the value, before marriage, during the marriage, and until the time of divorce, death or dissolution of marriage in case of the Muslims". Generally, matrimonial property in Kenya is classified into three; those premarital assets acquired prior to the marriage, non-matrimonial assets acquired during the marriage and lastly matrimonial property acquired during the marriage . In trying to determine what constitutes matrimonial property, one looks at the following; the period of acquisition of the property, purpose of the property, how the property was acquired, where the property was registered and lastly how the property has been used. The court in depending upon and exercising its discretion on the distribution of the matrimonial property will take into consideration the following factors; the contribution of each party in the acquisition of the property in question, debts owing by the spouses or either of them, the tax or other costs payable on the property, the need to promote the welfare of the children and whether there is any agreement between the spouses before the marriage regarding the ownership and state of the property to be acquired after the marriage and lastly the terms of any contract relating to the property.
Legal representation and costs
Engaging a lawyer is a very important step in your divorce process. Unlike what is depicted in film and media, it is not a step to be taken lightly or too soon either. I have seen that cases are usually sensible and possible to resolve when the parties engage a lawyer early and follow their guidance. For parties who are in actual conflict, a lawyer is a necessary tool through which you can mitigate your losses and come out stronger.
If you care about your future, especially your financial future, it is important to seek competent legal advice before going through the divorce process. During the initial meeting, your lawyer should discuss with you the entirety of the divorce process and all its implications. While there are many lawyers who are competent, an experienced lawyer will be able to advise you on the entire process from all angles, including settlement and litigation. This does not happen overnight, it takes a few meetings. It is also important for you to ask questions during the meetings such that when you leave the office, you are well informed about the legal process and what you need to do. Your lawyer should be responsive (within reason) and should produce a retainer agreement that has clear costs that would be given for the provision of services.
Costs
When engaging a lawyer you must ask for the retainer agreement. The retainer agreement should detail the following:
The cost of a divorce in Kenya depends on many factors. The length of the marriage, the wealth of the parties, the number of affairs engaged in by the other spouse, and most importantly, the hostility factor. This can be one of the biggest contributors to the cost of divorce proceedings. A settlement before/during proceedings is always better. It is important also to note though that discovering new information during the litigation process can make settlement too costly and as opposed to getting justice, the parties find themselves having spent more than they bargained for when commencing the process.
The cost of a divorce in Kenya as it relates to court fees is as follows: For matters where the parties are in a position to negotiate, the issue of costs is also important to consider with some key issues being the legal pursuit of the matter (if you are the complainant) such as;
Additionally where the court allows for it, a settlement can also be drafted by a lawyer or even requested that the parties draft the consent order on their own.
Legal Aid and Pro Bono Services
If you cannot afford the services of a lawyer, a local lawyer could take you on as pro bono. If you have a good case, they will take you on and they get fees paid by the state or win costs which they get paid through once the case is settled. You can also try the Law Society of Kenya’s legal aid department by emailing [email protected] to ask to be referred to a lawyer who is offering pro bono services.
Recent developments and reform
Over the past years, significant developments and reforms have occurred in Kenya that continue to shape the landscape of divorce law. The Matrimonial Property Act, which came into force in 2013, introduced important concepts such as joint ownership of property, which has implications for the division of assets upon divorce. Additionally, recent case law has clarified and refined the legal landscape, particularly in relation to the grounds for divorce and the division of matrimonial assets.
One particularly notable case was the decision in the case of Gichuhi v Gichuhi 2017 eKLR, where the Kenya Court of Appeal dissolved a marriage on the basis of irreconcilable differences. In its ruling, the Court of Appeal held that the standard for applying for a divorce was that of "irretrievable breakdown of the marriage" and clarified the criteria judges must consider in assessing whether a marriage had broken down irretrievably. This case effectively grounded the Divorce Act’s provisions on decree of dissolution of marriage on the universally acknowledged principle, the irretrievable breakdown of the marriage. It was an important development in divorce law in Kenya and has been the basis of subsequent decisions.
In light of these developments , those considering a divorce in Kenya should be aware of the protections afforded under both statutory and case law. In the coming years, it is likely that more reforms will continue to influence divorce law in Kenya. In addition, the growing role of technology in divorce processes is notable. There has been an increase in the use of online platforms for filing for divorce, along with the introduction of virtual hearings in some instances, particularly during the Covid-19 pandemic. These advancements are set to change the process of divorce in Kenya, making it more efficient and accessible.
While divorce often remains an area where tradition retains its stronghold, and the procedure is as much a product of local practice as it is legislation or judicial interpretation, the modern accountant must grapple with our changing legal environment and the impact of consistent case law on general principles and precedents in divorce proceedings. These legal considerations require our clients to regularly keep us abreast of the goings-on. The information contained in this article does not constitute legal advice and may not be relied upon as such.