How to file for a divorce in Kenya

Marriage is defined as the union of two people either legally or formally as partners in a personal relationship.

Divorce on the other hand is the legal dissolution of a marriage by a court or other competent body.

Rules governing marriages in Kenya

The Marriage Act, 2014 defines marriage as a voluntary union of a man and a woman whether in a monogamous or polygamous union, and registered under this Act.

You can get married in Kenya if;

  • You are aged 18+
  • You are in an opposite-sex relationship
  • You are not married or in a civil partnership with someone else
  • You can understand what marriage means and of consenting to marriage

The Marriage Act, of 2014 recognizes five (5) systems of Marriage, namely:

  • Civil Marriages
  • Christian Marriages
  • Hindu Marriages
  • Customary Marriages
  • Islamic Marriages

Grounds for the dissolution of a marriage in Kenya

 

Under the Marriage Act,2014

Christian marriage

The parties to a marriage celebrated under this may seek the services of any reconciliation bodies established for that purpose that may exist in the public place of worship where the marriage was celebrated.

A party to a marriage celebrated this may petition the court for a decree for the dissolution of the marriage on the ground of—

  1. one or more acts of adultery committed by the other party;
  2. cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage; or
  3. desertion by either party for at least three years immediately preceding the date of presentation of the petition; (d)exceptional depravity by either party;
  4. the irretrievable breakdown of the marriage.

Civil marriage

A party to a marriage celebrated under this may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.

A party to a marriage celebrated under Part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds—

  1. adultery by the other spouse;
  2. cruelty by the other spouse;
  3. exceptional depravity by the other spouse;
  4. desertion by the other spouse for at least three years;
  5. the irretrievable breakdown of the marriage.

The petitioner may file the petition with the court for the separation of the parties or the dissolution of the marriage despite any effort to reconcile the parties. The court may refer a matrimonial dispute that arises in a marriage celebrated under this to a conciliatory process agreed between the parties. The proceedings for the dissolution of a marriage celebrated may be adjourned for a period not exceeding six months as the court may think fit—

  1. for the court to make further enquiries; or
  2. for further attempts at reconciliation to be made by the parties to the marriage.

A marriage has irretrievably broken down if—

  1. a spouse commits adultery;
  2. a spouse is cruel to the other spouse or to any child of the marriage;
  3. a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
  4. the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;
  5. a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
  6. a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more;
  7. a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the lifetime of the respondent in the light of existing medical knowledge; or
  8. any other ground as the court may deem appropriate.

Where a foreign court has granted a decree in matrimonial proceedings whether arising out of a marriage celebrated in Kenya or elsewhere, that decree shall be recognized in Kenya if—

  1. either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;
  2. being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of them.

Customary marriage

A Party to a marriage celebrated under Part V may “petition the court for the dissolution of the marriage on the ground of—

  1. adultery;
  2. cruelty;
  3. desertion;
  4. exceptional depravity;
  5. irretrievable breakdown of the marriage;
  6. any valid ground under the customary law of the petitioner.

Hindu marriage

A party to a marriage celebrated under Part VI may petition the court for the dissolution of the marriage on the ground that—

  1. the marriage has irretrievably broken down;
  2. the other party has deserted the petitioner for at least three years before the making of the petition
  3. the other party has converted to another religion;
  4. since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;
  5. the other party has committed cruelty on the other;
  6. The other party has committed exceptional depravity towards the other.

Islamic marriage

The dissolution of marriage celebrated under Islam shall be governed by Islamic law.

Procedure for filing a divorce in Kenya

A party to a marriage may petition the court to annul the marriage on the ground that;

  1. the marriage has not been consummated since its celebration;
  2. at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;
  3. in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;
  4. the petitioner’s consent was not freely given;
  5. a party to the marriage was absent at the time of the celebration of the marriage;
  6. at the time of the marriage and without the knowledge of the husband, the wife is pregnant and the husband is not responsible for the pregnancy; or
  7. at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

Divorce proceedings in Kenya are commenced by filing a divorce petition. The person filing this document is known as a petitioner.

The Petition signifies that a spouse desires to end their marriage which subsequently initiates the process of divorce. The Petition outlines the grounds for divorce and is accompanied by the following documents: –

  • Verifying Affidavit– this is a legal document that sets out the petitioner reaffirms the contents of the divorce petition that they have brought before the court, and which is made by
  • Notice to Appear– this is a legal document that is served to the respondent to be reminded that they are supposed to appear in court failure to which the case will continue, and judgment will be given in their absence.
  • List of Witnesses and their statements– this is a legal document that sets out the persons that the petitioner wishes to use in the divorce petition that will testify on their behalf
  • List of Documents– this is a legal document that sets out the supporting documents that the petitioner will use in their divorce

Once the Petition is filed, it is served together with the Notice to Appear, notifying the Respondent of the case. Once the Respondent acknowledges receipt, he is required to enter appearance and file a Defense and/ or a Cross Petition.

 

 

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