The Marriage Act No. 4 of 2014 governs the divorce process in Kenya.http://kenyalaw.org/kenyalawblog/highlights-of-the-marriage-act-2014/
The Divorce Process
A Divorce Petition must be filed with the Chief Magistrate’s Court to begin the divorce procedure.
The petition lays out the grounds for divorce as well as the facts upon which the petitioner bases his case.
The Petition triggers a Notice ordering the Respondent to present and respond to the Petition within 15 days.
After 15 days have passed, the petitioner files a motion with the court to declare the petition uncontested, after which the petitioner presents evidence and the court issues a decision.
The petition will be scheduled for an oral hearing if the respondent arrives to contest the divorce.
The court will issue two decrees if it decides to dissolve the marriage.
The first is a Decree Nisi, or temporary decision, which is followed by a definitive absolute decree dissolving the marriage within a month.
Forms of marriage that warrant a divorce
According to Section 6 of the Marriage Act, there are five distinct forms of marriage:
Each of these marriages has its own set of registration and dissolution formalities.
Let’s go over each of the below-mentioned categories of marriages under their topic to better comprehend their divorce and dissolution processes.
a.) Christian Weddings
b.) Civil marriage
c.) Customary Law marriages.
d.) Hindu marriages.
e.) Islamic marriage
![Sample of a divorce certificate](https://www.kenyastatenews.com/wp-content/uploads/2022/06/Screenshot_20220619-1933232-300x214.png)
In contrast to many other countries, the Kenyan divorce law is based on fault.
This means that those seeking a divorce must establish that the other partner or spouse has committed a matrimonial offence.
Most Western countries, including the United Kingdom, have a “no-fault” divorce system that allows for divorce by mutual consent.
a.) Christian marriage and divorce.
People who entered into a Christian marriage can file for divorce under Section 65 of the Act for the following reasons:
(a) The other party commits one or more acts of adultery;
(b) cruelty, whether mental or physical, perpetrated by the other party against the petitioner or the marriage’s children, if any.
(c) desertion by one of the parties for at least three years before the filing of the divorce petition.
d) exceptional depravity on the part of either party;
e) the irreversible breakup of a marriage.
It’s important to emphasize that all of these must have been committed by someone other than the individual seeking a divorce. As a result, one can not commit adultery and then rush to court for a divorce based on it.
b.) Civil Marriage
Unlike Christian marriages, a party to a civil marriage can only apply to the court for separation or divorce after 3 years of marriage, according to Section 66 of the Act.
This clause has recently been the subject of intensive judicial scrutiny, with some courts finding it to be extremely restrictive. Many legal practitioners have voiced their sentiments against it.
Nonetheless, the clause remains in effect.
The marriage is declared irretrievably broken down under Section 66 if parties have been separated for at least 2 years, a spouse has been sentenced to more than 7 years in jail, or a spouse suffers from incurable insanity (6).
The reasons for the dissolution of civil marriage are the same as those outlined above for the dissolution of Christian marriage.
When any of the aforementioned reasons for the dissolution of the marriage have been proven, again when the parties to the marriage have been separated for at least 2 years, or when a spouse has died, the marriage is held to have irreversibly broken down under Section 66
(a) The other party commits one or more acts of adultery;
(b) cruelty, whether mental or physical, perpetrated by the other party against the petitioner or the marriage’s children, if any
(c) desertion by one of the parties for at least three years before the filing of the divorce petition
d) exceptional depravity on the part of either party; or
e) the irreversible breakup of a marriage.
c.)Customary Marriages
Marriages celebrated according to the norms and practices of the ethnic community to which either party belongs are referred to as “customary marriages.”
The reasons for the dissolution of a customary marriage are similar to those for civil and Christian marriages, with the exception that any additional grounds for divorce recognized by the community’s norms are recognized as well.
c.) Hindu Marriages
These are marriages in which both partners profess the Hindu religion. Hindu divorces are distinguished by the following factors:
(a) if the marriage has irreversibly broken down.
(b) where the other party has abandoned the petitioner for at least three years before the petition is filed.
(c) if one of the parties has converted to a different religion.
(d) if the other person has committed rape, sodomy, bestiality, or adultery since the marriage was celebrated.
e) When one party has been harsh to the other.
(f) if the other party has committed extraordinary depravity towards the other.
e.) Islamic Marriage
![Muslim Marriage Certificate Template](https://www.kenyastatenews.com/wp-content/uploads/2022/06/Screenshot_20220619-1934532-300x285.png)
The Act merely states in Section 71 that the dissolution of Islamic marriage is governed by Islamic law.
The Kadhi Courts handle and oversee such divorce proceedings.https://scholarblogs.emory.edu/islamic-family-law/home/research/legal-profiles/kenya-republic-of/