By: Kendi Latoya

Divorce is the dissolution of marriage by a competent court. In Kenya, divorce is fault based and not consent based, hence with this it is required that a spouse has to prove fault in the other. Spouses who wish to divorce can only do so based on the following grounds provided for under the Marriage Act No.4 of 2014 (hereinafter the “Marriage Act”) which are dependent on the type of marriage.

Christian Marriages

There are two parts of ownership under the Act where each owner owns their unit and also unit factor of the common areas on the transfer of property.

Section 3 of the Act defines a unit as a space that is situated within a building and described in a sectional plan by reference to floors, walls and ceilings within the building and shall include its proportionate share in the common property.

Application of the Act?

The grounds for dissolution of a Christian marriage as provided under the Marriage Act are:

a. one or more acts of adultery committed by the other party;

b. cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage; or

c. desertion by either party for at least three years immediately preceding the date of presentation of the petition;

d. exceptional depravity by either party;

e. the irretrievable breakdown of the marriage, where any of the above grounds have been proven, including where there has been a separation of at least two years, where a spouse suffers from incurable insanity or where he/she has been sentenced to imprisonment for a term of more than seven (7) years.

Civil Marriages

For Civil marriages which are celebrated by the registrar of marriages, it is a requirement under the law that the couple should be married for at least three (3) years prior to filing for divorce. The grounds for divorce in the case of a civil marriage are:

a. adultery by the other spouse;

b. cruelty by the other spouse;

c. exceptional depravity by the other spouse;

d. desertion by the other spouse for at least three years; or

e. the irretrievable breakdown of the marriage.

Customary Marriages

The grounds for divorce when it comes to customary marriages are similar to the Christian and civil marriages. There is however an additional ground provided for under the law which is any other ground provided for under the customary law of the petitioner.

Hindu Marriages

The grounds for divorce in Hindu marriages are:

a. the marriage has irretrievably broken down;

b. the other party has deserted the petitioner for at least three years before the making of the petition;

c. the other party has converted to another religion;

d. since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;

e. the other party has committed cruelty on the other; and

f. the other party has committed exceptional depravity on the other.

Islamic Marriages

The Marriage Act provides that Islamic marriages shall be dissolved in accordance with Islamic Law. There are no grounds provided for under the Marriage Act

Annulment of Marriages

It is important that a distinction is made between divorce and annulment. In the case of annulment, the same is the invalidation of marriage as opposed to dissolution which is in the case of divorce. A petition for annulment has to be done within one (1) year from the date of celebration of the marriage.

Annulments challenge the existence of the marriage based on the following grounds:

a. the marriage has not been consummated since its celebration;

b. at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;

c. in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;

d. the petitioner’s consent was not freely given;

e. a party to the marriage was absent at the time of the celebration of the marriage;

f. at the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy; or

g. at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.

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