A Divorce Decree/ usatoday.com
NAIROBI, Kenya Feb 23- A Kenyan lobby group has moved to court to reverse the current painstaking process couples go through when seeking to file for separation.
In a petition to the High Court, Copler Attorneys and Consultancy wants Part X of the Marriage Act which provides for the grounds that should be met for a party to file a petition for divorce to be scrapped.
This, according to the group, will ease and fasten the divorce process, reducing the burden associated with divorce cases.
The lobby says the Marriage Act contravenes several articles of the constitution and is thus unconstitutional.
According to their submission in court, a couple should be at liberty to terminate their marriage just immediately after filing the consent, presented before the Registrar of Marriage.
“A mandatory injunction issued to Parliament to amend the Marriage Act of 2014 and the Matrimonial Causes Act, to enable parties in a marriage of whichever regime to terminate the marriage by consent,” the submission reads in part.
The group’s executive director Boniface Akusala said it is unconscionable to subject couples to humiliation, torture, expense and inconvenience in a bid to direct fault of the other party, for them to exercise the right to exit their marriage.
He further explained that most marriages have turned abusive, empty shells, where parties stay in the marriage over fears that their private dealings will be aired out in public.
Current state of Divorce
Although laws guiding divorce and separation are still in the amendment process with new directives being adopted daily, the Kenyan divorce system, unlike in many other countries, is fault-based in nature.
This means that couples seeking divorce must prove a matrimonial offense committed by their spouse.
This differs from most Western countries, including the United Kingdom which operates a “no-fault” divorce system that allows divorce by consent.
The Marriage Act Number 4 of 2014 recognises five types of marriages in Kenya. These are Christian, civil, customary, Hindu and Islamic marriages.
The divorce process starts with the filing of a Divorce Petition to the Chief Magistrate’s Court. The petition sets out the grounds for divorce and the facts the petitioner relies on to establish those grounds.
The petition is filed together with a notice directing the respondent to appear and answer the petition within 15 days.
Once 15 days lapse, the petitioner moves to court to declare the petition uncontested, after which the petitioner gives evidence and the court pronounces a decree.
Once the divorce is granted, its implementation does not take effect immediately.
Divorce cases in Kenya are expedited when both parties have endorsed the separation idea, unlike when one of the partners is opposed to the divorce.
For the longest time in Kenya, persons seeking a divorce have had to wait for the marriage, especially civil ones, to last at least three years before they could file for separation.
In March 2020, Malindi High Court Judge Reuben Nyakundi ruled that partners, whose civil marriages have irretrievably broken down, do not need to wait for three years to file for divorce.
In his ruling, Justice Nyakundi stated that marriage is a union of willing partners who should be at liberty to leave anytime.
As a result, the judge declared Section 66 (1) of the Marriage Act, which bars couples from divorcing within three years, unconstitutional.
This decision saw an increase in the number of divorce cases filed at the courts from 909 in 2017 to 1,009 in 2019, a number that has grown exponentially since then.