The Kenyan divorce system, unlike in many other countries, is fault based in nature. This means that persons seeking to divorce must prove a matrimonial offence on the part of the other partner or spouse. This is different from most Western countries, including the United Kingdom that operate a ‘no-fault’ divorce system that permits divorce by consent. How to Obtain a Divorce Decree in Kenya The Kenyan Divorce process is governed by the Marriage Act Number 4 of 2014 (simply referred to as “the Act”) Section 6 of the Act recognizes 5 different types of marriages as follows:
(i) Christian Marriages
(ii) Civil Marriages
(iii) Customary Law Marriages
(iv) Hindu Marriages
(v) Marriages under Islamic Law.
Step 1:Filing of a Petition for Divorce
The Petition is the main document that outlines the grounds under which a party is petitioning the court for divorce. The Petition may only be presented after the lapse of at least one year since the celebration of the marriage. A party to a marriage may petition the court for separation or dissolution of the marriage ONLY on the following grounds:
i. Adultery by the Respondent. ii. Cruelty (violence) by the respondent. iii. Desertion for at least three (3) years. The Petition also gives a brief of; a) the process under which the marriage was conducted (in church/ A.G) and b) How and where the parties lived after celebration of the marriage and whether the marriage was blessed with any issues (children).
A claim for matrimonial property, division of the same, child custody and maintenance applications DO NOT form part of the Petition. They are filed separately.
The Divorce Petition is filed together with the following documents.
i. Verifying Affidavit: This is a statutory declaration sworn by the Petitioner stating that the contents of the Petition are true to the best of the Petitioner’s knowledge, information and belief. ii. Notice to Appear: This is a document notifying the Respondent (the party sued) that a Petition has been filed against him/her and that they should enter appearance within fifteen (15) days. iii. Acknowledgement of Service: This is a document signed by the Respondent personally acknowledging service of the Petition. iv. List of Witnesses: The Petitioner must give a list of witnesses he/she intends to call at the hearing of the Petition. v. Witness statements: The witnesses called to testify must give their signed statements (a brief account of the facts as pleaded by the Petitioner) vi. List of Documents: A Petitioner wishing to rely on documents must give a list of the same and attach copies of the said documents to the Petition.
Step 2:Applications for Direction – Divorce Decree in Kenya
A Chamber Summons Application is filed after FIFTEEN (15) DAYS of service of the Petition. This application costs a minimum of Five hundred Kenya shillings (Kshs. 500.00) in filing fees.
This application must be accompanied by a commissioned Affidavit of service or non-service. The said affidavit costs Seventy Five Kenya shillings (Kshs. 75.00) as filing fees.
The Affidavit of Service or Non Service is a statutory declaration sworn by the court process server stating whether the Respondent was served or not and the efforts made to trace the Respondent for service.
The application is thereafter fixed for hearing whereby the court Registrar confirms whether the Petition is defended or undefended. The Registrar then directs that the Petition be listed for hearing for one day.
Step 4:Hearing of the Petition
The Petition is fixed and Hearing takes place for one day depending on the number of witnesses and the courts’ schedule.
Step 5:Issuing of a Decree Nisi
After a successful Divorce petition, a Decree Nisi is thereafter issued after judgment.
A Decree Nisi is a court order that states that the marriage has been dissolved by the court after the said court being satisfied that the Petitioner has proved the grounds of divorce pleaded by the Petitioner and that the Petition has not been presented or prosecuted in collusion with the Respondent and a further condition that the Petitioner has not condoned the acts of cruelty, adultery etc. as pleaded in the Petition.
Step 6:Issuing of Decree Absolute
The Decree Nisi is later made Absolute (final) within ONE (1) MONTH from the date of issuance of the Decree Nisi. This one month is time to raise any appeal or review.
A Decree Absolute is the last document issued to finalize the Divorce. It is the final stage of the divorce proceedings and confirms the dissolution of the marriage. This is a final order prepared by the Petitioner for signing by the judge. Now the divorce is final. Divorce Decree in Kenya
Step 7:Presenting of order to Marriage Registrar
The final step is presenting a certified copy of the absolute decree order to the marriage Registrar.
Proof of marriage
Certified copies of the parties’ valid Passports
Proof / evidence of existence of stated grounds for divorce for instance police reports, doctors reports or any other proof i. For instance in cases of cruelty or violence, the applicant must present evidence like police report (if at any time partner was violent and case was reported to police) ii. doctors report (in cases where the partner was violated and went for medical examination) or a witness (present at any one time when a person was violated by partner) may be brought to court to support case iii. in cases of insanity, a doctor’s report may also be required and any other proof may be presented to support case
An order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably. Divorce Decree in Kenya
A Chamber Summons Application fees is Ksh 500.00
Affidavit of service or non-service Ksh 75.00
In most cases, the court directs that each party meets their own costs. But the successful party can claim costs from the other side especially for transport and legal fees in a contested divorce.
A divorce certificate is valid immediately after the divorce is granted and registered.
The validity of the divorce decree is forever as long as both parties are alive.
The divorce decree can lose its validity, if the divorced parties decide to get married.
This varies depending on the issues surrounding the divorce proceedings. On average, the court process normally takes at least three years.
Instructions to follow during the divorce
The first step when filing for a divorce is to ensure that your reasons coincide with those stated as grounds for divorce in the Kenyan Marriage Act.
You need to hire a good divorce lawyer who will present your case to a magistrate. The dissolution of marriage revolves around child upkeep, sharing of matrimonial assets and maintenance fees so hiring the best divorce attorney ensures better and sometimes faster outcomes.
After the lawyer presents the case to the courts, you and your spouse will be granted six months to decide whether to reconcile or to go ahead with the marriage dissolution. During this waiting period, a couple seeking divorce is advised to seek counsel from village elders or counsellors.
After the lapse of six months, the two parties go for a hearing to discuss matters concerning the children upkeep and asset division. The court will hear both parties and make a ruling.
After the divorce, each spouse is directed on what to do and then pay the divorce lawyers their fees. In some instance DNA test may be needed as well as title deeds to proof of ownership.
Name and address of applicant
Name and address of partner
Period of marriage
Reason for applying for divorce
Type of marriage to be dissolved
Details of children if any
Need for the Document
Divorce is a legal ending of any legal marriage. A divorce decree is that final order given by a court to complete divorce proceedings and it is usually signed by a judge. Like in any other country, in Kenya a divorce decree is obtained from court.
Information which might help
Divorce law in Kenya Divorce in Kenya is stipulated by the Marriage Act and it is this Act that dictates how the different forms of marriages should be dissolved. According to the divorce law in the country, grounds for divorce are similar for the various forms of marriages.
Dissolution of Christian marriages is permitted when one of the spouses engages in one or more adulterous acts and cruel mistreatment which could be mental or physical, inflicted by the other party on the petitioner or on the children, if they have.
Civil marriages can be dissolved three years after the celebration of marriage. The circumstances for divorce in civil marriages include infidelity, cruelty, desertion by a spouse for at least three years, and exceptional wickedness by one spouse.
Divorce in customary marriage can be granted on the basis of adultery, abandonment, ill-treatment, exceptional depravity and permanent failure of the marriage or any other valid reason as stated in the customary law of the petitioner.
Divorce in Hindu marriages is allowed when one party proves that there is irreversible damage to the marriage, the other spouse has deserted the petitioner for three years prior to filing the petition, conversion of the other party to a different religion, commission of adultery rape, sodomy and abuse by one party.
Divorce in Islam is guided by Islamic law and the Sheikh, Imam or Kadhi makes the final decree on the end of the marriage.
Other uses of the Document/Certificate
The divorce decree is needed when applying for a name change
The divorce decree is needed when applying for a passport , visa or work permit
The divorce decree finalizes divorce proceedings
It saves a person any cruel or violent treatment that has been in a marriage
It makes the divorce official
It is proof that two people are no longer married
A person can re-marry legally once the divorce decree is obtained
Grounds for Divorce: The following can also be considered as grounds for divorce a) If a spouse commits adultery b) If a spouse is cruel to the other spouse or to any child of the marriage c) A spouse wilfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition d) The spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has e) A spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition f) A spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more g) 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 life time of the respondent in the light of existing medical knowledge.h) Any other ground as the court may deem appropriate.
(I) CHRISTIAN MARRIAGES
Christian marriages are performed and registered where a party to the marriage professes the Christian religion. They are often officiated by a church minister who is licensed to officiate such a marriage in a registered religious center such as a church building.
Under Section 65 of the Act, persons who contracted a Christian marriage can petition for divorce on the following grounds;
(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;
(c) Desertion by either party for a period of at lead three years before the presentation of the divorce petition;
(d) Exceptional depravity by either party
(e) The irretrievable breakdown of marriage.
It is worth noting that all these must be offences done by the other person other than the person seeking for divorce. Thus, one cannot commit adultery and then rush to court for divorce on the basis of his/her own matrimonial fault. It must be a fault on the party of the other party.
(II) CIVIL MARRIAGES
Civil Marriages, unlike Christian marriages, are celebrated by the Registrar of Marriages as set out in PART IV of the Act. Just like Christian Marriages, they are monogamous in nature.
Under Section 66 of the Act, unlike in Christian marriages, a party to a Civil marriage may only petition the court for separation or divorce after 3 years of being married. This provision has come under intense judicial scrutiny of late where some courts have held it to be very prohibitive in nature. However the law still stands as such.
The grounds for dissolution of a civil marriage are identical to the grounds for dissolution of a Christian marriage discussed above.
Under Section 66 (6) a marriage is deemed to have irretrievably broken down when any of the other grounds for dissolution of the marriage have been proven, where the parties to the marriage have been separated for at least 2 years, where a spouse has been sentenced to imprisonment for a term of more than 7 years, or where a spouse suffers from incurable insanity.
(III) CUSTOMARY MARRIAGES
Customary marriages are marriages celebrated in accordance with the customs and practices of the ethnic communities that either party to the marriage belongs to.
The grounds for dissolution of a customary marriage are similar to that of civil and Christian marriage, with the added provision recognizing any other ground for divorce under the customs of the particular community.
(IV) HINDU MARRIAGES
These are marriages conducted where the spouses both profess the Hindu Religion. Hindu divorces have unique grounds as such:
(a) Where the marriage has irretrievably broken down
(b) Where the other party has deserted the Petitioner for at least 3 years before the making of the Petition
(c) Where the other party has converted to another religion.
(d) Where since the celebration of the marriage, the other party has committed rape, sodomy, bestiality, or adultery
(e) Where the other party has committed cruelty to the other
(f) Where the other party has committed exceptional depravity on the other.
(V) ISLAMIC MARRIAGES
Islamic marriages are celebrated under Islamic Law. The Act does not set down grounds for dissolution of Islamic Marriages only stating in Section 71 that dissolution of an Islamic Marriage shall be governed by Islamic law. Such divorce processes are processed and presided over by the Kadhi Courts.
DISTINCTION BETWEEN DIVORCE AND ANNULMENT OF MARRIAGES
Many people fail to distinguish between divorce and annulment of marriage. Annulment proceedings are brought to challenge the validity of a marriage as opposed to divorce proceedings which presume a valid marriage that is now subject of dissolution. In short, in annulment proceedings, once a court gives an order annulling the marriage, the court simply says that the marriage did not exist in the first place.
Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:
(a) Where the marriage has not been consummated since celebration.
(b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship
(c) In the case of monogamous marriages, 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 celebration of the marriage.
(f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant and that the husband is not responsible for the pregnancy.
(g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.
A petition for annulment of marriage can only be filed within 1 year of marriage.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.