Divorce in Kenya
DIVORCE IN KENYA
This comprehensive guide aims to provide you with an overview of the legal, social, and practical aspects of divorce in Kenya. Please note that divorce laws and procedures can change, so it’s essential to consult with a legal professional for the most up-to-date information and guidance tailored to your specific situation.
In Kenya, there are two primary types of divorce: contested and uncontested. Contested divorce is when one party disagrees with the divorce or its terms, leading to legal proceedings. Uncontested divorce occurs when both parties agree on the divorce and its terms, making the process smoother and faster.
The Legal Process of Filing for Divorce
The court is vested with power to dissolve marriages in Kenya. A party shall petition the court for divorce if any of these marriages recognized in Kenya subsists; Muslim Marriage, Hindu Marriage, Christian Marriage, African Customary Marriage, and Civil Marriage.
The Kadhis’ Courts issue divorce decrees in Muslim Marriages as stipulated under the Constitution of Kenya.
To initiate the divorce process, you must file a divorce petition in the High Court of Kenya or a lower court with jurisdiction. The petition should specify the grounds for divorce and any claims regarding custody of children, maintenance, or division of property.
After filing, the other party must be served with divorce papers.
The respondent has a specified period to respond to the divorce petition or file a cross petition. If they contest the divorce, the case may proceed to court.
Below is a summary of the steps in divorce proceedings from start to conclusion. These are:
1. Filing of the Petition
2. The signing of the Notice to Appear
3. Receiving the Respondent’s reply
4. Issuance of Registrar’s certificate
5. Hearing of the Petition
6. Judgment/Initial Decree (decree nisi)
7. Final Decree (decree absolute)
Mediation and Alternative Dispute Resolution
Before court proceedings, parties may be required to attend mediation or other alternative dispute resolution methods to try and reach an amicable settlement.
The order from the mediator may be adopted by the court as part of its orders. Thus, parties may discuss maintenance, marital assets and child custody during the mediation process.
Whenever possible, try to reach a settlement agreement with your spouse to avoid prolonged court battles.
Grounds for Divorce
The Marriage Act, 2014, provides several grounds for divorce in Kenya. They are;
1. Adultery: If one spouse engages in extramarital affairs, the other spouse may file for divorce on the grounds of adultery.
2. Desertion: If one spouse abandons the other for a continuous period of at least three years without consent or justifiable reason, the abandoned spouse may file for divorce.
3. Cruelty: If one spouse subjects the other to physical or mental cruelty, causing reasonable apprehension of danger to life, limb, or health, the aggrieved spouse may file for divorce on the grounds of cruelty.
4. Irretrievable Breakdown of Marriage: If the marriage has irretrievably broken down, and there is no reasonable prospect of reconciliation, either spouse may petition for divorce.
Matrimonial Property Division
During divorce proceedings, the court will also consider the division of matrimonial property. Matrimonial property includes assets acquired during the marriage, such as real estate, vehicles, investments, and household goods etc. The court aims to achieve a fair and equitable distribution of matrimonial property, taking into account the contributions of each spouse to the marriage.
Non-matrimonial property, such as assets owned before the marriage, may be excluded from the division. In some cases, the court may order one spouse to provide financial support (maintenance) to the other, depending on the circumstances.
Child Custody and Support
In cases where the divorcing couple has children or issues, the court will prioritize the best interests of the children when determining custody and maintenance arrangements. The court may grant joint custody or sole custody to one parent, taking into account factors such as the child's age, welfare, and parental capacity.
Child custody is determined at the Children’s Court. Legally, both parties have the right to seek custody as they have equal parental rights and responsibilities. Ordinarily, custody of an infant/child of tender years shall be given to the mother unless the mother is determined as an unfit parent.
Entering a second marriage without getting a divorce
A second marriage without obtaining a divorce is unlawful if there is a prior undissolved civil or christian marriage. However, polygamous unions are allowed under African Customary Law so a second marriage during the pendency of such a polygamous union will be lawful. Customary marriages are potentially polygamous.
Post-Divorce Considerations
If you wish to change your name after divorce, follow the legal process for a name change in Kenya. Our law firm can assist you in lodging a deed poll to legally change your name.
Update your legal documents, such as wills and beneficiary designations, to reflect your changed marital status.
Establish effective co-parenting strategies to ensure the well-being of your children.
Where can I get Divorce Advice?
Our Law firm provides legal help and guidance with regard to your divorce. We handle divorce petitions and provide divorce advice to both men and women. Contact us today for a divorce consultation and let us advise you on your case
