Introduction
The divorce process in Kenya, outlined in the Marriage Act of 2014, requires careful consideration and legal guidance. If you’re facing marital challenges, consulting with experienced family law firms in Kenya, like F.M Muteti & Company Advocates, can ensure a smooth and efficient process.
a) The Grounds for Divorce
For a petition of divorce to be granted, one must first prove the existence of at least one of the grounds to divorce envisioned under the Marriage Act. These grounds are; adultery, cruelty (physical or mental), desertion for at least three years, exceptional depravity, and irretrievable breakdown of the marriage. A marriage is irretrievably broken down if a spouse;
- Commits adultery;
- Is cruel to the other spouse or the child(ren);
- Willfully neglects the other spouse for at least two years;
- Deserts the matrimonial home for at least three years;
- Is imprisoned for a term of more than seven years;
- Has an incurable insanity; and
- Depicts any other ground that the court may find appropriate for such a declaration.
In customary marriages, an additional ground for divorce is, any valid ground under the customary law of the Petitioner. While, in Hindu marriages, additional grounds are; conversion to another religion, rape, sodomy and bestiality. Divorce in Islamic marriages is governed by Islamic law.
Notably, one of the most dominant questions by our divorce clients is whether a spouse can file a divorce case before the lapse of three (3) years. That question can be answered best by reference to the case of Tukero Ole Kina v Attorney General & Another (2019) whereby, the Court declared section 66(1) of the Marriage Act unconstitutional. Essentially, the provision of the Act referenced barred parties to a civil marriage from petitioning for a divorce until the lapse of three years since the celebration of the marriage.
b) The Divorce Process in Kenya Steps;
1) The Filing of a Petition
The divorce process is initiated by a filing a Divorce Petition in Court through a reputable family law firm in Nairobi like F.M Muteti & Company Advocates. The party seeking divorce, the Petitioner, petitions the court for a decree of the dissolution of the marriage. The petition should include the grounds of which the petitioner relies on. The petition is accompanied by the following documents; a verifying affidavit, duly authenticated marriage certificate, list of witnesses, written witness statements and the list of documents that shall be relied upon by the Petitioner in trial.
2) The Notice to Appear
Upon filing the Petition, the next step is to obtain a Notice to Appear from Court which is sent to the Respondent (the other spouse). The purpose of the Notice is to invite the Respondent to defend the petition. In his reply, the Respondent can file a Reply to Petition or both a Reply to Petition and a Cross-Petition.
3) The Application for Registrar’s Certificate
Resultantly, upon the lapse of the time indicated in the Notice to Appear, the Petitioner or the Petitioner’s Advocate makes an application to the Court for the Registrar’s Certificate. Ideally, the Registrar’s Certificate entails the certification of the matter as ready for hearing and issuance of a hearing date.
(c)The Hearing and Judgment
On the hearing date, both parties give their testimonies and call upon their witnesses to adduce evidence. Thereafter, the court sets a date for judgment. The Court in its judgement may either dismiss or allow the divorce petition. If the Court dismisses the Petition, the marriage between the Petitioner and Respondent persists. On the other hand, the Court allows the Petition, the marriage between the parties is dissolved through the issuance of a Decree Nisi. If there is no reunion between the parties within one month from the date of the issuance of the Decree Nisi, the court permanently dissolves the marriage by issuing a Decree Absolute.
Timelines for Conclusion of a Divorce Case
In our many years of experience as one of the best divorce lawyers in Kenya, all F.M Muteti & Company Advocates divorce cases have been concluded within 4 to 6 months. The quick turnaround time is aided by the fact that we advise our clients not to call many or unnecessary witnesses as divorce proceedings are largely an examination of Petitioner and Respondent’s matrimonial affairs.
Conclusion on the Divorce Process in Kenya
The divorce process in Kenya is fairly simple and straightforward, especially if it is handled by an experienced lawyer. Importantly, before a party makes a decision to file a case for dissolution of their marriage, such a person must be sure that he or she can place himself or herself within at least one of the grounds for divorce set out under the Marriage Act.
Disclaimer
The information provided in this article is intended for general advice and does not constitute a legal advisory. Bearing in mind each legal issues has its unique features; we advise prospective clients to get in touch with us for more pointed and contextualized legal advice.
Having a Divorce Case?
To contact F.M. Muteti & Co. Advocates, please send us an email on legal@fmlawadvocates.co.ke or call +254769554444 or Book a strategy call HERE or direct message us HERE on WhatsApp at your convenience. Our legal team will guide guide you and represent you interests firmly and professionally.
