One of the prevalent questions among people whose marriages have collapsed shortly after their celebration is whether they can divorce before 3 years in Kenya. Section 66(1) of the Marriage Act 2014 (elsewhere ‘the Act’) is very express and provides that a party to civil marriage may not petition the court for the separation or for the dissolution of the marriage unless three years have elapsed since its celebration. This leaves a legal enigma given that some civil marriages will hardly be 2 years before the grounds of divorce are reported. Does it mean the parties will be tied to a marriage they are not willing to be part of for another 1 or 2 years before they can officially start divorce proceedings? Read on, we will answer this question.
The Act recognizes 5 types of marriages which include Civil, Christian, Hindu, Customary, and Islamic marriages. Section 3(3) of the same Act provides that all marriages have the same legal status. It is also clear that the Act does not impose the three-year period on all the other types of marriage but Civil ones. Perhaps, the other apparent question would be why the three-year rule only applies to Civil Marriages and not the other marriages? Plainly, that screams discriminatory to parties who conducted Civil Marriages and are desirous of petitioning for divorce before the lapse of three years.
At F.M Muteti & Company Advocates, we stand on the sidelines about Section 66(1) of the Marriage Act 2014 and here is why; although the Act is not yet amended, the court in Tukero ole Kina v Attorney General & National Assembly [2019] KEHC 4244 (KLR) found that Section 66 (1) is discriminatory and in violation of Article 27(4) to the extent that it arbitrarily limits parties who have celebrated a union under the auspices of a Civil Marriage to a three year wait period before such a union may be dissolved. Justice R. Nyakundi proceeded to state as follows-
Other types of Marriages and the three-year rule
“…by imposing the three-year limitation, the impugned Section had the effect of forcefully keeping parties in a situation they no longer wished to be part. So that while Section 66 (2) contemplated cruelty and exceptional depravity as a ground for dissolution of marriage, a Petition could not be entertained until the time limit was reached. This, in my view, is a prima facie case of an affront to a person’s human dignity preserved by Article 28 and I have no hesitation in holding as much.”
In a summary, only civil marriages were bound by the 3-year rule which has since been declared unconstitutional. Nonetheless, under Rule 4 of the Matrimonial Proceeding Rules, if a party to a civil marriage intends to file for divorce before 3 years in Kenya, he or she has to seek leave of the court before instituting the proceedings.
What happens after Divorce in relation to acquired Matrimonial Property
Section 4 of the Matrimonial Property Act provides on equal status of spouses and equally Section 7 of the same Act, provides that on divorce, ownership of matrimonial property vests in the spouses according to the contribution of each towards its acquisition unless a prenuptial agreement existed subject to Section 6(3). It is advisable you seek legal guidance of matters. Find the best divorce and matrimonial property lawyers in Kenya at the renown F.M Muteti & Company Advocates for a seamless experience in your divorce process.
