While differentiating between divorce and judicial separation may prove to be a legal oppugn here at F.M Muteti & Company Advocates we help you navigate through.
As divorce legally and totally terminates a marriage completely, judicial separation on the other hand doesn’t. It gives parties time and break to either reconcile or capitalize on totally ending their marriage through a divorce. Accordingly, Judicial Separation acts as an alternative to divorce. To understand this better, perhaps an example will help, if spouses divorced and reconciled, they would need to conduct another legal marriage unlike in judicial separation.
Notably, parties have to petition the Court for both separation and Divorce. Section 66 of the Marriage Act 2014 speaks to petitioning for judicial separation or divorce and petition for either, there must be grounds which the petitioner is under obligation to prove sufficiently. The grounds include; adultery, cruelty, exceptional depravity, desertion for at least three years and irretrievable breakdown of the marriage. This begs the obvious question-
When can a Marriage be said to have broken down Irretrievably?
With irretrievable breakdown being a ground of divorce as well as separation, let us look into what it entails. In plain English, irretrievable means not being able to be cured or reformed. Simply put, irretrievable breakdown means the marriage or union has become incorrigible, there is no hope it can ever work. Section 66 (6) of the Marriage Act 2014 gives the following instances as to when a marriage can be said to have broken down-
- a spouse commits adultery;
- a spouse is cruel to the other spouse or to any child of the marriage;
- a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
- the spouses have been separated for at least two years, whether voluntary or by decree of the court;
- a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;
- a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;
- 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; or
- any other ground as the court may deem appropriate.
Are foreign decrees of Divorce or Separation recognizable in Kenya?
With close reference to Section 22 of the Marriage Act, the answer is, absolutely. In this case, foreign decrees will apply to marriages celebrated in Kenya or even in foreign countries. Importantly, either party in the union must have been domiciled in the country of the foreign jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of separation or divorce petitions. Further, the decree must be effective in the country of domicile of the parties or either of them.
Conclusion
The best ranked divorce and separation lawyers in Kenya, F. M Muteti & Company Advocates maintain that both divorce as well separation are grounds for order of maintenance and when a petitioner accuses a spouse of any ground for either separation or maintenance, they must name the co-respondent or at the very least give credible evidence on the alleged ground, failure to which they will have failed the very high standard of proof required in proving allegations of such ground. Our position is in line with the Honourable Court in ENI v GKN [2024] KEHC 5591 (KLR). Further, where a marriage is basically ‘dead’, divorce would work for the best of the parties unlike separation which basically yokes the spouses unnecessarily. Further, separation should be for definite period.
