In 2015, a Canadian school, McGill University, conducted a survey to establish the rate of divorce in Sub-Saharan Africa. The study found that 15 percent of marriages in Kenya are likely to end up in a divorce. Though Kenya’s rate was lower than in the neighboring countries, 15 in 100 is a sizable figure.
When you are tying the knot with your loved one, you expect to stay together for many years; however, the circumstances around the marriage may change with time, forcing one of you to want out. Kenyan divorce laws provide mechanisms for separating in a fair and just manner.
When can you petition for a divorce in Kenya?
The Matrimonial Causes Act and the Marriage Act describes the allowed grounds for divorce and how a disgruntled party in a marriage may petition for a divorce. Today, you can file for divorce any time after the marriage, provided that there are sufficient grounds to do so.
You might have heard that you can only file for divorce after three years of civil marriage— three years after the celebration of the marriage. Though the requirement exists in the Matrimonial Causes and the Marriage Act, it was declared unconstitutional by a court ruling in 2019. The court decision means that Kenyan couples are free to file for divorce at any time.
Grounds for divorce
A divorce petition in Kenya can be filed by either the wife or the husband if there are enough grounds to do so. The petition notifies the court that you meet the residency requirements to have your case heard in the court, grounds for divorce, and other statutory information. Grounds for divorce, as outlined in the Marriage Act and the Matrimonial Causes Act, include
Adultery by your marriage partner
If the other party is causing you or your children physical or mental cruelty
If your partner has deserted you for more than three years preceding the date of filing the divorce petition
If there is an irredeemable breakdown of the marriage
If the other party is incurably of unsound mind and has received treatment for more than five years preceding the date of filing of the petition
Exceptional misconduct by your marriage partner
Temporary orders
Divorce cases in Kenya may take several years. And as the case proceeds, you can ask the court to issue temporary orders on matters like child support and child custody. This is to prevent you and your children from suffering in case the divorce determination takes long.
Typically, the court holds a quick hearing before issuing temporary orders—it gives both parties a chance to present their views. Temporary orders stand until the final orders are issued, unless the court amends them.
You may seek temporary orders while filing the divorce petition or later. If circumstances change after issuance of the interim orders, you can petition the court to amend the orders.
Settling the divorce out of court
If there are no disagreements on the critical issues of the divorce, you can avoid the costly and time-consuming divorce trial by striking a separation agreement out of court. The main matters in divorce settlements are child support, child custody, and division of property. You should sign the agreement before an attorney and register it with a court of law so it can be legally enforceable.
Divorce lawyers in Kenya
For consultation on divorce matters, representation in divorce cases, and out-of-court divorce settlements, contact Wamaitha Waweru & Co. Advocates
