The Divorce Process In Kenya.

The divorce process in Kenya is governed by Marriage Act No. 4 of 2014. In this article, we will focus on answering the following questions; what is divorce? What are the grounds for divorce in Kenya? and lastly, what is the procedure for a divorce?

What is a divorce?

The Marriage Act does not expressly define what a divorce is. However, in summary, the Black’s Law Dictionary defines a divorce as the legal separation of two people by the judgment and decree of a court. A divorce is the process you undertake to dissolve the marriage permanently.

What are the Ground for a Dissolution in Marriage in Kenya?

Unlike many other jurisdictions, Kenya does not recognize divorce by consent, but instead, a person seeking to get a divorce must satisfy the court of at least one ground of divorce as provided by the Marriage Act 204. The Act provides for the following grounds for divorce;

1. One or more acts of adultery committed by the other party;
2.  Cruelty, whether mental or physical, inflicted by the other party on the Petitioner, or the children, if any of the marriage;
3.  Desertion by either party for a period of at lead three years before the presentation of the
4. Divorce petition
5. Exceptional depravity by either party
6. The irretrievable breakdown of the marriage. A marriage is considered to be irretrievably broken down if

   • a spouse commits adultery;
   • a spouse is cruel to the other spouse or 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;
   • 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 of for life or 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 lifetime of the respondent in the light of existing medical knowledge; or
   • any other ground as the court may deem appropriate.

What is the procedure for divorce in Kenya?

 Step 1

A Person seeking the Divorce is referred to as the Petitioner while the person against whom a divorce is sought is referred to as the Respondent. The divorce process begins with the petitioner preparing a divorce petition which sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. The Petition is filed together with a Verifying Affidavit, a Notice to Appear, a List of Witnesses and their statements and a List of Documents the Petitioner wishes to rely on.

Step 2

Once the divorce petition has been prepared and filed in court, it served together with a Notice to appear upon the respondent so that he/she can enter an appearance and file their response to the Divorce Petition. The notice to appear will normally direct the Respondent to appear and answer to the Petition within 15 days. Where the Respondent does not contest the divorce, he/she may opt to not file a response to the Petition and the divorce will proceed as uncontested. If the Respondent contests the grounds for divorce set out by the petitioner, he/she may file a response to the Petition also includes a cross-petition in which the respondent sets out their own grounds for divorce against the Petitioner.

Step 3

After the lapse of the 15 days, the Petitioner will request the court to issue a certificate allowing parties to move to the hearing stage. If the court is satisfied that the Divorce Petition is ready for hearing, it will issue the certificate and grant a hearing date. Both Parties will then get an opportunity to present their facts and evidence before the court during the hearing.

Step 4

After the hearing is completed, the court will issue a separate date where it will deliver its judgement. If the court finds that there are sufficient grounds to dissolve the marriage, it will then issue a Decree Nisi. The Decree Nisi is a temporary order that runs for 30days and gives the Parties time to make a final decision on whether they still wish to proceed the divorce and have the marriage dissolved. If the parties change their minds and choose not to proceed with the divorce, they are free to notify the court of their decision.

Step 5

If the Parties still wish to have their marriage dissolved after the 30 days of the Decree Nisi have lapsed, the court will issue a Decree Absolute which is the final decree of divorce to dissolve the marriage. At this point, the parties are no longer considered married to each other and are in fact both free to remarry.

END OF THE DIVORCE PROCESS

In case of any questions, please feel free to reach out to us through any of our contact details provided on our website or book a consultation with any one of our associates for this or any other related legal matters.

Please don’t miss out on our next article in this series where we will discuss on how property acquired before and during the marriage is handled and divided between the spouses once the divorce process is complete.

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.

Article By: Ms Ingrid. Konya
Associate Advocate – Kioi & Co. Advocates