Divorce and Judicial Separation in Kenya: What You Need to Know

Whilst marriage is a significant legal and personal commitment, when it becomes difficult or unsustainable, the Kenyan law provides legal mechanisms through which spouses may address the breakdown.

Accordingly, the two important remedies available under Kenyan law are Divorce and Judicial Separation. Although they are related, they have different legal consequences.

What is divorce?

Divorce is the legal dissolution of a marriage. Once a court grants a divorce and the decree becomes final, the marriage is brought to an absolute end. The parties are therefore no longer legally married to each other and are generally free to remarry.

Importantly, divorce does not however, automatically determine every issue arising from the marriage and matters concerning children, maintenance, property and other consequential issues may require separate orders or directions from the court.

What Is Judicial Separation?

Unlike divorce, judicial separation does not dissolve the marriage. Instead, Courts formally recognize that the spouses can live separately while the marriage itself remains legally in existence. The parties remain married and therefore cannot simply treat themselves as divorced or remarry another person.

Judicial separation may become necessary where spouses wish to live apart but are not ready, or do not wish, to bring their union to an end through divorce. Judicial separation can also provide an opportunity for the parties to reconsider their relationship and potentially reconcile.

Worthy to note, judicial separation should not be viewed merely as a temporary "break" in the ordinary sense but a formal legal remedy granted by the court with its legal consequences depending on the circumstances of individual case.

Divorce and Judicial Separation in Kenya

The Marriage Act, 2014 provides the legal framework governing divorce and judicial separation in Kenya, and parties have to petition for both.

Section 66 of the Marriage Act 2014 caps the time of petitioning for judicial separation or divorce to the lapse of three years for parties who celebrated civil marriages. To 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.[1] Generally, the applicable ground and evidentiary requirements will depend on the facts of each individual case.

What Does "Irretrievable Breakdown" Mean?

One of the most important concepts in divorce and judicial separation proceedings is irretrievable breakdown of the marriage. Simply put, irretrievable means not being able to be cured or reformed, and on the other hand, irretrievable breakdown means that a marriage has become incorrigible, and there is no hope it can ever work.

When Can a Marriage Be Considered to Have Irretrievably Broken Down?

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.    a spouse commits adultery;

b.    a spouse is cruel to the other spouse or to any child of the marriage;

c.     a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;

d.    the spouses have been separated for at least two years, whether voluntary or by decree of the court;

e.     a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;

f.     a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;

g.    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

h.    any other ground as the court may deem appropriate.

The aforementioned circumstances are important because they provide a statutory framework through which the Courts may determine whether the marriage has broken down irretrievably.

Does Judicial Separation Automatically Lead to Divorce?

Absolutely Not.

For judicial separation, parties remain legally married unless and until a court subsequently grants a divorce. Where the spouses reconcile, they may resume their marital relationship without having to enter into a new marriage simply because they had obtained a decree of judicial separation.

Conversely, if the marriage remains unsustainable, a spouse may pursue divorce.

How Long Does a Divorce Take in Kenya?

There is no definite period within which every divorce case must be concluded. Largely, the duration may depend on factors such as whether the divorce is contested, the availability of evidence, service upon the respondent, court directions, applications arising during the proceedings, and the parties' approach to settlement.

A non-contested matter may progress relatively quickly, while a contested divorce involving children, maintenance, property or disputed evidence may take considerably longer.

Why You Need a Lawyer for Divorce and/or Judicial Separation

Although the law provides the framework for divorce and judicial separation, these proceedings involve significant legal and personal consequences. As such, a lawyer will assist with assessing the applicable grounds, preparing the petition and supporting documents, advising on evidence, addressing issues concerning children and maintenance, and representing you throughout the proceedings.

Given that each marriage is different, the appropriate legal remedy therefore depends on the circumstances of a particular case.

Conclusion

Find the best divorce & separation lawyers in Nairobi at Musa & Musa Advocates for specialized and confidential consultation.

[1] Section 66 (2), Marriage Act 2014