Could you tell us about the divorce filing process and the reasons for a marriage annulment? Also, what criterion is used after divorce to give one parent custody of the children (offspring)?
It must be understood that marriage is clearly defined in the Marriage Act (2014). According to Section 3, paragraph 1 of this law, marriage is a voluntary union between a man and a woman, whether monogamous or polygamous, and is registered in accordance with the law.
This is in line with Article 45(2) of the Kenyan Constitution, which grants any adult the right to marry a person of the opposite sex on the basis of the free consent of the parties. No other union or form thereof can be termed marriage except as defined and described in the Constitution and the Marriage Code.
The Marriage Act provides five ways to celebrate the voluntary union of parties who become husband and wife. The parties are connected by ways and traditions of Christianity, Islam, Hinduism, customs or by civic recognition. All five are subject to divorce by law. In both cases, what matters is the willingness of the parties to remain married or unmarried.
Divorces in the Kenyan context are still based on fault, although several judges have legally challenged this position. The right to petition for separation or divorce is governed by Part X of the Marriage Act. Reading this along with Article 45(3) of the Constitution, it becomes clear that the parties to a marriage have equal rights even when the marriage is dissolved. While this section outlines how the various marriages can be annulled, there are several commonalities that run through the five types of marriages.
The person seeking divorce may cite the following reasons: adultery by one of the spouses, cruelty, exceptional depravity, desertion for at least three years, and the irretrievable breakdown of the marriage. The law contextualizes in Section 66 of the Marriage Act what irretrievable breakdown means.
In deciding whether the marriage is irretrievably broken up, the court will consider the following: if one spouse commits adultery; when a spouse is cruel to the other or to the child; if one spouse willfully neglects the other for at least two years prior to the date of filing the application; if the spouses have been separated for at least two years, either voluntarily or by court decision; if one spouse has left the other spouse for at least three years immediately prior to the date of application; if a spouse has been sentenced to life imprisonment or to imprisonment for a period of seven years or more; and when a spouse has an incurable mental illness that is confirmed and certified by two physicians—one of whom must be qualified and experienced in psychiatry—recovery from that illness is almost impossible. Readers should be aware that the Court has discretion to invoke all or none of the foregoing grounds if, in its deliberation, it discovers other issues calling into question the irretrievability of a union under paragraph (h) of Clause 6 place.
Custody and divorce proceedings are independent, although most people consider them synonyms. The two cases are filed with different courts depending on the area of jurisdiction. Child affairs are always heard before a children’s court, while divorce can be decided before a kadhi or district court depending on the form of the partnership. During divorce proceedings, if the parties fail to reach consensus on how to care for their children in their divorce agreement, which is reflected in an agreement on parental responsibility, the court will take various measures based on and in the law. First, a reference to Article 45(3), which states that the parties to a marriage have equal rights at the time of the marriage, during its existence and at its dissolution. In addition, note the provisions of Article 53(1) which states that a child’s right to parental care and protection must include the equal responsibility of mother and father for care, whether married or not.
On this basis, and guided by the principle of the best interests of the child as set out in Article 53(3) of the Constitution, the Court will refer to Section 103(1) of the Children Act, which provides:
a) the behavior and wishes of the child’s parent or legal guardian; (b) the ascertainable wishes of the child’s relatives; (c) the child’s identifiable desires, taking into account the child’s developing abilities; (d) whether the child has suffered or is likely to suffer harm if the order is not made; (e) the customs of the community to which the child belongs; (f) the child’s religious beliefs; (g) whether a care order, custody order, personal protection order or expulsion order has been issued in respect of the child concerned and whether such orders continue in force; (h) the circumstances of any siblings of that child and any other children in the household; and any matter referred to in Section 95(2) if the court finds such matters relevant to making an order under that section. Section 95(2) reminds the court to focus its decision solely on the child and not on his parents, whether or not the relationship is romantic.
Eric Mukoya has over 17 years of social justice experience. He is Executive Director of the Undugu Society of Kenya. Legal request? E-mail [email protected]
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