To file for divorce based on separation, the law requires a couple to have lived apart for at least three consecutive years before petitioning the court to dissolve the marriage.In Kenya, separation is one of the recognized legal grounds for divorce under the Marriage Act of 2014.
Understanding Separation as a Ground for Divorce
Separation occurs when spouses stop cohabiting as a married couple, either formally or informally. The separation period must be continuous and voluntary, meaning that any attempts at reconciliation that involve cohabitation may reset the timeline.
Types of Separation Recognized in Kenya
- Formal Separation
- This involves a legal agreement or a court order outlining the terms of separation, including child custody, financial responsibilities, and asset division.
- A formal separation provides legal documentation that can support a divorce petition.
- Informal Separation
- This occurs when spouses voluntarily live apart without a legal agreement.
- While informal separation is valid, the petitioner must provide evidence of the separation to the court.
Steps to File for Divorce Based on Separation
- Ensure the Three-Year Requirement is Met
- The petitioner must prove that the couple has been living apart for at least three continuous years.
- Engage a Family Lawyer
- A qualified divorce lawyer will guide you through the legal process and ensure proper filing of documents.
- File a Divorce Petition
- The petition must include details of the separation and supporting evidence such as witness testimonies, rental agreements, or legal separation documents.
- Court Proceedings
- The case is presented before a judge who evaluates whether the separation meets the legal criteria.
- If the court is satisfied, it issues a decree nisi (temporary divorce order).
- Final Divorce Decree
- After 30 days, the decree nisi is confirmed as a decree absolute, officially dissolving the marriage.
Frequently Asked Questions (FAQs)
Q: What if my spouse and I were separated but attempted reconciliation? A: Any period of cohabitation during the separation may reset the three-year requirement, depending on the circumstances.
Q: Can I file for divorce before three years of separation? A: No. If you wish to divorce before three years of separation, you must rely on other legal grounds such as adultery, cruelty, or irretrievable breakdown of the marriage.
Q: What evidence is needed to prove separation? A: The court may require proof such as testimonies from witnesses, lease agreements, utility bills showing different residences, or any formal separation agreements.
Conclusion
Separation as a ground for divorce in Kenya requires a minimum period of three years of continuous separation before a petition can be filed. Whether through formal or informal separation, the petitioner must provide evidence to support their claim. Consulting a divorce lawyer in Kenya is crucial to navigating the legal process smoothly and ensuring compliance with all legal requirements.
