Legal Grounds for Divorce in Kenya
Under Kenya’s Marriage Act (2014), the sole legal ground for divorce is the irretrievable breakdown of the marriage. To prove this, the petitioner must demonstrate one or more of the following supporting facts:
- Adultery
- A spouse has committed adultery, and the other finds it intolerable to continue cohabitation.
- Requires evidence (e.g., witness testimony, documentation).
- Cruelty
- Physical or mental cruelty that makes cohabitation unsafe or unreasonable.
- Examples: Domestic violence, emotional abuse, or sustained neglect.
- Desertion
- A spouse has deserted the other for a continuous period of at least three years.
- Desertion must be voluntary and without consent.
- Separation
- Three years with consent: Couple has lived apart for three years, and both agree to divorce.
- Five years without consent: Separation for five years, even if one spouse opposes the divorce.
- Mental Disorder or Unsound Mind
- A spouse is incurably of unsound mind or suffers from a mental disorder that makes cohabitation unreasonable.
- Requires medical certification.
- Communicable Venereal Disease
- A spouse has a sexually transmitted disease (in a communicable form) unknown to the other at the time of marriage.
Key Procedural Requirements
- Minimum Marriage Duration: Divorce petitions can only be filed after three years of marriage (to discourage impulsive divorces).
- Reconciliation Efforts: Courts may encourage mediation or counseling, especially if children are involved.
- Jurisdiction: Filed in the High Court, with evidence supporting the claimed grounds.
Additional Considerations
- Matrimonial Property: Governed by the Matrimonial Property Act (2013), ensuring fair division of assets post-divorce.
- Child Welfare: Courts prioritize the best interests of children in custody, maintenance, and access arrangements.
- Customary Marriages: The Marriage Act applies to all legally registered marriages, including customary unions.
Misconceptions Clarified
- Kenya does not recognize “no-fault” divorce. While the core ground is irretrievable breakdown, specific facts (e.g., adultery, cruelty) must still be proven.
- Fault vs. No-Fault: The focus is on the marriage’s breakdown, but fault-based evidence (e.g., adultery) strengthens the case.
For tailored legal advice, consult a qualified family lawyer to navigate Kenya’s divorce laws effectively.
