THE DIVORCE PROCESS IN KENYA

THE GROUNDS AND PROCESS OF DIVORCE IN KENYA.

(The Marriage Act No. of 4 of 2014; Laws of Kenya)

In Kenya, divorce is governed by the Marriage Act, which provides specific grounds upon which a marriage can be dissolved. To initiate divorce proceedings, one must establish valid grounds recognized by Kenyan law.

BELOW IS AN OUTLINE OF THE GROUNDS FOR DIVORCE IN KENYA:

1. Adultery:

One spouse engaging in sexual relations with someone other than their spouse is considered adultery.

Adultery is a commonly cited ground for divorce in Kenya, and it is essential to provide evidence to substantiate the claim.

2. Cruelty:

If one spouse subjects the other to physical or mental cruelty or harassment, it can be considered grounds for divorce.

Cruelty may include physical violence, emotional abuse, or any behavior that endangers the well-being of the other spouse.

3. Desertion:

Desertion occurs when one spouse abandons the other without reasonable cause for at least three years.

The deserted spouse can file for divorce on the grounds of desertion.

4. Long Separation:

If a couple has lived apart for at least four years and can demonstrate that they have been living separate and independent lives during this period, it can be grounds for divorce.

This separation must be voluntary, and both spouses should be in agreement that the marriage has broken down irretrievably.

5. Incurable Insanity:

If one spouse has been declared incurably insane by a qualified medical practitioner and has been in such a condition for at least five years, it can be grounds for divorce.

6. Venereal Disease:

If one spouse has a venereal disease that is both incurable and communicable, and the other spouse was unaware of the disease at the time of marriage, it can be grounds for divorce.

7. Impotence:

If one spouse is impotent and unable to consummate the marriage, and this fact was not known to the other spouse before marriage, it can be grounds for divorce.

8. Presumption of Death:

If one spouse has been missing for seven years or more, and there is a presumption of their death, the other spouse can seek a divorce.

9. Non-Compliance with Court Orders:

Failure to comply with a court order regarding maintenance, custody, or any other court-issued directives can also be a ground for divorce.

Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

(a) Where the marriage has not been consummated since celebration.

(b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

(d) The Petitioner’s consent was not freely given

(e) A party to the marriage was absent at the time of celebration of the marriage.

(f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

(g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

DIVORCE PROCESS IN KENYA.

The divorce process in Kenya is governed by the Marriage Act, the Matrimonial Property Act, and various other legal provisions. It's important to note that divorce laws.

1. To file for divorce in Kenya, you must meet certain eligibility criteria, including having a valid marriage recognized under Kenyan law.

2. Grounds for Divorce: You must have valid grounds for divorce.

3. Consulting an Attorney: It is advisable to consult with an attorney who specializes in family law to guide you through the divorce process and ensure that you meet all the legal requirements.

4. Filing a Petition: The process typically begins with one spouse (the petitioner) filing a divorce petition in the High Court of Kenya. The petition should outline the grounds for divorce and other relevant details.

5. Serving the Petition: The petitioner must serve the divorce petition to the other spouse (the respondent) in accordance with the court's rules and procedures. The respondent has a specific period to respond to the petition.

6. Response: The respondent can either agree to the divorce or contest it. If contested, both parties will present their arguments and evidence in court.

7. Property Division: If there is matrimonial property involved, the court may determine how it should be divided between the spouses. The Matrimonial Property Act provides guidelines for the equitable distribution of property.

8. Child Custody and Support: If there are children involved, the court will also address issues of child custody, visitation rights, and child support. The best interests of the child are considered in these matters.

9. Hearing and Judgment: The court will schedule a hearing where both parties can present their case. After considering all the evidence and arguments, the court will issue a judgment either granting or denying the divorce.

10. Decree Absolute: Once the court grants the divorce, a decree absolute is issued, officially terminating the marriage.

11. Appeals: Either party has the right to appeal the court's decision if they believe it is unjust.

12. Finalizing Financial Matters: After the divorce, the parties may need to finalize financial matters, including the division of assets and payment of any support or maintenance as per the court's orders.

A Guide to Sharing Property After Divorce in Kenya: Navigating Marital Dissolution

The emotional turmoil of divorce can be overwhelming, and the complexities of dividing marital assets add another layer of stress. Understanding how property is shared after divorce in Kenya empowers individuals to approach this process with clarity and confidence. This comprehensive guide delves into the legal framework, distribution principles, and practical considerations for navigating the Sharing Property After Divorce in Kenya.

The Legal Landscape: The Constitution and the Matrimonial Property Act

The legal framework governing the sharing of property after divorce in Kenya is primarily based on two key pieces of legislation:

The Constitution of Kenya (2010): Article 45(3) guarantees spouses equal rights during the dissolution of a marriage, including the right to a just and equitable sharing of property.
The Matrimonial Property Act (2013): This Act provides a more detailed framework for the distribution of matrimonial property. It emphasizes the concept of "matrimonial property," encompassing all assets acquired during the subsistence of the marriage, regardless of whose name they are registered under.

The Concept of "Contribution" and Distribution Principles

The Matrimonial Property Act departs from a simple 50/50 split of assets. Instead, it focuses on the concept of "contribution." Here's how it works:

Identifying Matrimonial Property, The first step involves identifying all assets acquired during the marriage, including land, buildings, household goods, businesses, and investments.
Determining Each Spouse's Contribution The court considers each spouse's financial and non-financial contributions towards acquiring and maintaining the property. This includes financial contributions, inheritance, effort towards homemaking and childcare, and any improvements made to the property.
Distribution Based on Contribution Based on the individual contributions of each spouse, the court orders a just and equitable distribution of the matrimonial property. This doesn't necessarily mean an equal split; the distribution reflects the proportionate contributions of each spouse.

Factors Considered When Determining Contributions when Sharing Property after Divorce in Kenya

Here are some key factors the court considers when assessing each spouse's contribution:

Direct financial contributions: This includes wages, salaries, income from businesses, and inherited assets used to acquire property.
Indirect financial contributions: The court may recognize contributions like managing household finances, caring for children, or enabling the other spouse to pursue an education or career advancement, which indirectly contributed to acquiring or maintaining property.
Non-monetary contributions: The court might acknowledge efforts like renovations, maintenance of the property, or emotional and practical support that contributed to the value of the matrimonial assets.

Important Considerations for Sharing Property After Divorce in Kenya

Here are some crucial aspects to consider during the property division process:

Gathering Evidence Documenting each spouse's financial contributions through bank statements, payslips, receipts, and investment records strengthens their case.
Debt Distribution Debts incurred during the marriage are also considered for equitable distribution.
Legal Representation Consulting a qualified lawyer experienced in family law can help navigate the legal complexities, protect your rights, and ensure a fair outcome.
Alternatives to Litigation Mediation or arbitration can offer a less adversarial and potentially faster approach to resolving property division disputes.

The Role of Pre-Nuptial Agreements

A pre-nuptial agreement, also known as a prenup, can be a valuable tool for couples planning to marry. A prenup allows couples to determine how assets and liabilities will be divided in the event of a divorce. While not mandatory, prenups can help streamline the property division process and minimize potential conflicts in the future.

Conclusion: Seeking a Fair and Equitable Outcome

Divorce can be a difficult experience, and the division of property can be a significant source of stress. Understanding the legal framework, distribution principles, and practical considerations outlined in this guide empowers individuals to navigate this crucial step with greater clarity and confidence. Remember, seeking legal guidance is paramount to ensuring a fair and equitable outcome in the sharing property after divorce in Kenya.