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
(c) In the case of monogamous marriages, one of the parties
was married to another person.
(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.