Divorce marks a significant turning point in the lives of couples, affecting not just the parties directly involved but also their children and extended families.
Whether you are in a monogamous union or part of a marriage that accepts polygamy, like Customary and Islamic marriages, understanding the grounds for divorce is crucial.
In summary, the grounds for divorce in Kenya are:
- Adultery
- Cruelty to the spouse or children
- Desertion
- Infidelity
- Irretrievable breakdown of a marriage
- Imprisonment of more than 7 years
- Venereal diseases
- Presumption of death
- Conversion from Hindu to a Different Religion
- Incurable insanity
Navigating the Kenyan legal system requires a clear understanding of the various types of divorce and the conditions for filing a divorce petition, as well as an awareness of the divorce process itself, potential issues surrounding child custody, and financial aspects such as spousal support.
In the following sections, our lawyers explain the grounds for divorce in Kenya and the laws governing marriage dissolution.
What are the Grounds for Divorce in Kenya?
In Kenya, there are specific legal grounds that must be met to file for divorce. These are based on the type of marriage and how it has broken down.
1. Adultery
Adultery provides valid grounds for divorce as it is a breach of marital vows, specifically in a sexual context.
Adultery typically refers to a sexual relationship or involvement outside of a marriage or committed partnership.
For Hindu marriages, adultery, along with other sexual offenses and cultural misconduct like rape, sodomy, and bestiality, allow for dissolution.
2. Cruelty to the Spouse or Children
Cruelty, whether physical, mental, or emotional, can be grounds for divorce in Kenya. This includes any form of abuse towards the other spouse or children in the marriage.
3. Desertion
If your spouse has deserted you for at least three years in a Christian marriage or two years in a civil marriage, you can file for divorce.
Couples can legally separate in Kenya for a year by filing a petition with the courts.
4. Infidelity
Infidelity is a form of adultery and is a valid reason for you to initiate a divorce since it involves the violation of trust or unfaithfulness in a relationship.
Infidelity can include emotional affairs, secret relationships, or any form of betrayal that goes against the expectations of loyalty within a partnership.
5. Irretrievable Breakdown of a Marriage
A marriage is considered irretrievably broken if neglect by a spouse has occurred for two years, you and your spouse have been separated for two years, or the other conditions are met.
6. Imprisonment of more than 7 years
You have the option to divorce if your spouse receives a life sentence or a prison sentence of more than seven years.
7. Venereal Diseases
You can seek a divorce if your spouse suffers from a venereal disease such as HIV, Herpes, or HPV, especially if it was not disclosed prior to the marriage.
8. Presumption of Death
If your spouse has been missing for seven years or more and is presumed dead, you can apply for a divorce.
9. Conversion from Hindu to a Different Religion
In Hindu marriages, conversion by one spouse to another religion is a legitimate reason for the other spouse to file for divorce.
10. Incurable Insanity
If your spouse is suffering from incurable insanity, it can be considered grounds for divorce in Kenya.
To satisfy this reason, the court will need to see medical records or an evaluation certified by at least two licensed doctors, one of whom must be a psychiatrist. The medical doctors can also be witnesses for the petitioner during the divorce hearing.
Divorce for Reasons Not Mentioned in the Law
The courts in Kenya will allow couples to divorce for reasons not explicitly covered in the law if the court finds them reasonable.
In such cases, our work as lawyers is to help our clients demonstrate to the court how the reasons affect them and justify why the courts should grant them a divorce.
Why You Need Grounds for Divorce in Kenya
If you are considering a divorce in Kenya, it’s crucial to understand that the legal system in Kenya requires you to show valid reasons to dissolve a marriage.
Here is a brief overview of what you should know:
- Fault-based System – The Kenyan divorce process is predominantly fault-based. This means you must establish one or more specific grounds recognized by the court to proceed with a divorce, whether it is contested or not.
- Reasons Required – Demonstrating a valid reason for the divorce is a prerequisite for the court to grant the dissolution of the marriage. The absence of reasonable grounds may result in the dismissal of your divorce petition.
- Contested or Uncontested– Whether a divorce is contested (one party does not agree) or uncontested (both parties agree), you must still show grounds to the court’s satisfaction.
Remember, the divorce process is a legal matter, and dealing with the intricacies of the law can be complicated without the guidance of a lawyer.
We advise seeking legal counsel to navigate the requirements effectively, save yourself plenty of time and money, and preserve your peace of mind.
The Laws Specifying Grounds for Divorce in Kenya
The Kenyan legal system acknowledges a diversity of union types through the comprehensive Marriage Act.
Marriage Laws of Kenya (The Marriage Act)
The Marriage Act of 2014 serves as the cornerstone of matrimonial law in Kenya.
Under this Act, your marriage can be recognized as one of five distinguishable forms, ensuring inclusivity of societal and cultural practices.
Specifically, the types acknowledged are
These types of marriages in Kenya include:
- Christian marriages
- Civil marriages
- Customary marriages
- Hindu marriages
- Islamic Marriages
Each category is subject to its rules and regulations, which are covered briefly within the Act to provide legal clarity.
Islamic marriages in Kenya are governed by Sharia Law, with the Khadhi’s court also presiding over Islamic divorces.
This expansive recognition affirms the legal system’s respect for both religious and traditional customs.
When you are pursuing a divorce, your requirements will rely on the type of marriage you are in and your particular circumstances.
Understanding your marriage category is crucial, as it influences the legal requirements and procedures for divorce.
Overview
Divorce can be a complex journey with both legal and personal aspects intertwining.
With so much at stake, legal expertise is often necessary to ensure your interests are adequately represented and protected.
Accessing professional guidance from experienced divorce lawyers like ours at Kraido can be instrumental in achieving a fair and legally sound dissolution of marriage.
Whether facing issues like adultery, desertion, or cruelty, having proper legal support is crucial. Kraido Advocates is here to help.
If you’re going through a tough time and need expert legal guidance, reach out to us. Please email us at [email protected], call +254 799 180 755, or use our free inquiry form to schedule a consultation with one of our experienced lawyers.
Let our law firm assist you in achieving a fair and legally sound resolution, ensuring your interests are protected throughout the process.
