Courts Don't Entertain Divorce Cases For Couples Married For Less Than 3 Years, Legal Expert

• Couples married under the African Christian Marriage Cap 151, Civil Marriage Cap 151 and Customary Marriage statutes can file for divorce in court in Kenya
• Lawyer Alice Oeri said the above statutes indicate that couples can only file for divorce after being husband and wife for at least two years except on non-consummation grounds
• She said that courts in Kenya, therefore, do not entertain divorce applications from couples whose marriages were contracted less than three years before the time of filing

Many couples marry and make vows, hoping to live together as husband and wife for the rest of their lives.

What is a divorce?

However, in unfortunate circumstances, some marriages do not last forever as desired by the couples, and it is here where divorce comes in.

According to Mass Legal Help, a divorce is a court judgment ending a marriage. For a court to deliver such a judgement, it requires a "legal reason" for the divorce, which could include adultery, desertion and cruelty.

Speaking exclusively to TUKO.co.ke, family law expert Alice Oeri said that divorce in Kenya applies to couples that have been married under the African Christian Marriage Cap 151, Civil Marriage Cap 151 and Customary Marriage statutes.

When couples can file for divorce in Kenya

She explained that the grounds for divorce listed in this article can only apply to people married under the above-listed laws and who have been together for at least three years.

"Courts cannot entertain divorces for couples who have not contracted their marriage in the statutes stated above and have not completed at least three years in marriage unless it is on grounds like non-consummation of marriage due to impotence," she explained.

According to Begi's Law Offices and Chambers Advocates, divorce cases in Kenya are governed by the Marriage Act Number 4 of 2014.

Types of marriages in Kenya

Section 6 of the Act recognises five types of marriages which are: Christian Marriages, Civil Marriages, Customary Law Marriages, Hindu Marriages, and Marriages under Islamic Law.

Though, according to the laws of Kenya, these types of marriages in Kenya have their distinct requirements for registration and dissolution, four of them have three grounds for divorce that cut across.

Christian Marriages

Christian marriages are performed and registered where a party to the marriage is of the Christian faith and is officiated by a church minister licensed to preside over the marriage in a registered religious centre like a church building. See list of requirements for church weddings.

Section 65 of the Act states that people who contracted a Christian marriage can file for divorce on the grounds of adultery, cruelty, whether mental or physical, inflicted by the other other party on their spouse or children and desertion.

Other grounds for the dissolution of a Christian marriage include exceptional depravity and an irretrievable breakdown of the marriage union.

For one to file for a divorce on grounds of adultery, it must be the other party who did it against them, not themselves committing adultery, and then rush to seek dissolution on grounds of their own fault.

Civil Marriages

Unlike Christian marriages, Civil marriages are celebrated by the Registrar of Marriages in part four of the Act. However, these two marriage types are monogamous in nature.

According to section 66 of the Marriage Act Number 4 of 2014, a party to a Civil marriage may only file for dissolution of their marriage after three years of being married. Divorce grounds for Civil marriages are similar to those for Christian marriages.

It is important to note that a marriage is deemed irretrievably broken when one of the other grounds has been proven, and the parties have been separated for at least two years.

Customary Marriages

According to the Marriage Act, customary marriages are those celebrated in accordance with customs and practices of different ethnic communities that one of the parties belongs to.

The law cites adultery, cruelty, desertion, exceptional depravity and irretrievable breakdown as grounds for the dissolution of civil marriages. Additional provisions based on the customs of the community can be considered too.

Hindu Marriages

Hindu marriages are those conducted by two people who profess the Hindu religion, according to the Act.

It has additional unique divorce grounds like conversion to another religion when the other party commits indecent acts with animals, homosexuality and adultery.

Exceptional depravity, irretrievable breakdown, cruelty and desertion are other fundamental grounds for divorce.

Islamic marriages

Islamic marriages are celebrated under Islamic law according to the act, and grounds for the dissolution of marriages are not set down in the Marriage Act.

Section 71 of the Act instead indicates that the dissolution of Islamic marriages shall be governed by Islamic law. Proceedings for Islamic marriage divorces take place in the Kadhi Courts.

Oeri said divorces, unlike other civil matters, can be concluded within six months because they have a special diary.

"The divorce matters are not very expensive especially on the filing costs. However, legal charges vary from advocate to advocate but that can be agreed between a party and their advocate," she said.