Mutual Consent To Become New Grounds For Divorce If New Bill Is Passed In Parliament

• The Marriage Amendment Bill of 2023 seeks to have mutual consent as a ground for courts to grant decrees of divorce to couples
• Currently, adultery, cruelty and desertion are the key grounds for divorce in Kenya, according to the Marriage Act No. 4 of 2014
• New amendments in the National Assembly propose that couples who consent to go separate ways through writing to be allowed to do so after a year of staying apart

Law experts now say that if the proposed amendments to the Marriage Bill of 2023 sail through, the divorce process will be easier and less acrimonious.

Marriage Amendment Bill 2023

Currently under the Kenyan law, couples in civil unions must stay together for a period of three years before parting ways.

Key grounds for divorce according to existing laws include cruelty, desertion and adultery.

However, if the proposed amendments are adopted as law ,walking away from a marriage that is not working will be less tedious and not costly.

According to James Kihara, an Advocate of the High Court the bill will make it easier for enstranged couples to agree by consent to walk away from a union that has irretrievably broken down.

"I know it very well. It will be easier to divorce and less acrimonious. You don't walk away but you will have to agree to walk away by consent," Kihara told TUKO.co.ke.

Marriage Act No. 4 of 2014

The amendments to The Marriage Act No 4 of 2014 state that a divorce may be reached through mutual consent.

Section 75A (1) of the amended bill states that parties to a marriage may jointly petition the court for a decree of divorce by mutual consent on the grounds that the marriage has irretrievably broken down.

This means that, if the bill is assented into law, couples can divorce without necessarily citing cruelty, desertion and adultery as grounds for divorce.

The amendments also bring in changes that will only allow couples who have mutually separated for at least one year, preceding the date of marriage, to dissolve their union by mutual consent.

According to the proposals that have ignited discussions across the public sphere, both the husband and wife must freely give consent to the divorce in writing.

Divorce by mutual consent in Kenya

"Upon satisfaction of the court that the averments made in the petition are true, the court shall grant a decree of divorce," the bill states.

However, any party to the divorce application may withdraw the petition any time before a decree of divorce is issued with the draft law explicitly reiterating that the agreement to part ways must be consensual.

"The court may, on application of a party, nullify a decree of divorce granted under subsection (1) on the grounds that the consent was obtained by coercion, fraud or undue influence," the bill indicates.

When to file for divorce in Kenya

A Kenyan had earlier gone to court seeking to repeal Section 66 (1) of the Marriage Act.

The section states that: "A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage."

Tukero Ole Kina argued that forcing couples who had irretrievably fallen apart to stay with each other in a dysfunctional marriage until three years elapse was akin to slavery.

The High Court had granted his wish but the Court of Appeal overturned the decision that Section 66 (1) of the Marriage Act 2014 was unconstitutional.

However, the appellate court agreed that the provision was unconstitutional due to disproportionate effects in scenarios where a divorce in a civil marriage may be necessary and justifiable before three years.

Justices Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit of the Court of Appeal declared the section unconstitutional.

Kenyan laws recognise Christian, Civil, Customary, Hindu and Islamic marriages, whose grounds for divorce are more of the same save for the last two.