• Divorce is the legal process of terminating a marriage or marital union.
• The Act recognizes five types of marriage namely; Civil Marriages, Christian Marriages, Hindu Marriages, Customary Marriages and Islamic Marriages.
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Before one gets to the point of having a divorce, a marriage has to be involved.
In Kenya, the Marriage Act, 2014 defines marriage as a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered under this Act.
The Act recognizes five types of marriage namely; Civil Marriages, Christian Marriages, Hindu Marriages, Customary Marriages and Islamic Marriages.
What is Divorce?
Divorce is the legal process of terminating a marriage or marital union. The Marriage Act, 2014 also provides grounds for approval of dissolution of a marriage.
Several grounds can lead to the dissolution of a marriage and they include; one or more acts of adultery committed by the other party, cruelty, whether mental or physical, inflicted by the other party on the petitioner or the children, desertion by either party for at least three years immediately preceding the date of presentation of the petition, exceptional depravity by either party and irretrievable breakdown of the marriage.
The same grounds apply to Civil and Customary marriages.
For Hindu marriages, dissolution can be done for the same reasons including if the other party has converted to another religion. Dissolution of Islamic marriages is guided by Islamic law and by the Kadhi Court
What is the Divorce process?
Just like any court case, a divorce petition is filed by one of the partners or through a lawyer at the High Court stipulating the grounds for divorce.
The petition must be accompanied by supporting documents including a verifying affidavit, a list of documents with evidence, and witness statements.
The petitioner will then send a notice to the other partner who will be the respondent. The purpose of the notice to appear is for the respondent to inform the court if they will be contesting the divorce or not.
If the respondent chooses not to respond, the petitioner can move to the court to declare the petition uncontested. Thereafter provide evidence and the court will pronounce a decree.
If the respondent will contest, he or she will have 15 days to respond to the petition. Once the response is done, it is then served upon the petitioner.
From here, a certificate from the registrar certifying that the petition can proceed to the hearing stage is obtained and the petition is set for oral hearing.
During the hearing, the petitioner will provide evidence including testimonies from witnesses to show that the marriage is irretrievably broken down. The respondent will also do the same if the petition is contested.
Should the court find enough evidence to dissolve the marriage, it will grant two decrees.
The first is a decree Nisi, which will be issued for one month. (Decree nisi is an order made by a court that states that a divorce must take place at a certain time in the future unless a good reason is produced to prevent this)
This is given to the partners to decide whether they want to make the divorce final or not.
The second is Decree absolute. This is the final decree dissolving the marriage after the lapse of one month.