Can you remarry a wife or husband you’d divorced? Here’s what the law says

Did you know that nothing stops you from remarrying a spouse you had divorced?

Though it looks far-fetched, Kenyan law allows you to marry your ex-husband or ex-wife.

Family lawyer Judy Thongori says the Marriage Act treats formerly married couples as “new people” post-divorce, and, are therefore free to re-enter a union.

“There are cases of couples who’ve remarried their ex-spouses,” Thongori told The Standard.

“There are no legal obstacles preventing one from formally committing to a man or woman he or she had separated from,” added the lawyer.

Sociologist and lecturer at the University of Nairobi, Dr Karatu Kiemo, says most people who remarry their ex-spouses blame their previous actions on anger, frustrations and impulsive reaction.

“Once the dust settles, the ex-spouses have an eye-opening moment, and chances are high they would resume their relationship,” he said. 

Dr Kiemo further says that children and relatives play an important role in the reunion of former couples.

“When the children suffer due to the separation, ex-partners might decide to reunite, formally, for the children’s best interest.”

The sociologist also reveals that the inability to move on post-divorce has led to ex-spouses reconciling and eventually remarrying.

“If parties remain single post-divorce, let’s say for two years, chances of them reconciling are high if what caused their separation wasn’t serious,” said Dr Kiemo.

The sociologist advises divorced couples, who are seeking reunion, to exercise genuine repentance before forgiveness and reconciliation can be adopted.

Divorce

The Kenyan divorce system, unlike in many other countries, is fault-based in nature. This means that couples seeking divorce must prove a matrimonial offence committed by their spouse.

This differs from most Western countries, including the United Kingdom that operates a “no-fault” divorce system that allows divorce by consent.

The Marriage Act Number 4 of 2014 recognises five types of marriages in Kenya. These are Christian, civil, customary, Hindu and Islamic marriages.

Christian marriages

Christian marriages are performed and registered where a party to the marriage is of the Christian religion. A church minister who is licensed to officiate such a marriage in a registered religious centre such as the church often officiated them.

Under Section 65 of the Act, persons who marry under the Christian law can petition for divorce on the following grounds: One or more acts of adultery committed by the spouse; cruelty, whether mental or physical, inflicted by the other party on the petitioner; desertion by either party for a period of at least three years before the presentation of the divorce petition; exceptional depravity by either party and irretrievable breakdown of the marriage.

Civil marriages

Civil marriages, unlike Christian marriages, are celebrated by the Registrar of Marriages as set out in Part Four of the Act. Just like Christian Marriages, they are monogamous in nature.

Under Section 66 of the Act, unlike in Christian marriages, a party to a Civil marriage may only petition the court for separation or divorce after three years of being married. This provision has, however, come under intense judicial scrutiny of late, where some courts have held it to be prohibitive. However, the law remains unrepealed.

The grounds for discontinuing a civil marriage are identical to the grounds for dissolving a Christian marriage.

Customary marriages

Customary marriages are unions celebrated in accordance with the customs and practices of the ethnic communities that either party to the marriage belongs to. The grounds for discontinuation of a customary marriage are like those of civil and Christian marriages.

Hindu marriages

These are marriages conducted where the spouses both profess the Hindu Religion. Unlike marriages in civil, Christian or customary arrangements, which have almost identical grounds on which divorce can be sought, in Hindu marriages, formal separation can be sought based on the following reasons, among others: where the other party has deserted the petitioner for at least three years; where the other party has converted to another religion; where since the celebration of the marriage, the other party has committed rape, sodomy, bestiality, or adultery; where the other party has committed cruelty to the other and where the other party has committed exceptional depravity on the other.

Islamic marriages

Islamic marriages are celebrated under Islamic law. The Act does not set down grounds for dissolution of Islamic marriages, only stating in Section 71 Islamic law shall govern that dissolution of an Islamic marriage. Such divorce processes are processed and presided over by the Kadhi Courts.

Prohibited marriages

According to the Marriage Act, a person cannot marry a grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great-niece or great-nephew. However, the marriage of a person with that person’s cousin does not apply to persons who profess the Islamic faith.

The divorce process

The divorce process starts with the filing of a Divorce Petition to the Chief Magistrate's Court. The petition sets out the grounds for divorce and the facts the petitioner relies on to establish those grounds. The petition is filed together with a notice directing the respondent to appear and answer the petition within 15 days.

Once 15 days lapse, the petitioner moves the court to declare the petition uncontested, after which the petitioner gives evidence and the court pronounces a decree.

Lawyer Dunstan Omari says dissolution of a marriage can be done within a few months, contrary to popular belief that divorce cases take ages in court.

“It takes 30 days for the hearing to begin, and the hearing will depend on the court’s calendar,” Omari told The Standard.

The lawyer said once the divorce is granted, its implementation does not take effect immediately. The parties are given 30 days to either ratify or cancel the divorce.

“The waiting duration is crucial as it gives the couple room to possibly hammer out a reconciliation. The State frowns upon unnecessary divorces,” he said.

The 30-day period also gives spouses time to adjust to the new life, as they work on a possible co-parenting arrangement.

According to Omari, divorce cases in Kenya are expedited when both parties have endorsed the separation idea, unlike when one of the partners is opposed to the divorce.

“If the divorce is uncontested, then finalisation can be done immediately after the lapse of the mandatory waiting period,” he said.

Precedent-setting ruling

For the longest time in Kenya, persons seeking divorce had to wait for the marriage, especially civil ones, to last at least three years before they could file for separation.

In March 2020, Malindi High Court Judge Reuben Nyakundi ruled that partners, whose civil marriages have irretrievably broken down, do not need to wait for three years to file for divorce.

In his ruling, Justice Nyakundi stated that marriage is a union of willing partners who should be at liberty to leave anytime.

As a result, the judge declared Section 66 (1) of the Marriage Act, which bars couples from divorcing within three years, unconstitutional.

“Today, you can marry in the morning and seek divorce in the afternoon; the law allows parties to do so,”Omari said, citing Justice Nyakundi’s ruling.