Landmark decision: Couples free to divorce if their love dies, court rules

Traditionally, a marriage could only be dissolved on certain grounds. [iStockphoto]

Adultery, cruelty and desertion are some of the reasons given by couples seeking to divorce.

But what if you have not cheated on your partner, you have never harmed them, or left for months on end for no good reason. Would you still divorce your spouse?

According to the High Court, one can walk away when the love, well, just dies. The decision means that a partner can call it quits if there is unending tension and or suspicion in the relationship.

Traditionally, there were three grounds on which a marriage would be dissolved: adultery, desertion and cruelty.

But the repealed family law introduced two more grounds for dissolution of a Christian, civil and customary marriage. These are exceptional wickedness by either party, and if the marriage is irretrievably broken down.

Justice Anthony Mrima found that a couple named as EAO (wife) and SAA (husband) had fallen out of love, and they were so suspicious of each other that the union could not be mended.

Although the couple had children with each other, the court’s judgement did not indicate when they were born. There was also no mention of when the two got married.

Adultery

The legal fight between the two started in 2015 before the Magistrate’s Court after EAO sought to divorce her husband over alleged cruelty and adultery.

At the time, the woman had already moved out.

In his reply, SAA denied the allegations and told the court that he loved EAO. He urged the lower court to dismiss the case and order that she should return to their matrimonial home.

After hearing the couple’s testimonies, Senior Resident Magistrate M. Wachira on March 30 last year declined to dissolve the marriage citing lack of evidence.

Aggrieved, and determined to end the marriage, EAO appealed the decision arguing that the trial court erred by not finding that she had enough grounds for a divorce.

Justice Mrima heard that the couple had tried to involve their pastor on four occasions to save their marriage but none was willing to compromise.

“The evidence in this matter reveals that all is not well between the parties. The parties have been living apart since 2015 when the respondent moved out of the matrimonial home and there seem to be no change even with the intervention of their bishop,” said Justice Mrima.

The judge, in his verdict last week, observed that what was ailing the two was not fights or infidelity, but that they simply did not trust each other.

“On perusal of the evidence and analysis of the trial court, I agree with the learned magistrate that none of the two grounds were proved,” he ruled.

Calm the storm

According to the judge, SAA “ought to have been bold enough to calm the storm in his house by proving that he loved his wife, even as he said it.”

He said the marriage was wracked with complaints that would appear trivial to an outsider, but they were the “crust of disagreement” between the two.

Justice Mrima said it appeared the two had no respect for one another, and he was puzzled how they would live under the same roof.

“None of the parties trust the other as far as marital fidelity is concerned. There is no doubt in this matter that there are so many issues which may appear small to an outsider, but which are seriously undermining the marriage between the parties. Parties must be able to respect one another in a marriage otherwise what turns out may not be a marriage. I am at a loss how parties can earn their mutual respect from one another in such unique circumstances of this matter.”

The judge concluded that the only way to help the couple was to allow them part ways. “From the firm and opposite positions taken by the parties herein I do not see how the parties are likely to cope up as a married couple even when compelled to remain in such a relationship. Compelling the parties herein to remain in a marriage may be recipe for more harm than the intended good.”