Fed up with your spouse? No need to file for divorce, just walk away

Walking away from a marriage never to return, maybe even re-marrying, is sufficient grounds for one to be presumed to have divorced.

In a precedent-setting verdict, one does not need to go through the bitter formalities of dissolving a marriage.

Divorce cases in courts are dramatic; estranged couples tear each other apart for either adultery, cruelty, money, sex or desertion. Judges have to grapple with dirty bedroom secrets for an order that a marriage is irretrievably broken down.

Meanwhile, traditions require the bride’s family to return to the groom every penny spent as dowry.

But in a landmark judgement, Justice Reuben Nyakundi said the law requiring divorce formalities as the only ticket to re-marry cannot tie parties who have fallen apart.

The judgement is a relief for couples who have separated and want to re-marry, but are held back by failing to seek divorce.

The judge was determining a rare succession dispute that has been running for two years pitting two men who sought to inherit the multi-million estate owned by a woman.

Justice Nyakundi was of the view that an overriding right to associate with the opposite sex waters down the requirement of customary or court divorces.  

According to Nyakundi, once a person tells their partner that they no longer love them and turns to a new lover, that cannot be said to be adultery.

He observed that adulterous persons have no intention of leaving their marriages.

“Divorce is not the procedure of filing for a decree nisi in court per se. On a much broader perspective, divorce pertains to the intention and conduct of parties,” ruled Nyakundi.

He continued: “If parties in a marriage show an intention not to continue with their marriage or conduct themselves as unmarried persons, then the same should be treated as such. The law cannot attach obligations upon persons who have decided to part ways but fail to formalise the same, because that is not the true reflection of what they want.”

At the heart of the case was Jecinter Njoki Okoth. If she was alive, she would have been accused of polyandry, or worse still, adultery. But in her death, the judge vindicated her. She died on June 18, 2018.

Njoki, according to court documents, developed a romantic relationship with Amos Oluoch in 1981. They allegedly married under Luo customs, then separated but never divorced.

For them to have been legally married under Luo traditions, they were required to consent and be of age to marry. Moreover, Okoth was required to pay dho keny (dowry) after which they ought to cohabit. Okoth was to deflower the bride immediately after meko.

In Luo, meko loosely refers to ‘bride kidnapping’. Evans Pritchard, in his journal Marriage Customs of the Luo of Kenya, explains that the bride is captured by the groom’s relatives and friends and taken to his simba (house).

The bride’s family ought to test the courage of the ‘kidnappers’ by countering them. Meanwhile, the bride screams and tries to wriggle free as a show of her bond to her father, although he is marrying her off.

A woman who is opposed to the marriage can either climb onto a termite mound while crying, collect soil, put it in her mouth and spit it at the captors.

The groom ought to figure out what she needs in a bid to win her. If meko is successful, then the girl is taken to her future husband where, in the presence of four men, he deflowers her. The witnesses ought to pass the message to her in-laws on whether she is a virgin or not.

Although Okoth never provided evidence that he fulfilled Luo customs, Justice Nyakundi said he could be presumed to have married Njoki.

They bore Mary Akinyi and Anthony Otieno. After irreconcilable differences, she left. Court records do not, however, tell when they parted ways.

Njoki, a businesswomen, gave her heart to other men but they fell out along the highway of love.

Living and doing business in Kenya and abroad, she managed to amass wealth estimated to be worth Sh20 million. 

The last man standing was Simon Harold Shiels.

Court record shows Njoki met Harold sometime in 2009 in the United Kingdom.

Her siblings, Hannah Waithera, Terry Wanjiru Samuel, Michael Njuguna and Njoki Mwaura, told the court he was the only one who brought dowry.

However, Okoth referred to Harold as a casual boyfriend.

While dismissing Okoth’s argument that she was not eligible to offer herself to marriage, Nyakundi said logic had it that Harold saw an eligible single woman who was ready to tangle. He said Okoth’s claim of love had been overtaken by events.

The judge was of the view that if Okoth was interested in Njoki, he would have sought to bury her as she died in Malindi.

“In my judgement pursuant to Section 119 of the Evidence Act, it is proper for their marriage to be construed for purposes of the law to have ended by presumption of divorce, notwithstanding that no formal petition was filed in a Court of Law to be decreed as such in accordance to the law,” he ruled.

He pointed out that Okoth did not prove he contributed to the wealth acquired by the deceased. Instead, he said, the evidence by her family showed it was Harold who bankrolled her businesses.

“In my view, it would be a failure of justice to allow the objector to benefit from the sweat of another man under the guise that his marriage with the deceased was not formally dissolved,” said Nyakundi.