Divorce by consent is no divorce

By Anthony Thiongo

Question: Your recent article "Married in Kenya, Single Abroad" was informative and very useful to Kenyans living abroad. I am informed that there are states in the USA where a couple may obtain a divorce by signing divorce papers before a lawyer. Is this divorce procedure available in Kenya? If it needs to be registered in a Kenyan Court, can this be done where both parties reside abroad?

Answer: There are countries that allow married couples to divorce by agreement or consent. Kenyan law, however, does not allow divorce by consent of the married couple. The matrimonial Causes Act only allows the dissolution of a marriage on four grounds, namely adultery, desertion, cruelty and where one party is of incurably unsound mind. A person seeking a divorce on any of these grounds must prove the same before a court of law. This involves testifying during the hearing of the petition for divorce. The law further stipulates that no decree for divorce shall be made unless the petitioner is domiciled in Kenya at the time when the petition is presented. The petitioner must, therefore, be living in Kenya to institute and finalise the divorce proceedings. This may therefore be one of the provisions of the law that needs amendment, along with that regarding dual citizenship, to take into account the fact that the world is now a global village and Kenyans are residing all over the world.

Q: I was fascinated by your article "Married in Kenya, Single Abroad," which I read on the online version of The Standard on Saturday. As a Kenyan living abroad I would appreciate your further insights into the process of obtaining a divorce or better still an annulment. My spouse and I had a civil marriage in Kenya a few weeks before I left for the USA. I got pregnant before I left and we have a five-year-old child. During the first year after I left we maintained a long distance relationship but the love slowly died and in the end we decided to end the relationship. We are both leading our separate lives and one day intend to marry other people and raise families. I lead the life of a single mother and do not consider myself married. The records however show that we are still married. Can our marriage be annulled? If not, what is the procedure for getting a divorce without going through the hassles of court and lawyers?

Answer: The Matrimonial Causes Act deals with issues of divorce and annulment of marriages. This Act of Parliament was enacted in 1941 and was last amended in 1964. The procedure for annulment and divorce is therefore still very rigid as it is based on Victorian England standards of morality and family life. A marriage may be only be annulled, that is being declared null and void, on a strict set of grounds. For instance a marriage may be annulled where either party was permanently impotent or incapable of consummating the marriage at the time of the wedding or where the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage. You are therefore unable to rely on this ground to annul your marriage as you have a child together to prove that the marriage was consummated. The other grounds for annulling a marriage are not applicable to your case. For instance a marriage may be annulled where it is discovered that the couple are such close relatives they should never have been allowed to marry or that either of the parties is already legally married to another person. Similarly if the consent to marry of either party was obtained by force or fraud the marriage may be annulled. Further grounds for annulment include where either party was of unsound mind at the time of marriage or if the respondent was at the time of marriage suffering from venereal disease in a communicable form. A man may also seek annulment of the marriage if he subsequently discovers that at the time of marriage the woman was pregnant by another man.

The law only allows for divorce on the four grounds of adultery, desertion, cruelty and where one party is of incurably unsound mind. You can only sue for divorce on one of these grounds. The law does not allow for divorce by consent and you have no choice but to go through the court process. As you are domiciled in the USA only your husband can sue for a divorce. You would have to live in Kenya for a period of at least six months before filing a petition for divorce.

Question: I met an American man in 2006 and by October of the same year we celebrated our marriage at Sheria House. My husband left for the US the next day and has never returned. He stopped communicating shortly after he left and I have not heard from him in close to two years. I am only 26 years old and the situation has made my life very difficult. On what grounds can I get a divorce as I want to get on with my life?

Answer: You have not stated whether or not the marriage was consummated as your husband left Kenya the day after the wedding. If the marriage was never consummated you may file a petition for nullification of the marriage on the ground that it was never consummated. If however the marriage was consummated, your other recourse is to file a petition for divorce on the ground of desertion. The law however provides that a marriage may only be dissolved on the ground of desertion if the petitioner has been deserted without cause for a period of at least three years. You would therefore have to wait for October 2009 before filing a petition for divorce on the ground of desertion.