Introduction
Arguably, the flames of fire are to be ablaze for all eternity and only death can tear two lovers asunder. However, the reality is the said flames often with the passage of time take the form of dying embers; and where love once lived, regret and bitterness compounded by irreconcilable differences wax hot. Consequently, parties approach the Court with the aim of severing the sacred ties through a divorce process.
In Kenya, unlike other jurisdictions, the divorce process and proceedings are birthed from various matrimonial faults that culminate into marital discord. Succinctly put, the laws of Kenya do not recognize divorce by consent. These matrimonial faults are in statute referred to as grounds of divorce and they include:
- Cruelty: These range from physical to mental instances of cruelty inflicted by a spouse upon another;
- Adultery: relates to the involvement of one spouse in an extramarital affair;
- Extreme depravity: instances of extreme immoral conduct or behavior by one’s spouse;
- Irretrievable breakdown of the marriage: when the marriage has been clutched in the claws of differences which cannot be salvaged by any mode of reconciliation; and
- Desertion: If a spouse abandons the other for an extended period without a valid reason.
Process on Initiating Divorce
Guided by the Matrimonial Act and the Matrimonial Proceedings Rules of 2020, the divorce process unfolds through a series of procedural steps designed to ensure fairness and adherence to legal principles.
The process is commenced by the filing of a divorce petition accompanied by a verifying Affidavit, a Witness statement and a list of documents inclusive of the marriage certificate by the Petitioner.
Once the petition is filed, the Respondent is served with a notice to enter appearance, signaling the commencement of legal proceedings against him or her. Subsequent stages involve the filing of responses or cross-petitions by the Respondent, followed by the closure of pleadings and the scheduling of a court hearing.
Should the Respondent fail to enter appearance to oppose the divorce petition, the Petitioner will then make an application for the divorce proceedings to proceed as undefended.
After hearing the parties, the Court will retire to make a determination on whether sufficient grounds in support of the divorce proceedings were proven to the requisite threshold. If in the affirmative, the court will proceed to dissolve the marriage.
Dissolution is in two fold sequential stages. Firstly, the Court will issue a Decree Nisi with a life span of 30 days. After the lapse of the 30 days reconciliatory window, the Court will issue a Decree Absolute whose import is that the parties to the divorce petition are at will to remarry as the laws appurtenant to married couples are inapplicable to them.
Contemporaneously, the Court in determining a divorce petition, will make various orders as to the;
- Custody and maintenance of the issues of the marriage;
- Spousal maintenance;
- Division of matrimonial property; and
- The cost of the case
Sometimes the Court suo motto may ask parties to mediate on the first three issues highlighted above. The determination by the mediator will then be adopted as an order of the Court.
Additionally, parties are at will to enter into parental responsibility agreements with the help of their Counsels. Once an acquiescence is arrived at, it shall be approved and adopted as a court order by the Children’s Court. The underlying principle is that parental responsibility is shared amongst the parents.
Conclusion
When the spirited efforts geared towards resuscitating a marriage are akin to flogging of a dead horse, then a party is at will to institute legal procedures for divorce; by laying bare to the Court, the faults that eroded the very foundation of the marital union before the Court can make a finding of dissolution.