DIVORCE IN KENYA

When two people exchange marriage vows, they hope to be together for the rest of their lives. However, life
doesn’t always go as planned and some couples might decide to part for one reason or another. 1

Divorce in Kenya is fault-based. This means that the law allows for dissolution of marriage if the person
asking for the divorce proves that their partner/spouse committed a matrimonial offence.

DIVORCE UNDER THE MARRIAGE ACT, 2014.

The Marriage Act, 2014 provides for dissolution of the different forms of marriages established
under the Act as follows;

1. Christian Marriage

Section 65 of the Marriage Act, 2014 sets out the grounds for dissolution;

a. If a party to the marriage commits one or more acts of adultery;

b. Cruelty, whether mental or physical, inflicted by the other party on the petitioner or on
the children of the marriage;
c. Exceptional depravity by the other spouse;
d. Irretrievable breakdown of the marriage , Section  66(6) of the Marriage Act states that a
marriage is considered irretrievably broken down if:
1. a spouse commits adultery; a spouse is cruel to the other spouse or to any child of the
marriage;
2. a spouse willfully neglects the other spouse for at least two years immediately preceding
the date of presentation of the petition;
3. The spouses have been separated for at least two years, whether voluntarily or by a
decree of the
4. a spouse has deserted the other spouse for at least three years immediately preceding the
date of presentation of the petition;
5. If a spouse has been sentenced to a term of life imprisonment or for a term of seven years
(7) or more;
6. Where a spouse suffers from incurable insanity, where two doctors, at least one of whom
is qualified or experienced in psychiatry, have certified that the insanity is incurable or
that recovery is improbable during the life time of the respondent in the light of existing
medical.
7. Desertionby either party for at least three (3) years immediately preceding the date of
presentation of the petition. It must be proved the spouse left without a reasonable cause.

‘Divorce in Kenya’ (Julisha) <https://www.julisha.info/hc/en-us/articles/4409084225047-

1

Divorce-in-Kenya-> accessed 29 November 2022

A party relying on the ground of desertion needs to prove the following:

 The fact of separation. The parties must physically separate;

 There has to be intention of the deserting spouse to remain separated, known as
the Animus deserendi which is inferred from words and actions to permanently cease the
matrimonial union; and
 Lack of a reasonable or justifiable cause for withdrawing from cohabitation.

2 Civil Marriages

Section 66(1) of the Marriage Act, 2014 establishes a restriction to petitioning for separation or
divorce for parties to a civil marriage to be unless three (3) years have elapsed since the
celebration of the marriage.

The court can refer the matter to a conciliatory process agreed between the parties. The petitioner
can however proceed to file for separation or divorce even where the conciliation process is
ongoing.

The grounds for divorce in a civil marriage are the same as those in a Christian marriage as
stated above.

DIVORCE PROCESS

The court is vested with power to dissolve marriages in Kenya. A party shall
petition the court for divorce in a Muslim Marriage, Hindu Marriage, Christian
Marriage, African Customary Marriage, and Civil Marriage.

DOCUMENTS NEEDED

1. Petition for divorce

2. Verifying Affidavit`
3. a duly authenticated copy of the Certificate of Marriage;
4. a list of witnesses (if any);
5. written witness statements (if any); and
6. duly authenticated copies of evidential documents (if any) to
be relied on at the hearing of the petition
The simplified steps to divorce/dissolution of marriage and obtain a divorce decree
in Kenya are as follows:
1. The Petitioner will prepare the divorce petition for the dissolution of the marriage and
attach the divorce papers highlighted above.
2. Once the petition is filed in court and the notice to enter appearance by the Respondent is
prepared, the Petitioner shall serve the divorce papers on the Respondent who is required
to enter appearance.
3. The Respondent shall have some days thereafter to file their answer to the petition and any
cross petition.
4. Thereafter the Petitioner may file an answer to the cross petition and thereafter pleadings
shall close.
5. After the close of pleadings, the petitioner may request the court to issue a certificate
allowing parties to move to the hearing stage.
6. After the certificate is issued, a hearing date shall be granted.
7. If the court is satisfied, it will issue a decree nisi which will be converted to a decree
absolute 30 days later.