Some contentious aspects of the law on Marriage and Divorce in Kenya
Any legal system is developed by the legislative actors at any given time. Some provisions or directions in a legal system may be considered by the subjects to be unreasonable or overtaken by events and there are many reasons that may inform such situations.
The Acts of Parliament relating to Marriage and Divorce have several such provisions or directions that may not necessarily find favour with the people affected. Here is a partial list of some of the foremost contentious issues in Marriage and Divorce under the Kenyan law:
1. Fault-Based Process
Whereas the law recognizes that a marriage can be dissolved on the grounds that it has broken down beyond salvage for whatever reason; the courts will still need to examine the reasons behind the tattering of the matrimony.
Perhaps, it would serve Kenyans better if parties to a marriage are let to part ways if they so agree without much explanation to a third party. However, there is a Marriage Act Amendment Bill pending in Parliament that seeks to ease the process by providing for consents to divorce by parties to a matrimony.
2. Lengthy Separation Requirement
Whereas there has been judicial pronouncement on the illegality of a three-year period of marriage before one can apply for divorce in Civil Marriages, the Court of Appeal in the year 2022, stated that the three-year period shall be maintained for the following three years, so as to enable the Legislature to amend the law to make it uniform for all regimes of marriage.
This provision is surreal because there is recognition that a marriage can be terminated due to cruelty or deprivation. There is no guarantee that such situations will only manifest after three years. They could be within a day!
It is an unnecessary and rudimentary bottleneck to the right to a union of choice.
3. Pedantic Financial Settlements
Divorce settlements in Kenya often prioritize the welfare of the children, which is commendable. However, some individuals may feel that the financial provisions for spousal support or division of property are not always equitable, or adequately consider the contributions of both spouses during the Marriage.
There is still no settled formula on the division of property upon collapse of a Marriage.
4. Whether Presumption of Marriage is Still a Viable Route
Marriage by repute has been a continuous debate in our society. Whereas the law does not list Marriage by presumption as a form of marriage, our society is replete with such unions.
Recent discourses on the fate of such unions are pointing towards non-recognition of such Marriages. Co-habitation, as the courts refer to it, is not a recognized form of Marriage in the Marriage Act, and courts have been trending towards this direction.
In the words of the Supreme Court of Kenya, Marriage by presumption is on “its deathbed”. The obvious question is whether the law is growing faster than the society, or whether it is the wish of the citizenry to make such unions illicit.