Try mandatory mediation for divorce cases
A mandatory mediation as a ground for granting divorce by mutual consent could make the parting less hostile.
On August 4, the Marriage (Amendment) Bill was tabled in the National Assembly. The bill seeks to amend Section 75 of the Marriage Act by expanding the grounds for divorce by adding a new one--mutual consent.
Instructively, on its statement and objectivity, the bill faults the existing legal framework for being fault-based. That means there must have been some element of fault by one of the parties to a marriage before a divorce can be granted. It further observes that this system makes divorce proceedings to be bitter and often lengthened, hence the need for a non-fault-based one.
The Marriage Act, 2014 defines marriage as a voluntary union of a man and a woman, whether in a monogamous or polygamous marital union and registered under the Act. The ‘voluntary’ nature of marriage guarantees Kenyan citizens (though not absolutely) of their freedom of association enshrined in Articles 36(1) and 36(2). Therefore, if one can consent voluntarily to get married, why should it be hard for them to similarly opt out of the union, through consent?
The inclusion in the bill of mandatory mediation as a ground for granting divorce by mutual consent could make the parting less hostile. Such a provision would strive to protect marriage as being as soft as velvet in joining and leaving but hard as steel whenever it comes to settling post-divorce issues and protecting the family institution at large.
Reaching a settlement
One may argue that mediation ought not to be mandatory and that this will appear like coercion to the parties involved. It should be presumed thus: The very fact that the parties have decided to go through the dissolution of their marriage by ‘mutual consent’ should be enough ground to guarantee the voluntary nature of the mediation process. The mediator will not, however, pressure the parties into reaching a settlement.
The suggested amendments should also take into account a variety of societal factors. One is that the Court of Appeal, in Civil Appeal No.166 of 2019, took judicial notice of such facts as that the Catholic Church does not recognise divorce and decrees that a marriage can only end with the death of one partner.
The court noted that, in most Kenyan communities, divorce was accomplished by the wife going back to her family, or being sent there, along with the return of the dowry. The Kuria, Maasai, Nandi and Kipsigis were among those that did not recognise divorce, particularly in cases where dowry had been paid and children from the marriage existed.
A non-adversarial act like mutual consent can work best in a non-adversarial process like mediation. Besides, a suitable balance can be achieved if the proposed amendment considered potential conflicts between the family and the State, religion and community, or even personal convictions. That would make it even easier to resolve the complex issues relating to divorce conflicts.
Mr Namasaka is a lawyer and certified professional mediator. [email protected].
