Can I sue my husband for his infidelity?
Cheating in marriage is synonymous to one spouse inflicting emotional pain, besides mental torture on their partner.
Hello, Can I take legal action against my husband for cheating on me? I think it is illegal for him to spend financial resources meant for our family on his extra marital affairs. Would I have grounds to sue him?
Dear distressed wife,
Cheating in marriage is synonymous to one spouse inflicting emotional pain, besides mental torture on their partner who has entrusted them with the purity and sovereignty of their body and mind.
It is pure deceit, unashamed of the retrogressive impact it has on the faithful party, considering that partners in a marriage as expressed at Article 45 (3) of the Constitution, are entitled to equal rights at the time of the marriage, during the marriage and at the time of dissolution.
This response is not pedestalled on the presumption of high morals, but on the simple premise that marriage is a vow-driven institution where the parties make commitments to uphold their chastity to selfishly and strictly serve their needs, without membership by a third party.
The assumption made in the context of this response is that your marriage is monogamous with no exception of it turning into a status of polygamy, as expressed in section 6 (2) of the Marriage Act.
The law identifies cheating as a ground to petition for judicial separation or divorce but does not provide a window or platform, where the act in itself becomes an offense.
Experience and stories of people who have gone through such traumatic moments demonstrate the pain that grows from the act of infidelity, notwithstanding the predisposal to the dangers of sexually transmitted infections in the absence of protective intercourse.
Denis Hollinger once said, “the heart of the moral wrong of adultery is that a covenant, a sacred commitment, has been broken. The one-flesh union which sets this relationship apart from all others has been torn asunder by one of the spouses and by a third party that has now entered into the oneness of the relationship.”
Save for a civil marriage as given at Section 66 (1) that is less than three years in existence, Section 66 (2) of the Marriage Act provides that any person in a marriage that is strictly monogamous, can petition the court for either separation from the party causing them grief, or dissolution of the institution altogether on a number of grounds.
The mentioned grounds begin with adultery committed by the other spouse: cruelty by the other spouse: exceptional depravity by the other spouse: desertion by the other spouse for at least three years or the irretrievable breakdown of the marriage. Irretrievable breakdown of marriage is constituted by some conditions expressed at Section 66 (6) of the Act as: spouse committing adultery: a spouse is cruel to the unoffending spouse or the children of that marriage: spouse wilfully neglects the other for at least two years immediately preceding the date of presentation of the petition (in court); spouse have lived separately for at least two years, whether voluntarily or be decree (order) of the court, where such had been sought.
Other grounds are where the spouse has deserted the other for at least three years immediately preceding the date of presentation: a spouse has been sentenced to life imprisonment or for a period of seven years upwards. a term of imprisonment: 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 knowledge; or any other ground as the court may deem appropriate.
The afore-described aspects that may assist a judge or magistrate to order judicial separation or dissolution of marriage, if moved as a court, have identified cheating as a major contributory factor, since there is a social and legal presumption of oneness in the use and care of family jewels.
You have indicated the promiscuity of your husband is seemingly motivating him to abuse and misuse resources that would have otherwise stabilised the family.
While there is no legal provision that can help you ask the court to stop or limit him from using resources at his disposal on what you consider to be illicit adventures, you can, through the petition for judicial separation or divorce pray to the court to award you some maintenance towards the upkeep of children and self.
The Civil Appeal 66 of 2015 demonstrates the power of the court in awarding you certain prayers. In this case the court asserted that obligations of spouses as regards maintenance is equal and reciprocal as intoned at Section 77(1) of the Marriage Act (2014): it also indicated the need for disclosure of parties’ earnings to be able to calculate and allocate responsive judicially assessed maintenance.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
