I want to cut all links with my cruel ‘wife’

She tormented me emotionally and was physically abusive to the children. 

Photo credit: File| Nation Media Group

What you need to know:

  • I fear that something terrible may happen to one of us that can make someone serve a lengthy sentence behind bars.
  • Please help, it’s urgent.

Hi Eric,
I’ve been married to a woman since March 2018 although we have never formalised the union. It is my second marriage as I separated from my first wife in 2014 due to her adultery. I have custody of our three children. 
My second wife was good to my children in the beginning, and we even built a house together, but she later became a monster. She tormented me emotionally and was physically abusive to the children. I later took the children away from her, as she had been living with them in our upcountry home. She started selling things in the house but ran away when I discovered what she was doing. 
She gave birth to our second child last a few months ago after the first one died last year. Now she has started tormenting me with texts threatening to bring the infant and dump her here. So, to make it simple, I don’t want this woman in my life again. What can I do to stop her from meddling with my life again? I’m ready to provide for the baby, but I don’t want to see the woman anywhere near me. I fear that something terrible may happen to one of us that can make someone serve a lengthy sentence behind bars. Please help, it’s urgent.

Dear Reader, 
Emotional and physical pain besides the uncertainty of a future in marriage cannot be described any better than the text of your communication. We can only imagine your predicament, first as a man: and second as a father. Still, we can never understand the magnitude of what you are experiencing. 

Mentally prepared

Empathy wired in social, psychotherapy and legal foundations is what you may need to face and deal with the reality reasonably. You are adamant that things have gone south and irredeemable. You seem mentally prepared for the likely consequences should you decide to part with your wife, maintaining and maybe having custody of the child, if at all. Your scenario offers us one social and five legal issues to address: first, is whether your union subsists as marriage in the context of law; second, is the dissolution of such marriage(s): third, is the application of the term separation in failed unions and its effect on the current marriage: fourth, is the place and rights of children in strained spousal relationships: and fifth, are claims of property sharing should such arise in the process of parting. 

The union is invalid

Though your marriage is not formalised, it is recognised socially, as you indicate your wife lives in your rural home. Legally, the union is invalid since it commenced March 2018 within the 1 August 2017 directive from the Attorney General, on the operationalisation of the Marriage Act 2014, for all customary marriages to be registered. If you part ways, , it would be guided by the rituals that both of you affirm to. Living apart is strategic to cool down tempers hence reducing opportunities for violence. In law, the term separation connotes court-ordered arrangement whereby a married couple lives apart, leading separate lives. In some circumstances, the court directs on each spouse’s responsibility within the separation time. However, if your first marriage was legal, and so the separation, you may run the risk of an offence known as bigamy. This is a state of either going through a marriage ceremony while still married to another wife who is still alive. 

The best interest of the child

On a separate note, your wife isn’t keen on keeping the baby evidenced by the threats to “dump” the child in Nairobi.

Should the court be moved to intervene, in the absence of or failed community mediation, the principle on the best interest of the child is employed as providing for at Article 53 (2) of the Constitution.

This behoves the court to consider whom to award physical and legal custody among the two of you, emphasising primacy of the child’s needs in totality, even though, the law is strict traditionally allowing mothers to keep children of tender ages, like this only a few weeks old.

Another possible scenario in your case is likely claims, in particular sharing of property acquired under the life of this union. Section 7 of the Matrimonial Property Act (2013) provides for contributory ownership to the specific property in dispute, such as the house the two of you put up together. 
Given the surrounding circumstances, it may be prudent to invite community dispute handling structures, before proceeding to court. Be prepared, however, that in the event you choose to move the court, the legality of this union as marriage in law will be tested. Subsequently, a likely court-annexed mediation to canvas the matter outside court. Be it as it may, you have a right to peace and happiness. The options are bare, but the decision is yours. We wish you well. Please ensure that children do not suffer the consequences of your differences because they are innocent.