Legal clinic: Can I use an affidavit to file for divorce?

The only evidence I have as a proof of marriage is an affidavit. Can I file for divorce using it?

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Hi Wakili,

I am married under kikuyu customary law and the man abandoned us two years ago. We have three children. The only evidence I have as a proof of marriage is an affidavit. Can I file for divorce using it?


Emotional distress is one of the most challenging aspects of human relationships. It can be a draining, brain-raking event or process that seems to stroll with a paced growth, often sucking the affected person into anger, regret, depression, imbalance, and sometimes self-hatred. In a marriage situation, it is retrospective, where the hurting spouse questions their decision-making ability besides the wisdom of the choice made regarding the significant other. Marriage is a social construct that has been given legal definition, and description, to create and sustain sanity between spouses, parties, families, and society at large that forms the support system of a couple. The legal definition and description allow the world, men and women, to create and adhere to standards which in the text of the Constitution in Article 45 (3) manifests as equal rights at the time of its establishment, life, and dissolution. This standard is reflected in Section 6 of the Marriage Act, which, in addition to defining what constitutes a legal union, offers the recognition of any union celebrated in five distinct ways. This includes unions formed under the Christian denomination, customary rites relating to any of the communities in Kenya, Islamic and Hindu Faith, besides civil registration often conducted by an officer from the State Law Office.

Up to this point, if read in isolation from Section 3 (1) of the Marriage Act, one can claim marriage under the Kikuyu customary law. However, the strict application of this section demands that all marriages, whether polygamous or monogamous, be registered under the Marriage Act of 2014.

In this case, since you haven’t mentioned whether your union is registered, an assumption that you are not married in the realm and application of the law is what stares you and the readers without a blink that your claim can originate the court to imagine a divorce. It is almost an advanced demonstration of a come-we-stay union that can pass the social tests but is not necessarily legal. The court will not find your claim to exist, and therefore, it cannot decide on something fictitious in the first place. In short, you cannot use the affidavit nor the rites performed within the Kikuyu community for which you fulfilled to seek divorce.

This notwithstanding, you could lodge a different petition, stating that the father of your children has abandoned them and does not provide support for them and you, by extension. Remember the Constitution in Article 53, Clause 1, paragraph (d), emphasises that a child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment, and punishment besides hazardous or exploitative labour. It can be argued that your partner has neglected the products of his loins and must be compelled to take his rightful responsibilities of not being a sperm donor but a father. Moreover, in paragraph (e), it is directed that a child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for it, whether they are married to each other or not. Such matters will be petitioned in the Children’s Court seeking child support and maintenance. Once the court has been moved to listen and determine the issues raised concerning the welfare and wellbeing of the children, it will invite the provision in Article 53, Clause 2, which demands that the best interest of the child principle must guide every action, program, intervention, or decision regarding a child.

Take a walk and ruthlessly deal with the matter of child support. With the direction that children’s interests can be remedied through a child support petition in a children’s court, the general interpretation of this situation permits you to walk away without contemplating petitioning for divorce. This is because there is no marriage to scamper from. However, should your movement be resisted by someone claiming you are married, as Section 107 of the Evidence Act demands, it is expected that they prove marriage existed. Clause (1) states that whoever desires any court to give judgment as to any legal right or liability dependent on the facts that he asserts must prove that those facts exist. There is no marriage unless registration happens, so there is no room for divorce since no union exists.

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]