How long does one have to wait to get a divorce in Kenyan law? And also, how long to change a name once you are divorced from your spouse?
Speed of execution seems to be of utmost importance in divorce and consequent name change for you. It should be acknowledged that divorce is not a process or event that any person wishes for. No one gets into marriage with the vision of parting. Therefore, it isn’t surprising that Christian marriages are tied to the adage, till death do us part.
However, love, as Patty Symth says, sometimes isn’t enough. At times, it is not easy to predict on such matters. Even though the law, in this context, the Marriage Act of 2014, is a substantive instrument for seeking justice or resolving disputes between spouses, it highly relies on human driven-queued laden procedures often delivered on a first-come, first-serve basis. In such a situation, you and the urgency of your matter get positioned in a process where other matters have earlier on been queued.
The issue of time allows us to review two likely approaches to address divorce matters. First, we consider divorce litigation, which basically is the process of addressing spousal differences in a formal court of law with the intention of going separate ways, legally, morally, economically and physically.
This is supported by sections 65 to 73 of the Marriage Act. You have not stated what faith, system or culture upon which your marriage was formed, funded and firmed, which makes it difficult to pinpoint the specifics within the five marriage realms available in Kenyan law, including Christian, Islamic, Hindu, Civil and Customary unions.
The common issues
There are common issues that could occasion or motivate the termination of the marriage. Section 66 of the Marriage Act gives anyone in a union the right to seek divorce. This provision, however, cannot be applied by a person who is married under the civil marriage regime, not unless such union has existed for not less than three years.
This is stated at Part IV of the Marriage Act. I assume that you seek to discontinue your marriage because of several or all of the following reasons, which are emphasised in various sections of the Marriage Act: either your spouse has demonstrated an adulterous behaviour, subjected you to cruelty, occasioned you exceptional depravity, deserted you for at least three years, or this union has reached a point where it is described as irretrievably broken down.
A marriage, according to law is considered irretrievably broken down if the spouse against whom a petition is raised in court has; committed adultery, been cruel to the children or spouse, deserted their partner for three years preceding the petition’s presentation date, or sentenced to a seven-year jail term or more, besides a life.
It is also in context if the spouse in question wilfully neglects their marriage partner for two years immediately preceding the petition presentation date. In other circumstances, where two doctors, one of whom must be qualified and recognised in psychiatry, diagnose a spouse to be suffering from incurable insanity and conclude that recovery is as remote and improbable during their lifetime, the court would offer relief to the petitioning spouse. Since filling, and listening of matters in court is primarily guided by a queuing process, where judges and magistrates refer to their work diaries to find appropriate times to deliberate matters before them, it is difficult to predict how long such divorce processes could take.
Best way to facilitate
The best way to facilitate a fast-moving divorce process would require that disputing parties revert to Alternative Dispute Resolution through divorce mediation. While it is argued that no law is directly established to govern this kind of approach, the provision of Article 159 (2-c) of the Constitution, alongside the introduction and utilisation of the Court Annexed Mediation, suffice. This approach may be faster and its result registered in the court of law for easy enforcement.
Once you are completely divorced and the family division court has awarded you decree absolute, which is the final nail in the coffin of a collapsed marriage, one is required to approach the registrar of persons at the Civil Registration Bureau if you may seek name change.
It will be expected that you make available documents to evidence: your former or previous marriage; your annulled marriage: your legal identity as a Kenyan, which is a National Identity Card or Passport: your certificate of birth to enable commencement of change of name.
This will be a process of replacing the surname back to the nee name. This process is expected, going by the speed of public service, to take a minimum of thirty days because part of it is the gazettement of the new name.
Eric Mukoya has over 17 years’ experience working in Kenya and abroad within the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]