What does it take to file for divorce and child custody?

Divorce in the Kenyan context remains fault driven, even though several judges have jurisprudentially challenged this position.

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Hello Wakili,

Could you shed light on the process of filing for divorce and the grounds of annulling a marriage? Also, after the divorce, what criterion is adopted in granting custody of children (offspring) to either parent?

Dear reader,

One must understand that marriage has been defined clearly in the Marriage Act (2014). According to this Act, in Section 3 Clause (1), marriage is a voluntary union of a man and a woman, whether in a monogamous or polygamous union and registered in accordance with the Act.

This is in pursuance to Article 45 (2) of the Kenyan Constitution, which gives every adult the right to marry a person of the opposite sex based on the free consent of the parties. No other union or form of it can be described as marriage outside the definition and description offered by the Constitution and the Marriage Act.

The Marriage Act has provided five ways to celebrate the voluntary union of parties becoming husband and wife. The parties are joined in ways and traditions of Christianity, Islam, Hinduism, Customary, or through civic recognition. All five are subject to divorce in law. The principle in both circumstances is the parties' willingness to stay married or unmarried.

Divorce in the Kenyan context remains fault driven, even though several judges have jurisprudentially challenged this position. The right to petition for separation of divorce is provided for in Part X of the Marriage Act. If this is read alongside Article 45 Clause (3) of the Constitution, it becomes clear that parties to a marriage possess equal rights, even in dissolving it. While the section gives how the different marriages can be annulled, there are several common threads running through the five types of marriages.

The person seeking a divorce may cite the following reasons; adultery by either spouse, cruelty, exceptional depravity, desertion for at least three years, and the irretrievable breakdown of the marriage. The law contextualises in Section 66 of the Marriage Act what the irretrievable breakdown means.

When deciding whether the marriage is irretrievably broken down, the court factors in the following: if a spouse commits adultery; if a spouse is cruel to the other or child; if a spouse wilfully neglects the other for at least two years immediately preceding the date of presentation of the petition; if the spouses have been separated for at least two years, whether voluntary or by decree of the court; if a spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition; if a spouse has been sentenced to a term of imprisonment for life or a term of seven years or more; and if a spouse has an incurable mental illness that is confirmed and certified by two doctors--of whom one must be qualified and experienced in psychiatry--that recovery from such illness is near improbable. Readers should be aware that the court has the discretion to use all or none of those as mentioned earlier reasons if, in its deliberation, it finds other issues that qualify the irretrievability of a union as provided for paragraph (h) of Clause 6.

Child custody and divorce proceedings are independent, though most people see them as synonymous. The two are filed in different courts depending on the jurisdiction of each. Child matters will always be handled in a children's court, while divorce, depending on the form of the union, can go before a Kadhi or magistrate's court for determination. If, during a divorce process, the parties do not develop a consensus on how to care for their children in their divorce settlement agreement, which would manifest as a parental responsibility agreement, then the court will do several things based on and in law. First, reference to Article 45 clause (3), which says that parties to a marriage have equal rights at the time of the marriage, during its existence, and at its dissolution. Further, consider the provisions in Article 53 clause (1) paragraph, which directs that a child's right to parental care and protection must include equal responsibility of the mother and father to provide for it, whether married or not.

Based on this, and guided by the best interest of the child principle as provided for in Article 53 Clause (3) of the Constitution, the court will refer to Section 103 Clause (1) of the Children's Act, which offers the following:

a) the conduct and wishes of the parent or guardian of the child; (b) the ascertainable wishes of the relatives of the child; (c) the ascertainable wishes of the child taking into account the child's evolving capacity; (d) whether the child has suffered any harm or is likely to suffer any harm if the order is not made; (e) the customs of the community to which the child belongs; (f) the religious persuasion of the child; (g) whether a care order, supervision order, personal protection order or exclusion order has been made in relation to the child concerned, and whether those orders remain in force; (h) the circumstances of any sibling of the child concerned, and any other children of the home, if any; and any of the matters specified in section 95(2) where the court considers such matters to be relevant in the making of an order under this section. In Section 95 Clause (2), the court is reminded to decide while wholly focusing on the child, not its parents, whether in or out of their love relationship.

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]