Why more Kenyans are divorcing

In a career spanning more than 30 years, family lawyer Judy Thongori has seen the good, the bad and the ugly side of marriage. 

Arguably the best in the business, Ms Thongori knows more about the challenge of troubled marriages than anyone else. She has been involved in numerous family cases, guiding parties through the pre-dissolution processes of mediation and counselling, the dissolution, parental responsibility agreements, asset division and settlement. 

To the question about whether she deals with high profile cases, Ms Thongori says all her cases are high profile to the particular family concerned, that every case is as important as the other. When conflict manifests in family, she observes, it affects everyone equally irrespective of the social standing.

Warning from the outset that she cannot discuss the cases she deals with owing to client confidentiality and also the need to dignify families, the lawyer speaks of an institution that defines lives very deeply but which has not received the deserved support by the society. Like a boat in the high seas pounded by wave after wave for decades but never completely keeling over, instead always maintaining poised.  

While it is harder for married couples in recent times, the process of dissolution is also not easy, Ms Thongori says. The underlying condition that makes divorce so hard is the emotional investment, the combined lives, the loss of the identity that one has had, sometimes for a long time. When mismanaged, it’s a stormy affair typically replete with fights and humiliation. 

There are also profound financial implications because, well, divorce doesn’t come cheap. 

While a failed marriage is distressing enough, Ms Thongori notes that a mismanaged divorce process could potentially wreck the prospect, and relief, of starting a new life. In well-managed processes, though, she points out, parties reach a settlement, agree on co-parenting, split assets and go their separate ways with dignity. This is slowly becoming the norm. 

Read: Burden of proof, stigma and long wait that is the reality of divorce

Statistically, Kenya may not be in the divorce league of the Maldives and Belarus, but marriage dissolution in the country is on the rise, as shown by the numbers from the Registrar of the Family Division at the High Court. 

Nairobi’s Milimani Court, for instance, has about 15 magistrates presiding over three to five divorce cases a day. The court handled 60 divorces last year alone despite the fact that it was a Covid-19 year.

Interestingly also, the courts in 2020 processed divorce cases in as short a time as three months, mostly through the digital platform. 

So, what is the world of divorce like? Has the attitude toward the family institution changed over time? Why are more Kenyans seeking to dissolve their marriages? What do divorce demographics look like in Kenya? 

Many factors

Infidelity, violence, alcoholism and wastage of family assets are invariably cited. Sometimes it is a combination of those factors. Yet after many years of practice, Ms Thongori says non-alignment of values is the prime killer of marriages in Kenya. That young couples do not usually focus on their respective values and whether they are aligned. 

In fact, many may not even be aware at the tender age of marriage about how important some things are where marriage is concerned, only focusing on the feel good-factor, which is, unfortunately, not sustainable. 

“While opposite traits attract and indeed different personalities can be complimentary, there’s a limit to that. After some time, it becomes unbearable to live with a spendthrift if you’re a miser, for instance.” 

How long can a person who is deeply religious pretend not to be bothered by the spouse who does not believe in God? How do they bring up their children if each is on the opposite side of the pendulum?

Incompatibility, the lawyer explains, drawing from cases she has handled, could be anchored on religion, investment decisions, even whether or not to have children. She argues that it is such a mismatch that later cascades to triggers such as verbal and physical violence as the couple gradually drifts farther apart.

From the trivial to the absurd and outright outrageous, the ears of a divorce lawyer hear it all: accusations and counteraccusations from warring couples.

“Sometimes you find a colleague at work talking to you nicely and making you feel happy. You wonder why your wife or husband can’t treat you the same, but it can’t happen because either there is so much water under the bridge or you aren’t aligned,” Ms Thongori says. 

And even though incompatibility precipitates marriage failure the most, she admits that the law only recognises the more tangible factors such as violence or alcoholism as grounds for divorce.  

Read: The plot, the push and the birth of Kenya’s matrimonial property law

There’s a rejoinder though. 

Over time, what’s put in divorce papers has become less explicit. She explains: “All isn’t lost (through divorce), it’s the beginning of another life. It doesn’t help when you air your (dirty) linen in public or yell at each other during the exit. Even as you divorce, you must dignify each other.” 

In her earlier days in court, she narrates, divorce proceedings were an embarrassing spectacle. Couples humiliated and yelled at each other, compounding the trauma. The enactment of the Marriage Act (2014), brought an end to the circus. 

“We (lawyers) negotiated a ground where in case of irretrievable marriage breakdown, divorce is granted after a two-year separation period, among others” Ms Thongori recalls.  

This decision, she explains, was premised on the assumption that when there’s dignity in the dissolution of marriage, couples could cooperate during the proceedings.  

“When you seek divorce on the basis of irretrievability of the marriage because of a two-year separation, the court will grant divorce without more as long as that separation is proved. None of you walks out with egg on the face.” 

With dignity, Ms Thongori says, there are better odds for a couple to continue to effectively co-parent. This also creates a friendly environment within which the parties can discuss settlement of property and finances.   

As a matter of practice, divorce petitions across the world are in camera.

“The court protects the parties as much as possible. It’s humiliating to have people listen to your matrimonial matters. This may put a lot of pressure on the parties,” she says. 

Even so, records of divorces are kept by the state in recognition of the public’s right to information.

Transformation of family in Kenya

The recent rise in number of those seeking to dissolve their marriages is the result of the transformation of family in Kenya. These changes have disrupted both its existence and structure. 

Ms Thongori laments that young couples today are in more distress than earlier generations. The setbacks range from financial pressure to joblessness and lack of family support.  

There’s also increased awareness on the law as a go-to place to resolve marital conflict, she says. Access to legal service involving divorce has also increased in the last 20 years, she adds.     

Conflict in marriage occurs across board, pushing Kenyans from all walks of life and demographics to part ways. But according to the lawyer, it’s usually the people with the money and means who mostly file for dissolution.  

While a person can seek divorce without the need of a lawyer and, in fact, the courts are quite sympathetic with unrepresented litigants, it is a daunting task. 

It is easier when you have a lawyer even for the pre-divorce advice. While organisations like Federation of Women Lawyers (Fida) of Kenya and the Centre for Rights Education and Awareness (Creaw) offer such services, there is a limit to the number of people they can assist. The reality then in that you have to have financial capacity to pay for legal services to file for divorce,’’ she says. 

Divorce fees

But what determines the fees? Ms Thongori says there’s a standard fee, which varies based on several factors.  

“Some cases are more involved than others. Some parties defend the petition while others choose not to (undefended petition), in which case the fees vary.” 

In all cases, however, time is a key factor. The longer the proceedings take, the higher the charges. 

“For consultation, I charge Sh15,000 per hour while my younger colleagues in the office charge Sh10,000. We listen to the client and evaluate the case. Many a time, we point towards other services like mediation and counselling rather than the courts.” 

The lawyer hints at a fee of between Sh200,000 and Sh400,000 which is, routinely, paid through a deposit and the balance settled upon conclusion of the matter. Depending on the complexity of the matter and the number of sessions in court, the amount could be higher or less.

On the age of those seeking divorce, there are fewer people older than 60 filing for divorce. It is in the 40-55 age bracket where there’s more activity, she notes.
 
‘‘At this point, people realise their spouses are never going to change and that they still have good years left to their lives, so they file for divorce,” she explains. 

Still, some people in their 20s and 30s are also divorcing. Many Kenyans struggle to fend for their families. For millions, the legal fees for divorce is out of reach. But what happens when marital conflict strikes and they choose to end things? 

The lawyer explains that many are estranged, not divorced. Some may have lived apart for decades and for many, it could be the difficulty of obtaining legal services or because the process is so emotionally draining.

In the end, non-resolution may cause many complications because people eventually find other partners but they remain legally unmarried to such partners due to the existing first union, except where such union was potentially polygamous.

Pro bono for divorce

When death happens and the process of succession sets in, more problems arise. But aren’t there pro bono services for divorce, for instance?  

Part of the rationale for establishing the Federation of Women Lawyers of Kenya (Fida), Ms Thongori explains, was to assist poor people who couldn’t afford to pay lawyers to represent them during marital disputes. She worked as deputy executive director at Fida for five years, from 1997 to 2003. 

‘‘We handled so many cases of women looking to dissolve their marriage but didn’t have the means to facilitate the process. These cases would be referred to legal aid centres for assistance.’’ 

Between the sexes, the lawyer says Kenyan women file for divorce more frequently than men, even though lately, there has been an increase in men seeking to divorce and for solutions.  

Divorcing couples may not always have assets to divide after divorce. 

“Sometimes there’s little or nothing to divide,” Ms Thongori says, alluding to many Kenyans’ low economic capacity. “The court on the division of assets has fewer cases to settle.”

Should you divorce?

Why divorce? This is the question she puts to parties who go to her for advice on marriage dissolution. 

‘‘The first thing that comes to mind when you’re unhappy in marriage is to dissolve it. Sometimes your partner is seeing someone else or they’ve moved out. But the question to ask the unhappy partner is: “why do you want to facilitate your partner in that regard unless that is your priority? Could your priority be to seek counselling and heal and adjust to the new space?” 

She points out that divorce is a process, not an event. A divorce certificate will not give you any more joy than the marriage certificate in your pocket if you have not healed emotionally, thus, she says, family conflict cases should almost always be referred to counsellors to help them deal with the breakdown first. 

She goes on: “If a marriage has broken, you need to first focus on yourself. How are you dealing with it? How are your children faring? Divorce can come later.” 

Ms Thongori was part of the committee that established the Family Division at the High Court in 2002. Having dedicated two decades of her 32-year career (she was admitted to the bar in December 1988) to family law, her name is synonymous with this domain. 

Ironically though, the lawyer says she’s dedicated to “saving marriage” than to facilitate its dissolution, that is why she prefers the title “family lawyer” to “divorce lawyer”.

"Family defines you" 

She’s a mother of two, married now for 26 years. What has her long career and own experience taught her about family life? 

“We’re defined by our family. That is family of origin, which is where you’re born, and the family of choice, which is who you choose to live with as a couple,” she says. 
She adds: “We’re the sum total of our family, from the values to vices and how we relate with others. The quality of output at work is also influenced by our family relations.”

To go to court or not to go to court? Ms Thongori says lawyers only get money when the petition goes to court, but her motto is, “Don’t go to court. Instead, see a counsellor or a mediator.” 

Isn’t this contradictory for someone who opens her office doors hoping clients will come bearing a cheque? Not at all, she insists. 

Family law is a calling. You have a responsibility to point the family to their best destination. If lawyers fail to do that at the point when a client is in distress, it could be disastrous.

“As a family lawyer, I’ve learnt that when you have so many balls, catching them all is impossible, you must, therefore, choose what to prioritise.’’ 

Many marriages are retrieved when couples pursue dialogue and counselling, she says, adding that she spends more days in the office “having quality time with clients and talking” than arguing out divorce cases in court.

“It’s refreshing,” she says of when disputes are resolved and marriages restored without having to go to the court, “I go home knowing that I’m living my purpose as a family lawyer.” 

Whereas counselling doesn’t always lead to reconciliation, Ms Thongori says it allows couples to have control over the process. 

“It gives you more clarity and you become deliberate about what you want to do thereafter. You’re also able to co-parent better.” 

Balancing Christian values 

On balancing her Christian values and the law when handling disputes, she says she isn’t conflicted in any way.  

“I have my values as a Christian and as a person. But I sit here as a lawyer. I don’t impose my values on my clients. The most important thing is to exercise my professional capacity to advise people during their divorce process,” she replies.  

Quick torture or slow torture? The lawyer says whether fast or slow, divorce tortures the parties. She describes it as a winding process that involves several stages from the time one looks for a family lawyer.  

“You’re no better when your divorce is granted in 24 hours than someone else who waits for two years to end things. But you can make the process bearable by seeking (moral and emotional) support.” 

She, however, believes that a couple that divorces after 24 months is in a better place “because they’ve taken time to process the matter psychologically” through debriefings.  

The law in Kenya doesn’t explicitly state how long the divorce process should last. 
The pandemic though has dramatically slashed the timelines “to an unbelievable three months” after which the parties are issued with a divorce decree. 

For most divorcees, the divorce decree hardly offers any more comfort than a marriage certificate if the other factors are not in place, such as counselling, she says.  

“The process is like removing pus from a wound. You must remove it completely to feel better. Exiting a marriage quicker doesn’t take away the pain.”

Although exceptionally rare, there are instances when a court may throw out a divorce petition. “This may happen where there aren’t enough grounds to grant divorce. Often, a judge will do what the law requires them to do.” 

Interestingly, divorce rulings can be appealed just like other cases. A ruling can also be overturned in the event that one party isn’t served with the decree, upon which the matter is heard afresh. 

Still, some parties choose to remarry even after going through divorce.  

Then there’s Covid-19. Experts observe that the pandemic has accelerated dissolution of marriage globally, with divorce currently at its peak. It’s no different in Kenya. 

A spike in divorce cases at this turbulent time was among scenarios she least expected. 

“I’d imagined that (with the current financial stress) people want to preserve their resources than spend their money on divorce petitions, but then you realise that divorce could be the most important decision for them at the time.” 

Nothing to do with Covid-19

Many couples may be filing divorce petitions now, but Ms Thongori argues this has nothing to do with the pandemic. To her, many marriages were “long dead” and that the pandemic’s strain only exposed that reality.

‘‘Most people were busy with their jobs, businesses and other social engagements. There was virtually no time to focus on what they didn’t have in marriage. Suddenly, they had time to reflect and evaluate. It’s then that they realised there was nothing left in the marriage.’’ 

Consequently, some people invested their resources in dissolution of marriage – to escape agony. 

But even as many marriages are staring at the dark prospect of snapping, Ms Thongori observes that the pandemic has also fortified other families, as couples and their children now have more quality time. 

‘‘There has been more time for people to look within themselves and to reconcile,’’ she adds.  

As spouses tear into each other during divorce, children are flung at the centre of the proceedings, exposing them to their parents’ bile. Until 2003, children matters, including maintenance and alimony, were part of the divorce proceedings, and would be heard alongside the petition.  

This, however, changed when the Children’s Act (2003) became operational. “It provides for (establishment) of special courts for children to deal with welfare issues. The courts determine what’s in the best interest of the children, irrespective of what’s happening elsewhere (in the divorce court).’’ 

This, though, doesn’t deter intrigues. Last year, a court in Nairobi granted custody of a child to the mother, only for the child to protest, insisting on remaining with her father. In the dramatic turn of events, the court was forced to review the ruling. 
Thongori defends the judicial process, saying courts always act in good faith. 

“There’s no scientific way to determine who’s a better parent for the child. The court does what it does based on the evidence presented before it.”  

She notes that while a child may be fond of one of the parents, they may lack the capacity to fend for and protect them. This forms a solid ground for denial of custody by the court.