What you need to know:
- Divorce proceedings are complex, long, tiring and expensive owing to high fees charged by divorce lawyers, besides the mental anguish litigants go though.
In 2017, I got married to a foreigner from Norway. Shortly after the marriage, he relocated back to Norway and left me here in Kenya. We have been living separately and now I wish to know how to go about the divorce process. Please advice.
I would like to enquire how I would go through with a divorce process with a foreigner I married in 2017 from Norway. We have been living separately since marriage he went back to Norway and I have been residing here. Your assistance will highly be appreciated.
The context of most marriages, irrespective of their origination is progressive and constant happiness of those who get into the union. Sometimes not the case, and the law just as society anticipated the same. Your question is important and timely. There are many of us who face similar challenges and tend to be overwhelmed hence suffer in silence. You have chosen to speak out, be sure many are listening. From the tone of your text, we assume you got married in Kenya, because part of your communication states “…Shortly after the marriage, he relocated back to Norway and left me here in Kenya. We have been living separately..” You, therefore, provide us an opportunity to share knowledge regarding the divorce and attendant process under Kenyan laws.
Divorce is often stressful, unsettling and upsetting process. There is none of us who can claim to be adequately prepared or experienced to face divorce, as the context of marriage, seen in the light of Marriage Act (2014) as voluntary union of a man and woman, whether in a monogamous or polygamous union, doesn’t expressly harbour the thoughts of immature termination. It is not clear which type of marriage the two of you affirmed. We point this out because the Marriage Act, has categorized five kinds of marriages, which I refer to as originations. The different forms have unique dynamics on dissolution, nonetheless, the Kenyan perspective is fault motivated, with a slight caveat for couples not to prove wrongdoing as the ground for divorce as informed by Civil Appeal No. 49 of 2017, where Justice Mrima said that parties can part ways if levels of mistrust are too high to manage. All these may apply to any of the five consisting of Christian, civil, customary, Hindu and Islamic marriages. Note, that Islamic dissolutions are handled in the Kadhi courts, where Islamic law is applied. Fault-motivated implies that the one who seeks dissolution of marriage must cite and prove matrimonial offense(s).
Section 65 of the Marriage Act, under which Christian marriages are provided for, offers the herein enumerated as grounds for divorce; a) one or more acts of adultery committed by the other party: b) Cruelty, whether mental or physical, inflicted by the other party on the Petitioner, or on the children, if any of the marriage; c) Desertion (leave the marriage without permission and without communicating the problem) by either party for a period of at least three years before the presentation of the divorce petition; d) Exceptional depravity by either party; (e) the irretrievable breakdown of marriage. On the specificity of this ground, the law anticipates that a marriage is considered as such (to be irretrievably broken down) when the other grounds are cited and proven, besides the parties should have stayed apart for at least seven years. Further, where a spouse has been convicted to a jail term exceeding seven years, and sometimes when the spouse suffers from incurable insanity.
Under section 66 of the same Marriage Act where Civil Marriages are provided for, only an addition to the grounds under Christian marriage is made as to when a separation or divorce may commence, which is three (3) years of being married. Similarly, customary marriages are served with the same grounds, only with an addition to consider other grounds that may be peculiar or specific within the confines of a community’s customs.
As of procedure, divorce starts with the filing of a Divorce Petition in the Chief Magistrate's Court. The Petition sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds.
The petition is filed together with a Notice directing the Respondent to appear and answer to the petition within 15 days. Once 15 days lapse, the Petitioner moves the court to declare the Petition uncontested, after which the Petitioner gives evidence and the court pronounces two decrees.
Decree Nisi or interim decree to confirm that the person seeking a divorce is entitled to bring the marriage to an end, and within a month an absolute or final decree is given ending the union. However, should the Respondent appear, then the petition settles down for an oral hearing.
Important to note that, divorce proceedings are complex, long, tiring and expensive owing to high fees charged by divorce lawyers, besides the mental anguish litigants go though.
The complexity is further exacerbated by the questions of matrimonial property, spousal maintenance and children. Should issues of property sharing arise, the Matrimonial Property Act directs that contributory attribution be employed as a threshold in law to ascertain justify the weight of ownership claims.
All the best.
Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director, Legal Resources Foundation.
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