What’s the difference between separation and divorce?

Dear Wakili,

I hear people talking of separation and others of divorce. Is there a difference between these two terms? Does one have any advantages or disadvantages over the other?

Dear Reader,

Marriage is an officiated relationship entrenched in law by the tenets of Section 3 of the Marriage Act of 2014. It is founded in Article 45 of the Kenyan Constitution. Marriage is a voluntary decision and ceremony of two consenting adults of the opposite sex to live together as husband and wife. Upon agreeing and settling in marriage, both female and male parties acquire equal rights to make the union work.

Similarly, they can celebrate relevant milestones and acknowledge when things go south. This liberty includes the motivation to prevent and solve whatever challenges that may rock such an institution and the courage to declare it unfit for endurance.

Since marriage is certified by the state upon completion of traditional or religious rituals, its subsistence or death becomes its business and must be informed about. Remember, part of Clause 1 of Article 45 obligates the state to recognize and protect marriage because it is the most natural and fundamental unit of society and the necessary basis of social order in its most traditional form of joining male and female adults.

Divorce and judicial separation are decisions sought from the court, so they are the court’s prerogative. Divorce is the legal termination of a marriage, although readers are aware of many unions that only exist on paper, as most suffer from emotional deprivation. Divorce, as a process, brings to an end the marital union between two individuals, reverting them to bachelorhood and spinsterhood, respectively.

Judicial separation is a temporary remedy the court provides where parties in a troubled marriage are ordered to stay separately. The court, however, must be moved by one party or both in a marriage for it to sit and deliberate on the request. This is an important aspect to understand, as it clarifies the court's process and role.

The court declares a decree of judicial separation when and if it finds fit, mainly when the parties have not yet decided to part ways. Section 14, sub-section 1 of the Marriage Act, declares that parties to a civil marriage may agree to live apart for one year, and any such agreement shall be filed in court. This makes it valid and enforceable.

Either party can take such action based on Clause 3 of Article 45 of the Kenyan Constitution, which gives each of them equal rights when establishing, staying in, and dissolving a marriage. On the strength of this Article, the Marriage Act, in Sections 64-71, provides for the grounds of divorce, which also suffice when a person/party seeks separation.

The cited grounds within the Marriage Act include one or more acts of adultery by either party; cruelty, that could be mental or physical, inflicted by the other party on the petitioner or the children if any, of the marriage; desertion by either party for at least three years immediately preceding the date of presentation of the Petition: exceptional depravity by either party: and the irretrievable breakdown of the marriage.

While these grounds hold to the Marriage Act, which emphasizes proof of fault to grant separation or divorce, case law, being the jurisprudential wisdom that emerges when judges and magistrates make practice setting or changing judgments, has made redundant this part of the law. Justice Nyakundi Reuben, in Civil Appeal number 89 of 2019, stated as follows: “…for the lower court to find that the Petition had no legal foundation whatsoever and to continue to decree existence of a marriage which had since collapsed to me was a misapprehension of the facts and the evidence by the Learned trial magistrate.

I must confess I find myself having considerable difficulty understanding why the learned trial magistrate took the view that the aforesaid marriage had not broken down irretrievably. It was clear that the parties were no longer interested in the marriage and that the onus was mutually inclusive.”

The aspect of separation is implied in marriages established and celebrated within the Christian faith. Section 64 of the Marriage Act requires marriage parties to consider the services of a mediator and conciliator before deciding to end their marriage through a divorce process. Section 66 sub-section (1) guides parties to civil marriage on how and when to seek separation.

In judicial separation, the court awards the feuding spouses an opportunity to reflect and consider their decision of whether it is relevant to terminate their marriage. Further, it offers them time to recall their challenges and see if they are good enough to cause their parting. It is also an opportunity for the court to order court-annexed mediation to try and sort out their challenges, as given in Article 159, Clause 2, paragraph (c).