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

When two people say “I do” to each other, it hardly crosses their mind at that moment of bliss that a discussion on divorce would one day become part of their conversation.

Yet the institution of marriage is under siege now than at any other time before.

A survey conducted last year by the National Council for Population and Development found that marriages are fairly stable in Kenya, but some experts think otherwise.

Lawyers specialising in family law, marriage counsellors and religious leaders are worried by the number of wrangling couples seeking divorce.

Critics attribute the rise of divorce to the casual way in which the current generation handles marriage as well as the pressures of modern day life that have assailed couples from within and without.

Curiously, the various types of law that govern marriage and divorce in Kenya defend the family unit. They have made divorce draining and arduous with the hope of  rendering it an unattractive option for disgruntled spouses.

SMALL BEDS

In the midst of the reported rise in the numbers of divorce and a Judiciary keen on keeping married people together, are individuals suffering in silence - those bearing the abuse of narcissistic spouses.

Incidents have been reported where judges dismissed applications for divorce advising the petitioners to “get a smaller bed if they had been sleeping in a king size at the time of the divorce.”

Others have been told to “take time to think through, to remind each other of the spark that once existed between them.”

Nairobi-based psychologist Ken Munyua said that divorce is “not as simple as knowing that the marriage is not working any more between two consenting adults and therefore one has the prerogative to leave.”

These laughable responses to an adult’s quest to exit a relationship brings to the fore the million dollar question: “Can the law force you to remain bound to a person when you have made up your mind that such a relationship no longer serves your interest?”

In some cases, utter desperation has driven people to commit murder when they are cornered into feeling that killing a spouse was the only practical exit of a sour union.

Lawyer Brian Otieno, who has handled high profile divorce cases in Kenya, deems our law system as pro-family with hurdles meant to “impede” dissolution.

“In Kenya, it takes at least two years to get through with a divorce during which at least, Sh150,000 is spent.

Two years, he said, is a long time for a person who has already made up their mind, but that is an “inevitable” condition that anyone in Kenya hoping to divorce must live with.

Another psychologist Ken Munyua told the Nation: “Imagine you have met another person, but you cannot marry them because your divorce has not been finalised.”

Coupled with the financial impediments, are conditions such as the duration of marriage and the “grounds.”

“You must have been married for two years to file for divorce. You must also have legitimate ground for presenting a petition or otherwise the court may throw it out,” said Mr Otieno.

Customer care executive Mary Maina said: “It could be that we have fallen out of love and we cannot stand each other any more. We may have married for the wrong reasons…must we meet all those conditions stipulated by law?”

However, there is a crazy deal breaker - let the court not know that the two of you agreed to have the divorce… rehearsed as it may look, you just have to convince the judges that it is only one of you that wants the divorce while the other wishes to make it work and will therefore fight in court to stop it.

At the moment, the accepted grounds for divorce in Kenya include cruelty, abandonment, insanity and infidelity.

EXIT CLAUSE

Even with the aforementioned, clearly stipulated in the Constitution’s Marriage Act of 2013, there comes the burden of proof, save for mental insanity.

“Do you have proof that your husband was unfaithful and with whom?” asks Otieno.

This challenge has forced people to hire private investigators to follow their spouses, much to the dent of their bank accounts.

It gets unusually hard if the reasons for seeking divorce is emotional abuse.

Just how does one prove they are abused mentally?

Exit the conditions, enter the protracted process of getting a divorce in Kenya.

At the beginning, the partner wishing to be granted divorce, presents a petition in court where a summon is issued.

The summon is served to the respondent and a co-respondent in case the reason for seeking the divorce was infidelity.

The respondent is allowed a period of two weeks to issue a memorandum of appearance.

Another two weeks is set aside for the respondent to  reply or choose to be silent.

The respondent may want a cross petition. This is a legal term to mean the petitioner also has to answer to the respondent.

Another one month is allowed for the respondent to get a certificate from the registrar. Only at this point is it possible to set a hearing date.

In addition because of the limited number of judges handling divorce suits, a case may take as long as three months to have the first hearing.

Mr Otieno said in Nairobi there are only three judges who oversee the divorce cases.

There can only be one outcome to a scenario of many cases versus few judges: backlog.

“Too bad if your hearing date coincides with a petition or on a date when a judge is on a break,” he said.

Apart from the inevitable judicial delays, is the fear of stigma by many people seeking to divorce.

“We are part of a community, and sometimes people put up a face of the joy of salvation when they were married to some figure in church, or to a prominent family that has built its life around a stellar reputation,” said Mr Munyua.

“Children of a broken marriage have to be considered too. No court will sideline their needs over those of the adults,” said Mr Otieno.

 CHRONOLOGY

Conditions to be met

Petition: The partner wishing to be granted divorce, presents a petition in court where  summons are issued.

Summons: The summons are served to the respondent and a co-respondent in case the reason for seeking the divorce was infidelity.

Appearance: The respondent is allowed a period of two weeks to issue a memorandum of appearance.

Reply: Another two weeks is set aside for the respondent to  reply or choose to be silent.