Explainer: What is divorce by mutual consent and why you should care

Divorce can be an emotive and expensive process for both men and women.

Dr Amakove Wala, a woman who went through a divorce in 2016, knows all too well the toll that such proceedings can take on a person.

“In my case, one of the major reasons I sought a divorce was cruelty. Both of our lawyers had to prove or disprove that ground. However, the proceedings were so antagonistic that I was shocked the entire time.

“I wished I could simply say that my former husband and I were on different pages and get done with the process but we had to prove to the court why we should be divorced. It was very traumatising,” she recounted to Nation.Africa in an interview.

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What Dr Wala wished could be available is a divorce by mutual consent. This is what the Marriage (Amendment) Act 2023 seeks to introduce.

The Bill sponsored by Suna West MP Francis Masara proposes an introduction of Section 75A, ‘Divorce by mutual consent’ to the current Marriage law.

According to Shadrack Mwinzi, a practising advocate who has also served on the bench, divorce by mutual consent means that a husband and wife will be allowed to file an agreement in court that will dissolve their marriage without fighting it out in court in a contentious manner.

Mr Mwinzi explains that under the current Marriage Act 2014, there are certain grounds that petitioners seeking a divorce have to prove in order to be granted a divorce.

These include adultery, desertion, cruelty and irretrievable breakdown of marriage.

“For instance, to prove adultery, you have to show that a third party was involved in your marriage. This makes it necessary for the third party to become part of the divorce matter so that they are not condemned unheard. In fact, it is more difficult to prove adultery in court than to prove someone owes you money because adultery happens in private,” he adds.

In his experience, parties would at times have to hire private investigators so that they can catch their spouses in the act. 

For cruelty, Mr Mwinzi advises that a party would have to provide police occurrence book (OB) reports to show that they were physically assaulted or produce witnesses such as neighbours, domestic servants, relatives or even children to prove that they were abused.

“In the case of a desertion, you have to prove that your spouse has deserted you for more than three years while in irretrievable breakdown of marriage, you have to prove that you have involved other people such as relatives or pastors to salvage the marriage before going to court for divorce,’’ he adds.

Also read: When home is where pain lives...

This is why he welcomes the proposal for divorce by mutual consent.

“The current framework leads to unnecessarily war-like proceedings. Sometimes it is so bad that the spouses’ relations would be so soiled that they are unable to co-parent in the case that they have children,’’ he adds.

In Dr Elizabeth Wala’s case, she cited denial of conjugal rights as one of the grounds for divorce.

However, it was extremely difficult to prove, “since you don't have a bystander in your bedroom watching your interactions with your husband every day,’’ she says.

She was only able to prove cruelty with regard to emotional and financial abuse.

“We had to rely on documents that showed some of our land was being auctioned, children being sent back from school and bouncing of cheques to prove financial infidelity. I also had to provide medical reports that showed I was admitted to hospital due to stress from my partner’s cruelty,” Dr Wala reveals.

Were the current proposal of divorce by mutual consent available, she would have preferred that route since it would have been faster, easier and less traumatising.

If passed, the provision will allow Christian, civil and customary marriages to be dissolved by mutual consent.

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