Tired of abusive husband; can I divorce before marriage turns 3?

Dear Vivian,

I have been married for two years, and what started as a blissful union has unfortunately turned into a distressing situation marked by emotional and physical abuse. Additionally, my husband frequently stays away for weeks, leading me to suspect infidelity. I have decided to pursue a divorce. However, I recently learned that, in Kenyan civil marriages, divorce can only be granted after a mandatory three-year period. The thought of enduring another year in this challenging marriage is overwhelming. Therefore, I am seeking your expertise to explore alternative legal avenues available to expedite the dissolution of my marriage.

Catherine Wesonga,
Nairobi

Dear Catherine,

There have been significant legal developments in Kenya that may offer you the opportunity to speed up the dissolution of your marriage, given the challenging circumstances you've described.

The Marriage Act in Kenya imposed a three-year waiting period for civil marriage divorces, outlined in Section 66(1). However, this provision faced constitutional scrutiny in the case of Tukero ole Kina v Attorney General & another [2019]. The court, recognising the potential injustice of the three-year waiting period, ruled it unconstitutional, marking a pivotal moment in reshaping the legal landscape concerning marital dissolution. Subsequently, the government responded to this constitutional challenge.

On July 8, 2020, the Marriage (Matrimonial Proceedings Rules), 2020, were enacted, providing a legal framework to guide matrimonial proceedings. Of particular significance is Regulation 4(1) of these rules, which now permits a party in a civil marriage to file a petition for divorce before the completion of the previously mandatory three-year waiting period.

However, the legal developments continued to evolve. In the subsequent case of the National Assembly of Kenya v Kina & another (Civil Appeal 166 of 2019), the Court of Appeal declared the three-year waiting period unconstitutional, citing its “disproportionate effect”. This groundbreaking decision signifies that, in principle, individuals in civil marriages should not be bound by the three-year waiting period.

Despite this favourable ruling, it's crucial to be aware that the court decided to suspend the effect of its declaration for three years. This suspension is intended to allow Parliament sufficient time to make the necessary amendments to the Marriage Act. This means that as of now, the Marriage (Matrimonial Proceedings Rules), 2020, are still in effect, allowing you to file a petition to have your marriage dissolved, even if you haven't reached the traditional three-year threshold. It's essential to stay informed about any legislative changes during this three-year suspension period.

Given the complexity of legal matters and the unique circumstances of each case, I strongly recommend consulting with a family lawyer or visiting women human rights organisations that have an angle of access to justice. As you do so, be aware of the grounds for divorce: adultery, cruelty, exceptional depravity by the other spouse, desertion by the other spouse for at least three years, and the irretrievable breakdown of the marriage.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).