Courts should not hesitate to dissolve irretrievably broken marriages, the High Court has ruled.
High Court Judge Reuben Nyakundi said nothing should stop the courts from dissolving such marriages should couples approach them for divorce with solid reasons that meet the standard of proof stipulated in law.
The judge, however, clarified that the reasons for dissolution must be proven to the satisfaction of the court due to the importance society accords the institution of marriage.
The judge argued that couples file for divorce not to be kept together, but to be divided so that they can lead their separate lives.
He termed such separation a human rights reality in a marriage set-up.
“If a marriage has broken irretrievably, let the courts set it asunder and leave the residual judgment to God, the Alpha and Omega of a marriage institution,” Justice Nyakundi said.
The judge made the ruling in a case where a man filed for divorce citing desertion, cruelty, mental anguish, physical and psychological torture and exceptional depravity.
The man identified as SKC had initially filed the divorce case against FKK before a magistrate court, but the case was dismissed for lack of enough evidence to warrant a divorce.
The magistrate said SKC did not prove the existence of desertion from the matrimonial home by the respondent.
SKC then moved to the High Court to contest the magistrate court’s decision, saying FKK had deserted their matrimonial home for more than seven years.
Justice Nyakundi faulted the magistrate for failing to grant the divorce, arguing overwhelming evidence had been adduced to warrant dissolution of the marriage.
“Putting asunder what God hath joined would not have attracted the wrath of God over the trial magistrate. For the appellant and the respondent had torn apart their institution of marriage as a whole,” said the judge.
SKC and FKK duly cohabited together as husband and wife following the solemnisation of their marriage in 2003.
According to court records, the marriage barely lasted two-and-a-half years. Court documents show the respondent (FKK) deserted SKC and the matrimonial home for more than seven years.
SKC submitted that FKK had deserted the matrimonial home continuously and with no intention of reconciling or reuniting with him, adding that the love that once existed between them had lapsed.
“There is no valid reason the union should be considered as valid. At no time have I condoned the cruelty or acts of desertion by the respondent. The marriage has since broken down irretrievably and is ruined beyond salvage,” SKC submitted.
“The magistrate erred in fact and law by failing to pronounce the divorce on the ground of desertion as contained in my petition. The trial court also failed to appreciate the fact that we have not resumed cohabitation since the time the respondent deserted the matrimonial home,” he added.
Section 65 of the Marriage Act 2014 provides that a marriage can be dissolved on the basis of desertion by either party for at least three years immediately preceding the date of presentation of the petition.
The judge noted that in law, the term desertion cannot be said to have an exhaustive definition as facts and circumstances of each case may be distinctively different.
He further noted that the definition of desertion includes wilful neglect of one party by the other in a marriage.
“This, therefore, means one of the parties has neglected to fulfil his or her obligations in the marriage union, rendering it physically, psychologically and emotionally ruined,” he said.
Justice Nyakundi said SKC had proved that he had not enjoyed companionship, partnership, physical presence, collaboration in home improvement activities and other fruits of a marriage union.
“It is uncontroverted that FKK deliberately withdrew from cohabiting and fulfilling the marriage vows and obligations. As the law recognises, it is not the withdrawal from the matrimonial home that matters, but from a state of things,” the judge concluded.
“The marriage solemnised herein between SKC and FKK, under the African Christian Marriage and Divorce Act (now repealed), be and is hereby ordered to be dissolved,” the judge added.
Justice Nyakundi said it was clear the parties were no longer interested in the marriage and that onus was mutually inclusive.