Law barring divorce within 3 years ‘unconstitutional’


The nullified law was stopping couples from moving out or remarrying before the end of three years.

The law prohibiting married couples from divorcing before three years is unconstitutional, the Court of Appeal has ruled.

The Court of Appeal upheld nullification of the law that bars spouses in a civil marriage from divorcing unless three years have elapsed. Appellate judges Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit said Section 66(1) of the Marriage Act of 2014 is unconstitutional for limiting the divorce period and tying down the newly-weds in a marriage union.

The nullified law barred the newly-weds of a civil marriage from moving out or remarrying before the end of three years from the date of the marriage.

“While Section 66(1) of the Marriage Act of 2014 is not discriminatory, it is unconstitutional for reason of, and to the extent of its disproportionate effect in cases where a divorce in a civil law marriage may be necessary and justified before the three-year limitation,” said the judges.

They also found that the limitation falls short of the proportionality test, adding that although the benefits that the law sought to achieve was protection of the family unit, there must be a fair balance.

Civil marriages are regulated by the state, which sets the terms and conditions and are not regulated by religion or personal belief, the judges noted.

Unendurable situations

“It is our view that notwithstanding the legitimate constitutional purpose for the time limitations in divorce proceedings arising from civil marriages, as an exception to the general rule, divorce should be allowed for situations, which are unavoidable and unendurable. It ought to be allowed for reasons of exceptional hardship or depravity, irrespective of the duration of the marriage for, and to protect the rights of the parties involved.”

While ruling on an appeal filed by the National Assembly against the High Court judgment, the judges said the intention of the constitutional purpose of nullified law was not to perpetrate a marriage that is no longer beneficial or in the couple’s interests.

The judges, however, suspend the effect of the declaration of unconstitutionality for a period of three years to enable Parliament to make the necessary amendments to the Act. “This is in light of the recognition that while Regulation 4 of the Marriage (Matrimonial Proceedings Rules) 2020 may in the meantime provide interim relief, the said provision requires to be anchored in the statute.”

They said the regulation allows a party in a civil marriage to first seek court’s authority to file the petition for divorce before the expiry of three years.

Emphasising that the limitation is not discriminatory, the judges said restraint, with respect to divorce, is not only provided for civil marriages alone but also in the other marriages under the Act.

“Under sections 64 and 68 of the Act in Christian and customary marriages respectively, mediation and reconciliation are encouraged in addressing matrimonial disputes before parties resolve to divorce,” the court said.

Christian teachings

A further observation was that Christian traditions and teachings allow for divorce but do not encourage it. In Christianity, marriage is considered a sacrament, with parties being considered as having made a covenant in the presence of God to stay together for life.

“We also take judicial notice of the fact that the Catholic Church does not recognise divorce and a marriage can only end when one partner dies, or if there are grounds for an annulment if the marriage has not been consummated or it can be proved that the marriage should never have taken place,” the judges said.

As regards divorce in Islamic marriages, the court said Section 71 of the Act provides that dissolution of marriages is undertaken according to Islamic law, under which divorce, while allowed, is discouraged and is a last option. “There are also processes of reconciliation provided for during various stages of divorce under Islamic law,” the court stated.

Under the customary practices and laws of most Kenyan communities, the court said divorce was effected by the wife returning or being sent back to her family and the return of the dowry paid.

There are, however, some communities that did not recognise divorce, especially where dowry had been paid and there were children from a marriage, such as the Kuria, Maasai, Nandi and Kipsigis, according to the court.

The case stemmed from a petition filed by lawyer Tukero ole Kina on June 12, 2018, seeking a declaration that Section 66 (1) of the Marriage Act, 2014, is unconstitutional, null and void, for violating articles of the Constitution. The said petition was filed in the public interest against the Attorney General and the National Assembly.

The lawyer argued that the section of the law was discriminative against parties in civil marriages, by providing that a party may not petition the court for separation or dissolution of the marriage unless three years have elapsed since the celebration of the marriage. He said the law failed to provide for such a bar with regards to petitions to dissolve a Christian, Customary, Hindu or Islamic marriage.

It was his contention that the section contravened article 27(4) of the Constitution, which forbids discrimination on any ground.