Should the law in Kenya allow parties to a marriage to divorce without establishing fault on any of the parties to the marriage?
By Carolene Kituku Advocate – Managing lawyer women-socio economic rights at ISLA
Divorce: an end and a new beginning
Marriage is a celebration of the union of two people committing to share their lives happily until death do part. Some marriages end in other ways other than death of the loved one – through a painful divorce! Rarely, do couples get married while envisioning the end of their marriage will be through a divorce. Inevitably, divorce is a reality of life! Often times, it is left as the only option for bringing an unhappy chapter to an end and beckon a new beginning. However, we look at it, divorce is not and has never been an easy process for any person. Many a times, it is a difficult, painful, emotionally draining and traumatic process that twigs a reminder to a dream once shared of a happily thereafter; irrespective of the party that initiates the divorce.
The legal requirement for divorce
Whenever a party to a marriage has approached the court for an order of divorce, the law in Kenya requires that party to establish sufficiently any of the contemplated ground(s) why the marriage has failed before the court can grant an order of divorce and whose fault it is for the failure. This legal requirement to prove fault before an order for divorce is granted has made the divorce process convoluted and arduous for most of the couples even in instances where both parties to a marriage are in agreement and are willing to end the marriage.
The case
In a petition filed at the High Court in Nairobi, Constitutional and Human Rights Division on 21 February 2022 by Coppler Attorneys & Consultancy v The Attorney General & The National Assembly; Constitutional Petition No E075 of 2022; the Petitioners are raising critical legal questions on the constitutional validity of the legal requirement to prove fault of a spouse before a divorce order can be granted. Ultimately, the petition seeks to change the law in order to ease the process of bringing a marriage that has ended factually to an end legally through a divorce order without the need to antagonise the parties in a tortuous divorce procedure.
The Petitioners in the case are challenging Part X of the Marriage Act of 2014 that a party seeking a divorce order must establish grounds of divorce that assign blame for the breakdown of the marriage. Some of the contemplated grounds that a party to a marriage must plead and prove sufficiently before a court can grant a divorce includes: adultery, cruelty, desertion, exceptional depravity and irretrievable breakdown of the marriage.
The Petitioner’s arguments
The petitioners argue that the law establishing grounds of divorce in matrimonial causes attract aggressiveness and convolution even when both parties are willing to end the marriage amicably. They claim that the ease to enter into a marriage should correspond with ease in the right to exit the said marriage. The petition is grounded on Article 45 of the Constitution that guarantees every adult the right to marry a person of the opposite sex based on the free consent of the parties. It argues that Article 45 contemplates a termination of marriage without an unnecessary tortuous procedure. The petitioners are seeking a declaration that Part X of the Marriage violates Article 2, 10, 36, 45 and 259 of the Constitution, parties be allowed to terminate a marriage by consent and an order for the Attorney General to amend the Marriage Act to allow parties to a marriage to terminate the marriage by consent.
The Respondent’s arguments
The Respondent, the Attorney General, has opposed the Petition on the basis that the Petition does not disclose unconstitutionality of Part X of the Marriage Act, 2014. He argues that the Petition lacks specificity in terms of the legal provisions impugned, is hypothetical in nature and should be dismissed. The Attorney General contends that family is a fundamental and core unit of the society, and the State has the responsibility of recognizing and protecting the family. He has therefore asked the court to protect the family unit by restricting parties from divorcing by consent as this would destroy families; whose duty is for the State to protect.
The amici curiae brief
ISLA and FIDA-K; were admitted in the proceedings by the Court in June 2022 as joint amici curiae. The joint amici curiae have filed an amicus brief before the court that firstly; provides the origin and historical development of the fault-based divorce law in Kenya. This law emanated from the United Kingdom and was received in Kenya through the reception clause of 1897 and has continued being applied in Kenya to date. This information is important because it establishes that the United Kingdom has since reformed the divorce law to a no-fault based divorce system while Kenya continues to apply the fault-based law.
In addition, ISLA and FIDA-K have provided a comparative analysis to the court of various common law jurisdictions that had inherited the colonial masters’ law on fault-based divorce and have since reformed their laws to a no fault-based divorce law. The countries under reference include Australia, South Africa, Hong Kong and Canada.
Secondly the amici curiae have in their brief set out some of the efforts made previously in Kenya to reform the fault-based law and introduce a no fault-based divorce law as well providing an explanation of why the attempt failed as documented in the Commission for the reform of marriage and divorce law report.
Lastly, the amici curiae have laid out some of the inherent problems with a fault-based divorce law by establishing how it perpetuates gender discrimination. A fault-based divorce law disproportionately affects women through the application of unequal marital power in matrimonial causes. This Information helps the court nuance some of the State’s obligations in domestic, regional and international law to remove gender discriminatory provisions in order to guarantee the right to equality and equal protection of the law.
Further, through the use of jurisprudence, ISLA and FIDA-K have brought to the fore the uncertainties, judicial disparities and confusion evident in various decisions of the Kenyan courts in applying the law on divorce. These decisions demonstrate that the courts have grappled to enforce the legal requirement to prove fault as set out in Part X of the Marriage Act of 2014 while using a no-fault divorce requirement of irretrievable breakdown of marriage. The law in Kenya is couched in certain terms that for one to establish irretrievable breakdown of marriage, the party to a marriage must establish any of the grounds of divorce. It is not sufficient for a party to claim that the marriage has broken down irretrievably. The legal systems that have a no-fault divorce system require parties to provide a statement that the marriage has broken down irreparably/irretrievably without the need to apportion any blame to any spouse for the irreparably/irretrievably break down.
ISLA and FIDA-K believe that their intervention in this case and the information they have provided shall assist the court expand the right to marry and found a family as provided for in Article 45(2) to entail a commensurate right to divorce as well as uphold States’ legal obligation to eliminate discrimination against women in matrimonial laws.
Conclusion
A no-fault divorce law is desirable. It is sufficient for parties in court to allege that the marriage has broken down irreparably with no need for a court to enquire into the conduct of any of the parties to establish their fault or contribution to the irretrievable breakdown of the marriage.
Undoubtedly, a marriage has broken down irreparably if the marital community of the spouses no longer exists and there is no expectation that the spouses will reconcile or restore their marriage. A law can be enacted stipulating the conditions that establish the irretrievable breakdown for instance that parties have lived apart for a continuous period of one year or more.
The outcome
The High Court reserved judgement and shall deliver it on 20 February 2025.