For immediate release

23 October 2023

The advancement of family law to question the role of fault in divorces in Kenya.

On 21 September 2023, ISLA & FIDA-Kenya acting as joint amici will make submissions in Constitutional Petition No E075 of 2022 Coppler Attorneys & Consultancy v The Attorney General & The National Assembly. In this case, the Petitioners seek to have a right to divorce by consent recognized and protected by the Court. They seek to enforce Article 45 (2) of the Constitution which provides for the right to marry based on consent of the parties.

The Petitioners’ case, which seeks to depart from the fault-based system of divorce, where a party has to show to the court that the other party’s fault led to the breakdown of the marriage, currently followed by Kenya, is that parties should be allowed to divorce by consent without the burden of proving fault. They seek to declare Part X of the Marriage Act 2014, which provides for the grounds that a party must satisfy in order to be granted divorce in a court of law, unconstitutional. In this case, the Kenyan High Court admitted ISLA along with FIDA-Kenya as joint amici in June 2022.

The Respondents have filed Submissions opposing the Petition on the basis that the Petition does not disclose the unconstitutionality of the Marriage Act, 2014. They argue that the Petition lacks specificity in terms of the legal provisions impugned, is hypothetical in nature and should therefore be dismissed by the courts. The Respondents have also asked the court to protect the family unit by restricting parties from divorcing by consent as this will destroy families.

The joint amici were admitted by the court in June 2022 to provide legal information that will assist the court, in one way or the other, to arrive at a finding that meets the ends of justice. The brief highlights that the Petition raises critical questions on the nature and extent of a state’s obligations to protect and remove gendered discriminatory provisions and guarantee the right to equal protection of the law in marital laws, which can only be achieved by a departure from a fault-based divorce system,

 In the amicus brief, the joint amici will make the following submissions:

  • trace the historical evolution of the colonial laws that provide for fault as a basis for divorce, along with their purpose, which is critical in a court’s determination on the function of such laws;
  • Comparative law on various jurisdictions that have moved away from fault-based divorce system

For further enquiries kindly contact

Carolene Kituku

ISLA Women’s Socio-economic Rights Lawyer

Beatrice Njeri

Strategic Litigation Counsel

Centre for Rights Education & Awareness (CREAW)