The High Court in Nairobi approves the constitutional validity of the legal requirement to prove fault on a party in divorce proceedings

By Carolene Kituku and Senamile Madlala

The Issue before the Court

On 24 April 2025, the High Court at Nairobi upheld the constitutional validity of the legal requirement to prove fault on a party before a divorce can be granted.  The Court dismissed a petition that had been filed in Coppler Attorneys & Consultancy v The Attorney General & The National Assembly; Constitutional Petition No E075 of 2022 challenging the Constitution of Kenya’s validity of the legal requirement established in Part X of the Marriage Act, 2014 that sets out the grounds for divorce.  This law requires a party to a marriage seeking divorce to prove one or more grounds for divorce, such as adultery, cruelty, desertion, exceptional depravity, or irretrievable breakdown of the marriage, before a court can grant the the order for dissolution of the marriage.

The Parties’ submissions

The Petitioners had argued that the law establishing these grounds of divorce in matrimonial cases attracted aggressiveness and convolution even when both parties are willingly consenting to end the marriage amicably. Additionally, the Petitioners argued that these requirements are outdated, adversarial, and unnecessarily burdensome. The Petitioners relied on Article 45 of the Constitution that guarantees “every adult has the right to marry a person of the opposite sex based on the free consent of the parties.” They argued an interpretation of Article 45 contemplates a dissolution of a marriage without an unnecessary extended and convoluted process. The Petitioners therefore sought a declaration from the Court that Part X of the Marriage Act violates Articles 2, 10, 36, 45 and 259 of the Constitution. They urged the Court to find that parties to a marriage are entitled to dissolve the marriage through consent. The Petitioners also sought for an order directed to the Attorney General to amend the Marriage Act to allow parties to a marriage to terminate the marriage by consent.

The Petition was opposed by the Respondent, the Attorney General, on the basis that firstly, the Petition did not disclose any unconstitutionality of Part X of the Marriage Act. Second, it lacked specificity in identifying the exact legal provisions under challenge. Third, it was speculative in nature. Lastly, the family is a fundamental unit of society, which the State has a constitutional duty to recognize and protect. On this basis, the Attorney General urged the Court to reject the proposal for divorce by mutual consent, asserting that such a provision would undermine the sanctity of the family structure which the State is obligated to preserve. The Attorney General requested the Court to dismiss the Petition.

In 2022, ISLA and FIDA-K were admitted as joint amici in the Petition to assist the Court with information on States’ legal obligation under international and regional law to eliminate discrimination against women in matrimonial laws.

In their amici brief ISLA and Fida-K provided information to the Court on three key issues. Firstly,  on the origin and historical development of the fault-based divorce law in Kenya. In this regard, the amici brief underscored that the current fault-based system in Kenya originated from English common law and that the United Kingdom has since reformed its laws to adopt a no-fault divorce regime, a shift that has been embraced in other common law jurisdictions including Canada, South Africa, Australia and Hong Kong.  Secondly, the amicus outlined how there were previous efforts in Kenya to move towards a no-fault divorce system. This is evidenced by recommendations by the Commission for the Reform of Marriage and Divorce Law. However, despite the growing recognition of the need to modernize the law in line with constitutional and human rights standards, these efforts had failed to materialize into legal change.

Lastly, ISLA and FIDA-K made imperative arguments demonstrating that fault-based divorce disproportionately affected women. The amici reiterated that consequences of this issue were gendered as women often carry the heavier burden in proving grounds for divorce due to entrenched gender roles and unequal marital power. ISLA and FIDA-K also provided the Court an analysis of the discrepancies of various decisions emanating from the courts as there is no standard to assess each of the fault grounds. The effect being that the requirement effectively acted as a deterrent for individuals wishing to pursue a formalized divorce but are reluctant to expose the intimate details of their personal lives in an often long, arduous and costly legal proceedings.

The Court findings’

The Court found no merit in the Petition and dismissed it in its entirety.

In its findings, the Court stated that the impugned law was not in violation of the Constitution. The Court opined that the law’s established grounds for divorce aligns with the societal interest to preserve the institution of marriage and does not infringe on any constitutional rights. Marriage is a societal institution that is often beyond the parties since it involves the families, friends, members of the clan, the government and religious groups. Consensual divorce would erode the need to preserve marriage and stated that the requirement to establish grounds before a divorce can be granted protect marriage from ignominy of casual dissolution.

The Court also rejected the Petitioners request to compel Parliament to amend the Marriage Act, stating that it would infringe on the constitutional principle of separation of powers. It held that Parliament has exclusive authority to legislate, and the Court cannot direct it to enact specific provisions.

The Petition was deemed speculative and lacking in specificity, the Court stating that the Petitioner did not provide adequate particulars or evidence to substantiate claims of unconstitutionality or harm caused by the impugned provisions. The Court ultimately concluded that Article 36 (freedom of association) should not be read in isolation without incorporating Article 45. The Court found that it is in the interest of the society that marriage deserves to be safeguarded as well as that of the parties to the marriage

Reflection on the Decision

The family is often seen as the cornerstone of society, which is why it enjoys protection under both international and national law. But just as people have the right to enter into marriage freely, they should also have the right to exit it with dignity. A no-fault divorce system recognises this by allowing couples to dissolve their marriage without needing to prove fault, such as adultery, cruelty, or desertion. This approach not only reduces the emotional toll of reliving painful experiences but also avoids turning a deeply personal decision into a public battleground. At its core, no-fault divorce affirms principles of autonomy, equality, and respect—key pillars of any gender-just legal system.

The Court’s decision to reject no-fault divorce in Kenya reflects a growing pattern where “family values” are invoked to resist gender-progressive legal reform. Framed as a defense of tradition, this rhetoric is increasingly being used to entrench patriarchal norms and delay much-needed changes to family law. At the heart of the judgment lies a narrow, heteronormative understanding of marriage and family—one that ignores the realities of many women trapped in harmful or loveless unions and undermines their constitutional right to dignity and equality.

This is not an isolated trend. Across Africa, transnational anti-rights networks are gaining traction, with coordinated campaigns that cast feminist and LGBTQI+ advocacy as threats to African culture. The African Christian Professional Forum’s recent adoption of a “Family Values Charter,” for example, promotes a rigid conception of family that excludes diverse experiences and identities. These ideological campaigns are shaping legal discourse, emboldening courts and lawmakers to retreat from commitments to gender justice.

All of this is unfolding amidst shrinking civic space, increased attacks on rights defenders, and weakening accountability mechanisms. As anti-rights actors grow bolder, the use of “family values” as a smokescreen for eroding constitutional protections must be urgently challenged by a unified, intersectional feminist response.

Conclusion

ISLA is concerned by the approach taken by the court and its impact on women.  A fault based divorce system has a disproportionate effect on women owing to the existence of gender inequalities in matrimonial relations, unequal power dynamics and stereotypes that have historically subjugated women. The Petitioner has lodged an appeal against the decision in whole.

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