WHAT YOU NEED TO KNOW BEFORE GETTING A DIVORCE 

Love is a beautiful thing. It reveals possibilities and gives us hope for the “happily ever after” that so many people desire. Witnessing two people exchange vows on their wedding day is always a remarkable moment—one that symbolizes the hope that they will spend the rest of their lives together. Indeed, this is the outcome we wish for every marriage.

However, no one enters into marriage expecting that divorce will ever become a possibility. No one anticipates that their union may fail. Unfortunately, life can be unpredictable, and circumstances may arise that make a marriage difficult or even unbearable. Everyone deserves to live a fulfilling and peaceful life, and in some cases, this may mean bringing a marriage to an end.

Before taking that step, it is important to understand the legal grounds upon which a divorce may be granted in Kenya under the Marriage Act. Kenya largely recognizes a fault-based system of divorce, meaning that a party seeking divorce must prove specific matrimonial offences or circumstances. These grounds may vary slightly depending on the type of marriage, but the most common legally recognized grounds include the following:

1. ADULTERY

Adultery is a recognized ground for divorce as it constitutes a breach of marital fidelity. It applies to civil, Christian, and customary marriages. In Hindu marriages, adultery is also a ground for divorce, alongside other sexual offences such as rape, sodomy, and bestiality.

2. DESERTION

Desertion occurs where one spouse abandons the other without reasonable cause. For a divorce to be granted on this ground, the desertion must have continued for a period of at least three years immediately before the filing of the divorce petition.

3. CRUELTY OR ABUSE

Cruelty includes any form of physical, emotional, or psychological harm inflicted by one spouse upon the other or upon the children of the marriage. Such conduct makes continued cohabitation unsafe or intolerable and is therefore a valid ground for divorce.

4. IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE

A marriage is considered to have irretrievably broken down where it can no longer be salvaged. This may be demonstrated through circumstances such as:

• The spouses having lived apart for a continuous period (commonly at least two years), or

• Persistent neglect or failure by one spouse to fulfill marital obligations

This ground reflects the modern legal approach, recognizing that not all marriages can or should be preserved.

5. PRESUMPTION OF DEATH

Where one spouse has been missing and has not been heard from for a period of seven years or more, the law may presume that the person is dead. In such circumstances, the other spouse may petition the court for divorce.

CONCLUSION

It is important to note that the applicable grounds for divorce may vary depending on the type of marriage, as provided under the Marriage Act. Before initiating divorce proceedings, one should ensure that there is a legally recognized basis for the dissolution of the marriage. Seeking legal advice and representation is highly recommended to ensure that the process is handled correctly and efficiently. For further guidance or assistance, please feel free to contact us through the details provided on our website.