Couples in Kenya can now legally dissolve their marriages at any time. This follows a Court of Appeal ruling that upheld the removal of a mandatory waiting period before filing for divorce in the case of a civil marriage.
Although the Court of Appeal made this ruling in 2022, it left a three-year grace period during which Parliament could amend the Marriage Act 2014, which regulates all marriages and provides for the ending of marriages.
The Act stipulates that spouses in civil marriages must wait at least three years from their wedding date before filing for divorce. Even so, no such limit is imposed on other marriages.
The Appellate court ruling in 2022 concerned an aspect of the provision allowing for divorce in the case of civil marriage based on the three-year wait.
Suspending Three-Year Wait
The case was brought by lawyer Tukero Ole Kina, who wanted the courts to rule the provision requiring couples in civil marriages to remain together for at least three years as unconstitutional. He filed the petition against the Attorney General and the National Assembly in the public interest.
The High Court ruled in favour of Ole Kina, finding that the three-year waiting period was contrary to the Constitution. However, the National Assembly appealed against the decision.
In its judgment, the High Court found that the three-year waiting period was discriminatory and violated the right to equality.
The court ruled that forcing people to remain together for three years when they wished to divorce earlier was an affront to the dignity of those involved, keeping them in a situation they did not want to be in.
In upholding the High Court's decision, the Court of Appeal also ruled that the disputed section of the Marriage Act was unconstitutional. This is because its effects would be disproportionate in cases where a divorce in a civil marriage may be necessary and justified before the three-year limitation period has elapsed.
The court suspend the effect of its declaration for three years, allowing Parliament time to make the necessary amendments to the Marriage Act.
No Limit on Period Before Divorce
As no petition has been filed with the Supreme Court regarding this matter since 2022, the new law officially came into effect in June of this year.
Explaining the divorce process in the country, lawyer Danstan Omari espoused that this development means there is now no limit on how long someone must be in a new marriage before opting out.
“The duration of how many years you have been married has been scrapped by the Court of Appeal. Since there’s no challenge to the Supreme Court, that is now the law,” Omari says.
“You can marry at 10 a.m. and file for divorce at 2 p.m. There’s no limit on how long you must stay in a marriage,” he adds.
