A landmark ruling delivered by Justice Reuben Nyakundi at the Malindi Law Courts, on Wednesday, March 18, is set to redefine the instances in which a couple can be determined as divorced.
According to the judge, walking away from a marriage never to return or even re-marrying could be considered as sufficient grounds for one to be presumed to have been legally divorced.
“Divorce is not the procedure of filing for a decree nisi in court per se. On a much broader perspective, divorce pertains to the intention and conduct of parties,” Justice Nyakundi ruled.
The judge was presiding over an unusual succession dispute which has been going on for the past two years, involving two men who both claimed rights to inherit a multi-million estate owned by one woman.
The woman in question, Jecinter Njoki Okoth (deceased), was married to Amos Oluoch under Luo custom back in 1981.
However, Njoki is said to have had several relationships with other men before falling in love with Simon Harold Shiels in 2009.
Court records revealed that Shiels went on to pay dowry and take her in as his wife, with Okoth arguing that the new man in Njoki's life was a mere fling.
However, Justice Nyakundi stated that logically, Harold saw an eligible single woman who was ready to take in a new man, going on to state that Okoth's claims had been overtaken by events.
According to the judge, if a partner openly tells the other that they no longer love them and turns to a new lover, it cannot be termed as adultery, but a divorce in the eyes of the law.
"If parties in marriage show an intention not to continue with their marriage or conduct themselves as unmarried persons, then the same should be treated as such. The law cannot attach obligations upon persons who have decided to part ways but fail to formalise the same, because that is not the true reflection of what they want,” his ruling read in part.
The judge made it clear that unions can be interpreted as dissolved despite lack of formal divorce procedures, depending on the mitigating factors.
“In my judgment, pursuant to Section 119 of the Evidence Act, it is proper for their marriage to be construed for purposes of the law to have ended by presumption of divorce, notwithstanding that no formal petition was filed in a Court of Law to be decreed as such in accordance to the law,” reads a section of Justice Nyakundi's historic ruling.
