If spouses are having marital problems, they can either try to save the marriage through counselling or if there is no chance of saving the marriage, they can decide to get separated or divorced.

What is separation

A spouse can make an application for separation at any time before 3 years of marriage. The separation allows the spouses to try and reconcile or mend their marriage.

Separation is temporary and it comes before the divorce when the marriage has broken down.

When can spouses get a divorce?

  • There are specific grounds for divorce that either spouse can rely on while filing for a divorce namely:
    • adultery,
    • cruelty,
    • extreme depravity,
    • desertion for a continuous period of at least three years,
    • irretrievable breakdown of the marriage; or
    • mental illness or continued unconsciousness of one of the spouses.
  • Examples of the irretrievable breakdown of a marriage as a ground for divorce include:
    • Emotional abuse towards the spouse or the children;
    • habitual criminality;
    • drunkenness or drug addiction;
    • loss of love and affection between the spouses.

What happens to the children upon divorce?

  • Arrangements regarding the children born from the marriage, such as custody of the children will be determined by the children court unless the same can be agreed upon by both spouses.
  • If no agreement can be reached between the spouses, the children court will make the decision regarding the children after considering the circumstances of the matter and in the best interest of the child.

How will the property be divided upon divorce?

  • Any property acquired during the subsistence of the marriage is matrimonial property and shall be divided equally between the spouse or in their mode of contribution.
  • Division of property can also be agreed upon by both spouses.
  • If no agreement can be reached between the spouses, the property must be divided according to the Matrimonial Property Act;
  • The court has a discretion to divide the property in any manner it deems fit when misconduct can be proven against one of the spouses. For example, if one spouse abused the other spouse and such abuse is the cause of the divorce, the court may decide to divide the property in such a way that the abusing spouse gets less than what s/he would have been entitled to.

How can a person get a divorce?

  • Depending on the type of marriage, only a High Court or Kadhi’s court can grant a divorce. However, since customary law is also recognised under the Kenyan constitution divorce or separation can be done the traditional way.
  • A spouse who wants to get a divorce starts the procedure by serving a summons on the other spouse.
  • The other spouse can either agree to the divorce or defend the divorce.
  • An advocate will be able to assist a spouse with the following:
    • serving and filing of a summons;
    • defending a divorce;
    • division of the property;
    • care, contact and maintenance in respect of the children; and/or
    • spousal maintenance.

For more inquiry about Divorce or separation please chat us on the chat option through our Wakili 101 mobile APP or www.wakili101.com and our dedicated team of advocates will respond to you immediately.