GROUNDS FOR DIVORCE IN CIVIL AND CHRISTIAN MARRIAGES

 

Marriage is intended to be a lifelong commitment, but when a union becomes unsustainable, the law provides a way out. In Kenya, Christian and civil marriages are monogamous and can only be dissolved on specific legal grounds under the Marriage Act, 2014. Divorce petitions are handled by the High Court, which evaluates the evidence before granting a decree. Understanding these legal grounds is essential for anyone considering or navigating divorce. Christian and civil marriages have similar grounds for divorce under Sections 65 and 66 of the Marriage Act 2014, which include the following:

1. Adultery
2. Cruelty
3. Desertion
4. Exceptional depravity
5. Where there is an irretrievable breakdown of the marriage
6. Presumption of death
   

1. ADULTERY

 Adultery is the consensual sexual intercourse between a married person and a person of the opposite sex who is not their spouse during the subsistence of the marriage. There are certain requirements for proof of adultery: 

• There must be a certain amount of penetration by the male person
• The adulterer's act must be done voluntarily and with the consent of both parties; therefore rape will not amount to adultery unless the man charged with rape proves consent 
• So long as the husband's consent has been sought then there is no adultery, but if no consent has been given, it may amount to adultery

    2.  CRUELTY 

Cruelty is defined as conduct that endangers someone's life or health, both physically and mentally, or behavior that causes a reasonable fear of such harm.  So it may be conduct that gives actual or may give rise to reasonable apprehension that this will happen in future. For one to prove cruelty, the alleged act or mission must be grave and weighty and substantial and above the normal wear and tear of marriage life. Cruelty as a ground for divorce must be assessed by the court to determine its gravity and weight. Examples of cruelty from case law include:

• Conviction of a spouse for a criminal offense 
• Constant nagging
• Denial of sexual intercourse
  
• Sexual transmitted diseases 
• Sterilization of spouse without the consent of the other (Bravery v. Bravery) where a husband had an operation without the knowledge of the wife 

   3. DESERTION

Desertion will be ground for divorce if the respondent has deserted the petitioner without cause for a period of at least three years immediately before the petition. Where a petitioner is relying on desertion, three factors have to be proved:

• The factum of separation - The parties must physically separate. So when the respondent is out of communication or fails to perform matrimonial duties, this is not desertion unless there is physical separation.

• Intention of the deserting spouse to remain separated - known as the animus deserendi. implied to permanently end the married union based on words and deeds. When a departed spouse has agreed to the separation, certain intents will not be assumed. Therefore, in addition demonstrating the intention, the petition must demonstrate that they did not consent to the separation.
• Lack of a reasonable or justifiable cause for withdrawing from cohabitation- Proof that the spouse left without a good reason must be presented. Instances where
  respondent may be justified in deserting include: Necessity, spouse is hospitalized or isolated and where a spouse deserts because of the other spouse desertion and in such cases the person who is guilty of desertion is the one who originally abandoned the marriage

    4. EXCEPTIONAL DEPRAVITY 

Some of the ground from which divorce was granted on the basis of cruelty may fall within the ground of depravity. These would include: sodomy, where one commits bestiality, lesbianism, sexual assault of one's children, excessive sexual demands and violent and obscene language. In all sexual offenses, collaborative evidence is needed. 

   5. MARRIAGE IS IRRETRIEVABLY BROKEN DOWN 

Under s 66(6) of the Marriage Act, a marriage has irretrievably broken down if:

• A spouse commits adultery
• A spouse is cruel to the other spouse or to any child of the marriage
• A spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition
• The spouses have been separated for at least two years, whether voluntary or by decree of the court
• A spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition
• A spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more
• A spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge
• Any other ground as the court may deem appropriate

    6. PRESUMPTION OF DEATH 

Under the Marriage Act, Section 16 provides that a “marriage registered under this Act subsists until it is determined by a decree declaring the presumption of the death of a spouse.” Where a spouse has reasonable ground to believe that the spouse is dead and where that other spouse has been continuously absent from the matrimonial home for a period of at least 7 years preceding the petition, then this will be a ground for divorce. 

 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 REFERENCES    

Africa Law Centre. (2014, April). Family law notes. Africa Law Centre Blog.