DIVORCE
We get married hoping to have the marriage last forever. They say, marriage is not a bed of roses. I say it is a bed of roses…with beautiful scented petals and with sharp painful thorns. What happens when the thorns outdo the beauty of the roses? Of course, you don’t give up at first. You get on your knees and intercede for your marriage, you seek counseling, consult your friend and family for guidance but all in vain. Then you finally decide to get a Divorce and you don’t k now where to start. This is not everyone’s desire but bad things happen to good people. I hope this post helps you get go through the process easier. And if you are going through divorce for various reasons, remember you are not the first or the last to get it. Let’s roll!
What is divorce?
This is the process of legally terminating a marriage or the dissolution of marriage. If you read the previous post on the types of marriages, you are familiar with various types of marriages in Kenya and how to go about them. All these types of marriages have one thing in common, that is, they have a certificate. You can only divorce if you are legally married.
Are there time frames before divorcing your spouse?
As we discussed earlier in the article on marriages hwe have different types of marriages.
For Christian marriages and customary marriages, the law is silent on when one can divorce the spouse. However, this doesn’t mean that you cannot file for divorce.
For civil marriages, the law provides that before a spouse can commence the divorce process, there must be a lapse of three years after the celebration of the union.
What are the grounds/reasons for divorce?
Of course, there must be guidelines on the reasons/grounds for commencing divorce proceedings to avoid misuse of the court's time.
There is only one ground for divorce and this is that: the marriage has irretrievably broken down.
This ground can only be supported by any or more of the following facts:
- Adultery by the other spouse
- Cruelty -can be either be mental or physical, inflicted by the other party or on the children
- Desertion by the other spouse for at least three years where the petitioner did not consent to the other (respondent) leaving
- Exceptional depravity by either party;
- Desertion by the other spouse for at least five years where the petitioner did consent to the other (respondent) leaving but they have lived separately for the five years
What do you mean by the marriage is irretrievably broken down
It occurs under the following circumstances:
- A spouse commits adultery;
- A spouse is cruel to the other spouse or any child of the marriage;
- A spouse willfully neglects the other spouse for at least two years immediately before 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 or at least three years immediately before the date of presentation of the petition;
- A spouse has been sentenced to a term of imprisonment of the for life or 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 lifetime of the respondent in the light of existing medical knowledge.
How do you go about it?
You will need to file a petition in court; you can do it on your own or through an advocate. I would recommend you get an advocate to advise you and represent effectively.
In your petition, you are required to attach the proof of marriage like the marriage certificate and any other document that supports your case
After the petition is filed, there will be hearings and determination of the case. When the divorce is granted the parties will be issued with an Order called Decree Niss. After around 6 months or a period ordered by the court a final Order is issued called Decree Absolute-which is sufficient proof of dissolution of marriage, of course on application.
Consequences of divorce
1. The couple will have to agree on children (if any) custody and maintenance
2. Division of matrimonial property
ANNULMENT OF MARRIAGES
What is annulment?
It's the process of declaring a marriage void or null as a result of various reasons
What are the grounds/reasons for annulment of marriage?
A party to a marriage may petition the court to annul the marriage on the following grounds:
- The marriage has not been consummated since its celebration;
- At the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship
- In the case of monogamous marriage, at the time of the marriage one of the parties was married to another person;
- One party's consent was not freely given;
- A party to the marriage was absent at the time of the celebration of the marriage;
- The wife is pregnant and that the husband is not responsible for the pregnancy and he did not know of this fact during the marriage.
The court can only grant a decree of annulment within one year of the celebration of marriage.
What are the consequences of the decree of annulment?
The couple is deemed never to have been married.
However, the decree doesn't;
- Render lawful anything which was done unlawfully during the marriage or renders unlawful anything which was done lawfully during the marriage.
- Affect the competence of either of the parties as a witness in respect of anything done or omitted to be done, or any privilege in respect of communications between them, during the marriage; or
- Relieve either party of any debt properly incurred on behalf of the other during the marriage.
What happens to property acquired during our marriages?
After the decree absolute has been granted the next procedure is the division of matrimonial property, we will be discussing that next week. What is the procedure? What are the implications? Who takes what? What about children? Are they part of property? You don't want to miss out. Like the Facebook page below to stay connected.
Do you have any legal questions? WOW MOM is here for you. Feel free to type your question here and our legal team will help you out. YES! We are that cool. If you like, share it. See you next week
Article by A. Muriuki with the guidance of Mutai Maina Kimeu Associates Advocates wakilimuriukiwangui@gmail.com
