- Divorce under customary law
- Judicial divorce
- Islamic divorce
- Hindu divorce
Under the 1941 Matrimonial Causes Act, Kenya's High Court may grant a decree of judicial separation for partners in civil-law marriages. Either the husband or wife can petition for a separation on the following grounds: the spouse has committed adultery; has deserted the marriage for at least three years; is incurably of unsound mind, and has been under continuous treatment for at least five years; or has committed rape, sodomy or bestiality.
Women are also eligible for separation under the 1929 Subordinate Courts (Separation and Maintenance) Act, which extends the grounds for separation to include a husband's substance abuse, spreading of venereal disease, cruelty and neglect, or forcing the wife into prostitution.
Divorce under customary law
Divorce under Customary law in
Kenya can be both judicial or extra judicial and just like Islamic Law before
the parties are divorced there is a reconciliation process whereby the elders
seek to reconcile the parties. It is only after reconciliation has failed
that the elders may dissolve the marriage.
Not all Kenyan communities
practice divorce. There are some communities that do not recognise
divorce at all for example the Kuria community to a certain extent the Kisii
community as well.
EXTRA JUDICIAL DIVORCE
This may be under Kenya laws initiated by the
Husband or the wife or even by the wife’s family. The husband initiates
it by chasing away his wife by telling her to return to her parents home.
He is also required to inform her parents that he intends to be separated or
divorced from their daughter.
The wife may also initiate
divorce by voluntarily leaving her husband’s home and returning to her parents
while the wife’s family can also initiate divorce especially where the husband
has refused to pay the full bride price and they go and get their daughter.
Under customary law, return of
the bride prices symbolises a valid divorce but this will depend on whether
there are any children of that marriage. If the husband retains custody
of the children no refund of the bride price is due. Where the mother
seeks to retain custody of the children, then the bride price returned will
depend on the number and gender of the children.
Where the wife initiates the
divorce, the full bride price is due. And among some communities where
the husband has initiated the divorce and the wife remarries then her new
husband refunds him the bride price.
In order for the elders to
dissolve a marriage, they have to be satisfied that certain factors have taken
place which are sufficient enough for a party to seek divorce. This
include
- 1. Refusal to have sexual relations for no good reasons;
- 2. Witchcraft;
- 3. Wilful desertion;
- 4. Habitual theft;
- 5. Incest;
- 6. Excessive physical cruelty;
- 7. Failure of the husband to maintain his wife and children
- 8. Adultery on the part of the wife
9.
Impotence on the part of the husband although some communities allow an
impotent man to allow his close relatives or friends to have sexual relations
with his wife (barrenness of the wife is not a ground for divorce this is
because African Customary Law allows for polygamy)
JUDICIAL DIVORCES
A Judicial divorce will only take
place under Kenya laws where a party has refused to comply with an extra judicial divorce e.g.
where the husband refused to accept return of the bride price or where the wife
refuses to leave her matrimonial home.
All the grounds listed in the
extra judicial will be used and under Section 9 of the Magistrates Court
Act the court is entitled to hear claims arising out of marriage or
divorce under customary law and the courts are required to determine the cases
before them in accordance with the Customary Law of the parties. Normally
the courts will insist on reconciliation procedures and it is only after prove
that reconciliation has failed will the courts proceed to hear the divorce and
grant it.
Divorce Cases arising under
Customary Law in Cotran’s Book
1.
Leonita Salume V. Captan Nyongesa
It was claimed that the husband
had failed to maintain the wife and the children. In
Isaiya Bedi vs. Ether Munyasia
The claim was the wife’s cruelty
and the husband brought evidence to show that the wife had arranged for members
of the public to give him a thorough beating and on top of that she had borne a
child with another man.
Okutoyi v. Nyongesa
Habitual theft of chicken.
The wife stated that in addition to the husband being cruel every time he came
home with chicken which had been unlawfully obtained.
Divorce under Islamic
law
There are two forms of divorce under Islamic Law
1. Extra
Judicial Divorces
2. Judicial
Divorces.
Extra Judicial
Divorce:There has
been misconception about this form of divorce with some people feeling that it
is very easy to divorce extra judicially under Islamic Law. however under
Islamic Law divorce is discouraged and will only be allowed if the conditions
are grave and weighty and even so divorce will be the last resort and
reconciliation between the parties is encouraged. This reconciliation is
provided for and where the conflict originates from the wife, her husband has
the right to judge her, consider the wrong she has committed and make a
decision. The husband is also supposed to guide her and show her that
what she has done is wrong, and that she should not repeat it. If she
repeats her actions, he may then resort to disciplinary action which is in 3
phases,
1. He may start by kind exhortations
or reprimands where he denies her a few necessities;
2. He may then withdraw from the
matrimonial bed however this should be of a temporary nature; and if this fails
3. He may undertake some symbolic
beating but this should not be severe. At this stage he has the right to
abstain from sex until the wife reforms.
When in conflict from the husband, the wife has to try and
make peace with the husband and try to settle their differences. If all
these fail two arbitrators from both sides are appointed to review the
situation and to try and settle the dispute. It is only after this that
the parties can then resort to divorce if the arbitration fails.
There are a number of extra judicial divorces that the parties can undertake
1. Talak which is dissolution of the
marriage by the unilateral acts of the husband; there are certain
conditions to be fulfilled in order to make this divorce complete and valid
a. The husband must be of age;
b. He must be seen conscious alert
and should not be angry;
c. He should not be intoxicated;
d. He should be free from external
pressures;
e. His intention to terminate the
marriage must be clear.
On the part of the wife
a. She should be of age;
b. Must be in a healthy state of
mind;
c. Must be in a state of purity by
which is meant that she should not have had any sexual relations with her
husband and should not be menstruating.
If these conditions are met, the husband may then pronounce
the first talak, either in written or oral form and by talak he merely says I
divorce thee’. He may revoke this pronouncement, forgive his wife and
they may resume conjugal cohabitation. If however 40 days have passed and
the husband has not revoked his pronouncement and the conditions the he stated
still applied, he may then pronounce the second talak, he still has the option
of revoking this pronouncement but if he does not and 40 days elapse and the
conditions remaining constant he may then pronounce the 3rd
talak. The effect of the 3rd talak is to make the divorce
complete and valid and the wife has the option of remarrying. All the
time that the talaks are being pronounced she is still in the matrimonial home.
Before the wife remarries she has to wait for the period
of 4 months or Iddat period and she cannot remarry her ex husband until she has
been married by another man or divorced or widowed. This condition is
there so as to ensure that the husbands do not divorce their wives recklessly.
2. Ila Divorce: this is a form
of constructive divorce which is effected
by
abstinence from sexual relations for a period of not less than 4 months.
If reconciliation is impossible then the marriage is dissolved.
3. Zihar – this divorce arises where
the husband continuously compares his wife with another female or his mother
and the wife may refuse to have any sexual intercourse with him unless he
changes and if this fails the marriage is deemed to have been dissolved.
4. Lian Divorce: this is where
a husband suspects that his wife is committing adultery but does not have any
evidence. He then testifies or swears that he is telling the truth and he
does so four times and on the fifth times he swears that he be cursed if he is
lying. The wife on the other hand swears four times that she is telling
the truth and the fifth time that she be cursed if she is lying and after this
the marriage is dissolved.
5. Khula: initiated by the wife
if she feels that she is unhappy with the marriage, she then returns the mahil
to the husband and any other marriage gifts that he had given her and the
divorce will only be valid where the husband grants her the divorce although he
may waive the need for her to return the compensation.
6. Mubarat; divorce by mutual
agreement where both parties desire the divorce. It can be initiated by
either party and the wife loses any right she had to her dowry but the husband
remains liable to maintain the children.
7. Apostasy: where either
spouse abandons the Islamic religion.
Section 3 of the Mohamedan Marriage and Divorce Act grants
the High Court the jurisdiction to a hear and determine matrimonial
causes under Islamic Law where the Petitioner is resident in Kenya.
Kadhi’s courts can also hear and determine matrimonial causes where both
parties are Muslims. Both Acts do not provide the grounds for divorce but
refer to the principles of Islamic Law and under Islamic Law, according to
scholars grounds for divorce include
a. Desertion by the husband for a
period of 5 years;
b. Failure of the husband to provide
maintenance for a period of two years;
c. Imprisonment of the husband for a
period of 7 years.
d. Failure of either spouse to
perform marital obligations.
e. Where the husband is either
insane, cruel, impotent, suffering from leprosy or a venereal disease or where
he is captured by war enemies.
f. In cases of extreme or severe
poverty.
Under Judicial divorce, when the divorce has been
pronounced by court, both spouses are required to register under the Mohamedan
Marriage and Divorce Registration act and this should be done within 7 days of
the pronouncement of the divorce. However failure to register will not
invalidate a valid divorce or vice versa
Divorce under Hindu law
Divorce under Hindu law is basically as provided for under
the Matrimonial Causes Act and all that is stated will apply to Hindu.
Section 10 of the Hindu Marriage and Divorce Act and the grounds for
divorce are
1. Adultery;
2. Cruelty;
3. Desertion for a period of 3 years;
4. Unsoundness of mind where the
Respondent has been under medical care for a period of five years
5. Where husband is guilty of
bestiality sodomy or rape
Consideration that will avail for all these grounds are
the same as under statutory law. there are other grounds for divorce
under Hindu Law
1. Where the Respondent has ceased to
be a Hindu;
2. Where the Respondent joins a
religious order which requires him/her to renounce the world and remains in
that position for a period of at least 3 years. Monasteries, Hermits and
so on.
3. Where there is a decree of
judicial separation and the decree has been in force for a period of 2 years
and the parties have not resumed cohabitation.
4. Where the husband is married to
another woman at the time of celebration of the marriage. This can be
both for annulity of a marriage and divorce as well