The Kenyan divorce system, unlike in many other countries, is fault based in nature. This means that persons seeking to divorce must prove a matrimonial offence on the part of the other partner or spouse. This is different from most Western countries, including the United Kingdom that operate a ‘no-fault’ divorce system that permits divorce by consent.
How to Obtain a Divorce Decree in Kenya
The Kenyan Divorce process is governed by the Marriage Act Number 4 of 2014 (simply referred to as “the Act”) Section 6 of the Act recognizes 5 different types of marriages as follows:
(i) Christian Marriages
(ii) Civil Marriages
(iii) Customary Law Marriages
(iv) Hindu Marriages
(v) Marriages under Islamic Law.
Step 1: Filing of a Petition for Divorce
- The Petition is the main document that outlines the grounds under which a party is petitioning the court for divorce. The Petition may only be presented after the lapse of at least one year since the celebration of the marriage. A party to a marriage may petition the court for separation or dissolution of the marriage ONLY on the following grounds:
i. Adultery by the Respondent.
ii. Cruelty (violence) by the respondent.
iii. Desertion for at least three (3) years.
The Petition also gives a brief of;
a) the process under which the marriage was conducted (in church/ A.G) and
b) How and where the parties lived after celebration of the marriage and whether the marriage was blessed with any issues (children).
- A claim for matrimonial property, division of the same, child custody and maintenance applications DO NOT form part of the Petition. They are filed separately.
- The Divorce Petition is filed together with the following documents.
i. Verifying Affidavit: This is a statutory declaration sworn by the Petitioner stating that the contents of the Petition are true to the best of the Petitioner’s knowledge, information and belief.
ii. Notice to Appear: This is a document notifying the Respondent (the party sued) that a Petition has been filed against him/her and that they should enter appearance within fifteen (15) days.
iii. Acknowledgement of Service: This is a document signed by the Respondent personally acknowledging service of the Petition.
iv. List of Witnesses: The Petitioner must give a list of witnesses he/she intends to call at the hearing of the Petition.
v. Witness statements: The witnesses called to testify must give their signed statements (a brief account of the facts as pleaded by the Petitioner)
vi. List of Documents: A Petitioner wishing to rely on documents must give a list of the same and attach copies of the said documents to the Petition.
Step 2: Applications for Direction – Divorce Decree in Kenya
- A Chamber Summons Application is filed after FIFTEEN (15) DAYS of service of the Petition. This application costs a minimum of Five hundred Kenya shillings (Kshs. 500.00) in filing fees.
- This application must be accompanied by a commissioned Affidavit of service or non-service. The said affidavit costs Seventy Five Kenya shillings (Kshs. 75.00) as filing fees.
The Affidavit of Service or Non Service is a statutory declaration sworn by the court process server stating whether the Respondent was served or not and the efforts made to trace the Respondent for service.
Step 3: Listing of Petition for Hearing
- The application is thereafter fixed for hearing whereby the court Registrar confirms whether the Petition is defended or undefended. The Registrar then directs that the Petition be listed for hearing for one day.
Step 4: Hearing of the Petition
- The Petition is fixed and Hearing takes place for one day depending on the number of witnesses and the courts’ schedule.
Step 5: Issuing of a Decree Nisi
- After a successful Divorce petition, a Decree Nisi is thereafter issued after judgment.
- A Decree Nisi is a court order that states that the marriage has been dissolved by the court after the said court being satisfied that the Petitioner has proved the grounds of divorce pleaded by the Petitioner and that the Petition has not been presented or prosecuted in collusion with the Respondent and a further condition that the Petitioner has not condoned the acts of cruelty, adultery etc. as pleaded in the Petition.
Step 6: Issuing of Decree Absolute
- The Decree Nisi is later made Absolute (final) within ONE (1) MONTH from the date of issuance of the Decree Nisi. This one month is time to raise any appeal or review.
- A Decree Absolute is the last document issued to finalize the Divorce. It is the final stage of the divorce proceedings and confirms the dissolution of the marriage. This is a final order prepared by the Petitioner for signing by the judge. Now the divorce is final. Divorce Decree in Kenya
Step 7: Presenting of order to Marriage Registrar
- The final step is presenting a certified copy of the absolute decree order to the marriage Registrar.
- Proof of marriage
- Certified copies of the parties’ valid Passports
- Proof / evidence of existence of stated grounds for divorce for instance police reports, doctors reports or any other proof
- i. For instance in cases of cruelty or violence, the applicant must present evidence like police report (if at any time partner was violent and case was reported to police)
- ii. doctors report (in cases where the partner was violated and went for medical examination) or a witness (present at any one time when a person was violated by partner) may be brought to court to support case
iii. in cases of insanity, a doctor’s report may also be required and any other proof may be presented to support case
A file petition – Divorce Decree in Kenya
- Any legal married persons can apply for divorce and must have reasonable grounds for applying for divorce.
- To end your marriage, you must be separated for 12 months before you can formally apply for a divorce. The Court does not consider whose fault it was that ended your relationship.
- An order for dissolution of marriage will not be made, if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
- An order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably. Divorce Decree in Kenya
- A Chamber Summons Application fees is Ksh 500.00
- Affidavit of service or non-service Ksh 75.00
- In most cases, the court directs that each party meets their own costs. But the successful party can claim costs from the other side especially for transport and legal fees in a contested divorce.