Lady Justice Lydia Achode on December 8 sent the couple back to the drawing board when she said that because they tied the knot on April 11, 2015, it was too early for them to seek a divorce as per the Marriage Act 2014.
The ruling, published last week by the Kenya Law Reports, will be a wake-up call to Kenyans who opt for civil marriage without understanding the existing legislation.
A law passed in 2014 to prohibit couples from divorcing until three years after a civil marriage shocked a quarrelling couple recently when a judge rejected a woman’s request to file for divorce.
The woman, identified in the law report as MWJ because her identity is protected by law, had gone to court asking for permission to file a divorce case. She said her husband, identified as VMN, was treating her with cruelty.
Justice Achode heard that the two had been living in Kinoo, Nairobi since their marriage and that they had not got a child. However, the couple have a boy from the wife’s previous marriage.
Because of disagreements in the marriage, the woman said she could not wait for the stipulated three years to seek divorce.
“The Applicant alleges … that (the wife) can no longer persevere in her marriage to the (husband) till the lapse of the years as she continues to suffer emotionally,” Justice Achode said.
“She complained that the husband frustrated her and treated her with cruelty and utter scorn.”
She said the man chased her from their home in August 2015 and that there had been no communication between them. She filed the case at the High Court in Nairobi on January 28.
The husband filed a response stating that he was not opposed to filing a divorce case. However, he accused his wife of rushing to get a divorce so she could pursue an extra-marital affair with an American man who had been working as a missionary at Maai Mahiu and who had since relocated to the US.
The man told the court that soon after their wedding, the wife became “gradually withdrawn, cold, irritable and difficult to connect with on all levels, that is emotional, social, spiritual, mental and physical”.
“Lengthy discussions with their pastor did not improve their marriage,” the judge states.
But although the judge concluded that the marriage “had irretrievably broken down with no chances of being salvaged” she said the law was not on their side. She quoted section 66 (1) of the Marriage Act 2014. “A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.”
Part IV refers to civil marriages. Christian, Hindu, Islamic and customary marriages don’t have the three-year caveat according to the Act.
Justice Achode faulted lawmakers for the tough legislation.
“Parliament failed to make a proviso to Section 66 (1). Marriage is indeed a serious institution and parties ought not to enter into a marriage contract without giving it serious thought. Parliament, however, ought to have provided an exit route for parties who find themselves in an untenable union such as the one before me,” she said.
The Marriage Act 2014 introduced a raft of changes including allowing polygamy. The initial Bill had given a wife the right to veto her husband’s choice on polygamy but male MPs voted against the clause. Unknown to many Kenyans, there were more provisions in the Act whose impact is now being felt.