A court has stated that it cannot compel a couple to remain married when one party says the marriage has irretrievably broken down.
While delivering a judgement in a case in which IMW (woman) sought to have her marriage to LWMS dissolved, Justice Mugure Thande said marriage is a voluntary union.
IMW wanted the marriage dissolved while LWMS was opposed to the dissolution.
The petitioner left their matrimonial home on November 13, 2011 and had not returned since.
“For over five years, the parties have not resumed cohabitation, five years is a considerably long time for parties to remain apart,” said Justice Thande.
The judge pronounced a decree of divorce and an order that the marriage between IMW and LWMS, which was solemnised at a church in Mombasa on August 15, 2009, be dissolved.
The grounds upon which the woman sought divorce were cruelty and adultery, which resulted in breaking down of the marriage.
But LWMS denied the allegations of cruelty and adultery and wanted the case dismissed with costs.
READ: Divorce laws breed more resentment
He also accused IMW of having affairs with other men.
The parties had initially cohabited in Magongo, Mombasa and then moved to Nairobi, where they stayed for six months before returning to Mombasa.
They had a son and the man had two other adult sons, who are in their twenties, from another relationship.
The petitioner stated that the respondent subjected her to cruelty and failed to support her and their child.
READ: New Bills attempt to rationalise marriage
She said that he even failed to provide food for them claiming that because he paid Sh30,000 for her delivery of their son, he did not have any more money to spend on them.
She also accused him of violence.
This forced the petitioner to seek assistance from her relatives.
The court, which found the man guilty of cruelty, noted that mental or physical cruelty is one of the grounds upon which a Christian marriage may be dissolved.
On adultery allegations, the court found that none of the parties was able to tender any evidence to its satisfaction.