Summary
- Last year, when the register was closed on December 31, some 1,108 people had filed petitions to dissolve their unions.
- In December 2017, it stood at 909 people and two years later, the number had risen to 1,009.
- Part of the reason for the growing number of divorce case is the ease in ending sour marriages, following a High Court judge ruling last year.
- In September, High Court judge Reuben Nyakundi quashed a section of the law that barred couples from divorcing before three years of marriage.
The second floor of Milimani Commercial court's civil registry
in Nairobi is a beehive of activities with clerks and advocates jostling
for space.
There is shouting and shoving as scores of
clerks try to file cases or get a court assistant to assess their
documents and tell them the fee to be paid. This is where divorce cases
are filed.
Of interest is the numbers of divorce cases filed every month.
In
February alone, 149 cases have already been filed, court documents
show. In January, about 95 people petitioned the court to dissolve their
marriages.
The number keep rising.
Last year, when the register was closed on December 31, some
1,108 people had filed petitions to dissolve their unions. In December
2017, it stood at 909 people and two years later, the number had risen
to 1,009.
Part of the reason for the growing number of
divorce case is the ease in ending sour marriages, following a High
Court judge ruling last year. In September, High Court judge Reuben
Nyakundi quashed a section of the law that barred couples from divorcing
before three years of marriage.
Top reasons
In
his judgment, Justice Nyakundi said marriage is a union of willing
partners, hence they should be at liberty to leave any time they feel
not contented.
Tukero ole Kina argued that Section 66
(1) of the Marriage Act, 2014, which provides that a party to a civil
marriage may not petition the court for the separation or for the
dissolution of the marriage, unless three years have elapsed since the
celebration of the marriage, is unconstitutional null and void.
According
to the law, a marriage is irretrievably broken down if a spouse commits
adultery, a spouse is cruel to the other spouse or to any child of the
marriage or a spouse wilfully neglects the other spouse for at least two
years.
When spouses who have been separated for at
least two years, whether voluntary or by a decision of the court or
where a spouse has deserted the partner for at least three years or
where one of the spouses has been sent to prison for a term of seven
years or more or any other ground, the court may grant them a divorce.
Cruelty and adultery are top among the reasons spouses move to court to seek annulment of a marriage.
Cruelty does not only amount to physical abuse.
In
one case, a man told the court that their marriage was never a happy
one. Among the claims he listed included his leaving the house without
permission, denial of conjugal rights and desertion.
He
said the wife was fond of going to night clubs and that she was a
drunkard who came home late and in the company of strange men who also
threatened to kill him.
The woman in her response
agreed that the marriage was irretrievably broken but she denied his
claims. She said they had tried to settle the matter amicably, in vain.
In a harsh example of cruelty, a farmer in Eldoret described how he
underwent 12 years of cruelty in the hands of his wife.
His divorce was, however, rejected by a magistrate and later the High Court but he eventually succeeded on the second appeal.
The man moved to court in 2004, accusing his wife of committing acts of cruelty bordering on witchcraft and hypnotism.
According
to the man, his wife would use dirty water to cook his tea and food. He
argued that the acts had caused him mental anguish.
One
judge discounted the evidence of an employee who witnessed the
incident, saying the man was a busybody and had no business intruding
into the couple’s privacy.
Later, two judges of the
Court of Appeal granted the man his wish. The judges said the actions of
the wife “of washing underpants in cooking utensils, and using the
utensils and the dirty water to cook the petitioner’s food was
repulsive, unhygienic, and such as to cause reasonable apprehension of
injury to the appellant’s health.”
In another dispute
where a husband successfully petitioned the court to annul his marriage
on cruelty, he said that his wife had been sending letters to his family
claiming that he was insane, she unjustifiably denied him his conjugal
rights, had failed to provide him with emotional and psychological
support, and negatively influencing the children against him.
Although
the woman denied the claims, the court said in the judgment that he
cannot be compelled to associate with her, when it was clear that he no
longer had the desire to consort with her.
“It was
clear from her statement that the respondent (wife) did not wish, under
any circumstances to be divorced from the petitioner. This court cannot
grant the respondent’s wish because to do so would amount to subjecting
the petitioner to a relationship which he is categorical he does not
desire or wish to be party to,” the ruling read.
In
another case, a woman accused her husband of deserting her for 16 years.
The woman told the court that the husband, whom she married in church,
became adulterous and denied her conjugal rights. She cited the other
woman in her divorce papers.
She mother-of-two said the man was also quarrelsome and fond of hurling abuses at her.
She told the court that he had been cruel by failing to provide for her and their child.
“It
is now 16 years and the parties have never lived together. It is
petitioner’s evidence that there is no hope or possibility of
reconciliation or compromise between the parties. The differences
between the two are irreconcilable and the marriage has irretrievably
broken down. Nothing can salvage the marriage,” the court ruled.
In
some instances, couples have appealed the dissolution of their marriage
because of grounds raised, arguing that they had not been proved.
A
case in point is a divorce of parties described as JMN vs JWM. The wife
had successfully petitioned for the dissolution of their marriage,
which was conducted under customary law, to be annulled on claims of
cruelty and adultery.
The magistrate who heard the case
said she had proved her claims but on appeal, the High Court went ahead
and confirmed the dissolution but removed the ground of cruelty.
“With
the result that the decision of the lower court dissolving the marriage
on grounds of cruelty and adultery is set aside and substituted thereof
with an order dissolving the marriage herein on grounds of adultery,”
Justice A. K. Ndung’u said in a judgment last year.
skiplagat@ke.nationmedia.com
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