Keywords:Kenya; Marriage; Wedding; Divorce; Relationship

By Kiundu Waweru

Ruth and Samuel tied the knot in a lavish and fancy wedding ceremony. Ruth’s wealthy family bestowed the newlyweds with expensive luxury gifts, with her father giving them a brand new Mercedes Benz.

After the honeymoon, Ruth stopped being loving and became ‘cocky’. When Samuel sought to know why the sudden change, Ruth simply said, "All these gifts, including the furniture came from my family whereas you have nothing to show from your side. That only means one thing: I will be calling the shots."

Taken aback, Samuel hastily tried to re-establish his position as head of the family but Ruth continued to disrespect him.

"Six months later, Samuel came to me seeking advice on how to go about divorcing his cruel wife," says the man who solemnised their marriage, Apostle John Kariuki, of Jesus Ministries, Healing and Restoration Church.

However, according to the Matrimonial Causes Act, one can only file for divorce after they have been married for three years. Therefore, Samuel’s wish could not be fulfilled.

Normally, when people are courting love is in the air and when they gradually walk down the aisle, the witnesses believe the marriage will last forever and the couple will live happily ever after. But then, the cases of loveless marriages and divorce put this assumption to the test.

What drives lovebirds to seek divorce? A look into the Law Reports of Kenya reveals various causes ranging from the serious to the incredulous and flippant.

Kariuki recalls another case. A loving couple married in a humble wedding ceremony.

"After sometime, the wife unleashed three children she had kept hidden during their courtship. Generally, this is fertile ground for discord and mistrust in the union. The couple is now legally divorced," says Kariuki.

Indeed, lawyers would agree this scenario could call for annulment, where marriage is declared invalid because consent was obtained by fraud.

Nullity, which most people confuse with divorce, is declared when marriage is not consummated due to impotence, venereal disease, consanguinity (that you married your cousin, for example) insanity and pregnancy by another man.

"For nullity to be declared, the court must be satisfied that a party was ignorant of the facts and it was instituted within one year and that no intercourse has taken place after the discovery of the grounds above," says Nairobi lawyer Robert Muchiri.

After the court has been satisfied, it grants a decree nisi, which goes on for six months.

"This is an interim divorce that allows time to vet why the divorce cannot be declared absolute. After expiry of this period, the divorce is final and the parties are free to remarry," explains Muchiri.

Unlike the cases cited above, many couples avoid seeking dissolution of marriage from a court of law because the legal process is tedious and they do not want to be seen as washing dirty linen in public.

Muchiri says there are various categories of law, written and customary.

"As there are two types of marriages recognised by law, customary and civil, you can file for a divorce of customary marriage in a Magistrate’s Court that is mandated to deal with issues of customary law and you can actually demand return of the dowry paid."

Then there is the Statutory Act, governed by two laws — the Marriage Act and the African and Christian Marriage and Divorce Act.

"The former is the so-called English law and the latter was designed for Africans in pre-colonial and colonial times as they were seen as not equal," explains Muchiri.

"The process of divorce, contained in the Matrimonial Causes Act, states that you must have been married for at least three years before you present a petition for divorce," he adds.

However, there is a proviso that states one can go to court before the expiry of the three years if there are special circumstances.

"For instance, if from the time of your marriage you haven’t been able to consummate the marriage due to impotency," he says.

Kariuki, who is also a marriage counsellor, says statistics and research reveal marriages that hit the 14-year mark are likely to survive and that most divorces happen in the seventh year of marriage.

"This is because; the seed of discord germinates slowly. It begins as a gap between spouses whereby one party may feel the other is not living up to expectations. Instead of speaking it out, the offended spouse keeps it to himself or herself. Resentment grows and one day, around seven years after the marriage, explodes," he says.

Kariuki adds that most couples live together, but are indeed separated mind and soul. "The main cause of disharmony in marriages is lack of communication. Talking things out provides an avenue for compromise and understanding."

And he goes on to cite other factors of modern living that are seeing couples seeking to annul their marriages — money, property and education.

"When you have little there is disharmony yet more wealth ironically widens the rift between spouses. You see greater disharmony when a woman is earning more than her husband. This makes him feel inadequate. Likewise, the less educated spouse feels disempowered as the more educated one feels he or she is of superior intelligence and cannot be told anything." Kariuki says the church is the biggest culprit in divorce.

"The church today is fuelling about 80 per cent of divorces. This is because pastors do not care whether the couple has had a long enough courtship and counselling on family life before joining them in holy matrimony," he says.

Other pastors engage in matchmaking for money.

"A man may fancy a particular girl in church, go to the pastor, offer him a bribe of money or a car to tell the girl that he had a dream in which God showed him she should marry the man! And the pastor solemnises such a union." Such marriages are based on a weak foundation will definitely crumble, he says.

Other marriages that are likely to fail, says Kariuki, are ones of convenience such as marrying for a Green Card.

Sex, food and friends are other factors that can determine whether a marriage survives or not. "Sex is an integral part of marriage and if it is not enough or lacking, weak people seek it elsewhere. Food is very important to a man. If sex and food are good, a man will overlook other shortcomings. Also, the type of friends couples keep more or less determine the direction their relationship will take," says the counsellor.

But according to the law there are only four grounds for dissolution of marriage — adultery, cruelty, desertion and insanity.

Unlike in other countries and most US states, married couples cannot file for divorce on collusion, that is, a couple agreeing to divorce. Thus, the party filing the petition is expected to note the allegations and facts of the divorce including date of marriage and children.

Also, the person seeking divorce on any of these grounds must prove them before a court of law.

And before the divorce is granted, one must be able to show exceptional circumstances, hardships or depravity, interest of children and chances of reconciliation.