Divorce; family law
Q. Why is it that almost all court cases may be settled by an agreement of the parties, yet parties to divorce proceedings cannot settle their issues by consent?
A. If a spouse has been served with the divorce papers with a request that she responds to the charges, she files a cross-petition. This is basically her own demand that the same marriage be dissolved either on the same grounds as alleged by the petitioner or on other fresh grounds.
Anyone looking at such a scenario would be quick to judge that there is no love lost between the protagonists and it is only prudent to set them apart. It’s more like charging someone with theft who then proceeds to admit guilty as charged. The obvious thing to do is to condemn him accordingly. One may also argue that it would save judicial time and reduce unnecessary backlog.
IMPOSSIBLE TO UNDO: A woman signs a marriage certificate. Consenting to divorce in Kenya is not allowed by law. [PHOTO/ MARTIN MUKANGU/ STANDARD] |
But divorce proceedings in Kenya are different. One of the items that must be included in a divorce petition is a statement to the effect that the petition was not presented to court in collusion with the respondent, and that the parties have not in any way connived in filing the petition. To consent to settle divorce proceedings amicably would be collusion or connivance and this is the mischief that the law seeks to cure.
Our family law, like any other private law, is a reflection of the society’s idea on the issue.
That it can be so difficult to get a divorce by looking at the legal requirements for so doing is a reflection of how seriously our society holds the institution of marriage.
Sacred institution
This is in sharp contrast to the developed world where ‘being bored’ is a good ground to petition for a divorce. In some countries, a person may petition for a divorce few hours after celebration of the marriage.
The framers of our law on divorce must have been holy people. The institution of marriage is deemed sacred and as such, it is jealously guarded by the law. It is said that getting married is rather easy but a divorce is almost impossible. Our law provides very limited grounds under which a person may petition for divorce, among them adultery, cruelty, insanity or desertion. Others are where there is a failure to consummate a marriage, or where a party secures a marriage to another by concealment of a material fact. Even then, specific proof of any of these grounds is so stringent that it is almost impossible to succeed. Another inhibiting factor is the requirement that one may not seek a divorce unless they have been married for at least three years, although the court may dispense of with this requirement on special circumstances.
Family Values
Why then, is it so difficult to get a divorce in Kenya?
Kenya remains among the few nations that uphold the values of a family and, therefore, continues to frown upon divorce. A family, as has been internationally recognised under the 1966 International Covenant, ICCPR, is a basic fundamental unit of society entitled to the protection, assistance and support of the State. In most of these instances, the law recognises that, it is the child of the marriage that ends up suffering. Since the Children Act of 2001 places a responsibility on the State to protect a child, the law then will encourage couples to attempt all reconciliation processes first and leave divorce as the last resort. Whether or not divorce proceedings in Kenya overtly promote unions of slavery is a question to be answered another day.
