Divorce comes with a rollercoaster of emotions that can be draining. But the good news is that you can transform your divorce pain into life wisdom, writes NJOKI CHEGE
Divorce is tough. It is a difficult process and the journey is riddled with many pitfalls.
In Kenya, many couples choose to live separately without initiating divorce proceedings because of this.
But if you decide to go the divorce way, you need to be well-prepared.
First, it is good to know that you can evade a messy divorce that is characterised by hurling of insults and pitting the children against each other. It is possible to go through divorce and emerge a stronger, better person.
Next step is to acknowledge that divorce is heavy in all aspects — emotional, physical and social. Because of this fact, you cannot go it alone.
To remain sober through the process, you need assistance from an objective third party.
Judy Thongori, a Nairobi-based family lawyer, advises women going through divorce to get a rational third party, preferably a counsellor who will help them through the process.
“Divorce is emotionally heavy, and this is why you need a third party, not your parents or siblings, since they are also hurting with you, but a counsellor who will walk with you and hold your hand through the entire process,” says Thongori.
Two key issues come into mind when going through a divorce — division of property and the custody of the children.
DIVISION OF PROPERTY
When it comes to divorce, property is either marital or non-marital property. All property acquired by either spouse before the marriage is considered non-marital, while that which is acquired afterwards is categorised as property of the marriage or marital property.
Offers Thongori: “The law says if property is jointly registered, then it must be shared equally. However, if it is registered in one party’s name, the person making claim to that property has to prove financial contribution. This is especially hard for housewives.”
However, there is a glimmer of hope for housewives too, as the Matrimonial Property Bill (currently before the Commission for Implementation of the Constitution) is set to water down the damage they suffer when they fail to prove financial contribution.
“The Matrimonial Property Bill provides contribution to include domestic duties, child care and other family duties to ensure women are entitled to a share of the property,” says Thongori.
It is also important to talk about the pre-nuptial agreement, particularly in an era such as this when young people are acquiring property before marriage.
“For unmarried women, it is important for you to see the end of that marriage (either by death or divorce) before you enter it. It is okay for a couple to agree that all property acquired within marriage be split equally during divorce. A pre-nup will result to less tears when the worst comes to the worst,” says Thongori.
CUSTODY OF THE CHILDREN
Ideally, the court considers the best interests of the children and makes a decision based on where they are best placed to be.
In most instances, children go with their mother, unless in rare exceptions.
Courts today have also begun to appreciate the participation of fathers in the lives of their children.
This has ushered in a trend where fathers are also getting full custody of their children.
Offers Thongori: “With the generational change where dads are closer to the children, the courts are now accommodating such changing dynamics.”
So what happens if you cannot afford a lawyer?
Self-representing is a key strategy as courts today are more friendly and encourage self-representation.
You can also approach organisations such as Federation of Women Lawyers in Kenya and Centre for Rights Education and Awareness, which provide a viable option when you cannot afford to hire a lawyer.
