A judge has set a precedent by dissolving a union because of unending suspicion.
The High Court has allowed a couple to part ways without either partner proving wrongdoing by the other.
In a historic verdict that sets a precedent in family law, Justice Anthony Mrima found that the couple, identified as EAO (wife) and SAA (husband), had fallen out of love and their suspicions against each other were enough proof their marriage could not be mended.
The effect of the decision is that couples will now be able to get divorced based on deep distrust that cannot be resolved; when a husband and wife suspect each other of wrongdoing but are unable to provide concrete proof yet cannot shake off the doubt.
Traditionally, there were three grounds on which a marriage could be dissolved — adultery, desertion and cruelty — but a repealed Marriage Act introduced two more grounds for dissolution of Christian, civil and customary marriages.
The two grounds are exceptional wickedness by either party, and if the marriage is irretrievably broken down.
EAO and SAA had children with each other although the court’s judgement did not indicate when they were born or when the couple married.
The hostility between the two started in 2015 and played out in a magistrate’s court when EAO sought to divorce her husband for alleged cruelty and adultery.
At the time, she had already moved out of their matrimonial home.
SAA denied the allegations and told the court that he loved EAO. He urged the lower court to dismiss the case and order EAO to return home.
After hearing testimonies from both sides, Senior Resident Magistrate M Wachira on March 30 last year declined to dissolve the marriage, citing lack of evidence.
Aggrieved, and determined to end the marriage, EAO appealed the decision, arguing that the trial court erred by not finding that she had enough evidence against SAA to have the marriage dismissed.
The court heard that the couple had on four occasions tried to involve a cleric as an arbitrator to salvage their union but neither the husband nor the wife was willing to cede ground.
“The evidence in this matter reveals that all is not well between the parties. The parties have been living apart since 2015 when the respondent moved out of the matrimonial home and there seems to be no change even with the intervention of their bishop,” noted Justice Mrima.
In his verdict last week, the judge said the problems facing the couple were not fights or infidelity but that they simply did not trust each other.
“On perusal of the evidence and the analysis of the trial court, I agree with the learned magistrate that none of the two grounds were proved,” the judge ruled.
He said SAA ought to have been bold enough to calm the storm in his house by proving he loved his wife, as he professed to.
The judge also noted that what emerged between the two were numerous complaints about the marriage, which would appear trivial to an outsider but were the crux of the disagreements.
Mrima said from the case, it appeared neither party had respect for the other and was puzzled how the two could live under the same roof.
“None of the parties trust the other as far as marital fidelity is concerned. There is no doubt in this matter that there are so many issues that may appear small to an outsider, but which are seriously undermining the marriage between the parties,” he said.
“Parties must be able to respect one another in a marriage otherwise what turns out may not be a marriage. I am at a loss how parties can earn their mutual respect from one another in such unique circumstances of this matter.”
The judge concluded that the only way to help the love birds-turned-foes was to allow them to part ways, adding that they could not be helped.
“From the firm and opposite positions taken by the parties herein, I do not see how the parties are likely to cope as a married couple even when compelled to remain in such a relationship. Compelling the parties herein to remain in a marriage may be a recipe for more harm than the intended good.”