'Not that fast', Court says no to consent divorce

The High Court in Nairobi on Thursday dismissed a case that sought to have couples part ways without necessarily washing each other's dirty linens before a judge or a magistrate. Justice Lawrence Mugambi, in his judgment, said that if married men and women were allowed to walk away from marriages by simply signing a consent, it would negate society's interests in families and marriages. According to the judge, a family is the foundation of social order and should be safeguarded despite challenges. He said that where a man marries a woman, it ceases to be an individual affair but becomes that of a whole community, religious groups and the government. While agreeing with the Attorney General Dorcas Oduor and the National Assembly, Justice Mugambi asserted that the current Marriage Act, which is fault-based, protects society from destruction by individuals' hasty or thoughtless urges. "Acceding to the consensual principle as a ground of dissolution of marriage that the petitioner is advocating will erode the leverage the society has created to preserve the institution of marriage, which is key to the society's own survival," ruled Justice Mugambi. Copler Attorneys and Consultancy filed the case. It argued that sometimes there is no need for one to be cruel, adulterous for a marriage to end. According to the firm, one can feel to be incompatible with their partner or just the ambers of love die away without any negative issue. The law firm's director, Boniface Akusala, was of the view that if one willingly and easily walked into a marriage, he or she should be allowed to also easily part ways. "The law as it is, requires parties to be guilty of something sinister, and absence of it, a court cannot grant orders of dissolving a marriage. In some cases, parties have to relieve their ordeals in court, some of which are embarrassing for the court to find the marriage is irretrievably broken," said Akusala. According to the lawyer some of the divorces are so chaotic such that they have a bearing on the children's wellbeing. He argued that part 10 of the Marriage Act is unconstitutional as it only provides for acrimonious reasons as the only way lovebirds can part ways. The section provides that a marriage can be dissolved for based on cruelty, adultery and being irretrievably broken. Akusala claimed that sometimes parties have to cook up faults against their partners for the divorce cases to sail through. In his supporting affidavit, he argued Marriage Act attracts aggressiveness and chaos even when parties are willing to walk away. "The petition seeks to exit a marriage as less acrimoniously and antagonistically as possible. Parties can remain civil and not to resort to fabricating evidence to pin faults on each other," he argued. He was of the view that most marriages have turned into empty shells, and couples are either terminating each other in a battle for matrimonial property or even alimony. On the other hand, Members of Parliament and the Attorney General opposed the case. In their reply, they argued that putting an end to the fault-based system of divorcing amounts to allowing Kenyans to take marriage as a trial-and-error game. "The purpose and intent of the impugned provisions rest on strong policy considerations, including the need to ensure that marriage is not a trial and error game and that divorce of marriage is undertaken lawfully. To this end, the impugned provision is not in violation of any of the petitioner's constitutional rights," National Assembly's lawyer Sheriffsam Mwendwa argued in his reply before the High Court. The AG, on the other hand, argued that allowing 'peaceful' walkouts will destroy families. He also urges the court to dismiss the case, adding that it would amount to courts intruding into Parliament's role of legislation. "It is our humble submission that a family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the state. It is, therefore, fair to have the said institution protected as opposed to allowing people to enter at will and leave at will. In doing so, many families will be destroyed," the AG's lawyer Christopher Marwa argued. On the other hand, a human rights group- Legal Aid Clinic backed the case, arguing that those who want to call it quits should be allowed to do so without dragging each other in the mud. "May I remind this court of the old adage that goes; let the hawk perch, let the eagle perch, if one tells the other not to perch, may his wings break, equally so, those desirous of quitting or divorcing should be allowed to do so without any form of restrictions or qualifications of whatever nature of form," the lobby's lawyer Edwin Amboso argued.

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'Not that fast', Court says no to consent divorce

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