Concerns have come to the fore over family laws that bar spouses from dividing matrimonial property unless they are divorced.
Lawyers argue that Sections 7 and 8 of the Matrimonial Property Act that predicates division of property on divorce are unconstitutional.
Section 7 reads: ”...ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”
Section Eight of the Act further describes how spouses in polygamous marriages can divide property after either divorce or dissolution of marriage.
It can be argued that the two sections of the Matrimonial Property Act glaringly impose a condition to enjoyment of property rights in contravention of the Constitution.
According to Article 45(3) of the constitution, parties to a marriage are entitled to equal rights at the time of marriage, during and upon dissolution.
It is also neither easy nor legally possible for spouses to mutually agree to end their marriage in court as local laws do not allow for divorce by mutual consent – which is legal in the United States.
In daily life, when marriages hit the rocks, couples prefer ending it with as little trauma as possible. Locally, it is an insurmountable hurdle to convince the court to admit a divorce petition on mere grounds that the marriage is not ‘working’ out.
First, the law provides that couples may seek divorce after being married for three years unless proven that the union has irretrievably broken down – cannot be salvaged.
The three-year rule would not apply if the couple is under judicial separation, meaning a court ordered that they stop living under one roof as husband and wife.
Locally, main grounds of divorce include adultery, desertion for at least three years preceding the filing of the divorce petition and cruelty.
Others are when a spouse is of incurably of unsound mind and under continuous care and treatment for at least five years preceding the filing of the divorce petition, and if filed by the wife, that the husband has been guilty of rape, sodomy, or bestiality.
In the US, divorce by mutual consent is the quickest and easiest way to end a marriage as both parties agree to everything before setting foot inside a courtroom.
In cases where there is no property to fight over, the court signs off on the mutual agreement made by the parties regarding property division, spousal and child support, and child visitation.
Moreover, the parties complete a single consent petition, which tells the court that both parties want the divorce and there are no contested issues as to property division, support or responsibilities to any minor children.
-The writer is an advocate of the High Court of Kenya