Does customary law allow for divorce?

Dear Harold,

I love reading this column because it has a lot of practical advice on legal issues affecting families. I, however, wish you could address issues to do with customary marriages. For instance, my husband and I didn’t get married in church, but a traditional ceremony was performed where dowry was paid to my parents. What would be the legal grounds to dissolve our marriage? Would it be the same as a couple that tied the knot in church or a garden wedding?

Nafula, Kakamega

Dear Nafula,

Thanks for your compliments. There are no fixed grounds for divorce for marriages under Customary Law (which yours falls under), as compared to the other marriages that involve the signing of a marriage certificate.

However, under customs, it is possible to argue several grounds to end a customary marriage and not suffer in silence.

A wife may seek divorce if the husband fails to maintain the family or is impotent. However, an impotent husband may ask one of his age mates to have intercourse with his wife to produce children.

However under Customary Law — unlike statutory marriages — a wife cannot divorce her husband on grounds of adultery.

Other possible grounds for divorce include perpetual refusal to have sex without concrete reasons, witchcraft, theft, desertion and incest.

Physical cruelty by the husband may also pass as a ground, but it must be proved to have been excessive, as Customary Law permits husbands to chastise their wives.