Couples who get married at the Attorney General’s office can now divorce before their third anniversary if the union collapses.
This is after the Court of Appeal declared as unconstitutional Section 66(1) of the Marriage Act that prevented couples married through a civil process from going their separate ways before three years have elapsed.
Although justices Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit found that the section is not discriminatory, they ruled that it contravened the right of adults who want to part ways before the time limit expires.
Advocate Tukero Ole Kina had sued both the Attorney General and the National Assembly for passing a law that he claimed violated the Constitution. He argued that lawmakers failed to consider that couples could have irreconcilable differences that lead to parting of ways.
Forcing aggrieved couples to stay together, he said, was akin to ‘slavery’. After Mr Kina won at the High Court, the National Assembly moved to the Court of Appeal. In its 19 grounds of appeal, Parliament argued that the High Court failed to consider that Section 66 (1) was passed through legislative procedures and was therefore constitutional. Parliament also accused the courts of interfering with the august House’s mandate to make laws.
Attorney General Kihara Kariuki argued that a law was presumed to be constitutional if it was passed by Parliament. The law, the court also heard, was meant to protect the family unit.
The Marriage Act recognises four types of marriages–Christian, customary or traditional, Muslim and civil. In Christian and customary marriages, parties are encouraged to seek mediation before opting to divorce. Christian traditions and teachings allow for divorce but do not encourage it. Marriage is considered a sacrament where both parties swear a covenant in the presence of God to stay together for life.
The Court of Appeal observed that the Catholic Church does not recognize divorce, and a marriage can only end when one partner dies, or if there are grounds for an annulment if the marriage has not been consummated or it can be proved that the marriage should never have taken place.
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Under customary practices of most communities, couples divorced when the wife returned home or was sent back by her in-laws. Her family would then return any dowry. The judges said some communities do not recognise divorce especially when dowry was paid and children are involved. Leading the list are the Kuria, Maasai, Nandi and Kipsigis.
In Islam, divorce is allowed, but as a last option. In the Hadith by Abdullah ibn Umar it is reported in Book 6, Number 2173 that the Prophet Muhammad said that “Of all the lawful acts the most detestable to Allah is divorce”. There are also processes of reconciliation provided for during the various stages of divorce.
The court found that divorce should be allowed in civil marriages for situations that are unavoidable and unendurable for reasons of exceptional hardship or depravity, irrespective of the duration of the union.
They, however, suspended the effect of the judgment for three years to allow Parliament amend the section.
“While under Section 66(1) of the Marriage Act divorce is an extraordinary remedy, it is our view that the intention of the constitutional purpose was not to perpetrate a marriage that is no longer beneficial or in the parties’ interests, and the legislature should in this regard strike a fair balance between the public and private interests involved in a civil law marriage,” the court observed.
High Court Judge Reuben Nyakundi had previously ruled that marriage is a union of willing partners, hence they should be at liberty to leave any time they feel discontented. “Corollary to the above is the fact that by imposing the three-year limitation, the impugned section had the effect of forcefully keeping parties in a situation they no longer wished to be part of. The right to form a marriage union should not be subject to such restrictions as may be presented by law that infringes on the fundamental rights and freedoms.”
Civil marriages are conducted at the Attorney General’s or county commissioner’s offices.
Justice Nyakundi said Section 66(1) contradicts others that require marriages to be dissolved on account of cruelty and when couples deprive each other of love and consummation of marriage.
He said it was an affront to a person’s dignity to confine them in a failed marriage for three years.
The judge was of the view that the limitation set by Parliament would not have passed if lawmakers had carried out public participation.
“Having debunked the notion that the limitation was a valid public policy consideration, it follows that by parties being unreasonably proscribed from enjoying the right to petition for a divorce before the lapse of three years, their right to access to justice guaranteed under Article 48 is infringed upon.”