Can I divorce my husband for not having sex with me?

I have been having problems in my marriage ever since my husband of five years has consistently denied me my conjugal rights. We have a son and daughter who are below five years old and it depresses me that matters of the bedroom have torn apart our young family. I am also on the verge of depression as my husband does not suffer from erectile dysfunction which, makes making me feel unattractive.

I have tried talking to him to open up if he may be having an affair as our matrimonial bed has no life. I have even gone the extra mile to convince him to see a therapist but he refuses. I have consulted widely but no one has answers. Is it possible to go to court and demand my conjugal rights under the new Constitution or seek divorce or separation? Laura, Nairobi

Dear Laura, The court cannot grant orders to compel a spouse to perform conjugal responsibilities in the bedroom. It would be better to consider seeking professional assistance from a qualified marriage counsellor to sit both of you down for a session.

Divorce or separation are legal options as family law acknowledges denial of sexual intercourse between spouses as cruelty – and grounds to end marriage, according to precedent set in Sheldon vs Sheldon, an English case that was determined in 1966.

In the case, the court granted a wife orders to divorce her husband for consistently denying her conjugal rights, which amounted to cruelty. According to Lord Denning - the judge, the persistent refusal of sexual intercourse by the husband for a long time without excuse caused grave injury to the health of his wife.

The judge said that spouses both have rights and responsibilities that should be fulfilled in matrimony. Local courts can apply such precedents (landmark judgments) from courts in other Commonwealth countries.