Adultery, cruelty cited as key divorce drivers

Partners deserting matrimonial homes due to cruelty and adultery have led to several divorce cases being granted by courts. Despite being difficult for them to prove adultery, aggrieved partners have managed to get orders based mainly on cruelty imposed on them in the marriage.

The Family Division's Deputy Registrar, Ms Caroline Kendagor, told Saturday Standard that in 2015, 141 divorce cases were filed at the Milimani Law Courts, two in 2016 and nine by June 19.

In one of the divorce cases concluded this year, a couple formalised their relationship at the Registrar of Marriages Office in Mombasa on July 28, 2008 and was blessed with two children.

In 2012, when they were living in Mtongwe, the man is said to have started having love affairs with house girls employed at home and became brutal towards the wife. He later left his matrimonial home and married another woman in 2013. The court was told that since then, he has not returned to his matrimonial home or spoken to his children. He also rejected any reconciliation attempts by the pastor and his family.

Irretrievably broken

In her judgment delivered on May 12, Lady Justice Mugure Thande sitting in Mombasa said it appeared there was no hope for the marriage which had irretrievably broken down, adding that the marriage be dissolved and the Children’s Court to deal with the issue of the custody of the children.

Justice John Oyiego ruled recently that to insist on a relationship whose love and care for each other has nosedived is an exercise in futility, adding that the most prudent fact and appropriate thing a court should do is to dissolve the marriage to let the parties’ freedom to enjoy their lives elsewhere instead of being held bondage.

“Marriage is a voluntary union and a sexual contract based on trust, honesty, mutual agreement and understanding of each other’s weakness and strengths tolerance; love and happiness as a bedrock of that institution. Anything short of that would bleed disaster with serious repercussions, which might even lead to death,” he ruled.

The judge said this in a case in which a man who works as a designer applied for divorce because of cruelty, adultery and desertion. The man identified in the suit papers as MJMW married his wife who is also a designer on July 28, 2015 in church and they had two children before the woman started becoming cold towards him.

He claimed the woman openly told him she was having love affairs with other men and wanted to live away from him.

The woman told the court in her response that it was the man who had extra-marital affairs, adding that she denied him conjugal rights for fear of contracting a disease.

However, Justice Oyiego pointed out that the man failed to prove the woman had marital affairs and did not enjoin the alleged partner in the case.

The man did not deny that he had married another woman but went ahead to justify that he could not have continued living alone from 2012 when the wife left. Head of the Judiciary’s Family Division, Justice Aggrey Muchelule found a couple guilty of cruelty in January after listening and watching them in court.

The judge who dissolved the marriage said the couple had irreconcilable differences and have been cruel to each other.

Identified as EI in the court papers, the man filed for the divorce in 2014, saying the wife used to come back home drunk and chewing miraa.

She would disappear from home for two to three days and did not want to be asked about it. She would become violent and hit or bite the husband; a move that led to their separation three years after they formalised their marriage.

The man testified that in May 2013, he returned home and found she had thrown his belongings in the corridor and refused to allow him back to the house. The woman claimed the man beat her when she was three months pregnant until she miscarried and whenever he disappeared, she would look for him at his mother’s house.

In another case, a man walked out of his matrimonial home close to four years after they celebrated their wedding in church. The couple who lived in Nairobi’s posh Kileleshwa area got married at a colourful wedding ceremony on May 25, 2011. The wedding took place a year after their baby was born.

In his suit papers, the man told the court that he suffered mental anguish due to the wife’s cruelty and was forced to leave his matrimonial home, adding that he was ready to provide and take care of their baby.

The woman asked the court to dissolve the marriage, grant her full custody of the child and alimony of Sh200,000 per month from the man. “Given that both parties raised particulars of cruelty and other marital offences that led to the breakdown of the marriage, the court finds that the marriage has irretrievably broken down,” Judge Margaret Muigai said in her judgment delivered in March. A woman serving in the military also filed a case against her husband on grounds of adultery and cruelty.

The two who serve as soldiers in the Kenya Defence Forces got married on April 16, 2010 and were blessed with one child. She got information from her sister that the man was seeing another woman and he started assaulting her before going to Nanyuki barracks on transfer. When her brother in-law died in 2014, she attended the burial and was shocked to discover that her husband had moved on by marrying another woman.

Quoting former Chief Justice the late Zacchaeus Chesoni, High Court Judge Mary Kasango ruled on May 25 this year that the woman failed to establish the ground of adultery against her husband.

“.....that the evidence required to establish adultery must be more than mere suspicion and opportunity; evidence of guilt inclination or passion was necessary, nevertheless the evidence of a single witness might suffice to establish adultery, unless that evidence aroused the suspicion of the court when corroboration would be required.”

Family lawyer John Swaka told Saturday Standard that proving adultery in court is difficult unless one has evidence in form of emails and short text messages. He said cruelty is broad given the fact that it caters for issues such as domestic violence and even mistrust when a partner deliberately tries to make a selfish personal gain in the marriage.