A petition has been filed before the High Court seeking to end a fault-based system of divorcing.
Instead, the High Court is being asked to order that couples can walk away from a marriage and thereafter file a consent before a court instead of tearing each other apart on who is to blame for a failed marriage.
In its case, Copler Attorneys and Consultancy argue that sometimes there is no need for one to be cruel or adulterous for a marriage to end. According to the petition, one can feel to be incompatible with their partner or the embers of love may die without any negative issue.
The law firm’s director Boniface Akusala is of the view that if one willingly and easily walked into a marriage, he or she should be allowed to also easily part ways. “The law, as it is, requires parties to be guilty of something sinister, and absent of it, a court cannot grant orders of dissolving a marriage. In some cases, parties have to relieve their ordeals, in court; some which are embarrassing, in order for the court to find the marriage irretrievably broken,” states Akusala.
According to Akusala, some of the divorce cases are chaotic and have a bearing on the children’s well-being.
He further argues that Part 10 of the Marriage Act is unconstitutional as it only provides for acrimonious reasons as the only way couples can part ways.
The section provides that a marriage can be dissolved on the basis of cruelty, adultery and being irretrievably broken. According to the lawyer, sometimes parties have to create faults against their partners for divorce cases to sail through.
In his supporting affidavit, he argues that the Marriage Act attracts aggressiveness and chaos even when parties are willing to walk away peacefully.
Marriages are empty shells
“The petition seeks to make the exit of marriage as less acrimonious and antagonistic as possible. Parties can remain civil and not resort to fabricating evidence in order to pin faults on each other,” he says.
Akusala is of the view that most marriages have turned to empty shells, and couples are terminating relationships in a battle for matrimonial property or even alimony.
Copler Attorneys and Consultancy has sued Attorney General Kihara Kariuki and the National Assembly. It wants the court to find that couples are at liberty to end a marriage by consent. The law firm is also seeking an order to force Parliament to amend the Marriage Act to allow couples to leave by consent.