Members of Parliament and the Attorney General (AG) have opposed a case seeking to have the divorce law repealed to allow couples to walk away without washing their dirty linen in court.
In their reply to a case filed by Copler Attorneys and Consultancy, they argue that repealing the current law amounts to allowing Kenyans to take marriage as a trial and error game.
"The purpose and intent of the impugned provisions rest on strong policy considerations, including the need to ensure that marriage is not a trial and error game and that divorce is undertaken lawfully. To this end, the impugned provision is not in violation of any of the petitioner's constitutional rights," National Assembly's lawyer Sheriffsam Mwendwa argues in his reply before the High Court.
The AG argues that allowing a 'peaceful' walkout will destroy families. He also urges the court to dismiss the case, adding that it would amount to courts intruding into Parliament's role of legislation.
"It is our humble submission that a family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the state. It is, therefore, fair to have the said institution protected as opposed to allowing people to enter at will and leave at will. In doing so, many families will be destroyed," the AG's lawyer Christopher Marwa argues.
On the other hand, a human rights group- Legal Aid Clinic- has backed the case, arguing that those who want to call it quits should be allowed to do so without dragging each other in the mud.
"May I remind this court of the old adage that goes; let the hawk perch, let the eagle perch, if one tells the other not to perch, may his wings break, equally so, those desirous of quitting or divorcing should be allowed to do so without any form of restrictions or qualifications of whatever nature of form," the lobby's lawyer Edwin Amboso argues.
Walk away from marriage
In the case, the High Court is being asked to order that couples can walk away from a marriage and thereafter file 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 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.
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In his supporting affidavit, he argues that the Marriage Act attracts aggressiveness and chaos even when parties are willing to walk away peacefully.
"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 sued Attorney General 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.