It is not till death do you part, judge tells petitioner

Justice Roselyn Aburili on Wednesday used the Bible and the Constitution to dash a man’s hope to keep his estranged wife.

The Judge leaned on Malachi 2:16, observing that even the Bible recognises married persons can part ways, but indicated that God hates it.

The Judge said that although the Catholics view marriage as an indissoluble sacrament, the reality is that the Constitution provides freedom to either walk away or stay. She said the language of the Constitution only provides for a right to marry, but not a right to bind a person in a marriage.

“Heart and mind are not identical. Spirit is not always the thought… The Marriage Act 2014 does not govern the State of spirituality or religious beliefs,” she said adding that it would be unfair to lock an unwilling person in a marriage that he or she does not wish to be in.

Justice Aburili, at the same time, said that the Marriage Act, 2014, is not written in mandatory terms, meaning that one could decide to stay or walk away from a marriage by filing for a divorce.

She said that although there is a right to religion, the law does not allow religious beliefs to be entrenched in the civil law. According to her, it would be illegal to elevate individual beliefs above the Constitution.

“It would be an outright violation of rights to force persons to remain in a marriage against their will. It is important to know that exempting a Catholic Christian from divorce would be discriminatory as it would deny them access to civil remedies available to adherents of other faiths,” said Justice Aburili.

 The judge said that the issue was delicate, requiring her to determine the law of man against religious beliefs.

In the case, Kimari argued that Parliament failed to consider the voices of Catholic bishops while enacting the Marriage Act, 2014. However, the judge was of the view that failure to consider the Catholics’ position on marriage and divorce did not itself render the law unconstitutional.

She asserted that historically, Christians have always leaned on Civil law to govern their flock.

Kimari moved to court seeking to quash a divorce case filed by his estranged wife, arguing that a church-contracted marriage can only be dissolved through consent or death.

In a court battle that pitted the law of man against that of religion, Kimari asked the judge to declare that church vows “until death do us part” bind an estranged woman, therefore, she could not divorce her husband.

On March 23, 2019, the man codenamed Kimari married MWW.

However, four years into the marriage, she filed for divorce in a magistrate’s court.

After he was served with the court papers, he moved to the High Court seeking to quash the case before the lower court.

According to Kimari, the vows taken before God are sacred. He asserts that the Catholic Church holds that marriages cannot be dissolved.

He argued that his estranged wife is also a Catholic and, therefore, bound by the doctrine.

 “The marriage between myself and MWW  was contracted under the Order of Celebrating Matrimony of the Catholic Church anticipated by section 6(a) of the Marriage Act, 2014 and provided for an oath and a promise to ‘..... to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part,” he said.

He argued that the current divorce law is fault-based and compromises human dignity and freedom in what is a personal matter. He argued that marriages contracted freely should only be dissolved through consent.

 “Persons should have a right to decide by mutual consent when and for what reason they should dissolve their marriages, or they can otherwise delegate this process to a religion or cultural system of their choice. This fault-based system breeds unnecessary animosity between the parties. Parties should be free to enter and leave a marriage contract subject to their consciences and the tenets of their faith or customary law,” said Kimari.

The National Assembly opposed the case and urged the court to dismiss it. It argued that the court was being asked to meddle with the MP’s powers to enact laws.

It also argued that the Marriage Act, 2014, was enacted following a robust public participation.