Marriage Separation Procedures in Kenya

Written by mark s. anderson, ph.d.
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Marriage Separation Procedures in Kenya
Separation procedures in Kenya are governed by one of four sets of marriage laws. (marriage proposal image by studio vision 1 from

In the East African country of Kenya, citizens are able to marry under one of four sets of laws: Civil Law, Hindu Law, Islamic Law, or Customary Law (i.e., traditional African law). Procedures for separation differ according to the specific law under which the marriage originally took place.

Civil Law

Under the 1941 Matrimonial Causes Act, Kenya's High Court may grant a decree of judicial separation for partners in civil-law marriages. Either the husband or wife can petition for a separation on the following grounds: the spouse has committed adultery; has deserted the marriage for at least three years; is incurably of unsound mind, and has been under continuous treatment for at least five years; or has committed rape, sodomy or bestiality.

Women are also eligible for separation under the 1929 Subordinate Courts (Separation and Maintenance) Act, which extends the grounds for separation to include a husband's substance abuse, spreading of venereal disease, cruelty and neglect, or forcing the wife into prostitution.

Hindu Law

Under the 1960 Hindu Marriage and Divorce Act, a husband or wife can apply to the Supreme Court for a decree of separation on many of the same grounds outlined in the Matrimonial Causes Act. Additional grounds for Hindu separations include the husband or wife having renounced the world and entered a religious order for at least three years, or either party having ceased to be Hindu.

Islamic Law

Islamic law gives Muslim men the authority to divorce their wives without any legal formalities. In a procedure known as talaq, a man can execute a divorce by verbally announcing to his wife: "I divorce you."

A woman can separate from her husband, but if her husband does not agree she must apply to the Kadhis' Islamic court system, which oversees the legal procedures for separation and divorce of Muslims in Kenya. As of September 2010, few procedures of these courts are regulated or codified, leading to criticism that the presiding Kadhi has too much personal power when deciding cases.

The Kenyan Muslim Women Family Rights Movement has criticised the current separation and divorce procedures for Muslims as ineffective and unfair to women.

Customary Law

Couples from traditional communities in Kenya may choose to marry under either Civil or Customary Law. Marriages under Customary Law are officially recognised, and allow a man to have multiple wives. As traditional rules for separation vary between communities and are sometimes secretive, the exact procedures can be difficult to define.

A key issue is the entrenched authority that men hold over women in traditional Kenyan societies. This means that women married under Customary Law would find it very difficult, if not impossible, to initiate separation or divorce proceedings without the assistance of a senior male relative. In most cases, this would be the woman's father. However, as holder of the bride-wealth, he may be economically opposed to ending the marriage.

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