The rate of divorce in Kenya is on the increase, and could be higher still were it not for the prohibitive legal costs. Even though there has been a marked increase in the number of divorce cases filed in court, many couples often resort to seeking legal advice and settling their divorce in private, away from court, due to the high legal costs.
Legal sources indicate that the cost of filing a divorce case could range from a minimum of Sh200,000 to Sh500,000, and the case could drag on in court for years. Apart from the sky-high legal costs, couples with irreconcilable differences are often discouraged from the court process due to personal reasons, religious factors, family influence or even mutual agreement.
A spot check by the Saturday Nation with several city law firms indicates that cases of couples willing to file divorce petitions is on the increase. However, high legal costs often see many such cases ending up in a separation by verbal agreement, or a cancellation of the divorce bid altogether. Latest statistics, however, point to a steady rise in the number of divorce cases.
According to Mercy Njeru, the executive officer at Milimani Commercial Courts, a total of 152 divorce cases were filed at Milimani in 1991. By last year, the annual figure had more than doubled to a total of 386 cases.
Milimani Commercial Courts is just an indicator of what goes on in other courts in Nairobi and the rest of the country. According to statistics from Nairobi High Court’s family division, although 163 cases were filed in 2005, last year 183 cases were registered, and most of the cases are going on.
On average, the registrar of marriages at the Attorney General’s office records about 174 civil marriages in a month, basing on the statistics of January to May 2008, when they had 697 ceremonies and 925 from January to May, 2009.
While divorce cases filed at the Nairobi High Court are largely of civil marriages, divorce cases filed at Milimani are drawn from Christian marriages. In 2001, 2002, 2003, 2004 and 2005, the number of divorce cases filed at Milimani were 101, 115, 206, 296 and 295 respectively. In 2007 and 2008, the numbers rose to 357 and 369.
Hundreds of couples are seeking legal advice, with some law firms handling as high as 26 cases, and others up to 50 cases, in a year. However, a majority of the cases never make it to the courts due to prohibitive costs. Law firms, which declined to be named for fear of jeopardising their businesses, and to protect the privacy of their clients, say in 2009 there was a steady rise in the number of people inquiring on legal advice about divorce.
Although a few divorce cases could cost as “little” as Sh200,000, in most instances a divorce suit could deprive one of a minimum of Sh500,000. This is determined by the nature of the case and the intricacies involved. “The Advocates Remuneration Order, 2009, prescribes the minimum amount of fees an advocate should bill for services rendered. This amount is not subject to the success or otherwise of the suit,” said Gikonyo Gitau, an Advocate of the High Court.
“However, depending on quality representation, experience, seniority, standing, time and skills of the advocate one engages, cost varies from Sh300,000 upwards.” The high rate of failed marriages, a phenomenon viewed as western in origin, is slowly building up in the Kenyan society.
Some reasons cited for divorce include infidelity, desertion and cruelty. Though infidelity is the most likely catalyst, interestingly, inquiries with lawyers show cruelty tops the list. Other causes are insanity, rape and sodomy. Sociologists say cruelty has many faces, and studies show that women and men in Kenya experience various forms of abuse by their spouses. “Yet, many people remain in abusive relationships citing different reasons such as the children, pressure from relatives and religious values of the family,” said Murimi Njoka, a sociologist at the University of Nairobi.
“Some cruelty is very harsh as in the case of battering and near-killing. Other people cite cruelty as an excuse for well-orchestrated plans to leave for other reasons like money, failed sexual life and unfulfilled promise. It is therefore not clear what the connection between cruelty and divorce is, hence it remains an interpretation of the law on a case-to-case basis.”
The Saturday Nation had a glance at some of the divorce judgments delivered in the previous years. Some date back to 1987, and some to 2005. One case is still ongoing after nine years, a testimony of the bundle of emotions that a divorce case could weave together. In a judgment signed and read by Judge Martha Koome on July 14, 2006, the petitioner and respondent, who cannot be named for legal reasons, experienced problems after two years of marriage; the relationship was characterised by total breakdown of communication.
“There was total breakdown of communication and it became very difficult for the parties to agree on anything, and this was followed by mistrust and suspicion of adultery,” the judgment read. The judgment also acknowledged that the two parties had irreconcilable differences and hence the dissolution of the marriage was inevitable.
“From the evidence before me, I am satisfied that this petition was not brought through the conclusion but for reasons that the parties relationship broke down and it was not possible for them to stay together due to breakdown of communication and suspicion, and mistrust of one, another,” read the judgment, pronouncing the decree of divorce.
While cynics think relationships are breaking down, sociologists refute claims that social relationships are on the edge, but raise unequivocal concern over the high rate of divorce and separation in the society explaining that relationships are being redefined. “Young people, especially women, are today finding fulfilment living alone as opposed to the yesteryears when being married was not only culturally mandatory but also an indication of good social standing,” said Mr Njoka, the sociologist.
The sociologist said high awareness of legalities involved in marriage plays a major role in the surge of divorce cases. “Peer pressure is playing a big role where men and women are increasingly aping their separated and divorced peers and behaving similarly,” said Mr Njoka.
According to Dr Chris Hart, a Nairobi-based psychologist, statistics collected around the world show 40 per cent of divorces are between childless couples. “The more children you have, the less likely you are to divorce. The more children you have, the more sense it makes to stick together and rear them,” said Dr Hart.