Why the Court won’t give you a divorce

Divorce can be a complicated business, especially for those who are not totally familiar with the law. Your familiarity with it will dictate the ease or difficulty with which the Court will grant you a divorce.

According to the Marriage Act of 2014, you may petition a court of law to dissolve your marriage if you have suffered acts of adultery, cruelty (both mental or physical and meted upon you or your children), if your spouse has deserted you for at least three years, or if your marriage has broken beyond repair.

Nonetheless, according to Murigi Kamande, an advocate of the High Court, there are instances when a court can rule that a couple should not divorce. “These instances include cases where the court establishes that there’s collusion between the two parties seeking a divorce, or if the evidence presented before court is not sufficient to support the allegations, or when the allegations and evidence produced are not enough reason to warrant a divorce,” he says.

FALLING OUT OF LOVE NOT GOOD ENOUGH

For instance, Murigi says, you cannot file for divorce if you have ‘fallen out of love’ with your partner. Your case will not hold water, especially if your partner has not committed any of the stated reasons under law.

Two of the most common triggers for divorce tend to be abuse and adultery. According to the Kenya Law resource journal, if you have filed for divorce based on abuse, you will need to show misconduct of a grave and weighty nature, a real injury, and reasonable fear of your partner. You will also be required to show that the injury was caused by your spouse. You may not be required to show evidence of adultery, but you will need to show that the circumstances that have led to your accusation are convincing and relevant.

It is difficult to prove that a marriage has broken down beyond repair in the eyes of a Court. According to Section 65 (5) of this Act, a Court will deem a marriage to have broken irretrievably if a spouse has been subjected to deliberate neglect for at least two years; if a couple has been living separately for at least two years; if one partner has been deserted for three years; if one partner has been sentenced to life in prison or jailed for seven years and above, or if a spouse has been diagnosed with incurable insanity by a psychiatrist.