The Kenyan divorce system, unlike in many other countries, is fault-based in nature. This means that persons seeking divorce must prove a matrimonial offence on the part of the other partner or spouse. This is different from most Western countries, including the United Kingdom which operates a ‘no-fault’ divorce system that permits divorce by consent.
How To Divorce In Kenya
- Filing of the Petition
- The signing of the Notice to Appear
- Receiving the Respondent’s reply
- Issuance of Registrar’s certificate
- Hearing of the Petition
- Judgment/Initial Decree
- Final Decree
1.0 Drafting and Filing the Petition
In this step, your lawyer or yourself (if you self-represent) will draft the Petition for divorce together with all accompanying documents. These documents include an Affidavit verifying the Petition, your witness statement, your list of documents (evidence), and your list of witnesses. Your lawyer will also prepare a document called a Notice to Appear and submit the documents to the court.
2.0 Signing of the Notice to Appear
It takes about 2 weeks for the Magistrate to sign the Notice to Appear. This is a formal notice directing the Respondent (the other spouse) to inform the court whether or not he/she is contesting the divorce. If the Respondent is contesting the divorce, he or she will have 15 days to put in responses.
3.0 Respondent’s Response
Once the Respondent receives the Divorce Petition and Notice to Appear, he/she will have 15 days to decide whether or not to contest the divorce. Remember in the previous article I mentioned that divorce in Kenya cannot be by consent. So, I advise couples who have agreed to end their marriage that instead of contesting the divorce, one person files the Petition and the other one simply ignores it. If the Respondent decides to contest, he/she will have to file a response and serve the Petitioner.
4.0 Registrar’s Certificate
After 15 days have lapsed, your lawyer will make an application to the court for the court to issue a Registrar’s Certificate. This is where the court simply certifies that the Petition is ready to go for a hearing. Once this happens, your lawyer will then set down the Petition for hearing.
During the hearing of the case, you will call your evidence. This is a crucial stage where you or your lawyer will bring evidence showing the court that the marriage has broken down irretrievably. If the divorce is contested, the other side will also call witnesses and bring evidence. The court will conclude by setting a date for judgment.
6.0 Judgement/Initial Decree
On judgment day, the court will decide whether or not there are sufficient grounds to dissolve the marriage. If the court finds sufficient grounds, it will issue the first divorce decree, also known as a decree nisi. Once this is issued, you will have 1 month to determine whether you really want the marriage dissolution to be made final or not.
Within this month, should you have a change of heart and decide to save your marriage, you can inform the court and the court will do away with the initial decree and allow you to remain married.
7.0 Final Decree
Once a month has elapsed, without any change of heart, the divorce decree is made final and the marriage is deemed dissolved.
The Kenyan divorce process is straightforward and uncomplicated. Thus, with all factors remaining constant, the process should take a maximum of 2 months from start to conclusion.