In Kenya, divorce is not as simple as both spouses agreeing to part ways. Even when both parties are willing to end the marriage amicably, the law does not allow them to merely sign papers and move on.
This issue gained attention in 2022 when Coppler Attorneys & Consultancy filed a petition at the High Court in Nairobi, challenging the country’s divorce laws. The firm argued that Part X of the Marriage Act is outdated and unfair because it does not allow couples to divorce by mutual consent.
A Legal System Built on Proof and Blame
Under the current law, couples must prove that the marriage has broken down for substantial reasons such as:
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Adultery
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Cruelty
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Desertion
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A partner being imprisoned for over seven years
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Or an “irretrievable breakdown,” which must be supported by evidence, like living apart for at least two years.
The petitioners argued that this legal framework forces couples, who may already agree the marriage is over, into blame-filled court battles just to satisfy legal requirements. This can lead to unnecessary conflict and emotional harm, strain co-parenting, and may even force people to stay in abusive relationships to avoid the legal and emotional toll of court proceedings.
The Government’s View: Marriage as a Social Institution
However, the Attorney General and the National Assembly defended the law as it stands, emphasizing that marriage is not just a personal contract but a social institution that affects families, communities, and the nation at large. They argued that the law must protect the institution of marriage from being too easily dissolved.
Justice L. N. Mugambi echoed this perspective in his ruling. He argued that allowing divorce by mutual consent could undermine the societal value placed on marriage, a key foundation of social stability in Kenya. He also emphasized that the courts do not have the authority to rewrite the law—this power lies with Parliament. Forcing lawmakers to amend the Marriage Act, he noted, would breach the principle of separation of powers.
For Now, Divorce Still Requires Evidence
As it stands, Kenyan couples cannot legally divorce based on mutual consent alone. They must still provide evidence that the marriage has broken down for valid reasons.
While there are ongoing calls for reform, with many arguing that the current process causes more harm than good, divorce in Kenya will remain a legally complex process—requiring more than just the agreement of both spouses to part ways.
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