Divorce by Mutual Consent in Kenya – Marriage (Amendment) Bill, 2023

The National Assembly of Kenya introduced the Marriage (Amendment) Bill on June 27, 2023, aiming to amend the Marriage Act of 2014 (Marriage Act, 2014) to facilitate divorce by mutual consent and related purposes.

The current Marriage Act, 2014 lacks a legal framework for couples to voluntarily dissolve their marriage without resorting to court orders initiated by one party. Section 66 of the Marriage Act, 2014 outlines the separation process, which often leads to conflicts and hostile interactions between spouses.

The Amendment Bill addresses this issue by allowing spouses to mutually agree to divorce, promoting an amicable, straightforward, and cost-effective process.

Key Amendments Proposed:

1. Reduction of Waiting Period: The proposed amendment reduces the waiting period for divorce under Section 66(1) from 3 years to a minimum of 1 year after the marriage celebration.
2. Introduction of Section 75A: A new section, 75A, is introduced, enabling parties to jointly petition the court for divorce by mutual consent, provided certain conditions are met. These include mutual separation for at least one year, agreement to dissolve the marriage, and presentation of the petition after at least one year of marriage celebration.

Legal Background:

The constitutionality of Section 66(1) of the Marriage Act was challenged in the case of Tukero Ole Kina v Attorney General & Another (2019), where the court declared it unconstitutional due to its disproportionate effect. This decision was upheld by the Court of Appeal in National Assembly of Kenya v Kina & another (2022), suspending its effect for 3 years to allow necessary parliamentary amendments.

Current Status:

As of the date of our WKA Advocates Newsletter, Section 66(1) of the Marriage Act, 2014 remains in force pending parliamentary amendments. The Marriage (Amendment) Bill represents a positive step towards implementing the court’s decision.

Conclusion:

The proposed amendments aim to simplify and expedite the divorce process for mutually consenting couples, aligning Kenyan law with evolving societal needs and expectations.

We trust this information provides clarity on the key provisions of the Marriage (Amendment) Bill 2023. Please note that this newsletter serves as a general guide and should not be relied upon without legal advice.

For further information or legal assistance on any legal issue, please contact us at info@wka.co.ke, visit www.wka.co.ke, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Authors:

• William Karoki, Founding Partner
• Florence Mwende, Associate