The Court of Appeal has dismissed the law prohibiting married couples from divorce until three years have lapsed as unconstitutional.
Appellate judges Gatembu Kairu, Pauline Nyamweya and Jessie Lessit, in a ruling dated June 10, upheld nullification of the law, stating that Section 66(1) of the Marriage Act of 2014 is unconstitutional for limiting the divorce period and tying down the newlyweds in a marriage union.
The law prohibited newlywed couples in a civil marriage from moving out, or remarrying before the end of three years from the date of the marriage.
“The limitation in section 66(1) of the Marriage Act of 2014 falls short of the proportionality test. We are nevertheless cognisant of the constitutional purpose of the section,
“…While section 66(1) of the Marriage Act of 2014 is not discriminatory, it is unconstitutional for reason of, and to the extent of its disproportionate effect in cases where a divorce in a civil law marriage may be necessary and justified before the three-year limitation,” the judges said.
They stated that there must be a fair balance of the law which essentially seeks to protect the family unit, but not to perpetrate a marriage that is no longer beneficial or in the couple’s interests.
“Notwithstanding the legitimate constitutional purpose for the time limitations in divorce proceedings arising from civil marriages, as an exception to the general rule, divorce should be allowed for situations which are unavoidable and unendurable for reasons of exceptional hardship or depravity, irrespective of the duration of the marriage for, and to protect the rights of the parties involved,” reads court papers.
The judges, however, suspended the effect of the declaration of unconstitutionality for a period of three years to enable Parliament to make the necessary amendments to the Act.
“This is in light of the recognition that while Regulation 4 of the Marriage (Matrimonial Proceedings Rules) 2020 may in the meantime provide interim relief, the said provision requires to be anchored in the statute.”
They stated that the regulation allows a party in a civil marriage to first seek the court’s authority to file the petition for divorce before the three-year window lapses.
“Under sections 64 and 68 of the Act in Christian and customary marriages respectively, mediation and reconciliation are encouraged in addressing matrimonial disputes before parties resolve to divorce,” they added.
Additionally, the court noted that Christian traditions and teachings allow for divorce although they do not encourage it, while in Islam, Section 71 of the Act provides that dissolution of marriages is undertaken according to Islamic law, under which divorce, while allowed, is discouraged and is a last option.
Under the customary practices and laws of most Kenyan communities, it was noted that divorce was took place after the wife returning or being sent back to her family and the return of the dowry paid.
Lawyer Tukero ole Kina filed the petition in June 2018, wanting Section 66 (1) of the Marriage Act, 2014 declared unconstitutional, null and void.
Ole Kina argued that the law violated articles of the Constitution for being discriminative against parties in civil marriages, against article 27(4) of the Constitution, which forbids discrimination on any ground.
He also said the section failed to provide for such a bar with regards to petitions to dissolve a Christian, Customary, Hindu or Islamic marriage.