Kenyan Family Law: Navigating Moments of Separation Prior to the Final Decision for Married Couples
What is separation?
When irreconcilable differences strain a marriage, many couples choose to part ways. This step can happen for several reasons. Some partners may need space to reflect on their relationship, which in the Kenyan context is often described as “taking a break”. Others may have no intention of getting back together but may not yet be ready to proceed with divorce. Some couples may also come from cultural or religious backgrounds where divorce is discouraged or not permitted.
Unlike divorce, separation does not dissolve a marriage. A couple may live apart and stop cohabiting, but they remain legally married. Because the marriage continues to subsist, neither party can legally marry another person unless the existing marriage is first dissolved. It is therefore important to distinguish between an informal separation, where spouses simply choose to live apart and judicial separation, which is a formal remedy granted by a court and carries legal consequences.
Courts recognize what is called judicial separation, which parties may seek when they wish to live separately while remaining married. The grounds and applicable procedure depend on the type of marriage. In the case of a civil marriage, Section 66(2) of the Marriage Act, 2014 provides for separation or dissolution on the following grounds:
- Adultery;
- Cruelty;
- Exceptional depravity;
- Desertion; or
- Irretrievable breakdown of the marriage.
For example, Section 66(6) provides circumstances in which a marriage may be considered to have irretrievably broken down, including where the spouses have been separated for at least two years, whether voluntarily or by decree of the court.
Initially, Section 66(1) of the Marriage Act provided that a party to a civil marriage could not petition the court for separation or dissolution of the marriage unless three years had elapsed since the celebration of the marriage. However, in Tukero Ole Kina v Attorney General & another [2019] eKLR, the High Court declared the three-year limitation unconstitutional, holding that it violated, among other rights, the rights to equality, human dignity and access to justice.
The decision was subsequently considered by the Court of Appeal in National Assembly of Kenya v Ole Kina & another [2022] KECA 548 (KLR). The Court of Appeal held that the three-year limitation was not discriminatory merely because it applied to civil marriages, but found that it was unconstitutional to the extent of its disproportionate effect in circumstances where divorce in a civil marriage may be necessary and justified before the expiry of three years. The Court suspended the effect of that declaration for three years to allow Parliament to make the necessary amendments.
Accordingly, the position should not be presented simply as an unrestricted right to file a petition for separation or divorce regardless of the duration of a civil marriage. The effect of the Court of Appeal decision and the current statutory and procedural framework should be considered in determining whether a petition may properly be presented before three years have elapsed.
The Difference Between Divorce and Judicial Separation
| NO. | Divorce | Judicial Separation |
| Marriage is legally dissolved | Couples remain married in the eyes of the law | |
| Once the marriage is finally dissolved, each party is generally free to remarry, subject to the applicable law and completion of the divorce process. | Neither party is free to marry another person because the marriage continues to subsist. | |
| The marital relationship is legally terminated, although certain obligations and rights may continue to arise under the law, particularly in relation to children and financial matters. | Parties are relieved from the obligation to cohabit, but the marriage itself is not dissolved. | |
| A divorced spouse is generally no longer treated as a surviving spouse for purposes of intestate succession. | A separated spouse may remain a spouse for purposes of succession because the marriage has not been dissolved. |
What do Couples need to Know While Navigating moments of Separation?
When a couple decides to separate, it is worth noting that the process does not always follow the same course. Separation may be informal and agreed between the parties or it may involve court proceedings where judicial separation is sought. It may also become contested where the parties disagree on the grounds or the relief sought.
When the court grants judicial separation, it may also address appropriate consequential issues arising from the matrimonial proceedings, including spousal maintenance and where applicable, matters relating to children such as parental responsibility, custody and maintenance. The court’s primary consideration in matters concerning children remains their best interests.
The court may order or facilitate arrangements concerning parental responsibility and the care of the children to ensure that the best interests of the children are protected despite the parents’ disputes or separation.
It is also important to understand that judicial separation does not, by itself, amount to a final division of every matrimonial asset. Questions concerning matrimonial property are governed by the applicable law and the circumstances of the particular case.
How long Do Separation cases take?
There is no fixed statutory period within which a judicial separation case must be concluded. The duration will depend on whether the matter is contested, the complexity of the issues and evidence, compliance by the parties with court directions, and the court’s workload.
Where the matter is contested, the respondent will ordinarily have an opportunity to respond to the petition, after which the matter may proceed to directions, hearing and determination. Where the matter is uncontested, the process may be more straightforward, although the actual duration will still depend on the court’s diary and the particular circumstances of the case.
Why do you need lawyers in this stage?
- To explain your legal rights and obligations, including those relating to property, maintenance and the children.
- To protect your assets by ensuring that relevant financial interests, debts, bank accounts and property are properly identified and where necessary, disclosed rather than relying on informal assumptions.
- Lawyers can help draft practical parenting, custody and visitation arrangements that put the best interests of the children first and are capable of being recognised or enforced by the court where appropriate.
- They can assist in preparing clear and legally binding agreements instead of relying on informal verbal arrangements.
- They can help reduce conflict by facilitating structured negotiations and ensuring that important decisions are approached from a legal rather than purely emotional perspective.
Case study
R M O v J O O [2015] KEHC 1300 (KLR), Divorce Cause No. 3 of 2014
Brief Facts
The petitioner (wife) and respondent (husband) contracted a civil marriage on 23 July 1993 and had three children together. They cohabited in Homa Bay and Rongo Town until 2009, when the respondent was transferred to Meru. After the transfer, he stopped visiting the petitioner and the children and remained away from the matrimonial home. In January 2014, the petitioner travelled to Meru and discovered that the respondent had married another woman. Despite interventions by the respondent’s employer to encourage reconciliation, he refused to return home and failed to maintain the petitioner and the children.
The petitioner filed a petition seeking judicial separation on the ground of adultery, together with maintenance for herself and the children and costs. The respondent was served but neither entered appearance nor filed a defence. Interlocutory judgment was consequently entered.
Holding
The court noted an inconsistency between the remedy sought and the facts presented. Although the petitioner had pleaded and testified to facts suggesting that the marriage had broken down irretrievably, including more than two years of separation and the respondent having moved on with his life, she had specifically sought judicial separation rather than divorce.
The court observed that this would have been a good case for the grant of divorce, particularly because Section 66(2)(e) of the Marriage Act recognises irretrievable breakdown as a ground and Section 66(6)(d) provides that a marriage may be considered irretrievably broken down where the spouses have been separated for at least two years. In this case, the parties had lived separately for approximately six years.
However, the court held that the parties were bound by their pleadings and that the petitioner had specifically sought judicial separation. The court therefore granted the relief that had been pleaded rather than granting a divorce that had not been sought.
The court also declined to grant maintenance because the petitioner had not provided specific particulars of the amounts sought or sufficient evidence of the respondent’s earnings from which the court could determine the appropriate amount. The court nevertheless gave her liberty to file a separate suit specifically for child maintenance.
Why does this Judgment Matter?
This case is a useful illustration of two important points.
First, the relief sought in matrimonial proceedings matters. Courts determine disputes on the basis of the pleadings and the reliefs placed before them. A party should therefore carefully consider whether the appropriate remedy is judicial separation or divorce before commencing proceedings.
Second, maintenance claims should be supported by sufficient particulars and evidence. A general request for maintenance without adequate information concerning the amounts required and where relevant, the means of the person from whom maintenance is sought may make it difficult for the court to quantify an appropriate order.
Conclusion
Ultimately, when parties are experiencing difficulties in their marriage, separation may be an option worth considering before or instead of pursuing divorce, depending on their circumstances and objectives. Reasons such as faith, culture, personal considerations, concerns relating to children or the need for time apart may influence a couple’s decision to remain married while living separately.
Judicial separation can provide a formal legal framework for parties who wish to live apart without dissolving their marriage. It may therefore provide greater legal certainty than relying entirely on informal or verbal arrangements.
An advocate can be important at this stage by helping the parties understand the available legal remedies, the consequences of each option and the appropriate relief to seek.
In R M O v J O O, the court considered that the facts could have supported divorce, but ultimately granted judicial separation because that was the remedy sought by the petitioner. The case demonstrates why obtaining appropriate legal advice before filing matrimonial proceedings is important, the remedy sought should correspond with the parties’ objectives and the relief they ultimately want the court to grant.
Separation is therefore not merely a “break” from the relationship. Depending on the circumstances, it may have significant legal consequences for the parties, their children, property, maintenance and succession rights. Proper legal advice can help parties understand these consequences and make informed decisions about the next stage of their marriage.
