Marriage in Kenya is governed by the Marriage Act, 2014, which sought to harmonise the different systems of marriage previously regulated under separate statutes. While the Act brought much-needed clarity and uniformity, some of its provisions historically raised constitutional concerns, particularly in relation to civil marriages and divorce.
This article outlines the types of marriages recognised in Kenya, the legal grounds for divorce and examines a landmark High Court decision that declared the three-year waiting period for divorce in civil marriages unconstitutional.
Types of Marriages Recognised in Kenya
The Marriage Act, 2014 recognises five distinct types of marriages:
- Christian marriages
- Civil marriages
- Customary marriages
- Hindu marriages
- Islamic marriages
A key distinction is that, customary marriages and Islamic marriages are legally recognised as potentially polygamous, while Christian, civil and Hindu marriages are strictly monogamous.
Fundamentally, Section 3 of the Marriage Act accords equal status to all marriages contracted under the Act, regardless of the form in which they are celebrated.
Grounds for Divorce in Kenya
The Marriage Act provides several grounds upon which a marriage may be dissolved. To petition for divorce, a party must demonstrate one or more of the following:
- Adultery by the other party
- Cruelty, whether mental or physical, inflicted upon the spouse or children
- Desertion for a period of at least three years.
- Exceptional depravity
- Irretrievable or irreparable breakdown of the marriage – a commonly relied upon ground that captures situations where the union has reached a point of no return without the need to assign fault.
The Landmark Shift: The end of the Three-Year Waiting Period Under Civil Marriages
One of the most significant legal developments in Kenyan family law concerns Section 66(1) of the Marriage Act. Originally, this section barred parties in civil marriages from filing for divorce until three years had elapsed from the date the union was solemnized.
This restriction did not apply to Christian or Customary marriages, thereby creating a clear legal disparity.
Section 66(1) of the Marriage Act, 2014 provided that:
“A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.”
Part IV of the Act governs civil marriages. This meant that parties in civil marriages were barred from filing for divorce or separation until three years had passed, even where the marriage had irretrievably broken down.
In Ole Kina v Attorney General & another [2019] KEHC 4244 (KLR) the High Court was called upon to determine whether Section 66(1) of the Marriage Act, 2014 was consistent with the Constitution.
The petitioner challenged the provision on the basis that it imposed an unjustifiable and discriminatory restriction on parties to civil marriages by barring them from petitioning for separation or divorce until three years had elapsed since the celebration of the marriage.
The petitioner argued that Section 66(1) unfairly singled out parties who had contracted civil marriages, yet no similar restriction applied to parties married under Christian, Hindu, Islamic or customary law. This differentiation, it was argued, amounted to discrimination and violated Article 27(4) of the Constitution, which expressly prohibits discrimination on any ground.
Further, the petitioner contended that under Article 2(4) of the Constitution, any law that is inconsistent with the Constitution is invalid to the extent of that inconsistency. In this regard, Section 66(1) could not stand, as it contradicted the constitutional guarantee of equality before the law. The petitioner also relied on Section 3 of the Marriage Act, which expressly accords equal status to all marriages celebrated under the Act. Having declared all marriages equal in law, Parliament could not then impose an arbitrary limitation on one category of marriage without a reasonable and justifiable basis.
Beyond discrimination, the petitioner highlighted the real-life consequences of the provision. It was argued that the three-year waiting period had the practical effect of forcing individuals to remain in marriages they no longer wished to be part of, regardless of the circumstances, thereby undermining their dignity and personal autonomy.
In analysing whether Section 66(1) was discriminatory, the Court relied on established jurisprudence. In Nelson Andayi Havi v Law Society of Kenya & 3 Others Petition No. 607 of 2017 (2018) eKLR, the Court articulated a three-pronged approach to determining discrimination:
“In determining discrimination, the guiding principles are clear. The first step is to establish whether the law differentiates between different persons. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair.”
The Court also drew guidance from, Nyarangi & 3 Others v Attorney General [2008] KLR 688, where discrimination was defined as:
“The effect of law or established practice that confers privilege on a class or that denies privileges to a certain class because of race, age, sex, nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when reasonable distinction can be found between those favoured and those not favoured.”
Applying these principles, the Court found that Section 66(1) clearly differentiated between parties to civil marriages and parties to other forms of marriage. The next question was whether this differentiation amounted to unfair discrimination.
The respondents defended the provision on public policy grounds. They argued that marriage is a sacred institution that ought to be protected and that parties should not be allowed to “waltz willy-nilly” in and out of marriage.
According to the respondents, the three-year waiting period was intended to stabilise new unions by allowing couples time to adjust to married life and work through early marital challenges.
While the Court acknowledged the importance of protecting the institution of marriage, it held that public policy considerations cannot override constitutional rights. The Court emphasised that Article 10 of the Constitution, which binds all state organs and applies whenever any law is enacted, interpreted or applied, is founded on national values and principles including human dignity, equity, social justice, inclusiveness, equality, human rights and non-discrimination.
The Court observed that the three-year restriction was not only discriminatory but also had the potential to undermine human dignity, as it compelled individuals to remain in marriages they no longer wished to sustain, regardless of the circumstances or severity of the marital breakdown.
The Court held that the three-year requirement was not only discriminatory but also potentially degrading to human dignity, as it compelled individuals to remain in marriages they no longer wished to sustain.
In its final determination, the Court held:
“It is my finding that Section 66(1) denies parties desirous of dissolving their union under the umbrella of Civil Marriage the opportunity to do so unless and until a three-year period has lapsed since the celebration of that union. This is prima facie discriminatory.”
The Court further stated:
“Section 66(1) is discriminatory and in violation of Article 27(4) to the extent that it arbitrarily limits parties that have celebrated a union under the auspices of a Civil Marriage to a three year wait period before such a union may be dissolved.”
Consequently, Section 66(1) of the Marriage Act, 2014 was declared unconstitutional, null and void.
What This Means Today
As a result of this decision, parties to civil marriages are no longer required to wait three years before filing for divorce or separation. Civil marriages are now treated on an equal footing with all other forms of marriage recognised under Kenyan law and courts are guided by the substance of the marital breakdown, rather than the length of time the marriage has existed.
The Marriage (Amendment) Bill, 2023
In addition to the judicial developments arising from the Ole Kina decision, legislative reforms have also been proposed to further modernise Kenya’s divorce framework. The Marriage (Amendment) Bill, 2023 was introduced with the objective of simplifying the divorce process by adding mutual consent (no-fault) clause as a ground upon which parties may seek dissolution of marriage.
The proposed amendment is intended to allow parties to exit a marriage amicably, without the need to attribute fault to either spouse. This approach recognises that some marriages break down without wrongdoing and seeks to reduce adversarial litigation, emotional strain and unnecessary conflict.
Further, the introduction of no-fault divorce is aimed at improving access to justice by making the process more time-efficient and cost-effective, particularly where parties are in agreement.
The Bill provides that both parties may jointly petition for divorce where the marriage has irretrievably broken down and the parties have lived apart for a period of at least one year.
Conclusion
Marriage in Kenya exists in different legal forms, but all marriages enjoy equal status under the law. The grounds for divorce apply uniformly and constitutional principles of equality, dignity and non-discrimination guide how matrimonial disputes are resolved.
The decision in Ole Kina v Attorney General marked a significant step in aligning family law with constitutional values, ensuring that individuals are not trapped in untenable marriages simply because of the form in which they married.
Where a marriage has irretrievably broken down, the law now prioritises fairness, dignity and equality, rather than rigid timelines. As with all family law matters, seeking legal advice early can help parties understand their rights, obligations and available options and navigate the process with clarity and dignity.
If enacted, the Marriage (Amendment) Bill, 2023 would further reform Kenya’s divorce framework by introducing divorce by mutual consent, allowing parties to jointly petition for dissolution without attributing fault. The Bill would also align the statutory law with constitutional principles and existing judicial interpretation by eliminating any residual reference to the three-year waiting period previously imposed on civil marriages.
