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Divorce is the legal dissolution of a marriage by a competent court. The Marriage Act, 2014 provides for dissolution of marriages but only if the parties seeking divorce can prove that their spouses committed matrimonial offences.

The Legal Framework:

  1. The Marriage Act, 2014
  2. The Matrimonial Property Act, 2013
  3. The Constitution of Kenya, 2010

Grounds for Divorce:

A petition for divorce may be presented to a court of competent jurisdiction either by the husband or the wife based on any of the following grounds:

  1. that since the celebration of the marriage wife/husband has committed adultery; or
  2. that wife/husband has deserted the marriage without cause for a period of at least three years immediately preceding the presentation of the petition; or
  3. has since the celebration of the marriage treated their partner with cruelty; or
  4. exceptional depravity;
  5. irretrievable breakdown of the marriage; or
  6. any valid ground under the customary law of the petitioner.

THE COURT PROCESS:

  1. Filing of the Petition

The Court process begins by filing a petition based on any of the grounds above and the petition is accompanied by a verifying affidavit, witness statement, list of witnesses and list of documents. At this point, it would be crucial to engage an experienced Advocate who will then assist in advising on the appropriate grounds for divorce, drafting the petition alongside other accompanying documents and ensuring compliance with any procedural requirements.

In any case, the petition in a divorce cause should always state the following:

  1. the place and date of the marriage and the name and status of the wife/husband before the marriage;
  2. the principal permanent addresses where the parties have cohabited within Kenya or, if it is the case, that there has been no address of cohabitation within Kenya;
  3. whether, there are living any children of the marriage and, if so, the names and dates of birth or ages of such children.
  4. the occupation, residence and domicile of the parties to the marriage at the date of the institution of the cause;
  5. a wife who is a petitioner may include in her petition a claim for alimony in which case the petition shall contain a statement in general terms of her husband’s income in so far as they are within her knowledge or belief.
  6. the petition shall conclude with a prayer setting out particulars of the relief claimed.

NB: Alimony or spousal maintenance is only granted if the spouse can be able to prove that they are unable to support themselves or were dependent on the other. Under Section 77 of the Marriage Act, 2014 alimony can be granted during (interim) the court proceedings or after the divorce has been finalized. The Court will usually consider the following:

  1. The financial requirements and assets of each spouse, along with the lifestyle maintained throughout the marriage;
  2. The spouses’ ages and physical conditions, together with the contributions made to the marriage, whether monetary or non-monetary.

This position was highlighted in the case of DMM v MW (Family Appeal E103 of 2024) [2025] KEHC 12588 (KLR) (Family) where the court held that:

“Maintenance is not a right to be claimed as a matter of course. It is a remedy intended to provide a safety net for a spouse who is financially disadvantaged by the marital breakdown and is unable, for valid reasons, to support themselves. The burden of proof lies squarely on the applicant to demonstrate the need for maintenance. This requires such an applicant to place before the court sufficient material to prove their financial position including their income, assets, expenses and liabilities. This is done through an Affidavit of Means. This information would enable the trial court to make an informed decision on whether, from evidence on record and applicable law, the Respondent is entitled to alimony/maintenance or not and if so, how much?”

  1. Service of Summons

After drafting and filing of the petition, the Petitioner will extract summons from the court and shall serve the summons to the other party to appear to contest the divorce. The Advocate should be able facilitate the extraction of the summons, proper service of the documents and compliance with the set timelines. Usually, the other party is given at least 15 days to respond to the petition. In the instance that there is no response, the Advocate can petition the court that the matter proceeds solely based on the evidence adduced by the Petitioner.

  1. Hearing of the matter

After 15 days, the petitioner will make an application for the court to issue a Registrar’s certificate. This signifies that the court has certified the petition is ready for hearing. Usually, the Advocate will effectively prepare the client and witnesses for testimony. On the date of the hearing, both parties are called to give their evidence and testimony in support of their case. The Advocate will cross-examine the other party and make submissions to support the case.

  1. Judgement

Once the hearing is concluded, the court will deliver its judgment. If the court is satisfied with the case presented then the marriage will be dissolved. The Advocate will be able to guide the client on the next legal steps based on the decision of the court.

  1. Issuance of the Decree

After the Judgment, a Decree Nisi is issued first, this is more of a provisional order. The Advocate will assist in the extraction of this order upon issuance by the court. After 30 days, if no objection is raised, the Court will then issue a Decree Absolute, which finalizes the divorce.

CONCLUSION

Divorce proceedings in Kenya involve several procedural stems that require strict compliance with the law. Having an experienced Advocate ensures that your rights are protected, your case is properly presented, and the process is handled efficiently from start to finish.

Should you require assistance with filing for Divorce, responding to a petition or advice on matrimonial matters, please contact us through our email address: info@jroadvocatesllp.co.ke or office number 0113230047 for professional guidance. We are available to walk you through every step of the process and ensure a smooth and legally sound resolution of your matter.

Author

Cynthia Waweru