As international family lawyers we advise individuals on divorce and associated issues, including property division and disputes over children. When one or both spouses have any legal connection to another country other than the UK the divorce process can be complicated because of the interaction of the laws of different jurisdictions. In relation to clients seeking legal advice in England with a connection to Kenya, for example those who are originally from that country or who may have been married there, our solicitors can offer tailor-made advice to ensure that you approach the legal aspects of your family matter in the most appropriate way. By way of background we have set out some of the key issues of Kenyan divorce and family law below.
Marriage And Divorce In Kenya
Kenya is a diverse and multi-ethnic country. The Marriage Act, 2014 recognises civil marriages as well as those performed under customary law and under the Christian, Hindu and Islamic traditions. All marriages must be registered and, while Islamic marriages and their dissolution are governed by religious courts, they are still subject to the overarching equality provisions of the Kenyan constitution. There are some differences in the way marriages contracted under each tradition can be dissolved.
Divorce Grounds In Kenya
Kenyan divorce is fault-based. The spouse petitioning for divorce can only do so by proving one of the specified offences under the Marriage Act. The grounds are as follows:
- Cruelty – This can be mental or physical cruelty, inflicted on the spouse seeking divorce or on any children
- Desertion by either party for a period of at least three years
- Exceptional depravity by either party
- The irretrievable breakdown of marriage
Hindu, Islamic and customary marriages are subject to a similar –although more restrictive – regimes in terms of divorce.
Until 2019 it was not possible to petition for divorce – on any ground – until a period of three years had elapsed from the date of marriage. In 2019 however that provision of the Marriage Act was declared unconstitutional.
Children And Kenyan Divorce
Parents can agree joint custody of children, if there is no agreement the court will base any decision on:
- The wishes of the child, parents, guardians, foster parents and any other person who has had previous custody of the child
- Customs of the community
- Religious background of the child
- Relationship between the child and the parent
- The best interest of the child
In practice it is the mother who normally retains custody of the child and she is able to claim maintenance from the father.
Division Of Property After A Kenyan Divorce
Under The Matrimonial Property Act, marital property is divided according to the contribution made to its acquisition by each spouse. While there are limits on what is deemed ‘marital property’, wives (usually the financially weaker spouse in Kenyan divorce) do benefit from the way the courts interpret the term ‘contribution’.
‘Contribution’ can include non-monetary contributions such as home making, domestic work, childcare and management of a family business. In practice this often means Kenyan wives will be entitled to an equal share of property if they can prove that the property was acquired during the marriage and that they contributed directly or indirectly to its acquisition
Advice On Divorce Law In Kenya
If you or your spouse are seeking legal advice in England but you have a legal connection to Kenya, it’s important to get advice from an international divorce lawyer if your marriage has broken down. At Brookman we regularly act in cross border disputes. Even if we have not dealt directly with Kenyan divorce law, our understanding of contrasting legal systems across the world means we can advise you on many relevant issues affecting your divorce.
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