FAMILY COURT - WHAT YOU NEED TO KNOW BEFORE FILING FOR DIVORCE IN KENYA

 

1. Legal Framework

Divorce in Kenya is governed primarily by the Marriage Act, 2014. Different types of marriages are recognised under Kenyan law — Civil, Christian, Customary, Hindu, and Islamic — and the process varies slightly depending on the marriage type.

 

IMPORTANT: All marriages must be registered in Kenya and a Marriage Certificate ought to be given afterwards. This will be presented in Court during the divorce proceedings.

 

2. Grounds for Divorce

To get a divorce in Kenya, you must show valid legal grounds. Common grounds include:

• Adultery
• Cruelty (physical or emotional abuse)
• Desertion — spouse abandoned you for at least three years
• Irretrievable breakdown of the marriage (cannot be saved)
• Exceptional depravity or serious misconduct

For Islamic marriages, divorce may happen through Talaq, Khula, Mubarat, or Faskh under Sharia via Kadhi’s Court.

 

3. Eligibility & Waiting Period

• For civil and Christian marriages, you generally must have been married for at least three years before filing — but exceptions may be made in extreme cases.
• Customary marriages may have different timelines based on community norms.

 

4. Step-by-Step Divorce Process

a. Consult a Lawyer

A family lawyer can:

• Explain the grounds and gather evidence.
• Help prepare your petition.
• Protect your rights on issues like property division and child custody.

b. Gather Documents

Typical documents include: -

• Original marriage certificate or a copy of it to be filed in Court
• National ID or passport copies of the parties
• Evidence supporting grounds (e.g., messages, medical or police reports)
• Children’s birth certificates (if applicable)

c. Draft and File the Petition

• The divorce petition sets out your reasons and requests.
• It’s filed at the Magistrate’s Court

d. Serve the Respondent

• Court issues notice to your spouse, who usually has 15 days to respond.

e. Court Hearings & Evidence

If the divorce is uncontested (both agree), the process moves faster. If contested, there may be hearings, mediation, or evidence presentation.

f. Decree Nisi → Decree Absolute

• If the court agrees, it grants a Decree Nisi which is an interim order.
• After 30 days, it becomes a Decree Absolute, legally ending the marriage.

 

5. How Long It Takes

It is usually not advisable to put a timeline on Court proceedings but divorce cases should ideally not take that long in Court if all procedural facts are kept constant and there is nothing to delay the hearing of the suit.

 

But give or take, if the divorce is uncontested then it should automatically take a shorter period of time that ranges between 3 to 6 months.

 

However, if it is contested, it should then ideally take longer, hence can take between roughly 6 to 12 months.

 

6. Costs

Costs vary widely depending on complexity of the matter and the legal fees charged. Advocates in Kenya usually charge their fees based on the Advocate’s remuneration order.

 

7. Child Custody, Maintenance & Property

• Child custody and maintenance issues are not supposed to be raised in a Divorce court and should exclusively be raised in a children’s court. Most people make the mistake of praying for orders related to children’s cases in divorce court.
• Matrimonial property issues are also not supposed to be raised in a divorce court as the same should be handled separately in a Matrimonial property court. Furthermore, one of the evidences needed in a matrimonial property court is a Decree absolute which is first obtained in a divorce court.

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