By ELVIS ONDIEKI
A law passed in 2014 to prohibit couples from divorcing until three years after a civil marriage shocked a quarrelling couple recently when a judge rejected the woman’s request to file for divorce.Lady Justice Lydia Achode on December 8 sent the couple back to the drawing board when she said that because they tied the knot on April 11, 2015, it was too early for them to seek a divorce.The ruling, published last week by the Kenya Law Reports, will be a wake-up call for Kenyans in civil marriage.
The woman is identified in the law report as MWJ because her identity is protected by law. She had gone to court asking for permission to file for divorce.
She said her husband, identified as VMN, was cruel to her. Justice Achode heard that the two had been living in Kinoo, Nairobi since their marriage and that they did not have a child. However, the couple have a boy from the wife’s previous marriage.
CRUELTY AND SCORN
Because of disagreements in the marriage, the woman said she could not wait for the stipulated three years to seek divorce.
“She complained that the husband frustrated her and treated her with cruelty and utter scorn,” the court heard.
The woman said her husband chased her from their home in August 2015 and that there had been no communication between them. She filed at the High Court in Nairobi on January 28.
The husband responded by stating that he was not opposed to a divorce. However, he accused his wife of rushing to get a divorce so she could pursue an extra-marital affair with an American man who had been working as a missionary at Maai Mahiu and who had since relocated to the US.
The man told the court that soon after their wedding, the wife became “gradually withdrawn, cold, irritable and difficult to connect with on all levels, that is emotional, social, spiritual, mental and physical”.
“Lengthy discussions with their pastor did not improve their marriage,” the judge states.
But although the judge concluded that the marriage “had irretrievably broken down with no chances of being salvaged” she said the law was not on their side. She quoted the law which says that separation or dissolution of the marriage cannot take place “unless three years have elapsed since the celebration of the marriage.”
Christian, Hindu, Islamic and customary marriages don’t have the three-year caveat. Justice Achode faulted lawmakers for the legislation.
“Parliament ought to have provided an exit route for parties who find themselves in an untenable union such as the one before me,” the judge said.
The law of 2014 introduced a raft of changes including allowing polygamy.
The Bill had given a wife the right to veto her husband’s choice on polygamy but male MPs voted against the clause.
Unknown to many Kenyans, there were more provisions whose impact is now being felt.