Thinking about divorce? Here is how the Marriage Act, 2014 works — the grounds for each type of marriage, the court process and timelines, and what happens to children and property.
Ending a marriage is never easy, and the legal process can feel intimidating. In Kenya, divorce is governed mainly by the Marriage Act, 2014, which covers Christian, civil, customary, Hindu and Islamic marriages. Apart from Islamic marriages, which are dissolved in accordance with Islamic law, a marriage can only be ended by a court decree — a separation agreement, a church process or a family meeting does not, on its own, end a marriage in law.
When can you file for divorce?
Either spouse may petition the court. Under section 65 of the Marriage Act, a petition for divorce generally cannot be filed until at least three years have passed since the marriage was celebrated. You must also show that one of the grounds recognised for your type of marriage exists.
Grounds for divorce in Kenya
Christian and civil marriages
The grounds are adultery; cruelty, whether mental or physical; exceptional depravity; desertion for at least three years; and the irretrievable breakdown of the marriage. Irretrievable breakdown can be shown in several ways — for example where the spouses have been separated for at least two years, or where one spouse has failed to perform marital obligations.
Customary marriages
Similar grounds apply, together with any valid ground under the customary law of the petitioner. Before the court determines the petition, the parties are expected to go through a process of conciliation or customary dispute resolution, and the court considers a report of that process.
Hindu and Islamic marriages
Hindu marriages have their own grounds under the Act. Islamic marriages are dissolved under Islamic law, and the Kadhi’s courts deal with divorce where both parties profess the Muslim religion and submit to their jurisdiction.
The divorce process step by step
- Petition — the spouse seeking divorce (the petitioner) files a petition setting out the details of the marriage and any children, the grounds relied on and the orders sought, usually with a copy of the marriage certificate.
- Service — the petition is served on the other spouse (the respondent), who may file an answer and, if they wish, a cross-petition.
- Hearing — if the divorce is undefended, the petitioner proves the grounds at a short hearing. A defended divorce proceeds to a full hearing with evidence from both sides.
- Decree nisi — if the court is satisfied, it grants a decree nisi, a provisional order dissolving the marriage.
- Decree absolute — after the prescribed period, the decree nisi is made absolute. Only then is the marriage formally dissolved and either party free to remarry.
How long does a divorce take in Kenya?
An undefended divorce, where the other spouse does not oppose it, can often be concluded within several months to a year. A defended divorce — particularly where custody or property is contested — can take considerably longer. Agreeing on as many issues as possible, with the help of advocates or a mediator, saves both time and cost.
What happens to the children?
In every decision about a child, the child’s best interests are paramount under Article 53 of the Constitution and the Children Act, 2022. Both parents keep parental responsibility after divorce. The court can make orders on custody, access and maintenance, and parents are encouraged to agree on practical arrangements that put the children first.
What happens to matrimonial property?
Property is not divided automatically when a divorce is granted. Division of matrimonial property is governed by the Matrimonial Property Act, 2013, and is based on each spouse’s contribution — both monetary and non-monetary. Read our guide to matrimonial property in Kenya.
Maintenance
In appropriate cases, the court can order one spouse to pay maintenance to the other during or after the divorce, and either parent can be ordered to contribute to the upkeep of the children.
Alternatives to divorce
If you are not ready to end the marriage, options include counselling, a separation agreement, or a petition for judicial separation, which relieves the spouses of the duty to live together without dissolving the marriage.
Frequently asked questions
Can I divorce in Kenya without going to court?
No. Except for Islamic marriages dissolved under Islamic law, only a court can dissolve a marriage. Couples who agree can, however, proceed with an undefended petition, which is much faster.
Can I file for divorce if my spouse lives abroad or cannot be found?
Yes. Where personal service is not possible, the court can allow other methods of service, such as email, messaging apps or a newspaper advertisement.
Do I need a marriage certificate to get a divorce?
For registered marriages, a copy of the certificate is usually filed with the petition. For customary marriages that were never registered, the court looks at other evidence that a marriage existed, such as the payment of dowry and the testimony of witnesses.
Our family and matrimonial law advocates handle divorce, custody and matrimonial property matters with discretion and care. Book a confidential consultation.
