The Marriage (Amendment) Bill, 2023
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Divorce by Mutual Consent Introduced
Inserts a new Section 75A into the Marriage Act, 2014. This allows spouses married under Christian, Civil, Customary, Hindu, or Bahai marriages to jointly petition the court for a decree of divorce based on mutual consent.
One-Year Minimum Separation and Marriage Threshold
To qualify for divorce by mutual consent, spouses must meet specific timing criteria:
- The petition must be made at least one year after the celebration of the marriage.
- The parties must have been mutually separated for at least one year immediately preceding the date of the petition.
Nullification and Safeguards Against Coercion
To protect against forced agreements, the court may nullify a divorce decree if consent was obtained via coercion, fraud, or undue influence. In such cases, the innocent party is entitled to seek damages.
Bill No.
No. 32 of 2023
Gazette No.
Supplement No. 101 of 2023
Sponsor
Peter Francis Masara
Background
Divorce in Kenya is historically fault-based, meaning a spouse must prove specific grounds—such as cruelty, adultery, or desertion—to secure a divorce. This process is often highly adversarial, lengthy, and expensive. The Marriage (Amendment) Bill, 2023 seeks to address this by introducing an amicable, simple, and cost-effective mechanism for couples who mutually agree to end their marriage.
Key Amendments
- New Definition for 'Mutual Separation': Amends Section 2 of the Marriage Act, 2014 to define "mutual separation" as an agreement by spouses to live separately as husband and wife, regardless of whether they live under the same roof.
- Establishment of Section 75A: Establishes a framework for divorce by mutual consent.
- Petition Withdrawal: Allows any party to withdraw their consent to the divorce by filing a notice of motion at any time before the court grants the decree.
- Rule-Making Authority: Authorizes the Rules Committee established under the Civil Procedure Act (Cap. 21) to make rules regulating the practice and procedure for these petitions.
New Obligations
For a mutual consent divorce decree to be granted, the parties must satisfy the court of the following obligations:
- Joint Petition: The parties must jointly present the petition to the court.
- Written Consent: Both parties must freely give their consent to the divorce in writing.
- Personal Appearance: Both parties must be present in person during the hearing of the petition.
- Declaration of Breakdown: The petition must demonstrate that the marriage has irretrievably broken down.
Penalties
- Damages for Fraud or Coercion: If a decree is nullified because consent was obtained through coercion, fraud, or undue influence, the court may award damages to the innocent party.
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