Law imposing three-year wait for divorce found unconstitutional by Kenya’s appeal court

8 July 2022 · Carmel Rickard

With five forms of marriage from which to choose, couples in Kenya could find it easy enough to tie the knot. It might be a different story for some if they want an early divorce, however. That’s because those opting for a civil marriage must wait a minimum of three years before they may start divorce proceedings. Claiming this provision is unconstitutional, a Kenyan advocate has brought legal action to test the three-year limitation. The high court upheld his petition, but the national assembly subsequently appealed and judgment in that appeal has now been delivered.

Read judgment

Couples wanting to marry in Kenya have some decisions to make: there are no fewer than five forms of marriage from which to choose.

The Marriage Act of 2014 regulates all of them: Christian, civil, customary, Hindu and Islamic marriages. This law also provides for the ending of marriages, and the issue raised in a petition before the courts recently concerned an aspect of the provisions allowing for divorce in the case of civil marriage.

For, unlike arrangements in the case of all the other forms of marriage, spouses in a civil marriage must wait three years from the time they marry until they may divorce.

Enacted

Kenyan advocate, Tukero Ole Kina, spotted this issue and filed an application for the courts to declare the provision unconstitutional, saying he was bringing the petition, against the attorney general and the national assembly, in the public interest.

The high court agreed with him and found the provisions contrary to the constitution, but then the national assembly appealed against that outcome. The appeal was heard in December 2021 and has now been finalised with judgment delivered in mid-June.

On behalf of the assembly, its clerk, Michael Sialai, denied there was anything unconstitutional about the law, saying that the disputed section, like the rest of the law in which it appeared, had been properly passed and enacted by the assembly, and was thus in accordance with the constitution.

Threat

He added the usual complaint in cases testing the constitutionality of legislation in Kenya: that the application was a threat to the separation of powers and contravened the presumption that legislation was constitutional.

In its judgment, the high court had found that the three-year waiting period was discriminatory and a violation of the right to equality. That court said keeping people waiting for three years if they wished to divorce earlier, was an affront to the dignity of those involved, keeping them ‘forcefully’ in a situation they did not want to be part of.

Counsel for the assembly said that the three-year waiting period required before divorce proceedings could begin in the case of a civil marriage was rational: some time needed to elapse so that the conditions required for divorce could be ‘cogently proved’ and a finding made that the marriage had irretrievably broken down.

‘Stabilising effect’

Behind the Marriage Act lay policy considerations including the ‘preservation of the value of the marriage institution’, and the need to provide ‘a stabilising effect on marriage’. The three-year wait also rested on strong policy considerations including the need to ensure that marriage ‘is not a trial-and-error game’ and that ‘divorce of a civil marriage is only occasioned when it is necessary and after a period of three years’.

As far as Kina – who appeared for himself – was concerned, he questioned the policy issue said to be behind the three-year limit; since, in the case of other forms of marriage, the spouses did not have to wait three years, were those marriages not expected to help achieve ‘the stabilisation goal in marriages’? He said that if the imposition of a waiting period was intended to help achieve valid policy considerations, then the waiting period ‘ought to have been employed uniformly’.

The appeal judges said that they could not adopt an interpretation of equality that required all the parties to the different marriage systems to be ‘simply treated alike’. Instead, equality had to be seen in the context of constitutionally permitted social, religious and personal differences that influenced the choice of marriage systems.

Erroneous

For that reason, it was erroneous to ask why no limit was imposed on other marriages, comparable to the three-year waiting time before divorce in a civil marriage. ‘It is not every differentiation that amounts to unequal treatment’.

It was clear that the Marriage Act intended to bring an ‘element of harmonisation’ to the marriage laws, but that different marriage systems ‘still continued to retain their different nature and character’.

The policy considerations of the assembly were supported by the constitutional provisions on protecting the family unit. And while there was a three-year restraint on divorce proceedings in the civil marriage provisions, the other forms of marriage also provided for processes of mediation and reconciliation, so that matrimonial disputes were properly addressed before resorting to divorce.

Irreparable

In the United Kingdom, the equivalent period for a civil marriage was one year, allowing the parties to consider ‘the practical consequences which would result from a divorce and reflection upon whether the breakdown in the marital relationship is irreparable.’

But, the judges asked, did the three-year limitation in the case of the Marriage Act meet the proportionality test? ‘And, in particular, … is disproportionate harm done by the section as against the benefits that it seeks to achieve in terms of protection of the family unit?’

The court agreed with submissions that the divorce law should ‘send the right messages’ to the married and the marrying ‘about the seriousness and permanence of the commitment involved.’ The judges quoted from a UK law reform commission report on divorce, that marriage remained ‘an extremely popular institution’ even though so many people now simply cohabited. For many couples, marriage was seen as an ‘important signifier’ of commitment to one another, as a step towards having a home of their own, ‘financial and emotional security’, as well as providing an ‘accepted context’ for having children.

Realistic

‘Marriage involves mutual legal obligations of support and sharing which other relationships do not.’

But the law had to be realistic and practical: ‘If people who are unhappily married are denied a means of reordering their lives in a sensible fashion, many will simply walk away. Others may be deterred from marrying in the first place ….’

The appeal judges said that divorce had to be allowed for situations ‘which are unavoidable and unendurable for reasons of exceptional hardship or depravity, irrespective of the duration of the marriage … to protect the rights of the parties involved.’

Suspend

The court concluded that the disputed section of the Marriage Act was not discriminatory, but that it was unconstitutional because of the ‘disproportionate effect’ it would have where a divorce in a civil law marriage may be necessary and justified before the three-year limitation.

Despite this finding, however, the court decided to suspend the effect of its declaration for three years so that parliament could make the necessary amendments to the Marriage Act.

* 'A matter of justice', Legalbrief, 5 July 2022

Carmel Rickard

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