What the law says about dissolving a marriage

Divorce in Kenya under the New Constitution
Divorce in Kenya Procedure
Grounds for Divorce in Kenya
Cost of Divorce in Kenya
Divorce Act Kenya
How Long Does Divorce Process Take In Kenya
Spousal Maintenance after Divorce in Kenya
Sharing Of Property after Divorce in Kenya

Marriages are supposed to last till the death of involved parties. However sometimes this is impossible. One of the parties might be a victim of inhuman and degrading treatment in the hands of their spouse. In such situations the court has to intervene and bring the marriage to an end.

Before this happens, the court must be satisfied that the marriage should be dissolved. The party who alleges that they are suffering in the marriage must prove to the court that there is a situation that will amount to a ground for divorce.

In Kenya the process of dissolving marriages is guided by the Marriage Act. The Act takes care of the dissolution of marriages contracted in different forms. Some of the grounds for dissolving marriages are similar under all the forms of marriages.

A party to a Christian marriage may petition the court for a decree for the dissolution of the marriage on the ground of one or more acts of adultery committed by the other party, cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children, if any, of the marriage or desertion by either party for at least three years immediately preceding the date of presentation of the petition ,exceptional depravity by either party or the irretrievable breakdown of the marriage.

A party to a Civil marriage may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage. A party to a civil marriage may only petition the court for the separation or the dissolution of the marriage on the following grounds; adultery by the other spouse cruelty by the other spouse, exceptional depravity by the other spouse, desertion by the other spouse for at least three years or, the irretrievable breakdown of the marriage. The petitioner may file the petition with the court for the separation of the parties or the dissolution of the marriage despite any effort to reconcile the parties. The court may refer a matrimonial dispute that arises in a marriage celebrated to a conciliatory process agreed between the parties.

The proceedings for the dissolution of a civil marriage may be adjourned for a period not exceeding six months as the court may think fit (a) for the court to make further inquiries or (b)for further attempts at reconciliation to be made by the parties to the marriage.

A marriage has irretrievably broken down if (a) a spouse commits adultery; (b)a spouse is cruel to the other spouse or to any child of the marriage (c) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition; (d)the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has; (e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition; (f) a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more; (g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or (h) any other ground as the court may deem appropriate.

The parties to dissolution of a customary marriage may undergo a process of conciliation or customary dispute resolution before the court may determine a petition for the dissolution of the marriage. The process of mediation or traditional dispute resolution in subsection shall conform to the principles of the Constitution. The person who takes the parties such a marriage through the process of conciliation or traditional dispute resolution shall prepare a report of the process for the court. The Act is silent as to the time line for the preparation of the report.

A party to a Customary marriage may “petition the court for the dissolution of the marriage on the ground of ,adultery,cruelty,desertion,exceptional depravity,irretrievable breakdown of the marriage or any valid ground under the Customary law of the petitioner.

A party to a Hindu Marriage may petition the court for the dissolution of the marriage on the ground that the marriage has irretrievably broken down, the other party has deserted the petitioner for at least three years before the making of the petition, the other party has converted to another religion, since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery, the other party has committed cruelty on the other and the other party has committed exceptional depravity on the other.

Dissolution of an Islamic marriage shall be governed by Islamic law. Where a Kadhi, sheikh, imam or person authorised by the Registrar grants a decree for the dissolution of a marriage. The Kadhi, sheikh, imam, Mukhi or authorised person shall deliver a copy of the decree to the Registrar.

The parties must at all times try to salvage their marriages as opposed to breaking them.

How Long Does Divorce Process Take In Kenya

Many different factors can speed up or slow down how long it takes to get a divorce. Some of these factors are out of your control. Other factors are in your control.

Factor #1: Mandatory Waiting Periods

There is a waiting periods before you can complete a divorce.

There is a requirement for a period of separation (living apart) before you are allowed to even file for divorce.
There is also a mandatory waiting period between the filing of your divorce petition and when the court will issue your final divorce decree. The average mandatory waiting period is between 30 and 90 days, though some states require up to a 12-month wait.

The waiting period is necessary so as to try and reduce unnecessary divorces (some couples do decide to attempt counseling or even reconcile during the waiting period). They also include providing enough time for divorcing couples with children to become educated on co-parenting and make the proper arrangements to reduce the potential negative impact of the divorce on their kids.

Factor #2: The Amount of Conflict in Your Divorce

The amount of conflict between you and your spouse directly correlates to how long it will take to get a divorce.

If your divorce is uncontested (you agree on all issues), then you typically can finalize your divorce as soon as you have met your state’s waiting period requirements.

If your divorce is contested, meaning that you and your spouse disagree on some or all issues (like property division, child custody, or child support), it can take much longer to finalize a divorce. You will have to, at the very least, work through the issues in negotiation. This can take several months, depending on the issues. And if your conflicts result in the need for trial, then it can take many more months — sometimes over a year — to resolve everything in court.

Factor #3: The Complexity of Your Divorce

Complex divorces often take longer to resolve. If you have serious parenting issues, own a business, have significant assets, or if there are international or interstate issues, it can take a while to sort out the details of your divorce. It might take longer to obtain and prepare all of the information needed to get the full picture of your relationship and what your divorce should look like. You may need expert evaluators, a parenting investigation, medical evaluations, forensic accounting specialists, or other special information.

Speeding Up the Divorce Process

If you would like to speed up the process of finalizing your divorce, there are many ways to do so:

Attempt to waive the mandatory waiting period: You may petition the court to have the mandatory waiting period waived. These tend to be approved only if you are filing for an uncontested divorce.
Act early: One of the easiest ways to speed up the divorce process is to be prepared. Gather the information relevant to your divorce (financial documents, parenting information, etc.). Meet with an attorney early in the process to figure out what additional information you will need from your spouse or others in order to have a complete picture of your marriage and divorce. Later, if necessary, you can seek additional information that you need through discovery.
Cooperate with the process: Cooperating with your spouse in the lead-up to, and during, the divorce can go a long way toward speeding up the process. Cooperation does not mean that you should simply agree to everything that your spouse is requesting. You probably should not. You should, however, follow deadlines, respond to requests for information, and communicate in a timely manner.When both spouses cooperate during a divorce, there are generally fewer court appearances. When everyone shares information and fully participates in the process, settlement discussions occur sooner and are more effective. This can be especially true in more complex divorce cases where you must gather and analyze a lot of information.
Avoid unnecessary conflict: When couples are engaged in a high amount of conflict, there are usually more court appearances, and they are usually not able to come to agreements to narrow the issues. This can drag the process out for many months. Some conflict is often necessary. Do not expect to agree with your spouse on everything immediately. Instead, be guided by common sense and good legal advice regarding what areas to focus on.
Try mediation in lieu of trial: If you cannot resolve your case by agreement, through mediation, or through another dispute resolution process, you will have a trial. Trials are often scheduled months or even a year after the petition for divorce is filed. Litigation can also take a long time, especially if a continuance is requested and issued (this is when one or both sides requests a postponement of the trial due to extenuating circumstances).Because waiting for a trial can take months, mediation is often a quicker alternative to going to court. Mediation allows you to meet with a third party to discuss the issues in your case and work toward agreement. The mediator can provide feedback during the mediation to help you evaluate your case and narrow what issues you and your spouse disagree on. Settling the case outside of court through mediation can save both time and money.

However, meditation is not always appropriate, depending on your situation. Be sure to discuss with your divorce lawyer if mediation may be a good option for you.

After You’re Divorced

There may be additional matters to address after you are officially divorced that will extend the time it takes to implement the orders set out in your divorce.

Please be advised that family law cases can be very complex and are different for everyone, based on unique circumstances. The information provided here should not be construed as legal advice in your case.

PART 2:

How Long Does an Uncontested Divorce Take?

A standard question that people who are looking to end their marriage may ask their attorney is, “How long does an uncontested divorce take?”

Uncontested Divorce

An uncontested divorce is one where the parties have been able to agree about the issues that will make up the terms of the divorce judgment. These include:

Child support
Custody
Division of marital property
Visitation

This doesn’t mean that each spouse does not have an attorney. It’s important for each person to seek out appropriate legal advice before agreeing to the terms of a divorce.

In cases where there are spousal pensions to be divided, other experts, such as a financial advisor, should be consulted before any agreement is signed. A person seeking an uncontested divorce should also be confident that his or her spouse is not hiding assets in the divorce before filing the papers.

An uncontested divorce is only a good choice when both people agree that they want to divorce and they are prepared to focus on getting the papers filed without doing things just to hurt each other.

How Long Does an Uncontested Divorce Take

The short answer to this question is that it depends on how long it takes for all the steps involved in getting a divorce to be completed.

Steps Involved in Getting an Uncontested Divorce

The first step in getting a divorce is for the person requesting that the marriage be dissolved file a Summons with the court. The Summons must also be served on the other spouse, who is called the defendant.

If the defendant accepts service of the Summons and signs an Affidavit, the divorce papers are filed with the court immediately. The defendant is given 20 days to reply, and if he or she does not, the plaintiff can file the divorce papers with the court.

The defendant also has the option of signing the papers in front of a notary public indicating that he or she has no intention of contesting the divorce. The plaintiff also signs the papers in that case, and they are filed with the court.

Filing Divorce Papers with the Court

Once the divorce papers have been signed and notarized or the time limit for the defendant to respond has passed, the next step in the process is to file the divorce papers with the court clerk’s office in the county where the plaintiff lives.

Once the papers have been filed with the court, the question, “How long does an uncontested divorce take?” is completely out of the parties’ hands. The amount of time it will take to finalize the divorce by having a judge approve and sign the judgment can take anywhere from six weeks to 12 months.

Your lawyer or the court clerk’s office in the county where you want to file for divorce may be able to give you an answer about how long an uncontested divorce takes to process in your area. The best they will be able to do is give you an estimate.

Once the divorce judgment has been signed, there may be a waiting period where neither party can remarry in certain jurisdictions. This would be the time where either person can file an appeal of the divorce judgment. Your attorney would be able to advise whether this provision applies in your case.