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How to Obtain a Divorce Decree in Kenya

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How to Obtain a Divorce Decree in Kenya by Kenyans247(1): Thu Jan 2020 07:47am
Procedure

Step 1: Filing of a Petition for Divorce
The Petition is the main document that outlines the grounds under which a party is petitioning the court for divorce. The Petition may only be presented after the lapse of at least one year since the celebration of the marriage. A party to a marriage may petition the court for separation or dissolution of the marriage ONLY on the following grounds:
i. Adultery by the Respondent.
ii. Cruelty (violence) by the respondent.
iii. Desertion for at least three (3) years.
The Petition also gives a brief of;
a) the process under which the marriage was conducted (in church/ A.G) and
b) How and where the parties lived after celebration of the marriage and whether the marriage was blessed with any issues (children).
A claim for matrimonial property, division of the same, child custody and maintenance applications DO NOT form part of the Petition. They are filed separately.
The Divorce Petition is filed together with the following documents.
i. Verifying Affidavit: This is a statutory declaration sworn by the Petitioner stating that the contents of the Petition are true to the best of the Petitioner’s knowledge, information and belief.
ii. Notice to Appear: This is a document notifying the Respondent (the party sued) that a Petition has been filed against him/her and that they should enter appearance within fifteen (15) days.
iii. Acknowledgement of Service: This is a document signed by the Respondent personally acknowledging service of the Petition.
iv. List of Witnesses: The Petitioner must give a list of witnesses he/she intends to call at the hearing of the Petition.
v. Witness statements: The witnesses called to testify must give their signed statements (a brief account of the facts as pleaded by the Petitioner)
vi. List of Documents: A Petitioner wishing to rely on documents must give a list of the same and attach copies of the said documents to the Petition.

Step 2: Applications for Direction
A Chamber Summons Application is filed after FIFTEEN (15) DAYS of service of the Petition. This application costs a minimum of Five hundred Kenya shillings (Kshs. 500.00) in filing fees.
This application must be accompanied by a commissioned Affidavit of service or non-service. The said affidavit costs Seventy Five Kenya shillings (Kshs. 75.00) as filing fees.
The Affidavit of Service or Non Service is a statutory declaration sworn by the court process server stating whether the Respondent was served or not and the efforts made to trace the Respondent for service.

Step 3: Listing of Petition for Hearing
The application is thereafter fixed for hearing whereby the court Registrar confirms whether the Petition is defended or undefended. The Registrar then directs that the Petition be listed for hearing for one day.

Step 4: Hearing of the Petition
The Petition is fixed and Hearing takes place for one day depending on the number of witnesses and the courts’ schedule.

Step 5: Issuing of a Decree Nisi
After a successful Divorce petition, a Decree Nisi is thereafter issued after judgment.
A Decree Nisi is a court order that states that the marriage has been dissolved by the court after the said court being satisfied that the Petitioner has proved the grounds of divorce pleaded by the Petitioner and that the Petition has not been presented or prosecuted in collusion with the Respondent and a further condition that the Petitioner has not condoned the acts of cruelty, adultery etc. as pleaded in the Petition.

Step 6: Issuing of Decree Absolute
The Decree Nisi is later made Absolute (final) within ONE (1) MONTH from the date of issuance of the Decree Nisi. This one month is time to raise any appeal or review.
A Decree Absolute is the last document issued to finalize the Divorce. It is the final stage of the divorce proceedings and confirms the dissolution of the marriage. This is a final order prepared by the Petitioner for signing by the judge. Now the divorce is final.

Step 7: Presenting of order to Marriage Registrar
The final step is presenting a certified copy of the absolute decree order to the marriage Registrar.

Required Documents

Proof of marriage
Certified copies of the parties’ valid Passports
Proof / evidence of existence of stated grounds for divorce for instance police reports, doctors reports or any other proof
i. For instance in cases of cruelty or violence, the applicant must present evidence like police report (if at any time partner was violent and case was reported to police)
ii. doctors report (in cases where the partner was violated and went for medical examination) or a witness (present at any one time when a person was violated by partner) may be brought to court to support case
iii. in cases of insanity, a doctor’s report may also be required and any other proof may be presented to support case
A file petition

Office Locations & Contacts

The Judiciary

Sheria house, Harambee Avenue

P.O. Box 40112-00100, Nairobi, Kenya

Tel: +254-2-2227461/2251355

0711 9445555/0732 529995

E-mail: communications@ag.go.ke

WEBSITE: The Judiciary http://www.statelaw.go.ke/


Department of Justice

Co-operative Bank House, Haile Selassie Avenue,

P.O. BOX 56057- 00200, Nairobi, Kenya.

Tel No. +254- 2- 2224029/ 2224082/ +254- 733- 241111

Email: legal@justice.go.ke

WEBSITE: Department of Justice http://www.statelaw.go.ke/


Eligibility

Any legal married persons can apply for divorce and must have reasonable grounds for applying for divorce.
To end your marriage, you must be separated for 12 months before you can formally apply for a divorce. The Court does not consider whose fault it was that ended your relationship.
An order for dissolution of marriage will not be made, if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
An order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably.




Fees

A Chamber Summons Application fees is Ksh 500.00
Affidavit of service or non-service Ksh 75.00
In most cases, the court directs that each party meets their own costs. But the successful party can claim costs from the other side especially for transport and legal fees in a contested divorce.



Validity

A divorce certificate is valid immediately after the divorce is granted and registered.
The validity of the divorce decree is forever as long as both parties are alive.
The divorce decree can lose its validity, if the divorced parties decide to get married.


Processing Time

This varies depending on the issues surrounding the divorce proceedings. On average, the court process normally takes at least three years.


Related Videos

Kenya - Obtain a Divorce Decree - English
https://youtu.be/


Instructions

Instructions to follow during the divorce
The first step when filing for a divorce is to ensure that your reasons coincide with those stated as grounds for divorce in the Kenyan Marriage Act.
You need to hire a good divorce lawyer who will present your case to a magistrate. The dissolution of marriage revolves around child upkeep, sharing of matrimonial assets and maintenance fees so hiring the best divorce attorney ensures better and sometimes faster outcomes.
After the lawyer presents the case to the courts, you and your spouse will be granted six months to decide whether to reconcile or to go ahead with the marriage dissolution. During this waiting period, a couple seeking divorce is advised to seek counsel from village elders or counsellors.
After the lapse of six months, the two parties go for a hearing to discuss matters concerning the children upkeep and asset division. The court will hear both parties and make a ruling.
After the divorce, each spouse is directed on what to do and then pay the divorce lawyers their fees. In some instance DNA test may be needed as well as title deeds to proof of ownership.


Required Information

Name and address of applicant
Name and address of partner
Period of marriage
Reason for applying for divorce
Type of marriage to be dissolved
Details of children if any


Need for the Document

Divorce is a legal ending of any legal marriage. A divorce decree is that final order given by a court to complete divorce proceedings and it is usually signed by a judge. Like in any other country, in Kenya a divorce decree is obtained from court.


Information which might help

Divorce law in Kenya Divorce in Kenya is stipulated by the Marriage Act and it is this Act that dictates how the different forms of marriages should be dissolved. According to the divorce law in the country, grounds for divorce are similar for the various forms of marriages.
Dissolution of Christian marriages is permitted when one of the spouses engages in one or more adulterous acts and cruel mistreatment which could be mental or physical, inflicted by the other party on the petitioner or on the children, if they have.
Civil marriages can be dissolved three years after the celebration of marriage. The circumstances for divorce in civil marriages include infidelity, cruelty, desertion by a spouse for at least three years, and exceptional wickedness by one spouse.
Divorce in customary marriage can be granted on the basis of adultery, abandonment, ill-treatment, exceptional depravity and permanent failure of the marriage or any other valid reason as stated in the customary law of the petitioner.
Divorce in Hindu marriages is allowed when one party proves that there is irreversible damage to the marriage, the other spouse has deserted the petitioner for three years prior to filing the petition, conversion of the other party to a different religion, commission of adultery rape, sodomy and abuse by one party.
Divorce in Islam is guided by Islamic law and the Sheikh, Imam or Kadhi makes the final decree on the end of the marriage.


Other uses of the Document/Certificate

The divorce decree is needed when applying for a name change
The divorce decree is needed when applying for a passport , visa or work permit
The divorce decree finalizes divorce proceedings
It saves a person any cruel or violent treatment that has been in a marriage
It makes the divorce official
It is proof that two people are no longer married
A person can re-marry legally once the divorce decree is obtained

External Links

The Law Society of Kenya : The Law Society of Kenya http://www.lsk.or.ke/

Procedure for filling a divorce petition rocedure of filling for a divorce https://www.lawquery.co.ke/our-blog/procedure-for-filing-a-divorce-petition/

Matrimonial Causes Act Cap152 :Matrimonial Causes Act Cap152 http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/MatrimonialCausesAct_Cap152.pdf


Others

Grounds for Divorce:
The following can also be considered as grounds for divorce
a) If a spouse commits adultery
b) If a spouse is cruel to the other spouse or to any child of the marriage
c) A spouse wilfully 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.
h) Any other ground as the court may deem appropriate.

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