So you want a simple divorce that is uncontested, now what? Koya & Co. Advocates helps clients obtain simple divorces where the divorce petition is likely to go undefended meaning that the Respondent - your spouse - is unlikely to controvert your Divorce Petition.
Contested Divorces can be stressful and lengthy as they often combine several legal issues that are contested including: your spouse's counter-petition against you and issues of maintenance and alimony.
Joan Mukoya is an Advocate of the High Court of Kenya and has extensive experience in family law matters (8+ years). She holds an LLM (Commercial Law) from the University of Cape Town in South Africa.
She presently handles numerous family law matters, namely: Divorce; Child Custody, Child Guardianship, Drafting and Filing Parental Responsibility Agreements in Court.
She diligently works for clients and is always promptly responsive while endeavoring to provide valuable legal advice to parties seeking to divorce. She aggressively fights for the rights of her clients within the Family Courts and Children's Courts.
Before setting up Koya & Company Advocates which is a civil and commercial law firm with an intellectual property practice group, Joan previously worked at two top tier law firms and a leading investment fund manager investing in Sub-saharan Africa and Latin America (AUM exceeding USD 60M).
Answers to guide you on your divorce
Can I get an Uncontested divorce in Kenya?
Yes, if by uncontested it means no cross petition is filed against you or your spouse does not controvert your petition for a divorce. This is also called a no-contest or undefended divorce, because your spouse does not challenge your grounds for seeking a divorce.
Can I get an uncontested divorce if I have a Child?
Yes, you can. Divorce and Child custody suits are separate, meaning that the court will only pronounce itself on the divorce and if the Respondent does not countersue you and the court is satisfied, you will get the divorce decree. On the other hand, you will have to go to the Children’s court to deal with the legal issues of child custody and child support.
Can I get a ‘No Fault’ divorce in Kenya?
No, this is not allowed in Kenya. One must present one of the several grounds for divorce under the various systems of marriage. This means that you must show that your spouse has committed a marital offence that forms one of the grounds for divorce.
Are the advocates at Koya & Co. Advocates ‘No Fault’ divorce lawyers?
Koya & Co. Advocates has divorce lawyers. Kenya only has divorce lawyers who handle uncontested divorces; no fault divorce lawyers are a misnomer in Kenya as divorce is always fault based.
Can I get an Uncontested divorce online?
No, this is not possible in Kenya as all divorces must be heard in court, meaning that the Petitioner shall be heard in court whether or not the Respondent appears to defend themselves. The extent of online divorce service is to file the papers online (Nairobi County).
What is the Cost of an uncontested divorce?
The fees that uncontested divorce attorneys charge varies among lawyers. My firm charges a minimum of KES 200,000 in legal fees for an uncontested divorce in Nairobi. Additionally, disbursements and court case fees amount to KES 70,000, thus totalling KES 270,000 for Nairobi matters.
What are the Steps in an uncontested divorce to obtain a Decree Absolute?
If you are confident that your spouse will not challenge your divorce petition i.e. the case will proceed uncontested, see below the steps to obtain the divorce decree:
1. File a Petition and accompanying documents in the appropriate court, the magistrates’ court (in this instance). Uncontested divorce papers are the same as that of a contested divorce.
2. Attach the appropriate documentary evidence to the petition including the marriage certificate.
3. Once the registrar certifies that the divorce may proceed to hearing, seek a hearing date and appear in court to present your evidence
4. Thereafter, if the court is satisfied it will proceed to pronounce a decree nisi (temporary decree) and some months later, this decree will be certified as a decree absolute.
5. After the decree absolute is issued, your divorce shall be complete.
What is an Amicable divorce?
An amicable divorce can mean one of 3 things:
1. That the parties in the divorce case are not antagonistic to each other and are not disputing the petition filed by the person seeking the divorce.
2. That the parties are agreed on the split of matrimonial assets and child custody and are willing to enter a settlement agreement sanctioned by the court on either of these issues.
3. That the parties have agreed to divorce and neither is claiming wrongdoing on the part of the other (as explained under ‘no fault divorce’, this imputation is wrong and parties must show grounds for divorce on the part of either the petitioner or the respondent.)
Can I enter into a Divorce Agreement?
It depends. You cannot enter into an agreement with your spouse to divorce without grounds for divorce. This means that there cannot be a faultless divorce.
However, you can enter into an agreement regarding the split of matrimonial property as well as the split in child custody and parental responsibility for any children you have. You can also enter an agreement on spousal/maintenance support and the division of marital property.
What is a Simple/Quick divorce and how do I get one?
A simple or quick divorce in the Kenyan context is a divorce with fewer procedural mountains to climb, for instance: neither party is claiming spousal support from the other; the petition for divorce is not challenged by the Respondent; the respondent does not file a cross-petition accusing you of marital offences; there are no children of the marriage or the children are adults and there is no custody issues to determine ; the respondent fails to respond meaning that there is an uncontested divorce without child custody or child support issues. In summary an easy divorce is an undefended one.
When can I get a divorce in Kenya?
One can get a divorce after they have been married for a minimum of 3 years.
Can I get a Divorce before 3 years are up?
Yes, but there must be serious grounds for this; for instance, if there was extreme depravity or cruelty by your spouse against you. Additionally, one must make a special request to the court to allow this divorce before 3 years have lapsed.
Do I need a Court Divorce?
The court is vested with power to dissolve marriages in Kenya. A party shall petition the court for divorce in a Muslim Marriage, Hindu Marriage, Christian Marriage, African Customary Marriage, and Civil Marriage.
The Kadhi’s Courts issue divorce decrees in Muslim Marriages.
What are Divorce Papers?
The divorce paperwork includes:
1. Petition for divorce
2. Verifying Affidavit`
3. a duly authenticated copy of the Certificate of Marriage;
4. a list of witnesses (if any);
5. written witness statements (if any); and
6. duly authenticated copies of evidential documents (if any) to
7. be relied on at the hearing of the petition.
What is the Divorce Process?
The simplified steps to divorce/dissolution of marriage and obtain a divorce decree in Kenya are as follows:
1. The Petitioner will prepare the divorce petition for the dissolution of the marriage and attach the divorce papers highlighted above.
2. Once the petition is filed in court and the notice to enter appearance by the Respondent is prepared, the Petitioner shall serve the divorce papers on the Respondent who is required to enter appearance.
3. The Respondent shall have some days thereafter to file their answer to the petition and any cross petition.
4. Thereafter the Petitioner may file an answer to the cross petition and thereafter pleadings shall close.
5. After the close of pleadings, the petitioner may request the court to issue a certificate allowing parties to move to the hearing stage.
6. After the certificate is issued, a hearing date shall be granted.
7. If the court is satisfied, it will issue a decree nisi which will be converted to a decree absolute 30 days later.
What are the Grounds for divorce to obtain a decree absolute?
These include cruelty, adultery, extreme depravity, irretrievable breakdown of the marriage and desertion.
Where can I find the Divorce laws of Kenya?
Marriage and divorce laws of Kenya are contained in the Marriage Act and the Matrimonial Property Act, which also contain matrimonial laws as well as case law you can find on Eklr.
What is a divorce Decree?
This is the legal pronouncement/order by a court that the marriage is dissolved. Initially a decree nisi is issued and subsequently it is confirmed to be a decree absolute (final decree of divorce), meaning that the divorce shall be rendered absolute and the parties shall no longer be married to each other.
Filing for divorce?
A person seeking a divorce usually files the petition in the magistrates’ court.
What is a divorce Petition and what is its Purpose?
This is one of the divorce papers that needs to be filed in court and is a request to the court to dissolve the marriage on the basis of grounds (matrimonial offences set out in the petition)
What is the Difference between separation and divorce?
A separation is a court order to live apart (It is informally referred to as a limited divorce) while a divorce is the process you undertake to dissolve the marriage permanently.
How do I get a Civil Marriage divorce?
This is done by filing a petition for divorce in court and the grounds include desertion; cruelty; depravity and irretrievable breakdown of marriage.
Can I enter into a Separation Agreement with my spouse?
Yes. Under S 14 of the Marriage Act, parties to a civil marriage may agree to live apart for one year and any such agreement shall be valid and enforceable, and legal separation papers shall be filed with the court.
What is a Contested divorce?
This is a divorce in which the respondent contests the grounds for divorce set out by the petitioner in the petition and also includes a cross-petition in which the respondent also accuses the petitioner o committing matrimonial offences.
Can I attend Divorce Mediation during the court process?
Sometimes the court may ask parties to seek alternative dispute resolution in the form of mediation to discuss disputes other than the divorce decree and the order from the mediator may be adopted by the court as part of its orders. Thus parties may discuss maintenance, marital assets and children during the mediation process.
Can I get a divorce simply by filing divorce papers Online?
Divorce papers cannot be prosecuted online although they may be filed online in some parts of Kenya e.g. in Nairobi County. The divorce decree is issued by the Kenyan courts. Fake divorce papers are those which are not being used in a n actual divorce case before a competent court of law in Kenya or abroad.
What is a Mutual divorce?
A mutual divorce is one in which both parties agree to divorce and often means that neither party blames the other for the divorce. In Kenya, we have an ‘undefended divorce’ as opposed to mutual where the Respondent can decide not to file an answer/cross petition against the Petitioner.
DIY Divorce/ Do it yourself Divorce in Kenya?
This is a divorce that is run by a Petitioner or Respondent without support from a lawyer and while permissible, one needs to be careful on procedural issues, evidentiary matters and the divorce grounds.
What is the Cost of Divorce in Kenya?
The average cost of a divorce varies depending firstly on whether it is contested or uncontested and an uncontested divorce tends to be cheaper as there are fewer disputes and procedural issues for the advocate to work through. A contested divorce can be expensive if issues of children, custody or support and maintenance and matrimonial property issues also need to be thrashed out.
Where can I get Divorce Advice?
Law firms such as Koya and Company Advocates that have a family lawyer/ divorce lawyer provide legal help and guidance with regard to your divorce. We handle divorce petitions and provide divorce advice to both men and women. Contact us today for a divorce consultation and let us advise you on your case.
How Can Parenting Work after Separation?
Parties are at liberty to enter into a parental responsibility agreement which shall be approved and adopted as a court order by the Children’s Court. The principle under the Constitution of Kenya and the Children’s Act is that both parents bear equal parental rights and responsibilities.
What is the family Court for divorce?
The initial court of jurisdiction is the magistrate court to handle family divorce issues.
I was wondering whether entering a second marriage without getting a divorce is legal?
A second marriage without obtaining a divorce is unlawful if there is a prior civil or Christian marriage. However, polygamous unions are allowed under African Customary Law so a second marriage during the pendency of such a polygamous union will be lawful (i.e. second customary marriage without getting a divorce is legal where the prior marriage is done under customary law).
What are the steps to divorcing an Alcoholic?
Alcoholism can provide several grounds for divorce to the marriage e.g., cruelty where alcohol makes the alcoholic spouse a batterer of their wife or husband; irretrievable breakdown of marriage as the alcoholic can focus on nothing other than alcohol thus ignores the wife and other financial duties towards the family as well as ruining the reputation of the sober spouse in the community through drunken escapades etc.
How does divorce impact Custody of a child/children of the divorcing spouses?
The interests of the child are paramount when deciding which parent shall have custody of the child during/after divorce proceedings. Child custody is determined at the Children’s Court and legally, both parties have the right to seek custody as they have equal parental rights and responsibilities. Ordinarily, custody of an infant/child of tender years shall be given to the mother unless the mother is a manifestly unfit parent.
Is Spousal Abandonment a ground for divorce?
This is a ground of divorce and is usually called desertion and it occurs when a spouse deserts the other spouse for at least three years immediately preceding the date of presentation of the petition.
Adultery as a ground for divorce?
Adultery is a common ground for divorce and adultery occurs when the offending spouse cheats on the Petitioner with a person other than their spouse during the existence of the marriage.
Can I put forward Unreasonable Behaviour as a ground for divorce?
Often times it is possible to describe the unreasonable behaviour in such a manner as to show the court that the behaviour has caused irretrievable breakdown of the marriage or the behaviour constitutes cruelty to the petitioner - which are both grounds for divorce. For instance, if the Respondent is perpetually making reckless financial decisions or if the Respondent has been bullying the Petitioner.
Can my spouse and I get a Collaborative Divorce?
This is not permitted in the sense that parties cannot collude with each other to present a divorce petition; however, parties may collaborate to enter into a divorce settlement as pertains to matrimonial property, maintenance and care of children.
What type of divorce Support can I get when I divorce my husband/wife?
The court will consider applications for spousal support in the form of alimony and maintenance; and will take into account whether the applicant is able to support themselves; the income of the person to pay the alimony as well as other factors.
How are Matrimonial/Marital Assets divided?
Marital assets are divided jointly between the divorced spouses and assets acquired by each party prior to marriage are deemed that party’s sole assets. Court looks at non-financial contribution when determining what constitutes matrimonial property (This comes up especially with wives who often make non-financial contributions to property acquired during the pendency of the marriage.)
What is considered the Marital Home under the law?
This is the matrimonial home that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property. ownership of matrimonial home vests in the spouses according to the contribution of either spouse towards its acquisition and non-financial contribution shall be considered as contribution towards the home.
Can my spouse and I enter into a Divorce Settlement Agreement or a Marital Settlement Agreement?
These are agreements whereby parties mutually agree on aspects surrounding the divorce e.g. a divorce financial settlement stipulates the agreed split of matrimonial property, as well as issues of alimony but does not include a no-fault divorce agreement between the parties. A managed divorce in which parties agree on these issues instead of having them tried in court can control their legal fees and costs from spiralling.
What is a marriage Annulment?
An annulment is a court decree that a marriage is null and void and has been since the marriage was celebrated. A marriage shall be annulled within one year of the marriage and the Petitioner must show they were ignorant of the facts necessitating the annulment and further the parties must not have consummated their marriage.
What are the Grounds for an annulment?
The grounds include: that the marriage has never been consummated; that at the time of the marriage parties were in a prohibited relationship e.g. a monogamous marriage which was not dissolved; and the wife was pregnant by a man other than the husband at the time of marriage and without the husband’s knowledge; if the petitioner’s consent to the marriage was coerced and not freely given etc.
How do I get a divorce in a False Marriage?
A false marriage may be annulled within a year of contracting it.
Where are divorce Procedures of Kenya found?
Divorce procedures are outlined under the Marriage Act under the Matrimonial Proceedings Rules 2020.
When were the New Divorce Laws enacted?
The Marriage Act which stipulates the law on divorce was enacted in Kenya in the year 2014 and in 2020 there was an amendment to the Act with new Matrimonial Proceedings Rules.