What you Should Not Do During a Divorce
See below common mistakes made by parties during separation or divorce proceedings which may affect your case in court. Avoiding these mistakes can lead to a less stressful and acrimonious divorce and help your divorce case.
Evict your spouse or children
Eviction of your spouse without them consenting to leave the family home is inadvisable as the Matrimonial Property Act requires any party that seeks to remove their spouse from the family home should seek a court order first.
Hide income, expenses and assets
During divorce proceedings, it is advantageous to be forthright on one’s assets, incomes and liabilities; because even if one hides the full details of their property/income to avoid paying maintenance or to avoid splitting assets, your spouse has the right to apply for discovery of your assets as well as hire investigators to determine the true extent of your assets. Hiding this information does not help you build a persuasive case in court.
Fail to monitor liabilities incurred by spouse
Under the Matrimonial Property Act, liabilities incurred by one spouse on jointly owned property or property on which one spouse has a beneficial interest may be jointly and equally borne by the spouses irrespective of whether one party was not party to any contract under which the liability arose. Thus make sure to keep an eye on your spouse and their spending habits during the divorce. You may also disclaim additional liabilities incurred after you separate from your spouse in a divorce settlement agreement to avoid joint liabilities.
It may not be to any spouse’s advantage to act spitefully against their spouse during a divorce. It is better to be civil to avoid fostering more resentment which is a common feeling to arise in a divorce. Spitefulness detracts from your spouse’s desire to enter an amicable agreement with you on issues such as division of assets, custody and maintenance of children, spousal support etc. Spitefulness may also harm the psychology of any children because they can feel the undertones of mistreatment of their other parent by the spiteful or vindictive spouse.
Refuse to consider a settlement agreement
A settlement agreement can be very useful as it allows parties to come to a negotiated settlement on various issues around the divorce instead of having the court direct spouses through a court order which may not be favourable to one party and which may have been avoided by negotiations or mediation leading to more of a win-win situation for all involved. Parties can also agree on issues of custody and responsibility for the children and this settlement may be drafted into a parental responsibility agreement that can be adopted by the court.
Collude with your spouse to file the divorce
The Marriage Act of Kenya forbids couples from colluding to file a divorce petition, this means that parties should not conspire to file for divorce; the only basis for divorce should be that one spouse has committed a marital offence consisting of one of the grounds for divorce under the Marriage Act.
Fail to alter an old will or write a new will
During divorce or separation, you may feel disinclined to have your spouse inherit your assets should you die. If your intention is for your spouse not to inherit your assets, you ought to write a will or alter an old will to reflect this intention, otherwise your spouse may still be entitled to inherit your estate whether under your old will indicating them as a beneficiary or the rules of intestacy.
Defame your spouse or share revenge photos and videos
During separation and divorce, spouses are strongly advised against making offensive statements or allegations about their spouse to the public or sections of the public for instance through social media. You are also advised not to share or publish any photos or videos of your spouse lest you find yourself in another law suit where you may be ordered to pay damages for defamation or breach of privacy or cybercrimes.
Threaten your spouse
Avoid making threats against your spouse or children. Do not harass them either e.g., by stalking, incessant phone calls; taking custody of the children without notice and consent of parent holding physical custody of the children; cutting off maintenance to your children to compel your spouse to agree to your demands; etc.
Sell off joint assets
Do not sell off joint assets without the consent of your spouse. This is because the law requires for certain assets that your spouse must provide their consent to selling the asset and any third party that purchases a jointly owned asset without the consent of the other spouse may risk losing the asset. The ideal process is to obtain a court order on the division of assets between the spouses to sever the joint ownership first.
The provision of general information herein does not constitute an advocate-client relationship with any reader. All information, content, and material in this article are for general informational purposes only. Readers of this article should get in touch with us/a qualified advocate to obtain legal advice with respect to any particular legal matter.