Defending Against a Divorce Petition in Kenya

Often times parties sued in divorce courts may not wish to remain married to their spouse and hence may not contest their spouse’s divorce petition.

However, in other circumstances, a spouse may wish to remain married to their spouse in spite of them filing the divorce petition. This may be for whatever personal reasons, which in the interim compel the spouse to oppose the divorce petition.

Such opposition may be set out in the answer to the divorce petition in which you try and bring out that either your spouse has not proved the grounds for divorce or that the instances cited by your spouse do not meet the serious threshold under the Marriage Act of Kenya, 2014, to warrant the divorce. In effect, you as the opposing spouse will want to show that the marriage has not broken down and thus the court ought not to issue a decree of divorce.

Your best chances also require you to show that at best, the behaviour your spouse has complained of and which forms the basis for the petition were mere irritancies of behaviour that is normal between spouses in a marital relationship and therefore not serious enough to provide evidence of any of the grounds of divorce which include cruelty, desertion, adultery, etc.

Another strategy you may use is to bring a preliminary objection to the court’s jurisdiction although this is a strategy in a narrow segment of cases. Thus, for instance, one may object to a divorce in a religious court on the basis that they do not profess the religion that governs the operations of that court on the basis that the Constitution mandates that the suits that may be brought before religious courts require all parties to be profess their religion. Nevertheless, while this may only slow down the progress of the case as your spouse may subsequently bring the case in the court of appropriate jurisdiction. It is more of a stall than complete stop legal strategy in fighting a divorce case.

Fighting Spousal Maintenance/Alimony Requests

Under the Constitution of Kenya, it provides that spouses have equal rights at the time of marriage as well as at the time of ending the marriage. Courts have made various pronouncements that each divorcing spouse capable of working ought to do so and thus one of your best legal strategies in respect of fighting hefty spousal maintenance demands made against you in court is to advance an argument that goes towards the equality of spouses and the responsibility of your spouse towards their own sustenance.

Another strategy that you may use is when you are willing to pay spousal maintenance but nevertheless aim at pre-empting a hefty spousal maintenance demand. In such a case you may initiate an amicable process that will result in a maintenance settlement agreement such that you enter a written agreement with your spouse on the amount of spousal maintenance. This is advantageous as you can agree on the amount, e.g. whether it will be periodic or a lump sum and also you can designate some of your assets towards paying this alimony which can be less disruptive to your own finances as it is a planned payment.

Fighting Matrimonial Property Disputes

Similar to advancing an argument against the demand for spousal maintenance, the equality argument is also pertinent. It is not a matter of course that marriage will entitle your spouse to half of your assets on divorce, thus you will need to assert the rule under the Matrimonial Property Act whereby division of assets is determined on the basis of contribution.

You may also try and present a diminished view on the contribution of your spouse to show the court that even if your spouse may claim to have made a non-financial contribution to the acquisition of said asset, the value of what they assert they have contributed does not amount to the stake that they are claiming in the asset.

With respect to claims of beneficial interests of your spouse in any property owned in your own name, you will also need to rebut any presumption that may be raised that you held the property in trust for your spouse by showing your financial contribution to the asset and disproving any association of the asset with your spouse who is claiming an interest in the said asset.

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.