Instant Message! Instant Divorce!!!

HAVE you been part of wedding committees and those pesky WhatsApp groups seeking to raise funds for unnecessary flashy weddings? (Perhaps to jilt exes and naysayers) The big day finally comes and the pompous hullabaloo happens. In the following weeks, you hear whispers that the couple is now divorcing. What a lucrative business! Raise funds, marry someone and then file a divorce petition within a month. Lord have mercy on us! Guess what! This is perfectly legal, thanks to the ruling by the High Court of Kenya, on Thursday, September 26 which held that couples who marry through a civil process are free to divorce at any time. As such, Justice Reuben Nyakundi declared section 66 (1) of the Marriage act that stopped such couples from divorcing within three years unconstitutional. Section 66 (1) avows that "A party to a marriage celebrated under Part IV 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."

THE reasons given for the judgment were interalia (amongst others) that the impugned section contravenes the Bill of Rights especially the Right to Human Dignity, Freedom from Slavery and Servitude and Freedom from discrimination (Art. 27 of the Constitution). Further, apart from claims of public policy, there was no basis given for the 3-year restriction period, save that it was to give parties time to solve their difficulties in marriage. I am inclined to believe that the 3-year restriction period was introduced as a result of Kenya being predominantly a Christian nation in terms of statistics. Malachi 2;16 “For I hate divorce!” says the LORD, the God of Israel. “To divorce your wife is to overwhelm her with cruelty,” says the LORD of Heaven’s Armies. “So guard your heart; do not be unfaithful to your wife.” However, On the ground, things are different. "Christian" is for CVs and questionnaires.

FOR legal practitioners, the judgment raises issues of concern and interest to wit: a. The classical doctrine of the separation of powers as fronted by Charles Louis de Baron Montesquieu in the ever eternal The Spirit of the Laws b.The Presumption of Constitutionality of Statute Law c. The theory of interpretation of the Constitution d. The Proportionality Test.

UPON a reading of the judgment, I really do not have the locus to term this as a progressive step to solve underlying issues in our society. On each passing day, marriage seems more like a contract between two parties who are seeking validation from the society and government rather than a bond between two willing parties. We have strolled miles away from the classical definition of marriage provided for in the 1866 case of Hyde v Hyde where Lord Penzance stated that "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others". We must ultimately stretch our tolerance, search our souls and be more liberal in the critical examination of our virtues and biases in a world which constantly tests what we hold as the truth. It is no longer choosing between black, grey and white areas but also considering those who have been more daring to choose a flurry of colors mirroring a rainbow.

WELCOME to the Digital World. Instant Messaging, Instant Marriage, Instant Divorce, and Separation. Divorce is not cheap. It will set you back at least a minimum of USD 3000 dollars (Kes 300,000). So stick in your feet.

The full judgment can be accessed at https://kenyalaw.org/caselaw/cases/view/180892/.

William Karoki-The author, is a qualified Attorney, Advocate of the High Court and is a Regulatory and Compliance Specialist with a bias in Corporate Commercial Law, Employment Law , Dispute Resolution and Construction Law. He strives to communicate in plain English. Time: 5.01 #familylaw#succesionlaw#marriage

In case of any queries or clarifications kindly contact the author: [email protected]