Can you remarry a wife or husband from whom you have divorced? This is what the law says


Marriage Law Number 4 of 2014 recognizes five types of marriages in Kenya: Christian, Civil, Customary, Hindu and Islamic marriages. [File, Standard]

Did you know that nothing prevents you from remarrying with a spouse from whom you had divorced?

Although it seems far-fetched, Kenyan law allows you to marry your ex-husband or ex-wife.

Family lawyer Judy Thongori said the marriage law treats formerly married couples as “new people” after divorce and therefore they are free to re-enter a union.

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“There are cases of couples remarrying their ex-spouses,” Thongori said. The standard.

“No legal obstacle prevents formally engaging with a man or a woman from whom he has separated,” added the lawyer.

University of Nairobi sociologist and lecturer Dr Karatu Kiemo explains that most people who remarry their ex-partners attribute their previous actions to anger, frustration and an impulsive reaction.

“Once the dust settles, the ex-spouses have a revealing moment and there is a good chance that they will resume their relationship,” he said.

Dr Kiemo adds that children and loved ones play an important role in reuniting former couples.

“When the children are suffering because of the separation, the ex-partners may decide to reunite, formally, in the best interests of the children. ”

The sociologist also reveals that the inability to move forward after the divorce has led the ex-spouses to reconcile and eventually remarry.

“If the parties remain single after the divorce, say for two years, the chances of them reconciling are high if the cause of their separation was not serious,” said Dr Kiemo.

The sociologist advises divorced couples, who seek to reunite, to exercise genuine repentance before forgiveness and reconciliation can be adopted.

Divorced

The Kenyan divorce system, unlike many other countries, is inherently fault-based. This means that couples who file for divorce must prove a marital offense committed by their spouse.

This differs from most Western countries, including the UK which has a “no-fault” divorce system that allows for divorce by consent.

Marriage Law Number 4 of 2014 recognizes five types of marriages in Kenya. These are Christian, civil, customary, Hindu and Islamic marriages.

Christian weddings

Christian marriages are celebrated and registered when a party to the marriage is of the Christian religion. A minister of the church who is authorized to perform such a marriage in a registered religious center such as the church often officiated.

Under article 65 of the law, persons who marry according to Christian law can file for divorce on the following grounds: one or more acts of adultery committed by the spouse; cruelty, whether mental or physical, inflicted by the other party on the applicant; desertion by either party for a period of at least three years before the filing of the divorce petition; exceptional depravity of one or the other of the parties and irremediable breakdown of the marriage.

Civil weddings

Civil marriages, unlike Christian marriages, are performed by the Registrar of Marriages, as stated in Part Four of the Law. Like Christian marriages, they are monogamous in nature.

Under article 66 of the law, unlike Christian marriages, a party to a civil marriage can only apply to the court for separation or divorce after three years of marriage. This provision has, however, been the subject of intense judicial scrutiny in recent times, with some courts finding it prohibitive. However, the law is still not repealed.

The grounds for dissolving a civil marriage are the same as the grounds for dissolving a Christian marriage.

Customary weddings

Customary marriages are unions celebrated in accordance with the customs and practices of the ethnic communities to which either party to the marriage belongs. The grounds for interrupting a customary marriage are like those for civil and Christian marriages.

hindu weddings

These are celebrated marriages where the spouses both profess the Hindu religion. Unlike civil, Christian or customary marriages, which have almost identical grounds for which divorce can be requested, in Hindu marriages formal separation can be requested on the basis of the following reasons, among others: when the other party has abandoned the applicant for at least at least three years; when the other party has converted to another religion; where, since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery; where the other party has committed cruelty to the other and the other party has committed exceptional depravity over the other.

Islamic weddings

Islamic marriages are celebrated under Islamic law. The law does not establish grounds for the dissolution of Islamic marriages, only stipulating in article 71 that Islamic law governs this dissolution of an Islamic marriage. These divorce proceedings are handled and presided over by the Kadhi courts.

Prohibited marriages

According to marriage law, a person cannot marry a grandparent, parent, child, grandchild, sister, brother, cousin, great-aunt, great-uncle, aunt, an uncle, a niece, a nephew, a great-niece or a great-nephew. However, a person’s marriage to that person’s cousin does not apply to people who profess the Islamic faith.

Divorce proceedings

The divorce process begins with filing a petition for divorce with the Court of Chief Magistrates. The petition sets out the grounds for divorce and the facts on which the petitioner relies to establish those grounds. The motion is filed with a notice directing the respondent to appear and respond to the motion within 15 days.

Once the 15 days have elapsed, the petitioner asks the court to declare the petition uncontested, after which the petitioner files and the court delivers a judgment.

Lawyer Dunstan Omari has said that the dissolution of a marriage can be done in a matter of months, contrary to popular belief that divorce cases take forever in the courts.

“It takes 30 days for the hearing to start, and the hearing will depend on the court’s schedule,” Omari said. The standard.

The lawyer said that once the divorce is granted, its implementation does not take effect immediately. The parties have 30 days to ratify or cancel the divorce.

“The waiting time is crucial because it gives the couple the possibility of reconciling eventually. The state disapproves of unnecessary divorces, ”he said.

The 30-day period also gives spouses time to adjust to the new life, as they work on a possible co-parenting arrangement.

According to Omari, divorce cases in Kenya are speeded up when both parties have approved the idea of ​​separation, unlike when one partner is against the divorce.

“If the divorce is not contested, the finalization can be done immediately after the expiration of the mandatory waiting period,” he said.

Leading decision

For a very long time in Kenya, people seeking divorce had to wait until marriage, especially civil marriages, last at least three years before they could apply for separation.

In March 2020, Malindi High Court Judge Reuben Nyakundi ruled that partners, whose civil marriages are irretrievably broken, do not need to wait three years to file for divorce.

In his ruling, Judge Nyakundi declared that marriage is a union of consenting partners who should be free to leave at any time.

As a result, the judge declared section 66 (1) of the Marriage Act, which prohibits couples from divorcing within three years, unconstitutional.

“Today you can get married in the morning and file for divorce in the afternoon; the law allows the parties to do so, ”Omari said, citing Judge Nyakundi’s ruling.


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