AN ANALYSIS OF THE IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A

GROUND FOR DIVORCE IN KENYA

Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore
University Law School

By

Lucy Waringa Mbatia

094283

Prepared under the supervision of

Mr Kariuki Francis

4 MARCH, 2020

Word Count: 10,751

Declaration

I, LUCY WARINGA MBATIA, do hereby declare that this research is my original work and
that to the best of my knowledge and belief, it has not been previously, in its entirety or in part,
been submitted to any other university for a degree or diploma. Other works cited or referred to
are accordingly acknowledged.

Signed: .......................................................................

Date: ..........................................................................

This dissertation has been submitted for examination with my approval as University Supervisor.

Signed: ..........................................................................

Kariuki Francis

2
 ABSTRACT
Marriage is the very bedrock of the family and consequently of the society without
which no civilization can endure. Once parties contract a marriage, the law steps in
and binds the parties to various liabilities and obligations thereunder. Under the
Marriage Act, 2014 both spouses have been guaranteed a right to have their union
dissolved by a decree of divorce on more than one ground. The Republic of Kenya is
traditionally a fault-based divorce regime owing to the nature of the grounds
stipulated in the Marriage Act 2014. However, the Legislature has been aware of the
social advancements and the need to avail the remedy of divorce in increased
circumstances through the implementation of the irretrievable breakdown of
marriage as a ground for dissolution of marriages in Kenya. This ground
traditionally falls under the no-fault divorce regime and as such there is need to
examine how it fits into our fault-based divorce regime. The answer to this is far
much more complicated than the usual subdivision into either fault or no-fault owing
to the fact that several considerations have been attached to this ground in the
aforementioned Act.

This study will therefore attempt to examine the irretrievable breakdown as a ground
for dissolution of marriage in Kenya as provided for in the Marriage Act 2014.

Research on this study will be done through exploration of data, articles, journals,
judicial precedent and legislation relevant to the matter in question.

Key Words

matrimonial offence, fault, no fault theories of divorce, irretrievable breakdown of

marriage, marriage, divorce,

1
Table of Contents
ABSTRACT
LIST OF CASES
LIST OF STATUTES
LIST OF ABBREVIATIONS
ACKNOWLEDGEMENTS
CHAPTER ONE: INTRODUCTION
1.1 Background
1.2 Statement of the Problem
1.3 Research Aim and Objectives
1.4 Hypothesis
1.5 Research Questions
1.6 Justification for Research
1.7 Theoretical Framework
1.7.1 Social Contract Theory
1.7.2 Breakdown Theory of Marriage
1.9.1 Research Methodology
1.9.3 Limitations
1.9.4 Chapter Breakdown
1.3.5 Timeline
CHAPTER TWO: HISTORICAL DEVELOPMENT OF THE IRRETRIEVABLE
BREAKDOWN OF MARRIAGE AND KENYA’S CONTEXT
2.3.1 Pre-colonial era
2.3.2 Colonial era
2.3.3 Post Independence
2.4 Current Legal Position of Divorce in Kenya
2.5 Irretrievable Breakdown of Marriage as a Matter of Proof
a) C W C v J P C
b) K A S v M M K
c) J M M v J M N
CHAPTER FOUR: A CASE STUDY OF AUSTRALIA’S IRRETRIEVABLE
BREAKDOWN OF MARRIAGE AS A GROUND FOR DIVORCE

2
4.3.1 Statute
4.3.1.1 Children and No Fault Divorce
4.3.2 Case Law
4.3.2.1 In the Marriage of Todd
4.3.2.2 Pavey v Pavey
CHAPTER FIVE: FINDINGS, RECOMMENDATIONS AND CONCLUSION
5.1 Introduction
5.2 Findings
5.3 Recommendations
5.4 Conclusion
BIBLIOGRAPHY

3
 LIST OF CASES
C W C v J P C (2017) eKLR

K A S v M M K (2016) eKLR.

J M M v J M N (2015) eKLR.

EKG v CK & Another (2017) eKLR.

R v Amkeyo E.A.L.R (1917) Kenya.

W E L v J M H (2014) eKLR.

C W C v J P C (2017) eKLR

K A S v M M K (2016) eKLR.

J M M v J M N (2015) eKLR.

Cole v Cole, Supreme Court of Canada, 1944.

Mordaunt v Mordaunt (1870) Divorce Court of Great Britain.

Fitzgerald v Fitzgerald (1869), The Supreme Court of Virginia.

Tulk v Tulk (1907) Supreme Court of Victoria.

Pavey v Pavey (1976), Family Court of Australia.

Russel v Russel (1941), The Supreme Court of Victoria.

In the Marriage of Todd (1976), Family Court of Australia.

Pavey v Pavey (1976), Family Court of Australia.

4
 LIST OF STATUTES
Marriage Act, (Act No.4 of 2014).

Constitution of Kenya (2010).

African Christian Marriage and Divorce Act, CAP 151.

Marriage Act, (Act No. 7 of 1975).

Mohammedan Marriage & Divorce Registration Ordinance (CAP 156 of 1906).

Family Law Act (Australia).

5
 LIST OF ABBREVIATIONS
EALR – East Africa Law Reports
FLA – Family Law Act
eKLR – Kenya Law Reports

6
 ACKNOWLEDGEMENTS
With many thanks to my supervisor Mr Francis Kariuki for his guidance and support
throughout this research. To Dr Jennifer Gitahi, my previous supervisor without
whom I would not have had a great start to this whole research process. I remain
forever grateful to all my family and friends, without whose encouragement I would
not have made it this far; here’s to us and all our future success! To all lawmakers
who facilitated the introduction of the irretrievable breakdown of marriage as a
ground for divorce in Kenya; because of you I had something to research on. Finally,
to God for keeping me sane, healthy and able throughout this research.

7
CHAPTER ONE: INTRODUCTION
1.1 Background

As the institution of marriage increasingly evolves, there has been a growing

awareness of the fact that although most, if not all spouses intend for marriage to be
a lifelong union, there could arise unavoidable circumstances that result in the
eventual disintegration of the marriage. These include but are not limited to:
infidelity, unrealistic expectations, the lack of affection and intimacy, lack of
equality in the marriage, cruelty and adultery. 1 As a result, the legal framework in
majority jurisdictions provides for the choice of divorce. 2 In trying to understand and
justify divorce, one needs to understand marriage. John Locke posits that marriage
and the State share in the reality that they are both based on consent. 3 This consent
therefore means that the parties are not only free to enter into a marriage with
whomever they want but to also seek for its dissolution once the marriage
disintegrates.4

The laws surrounding marriage and divorce around the world are of grave
importance due to the sanctity that is the institution of marriage. In the case of
Mordaunt v Mordaunt, Sir J.P Wild asserted that

“marriage as an institution is protected because it bestows status on the

parties to it and upon the children that issue from it. Despite the fact that it is
entered into by individuals, it has a public personality. It is the premise
whereupon the structure of civilized society is built; and as such, is subject in
all nations to general laws which direct and control its incidents and
obligations independently of the volition of individuals who enter upon it.”5

1
Brentano C, Clarke Stuart A, Divorce: Causes and Consequences, Yale University Press, 2007, 25.
2
Section 65, 66, 69 and 70, Marriage Act, (Act No.4 of 2014).
3
http://www.contrariwisejournal.com/media/documents/khadijah_mccarthy.pdf on 14 January 2014.
4
http://www.contrariwisejournal.com/media/documents/khadijah_mccarthy.pdf on 14 January 2014.
5
(1870) The Divorce Court of Great Britain.

1
In Kenya, divorce is discouraged and paramount consideration is put in advancing
the promotion of the stability of marriage and family life. The family's place in
society is pivotal thus the reason for its protection through the enactment of the
Marriage Act 2014. The Constitution of Kenya 2010 serves as a backdrop against
which the Marriage Act 2014 was enacted. In ensuring the protection of the family,
it recognizes that the family is the natural and fundamental union of society and the
crucial foundation for social order.6 Moreover, it guarantees every person the right to
marry a person of their preference, provided that they are of the opposite gender and
there is consent from both parties. 7 Before divorce can be sought, reconciliation is
suggested with divorce being placed as a last resolve.

Due to the various types of marriages that exist in Kenya, different reasons are
advanced as to why divorce is frowned upon. For Christians, the Bible provides for a
monogamous marriage which is to be a lifelong union. 8 Jesus Christ, among others
such as Apostle Paul, not only reiterated the importance of marriage but also its
permanence stating that divorce did not exist in the beginning but was only allowed
by Moses because of the people's hard hearts. 9 As a result, Christianity advocates for
the permanence of marriage and advances that divorces are neither necessary nor
unavoidable. Catholicism prohibits divorce and only allows the existence of an
annulment but under very rare circumstances.10 Under Customary law, the elders are
called upon to attempt reconciliation before the union can be disbanded. However,
some communities such as the Kuria go to the extent of disregarding the very
existence of divorce.11 The aforementioned reasons go a long way to show the

6
Article 45(1), Constitution of Kenya (2010).
7
Article 45(2), Constitution of Kenya (2010).
8
Ecclesiastes 9:9
9
Matthew 19:3-6
10
When does the Bible Allow Marriage? -
https://www.christianitytoday.com/women/2016/april/when-does-bible-allow-divorce.html on 21
June 2019.
11
Divorce Under Customary Law - http://www.kenyalawresourcecenter.org/2011/07/divorce-
under-customary-law.html> on 19 June 2019.

2
importance that is placed on marriage and the reasons for there being only a limited
number of grounds from which divorce can be sought in Kenya.”

However, in recognition of the fact that not all marriages are bound to be successful,
a provision is made for the enactment of legislation by Parliament that shall
recognize marriages terminated under any traditional, or system of religious,
personal or family law and any system of personal and family law under any
tradition, or adhered to by persons professing a certain religion so long as they are
consistent with the Constitution.12

The current legal standing is that both spouses are guaranteed equal rights at the
onset of marriage, during the marriage and at the end of the marriage. 13 For children,
a guarantee is made of the right to parental protection and care, which encompasses
equal responsibility of the father and the mother to cater for the child’s needs,
whether or not they are married to each other.14

Keen to note is that the grounds provided from which divorce can be sought are
limited to those provided in the Marriage Act 2014 from which fault has to be
proven before divorce can be granted. However, with the enactment of the
aforementioned Act came the irretrievable breakdown of marriage ground which
accommodates any other grounds that the court may deem appropriate in granting a
divorce.

1.2 Statement of the Problem

President Uhuru Kenyatta signed into law the Marriage Bill No 13 of 2013 on April
29, 2014, which consolidated the distinctive laws overseeing religious, civil and
customary unions and divorces in Kenya. 15 The legislation reiterates a fixed, limited
list of grounds for dissolution of civil, Christian and Hindu marriages and

12
Article 45(4), Constitution of Kenya (2010)
13
Article 45(3), Constitution of Kenya (2010).
14
Article 53(e), Constitution of Kenya (2010).
15
Goitom H, ‘Kenya: Comprehensive Marriage Law Enacted, Hannibal’ Law Enacted, 2014.

3
acknowledges the use of any grounds acceptable under the pertinent customary and
Islamic practices. This consolidation of laws introduced a new ground; the
irretrievable breakdown of marriage as one of the grounds from which dissolution of
a Christian, Civil, Customary and Hindu marriage can be sought. Traditionally, the
aforementioned ground has fallen within the no-fault regime of divorce. However,
the Marriage Act 2014 attaches further considerations to the ground by stipulating
that a marriage has irretrievably broken down when either of the parties is cruel,
commits adultery, willingly neglects the other party, is imprisoned or any other
ground that the court may deem appropriate. This then necessitates an analysis of
this ground in our Kenyan context. As such this study seeks to analyse the
irretrievable breakdown ground for dissolution of marriages in Kenya that was
introduced with the enactment of the Marriage Act, 2014.

1.3 Research Aim and Objectives

This study aims to carry out an analysis of the irretrievable breakdown of marriage
as a ground for divorce in Kenya provided for in Section 65, 66 and 69 and 70 of the
Marriage Act 2014.

The specific objectives of the research are to:

(i) Delve into the rationale behind the passing of the pertinent sections of the
Marriage Act 2014.
(ii) Identify the considerations attached to the irretrievable breakdown ground of
marriage as a ground for dissolution of marriages in Kenya.

(iii) Compare Australia’s irretrievable breakdown of marriage as a ground for

divorce to that of Kenya.

1.4 Hypothesis

This study’s hypothesis will be:

4
The introduction of the irretrievable breakdown ground of marriage as a ground for
dissolution of marriages in Kenya in the Marriage Act 2014 has served to provide a
ground for termination of marriages that disintegrate outside the traditional fault-
based grounds.

1.5 Research Questions

(i) What are the grounds for dissolution of marriages in Kenya?

(ii) What are the considerations attached to the irretrievable breakdown of

marriage as a ground for divorce in Kenya?

(iii) How is Australia’s irretrievable breakdown of marriage ground different

from Kenya’s?

1.6 Justification for Research

As the attitude towards divorce changes, this necessitates a change in our current
divorce laws to make them increasingly adaptable and accommodating. Roger
Cotterrell in his book Law’s Community16 concludes that law needs a political
authority as a condition for implementation as well as the moral authority as a
condition for its social acknowledgment.17 This assertion only confirms the old adage
that ‘law mirrors the society’.18 A look into Kenya’s divorce laws will reveal that the
laws were made in contemplation of requirement of fault from either party in a
marriage. To this extent, before the Marriage Act 2014 was implemented, the
grounds provided for divorce were confined to those that were provided in the
repealed Marriage Act with a further requirement of fault from either party.
However, with the implementation of the Marriage Act 2014, such laws on divorce
in Kenya have been implemented to now include the irretrievable breakdown of
marriage as a ground for divorce. This means that the introduction and inclusion of
16
Cotterrel R, Law’s Community, Clarendon Press Publication, Oxford, 1997.
17
Cotterrel, Law’s Community, Clarendon Press Publication, 53-55.
18
Tamanaha B, A General Jurisprudence of Law and Society, Oxford Press, Oxford, 2001, 6.

5
this ground in the Marriage Act 2014 mirrors the increasingly evolving society to
cater for marriages that disintegrate outside of the traditional grounds for divorce in
Kenya.

1.7 Theoretical Framework

1.7.1 Social Contract Theory

John Locke propounds that marriage, being a social contract, brings about a
contractual relationship. He posits that the obligations of marriage are to join
together in communion of interest, to reproduce children for the advancement of the
species, and to care for them until they are self-sufficient. 19 Locke legitimizes this
assertion by advancing that man is not made to live in confinement, and that in order
to prosper, he must be put under strong societal obligations.20

Moreover, he expresses that our institution of marriage is what separates us as

human beings from the mammoths of the field. For the mammoths of the field, the
union between male and female endures as long as the act of copulation; human
beings are both increasingly dependent at birth and progressively proficient in
maturity. This legitimizes the need for government over a society, according to
Locke. Despite the fact that spouses have similar interests and concerns, there will be
unavoidable conflicts based on their different desires. A government offers stability
and equilibrium; its rules are not subject to our daily changes in feeling or desire. 21
Therefore, for the progression of society in general, it is essential to have a
government that is constant in a world of endless variables. This government then
assumes the role of implementing laws which must be adhered to by those living in
that society.22 This can be compared to the laws legislated in relation to marriage and
divorce in our Kenyan context including the implementation of the irretrievable

19
Yenor Scott, Family Politics: The Idea of Marriage in Modern Political Thought, Baylor
University Press, 2011, 66-78
20
Yenor Scott, Family Politics: The Idea of Marriage in Modern Political Thought, 66-78.
21
Shanley M, Marriage Contract and Social Contract in Seventeenth Century English Political
Thought, The Western Political Quarterly, University of Utah Press, 1979, 79-91.

6
breakdown ground in a divorce regime that previously failed to recognize that
ground and only provided a limited number of grounds from which divorce could be
sought.

1.7.2 Breakdown Theory of Marriage

The irretrievable breakdown of marriage ground stems from the breakdown theory
of marriage which propounds that a marriage no longer exists when its essence is
destroyed and the law should therefore not compel the parties to continue with the
marriage.23 Sometimes, neither of the spouses is at fault thus negating the presence
of matrimonial offence, but the law ought to assist them in the dissolution of the
marriage. This regime is to some degree therefore a pragmatic approach of realizing
the social reality in marriage; that sometimes parties to a marriage might not be
guilty of an offense but the law ought to assist them in the dissolution of the
marriage despite the lack of matrimonial offense being at play.24

In contemporary society, the breakdown of marriage theory is perceived by the laws

of many countries and a pattern towards this theory becomes discernible through the
enlarging of the number of grounds based on the fault theory and by giving the
widest possible interpretation to the traditional fault grounds.25

1.8 Literature Review

In his paper, Douglas Allen summarizes the historical origins of no-fault and the
effects of the no-fault divorce on divorce rates and concludes that no-fault has
certainly led to an increase in divorce rates over the past three decades. He however

22
Shanley, Marriage Contract and Social Contract in Seventeenth Century English Political
Thought, 79-91.
23
Kumar V, ‘Irretrievable Breakdown of Marriage: Right of a Married Couple’ 5(1) NALSAR Law
Review (2010) 16.
24
Kumar,‘Irretrievable Breakdown of Marriage: Right of a Married, 17.
25
https://www.lawctopus.com/academike/divorce-under-hindu-law/ on 20 April 2019.

7
fails to recognize that once a marriage has disintegrated, spouses will still seek
divorce even in fault-based divorce regimes thus requiring the apportionment of fault
only serves to prolong divorce proceedings.26

In her book Dissolution: No-fault Divorce, Marriage, and the Future of Women 27,
Riane Tennenhaus points out that throughout history, the structure and form of the
family have continually changed and evolved, which are all reflections of evolving
social and economic realities that require new forms of social organization such as
the irretrievable breakdown ground of divorce which is a stray from Kenya’s
traditional grounds of divorce. She adds that this ground is in many respects an
improvement over the older laws of divorce in countries that have adopted it. 28
However, by attaching fault factors to what is traditionally a no-fault ground, the
Law fails to recognize the ever evolving causes of the breakdown of marriages.

In his paper ‘The Limits of Limits on Divorce’ 29 Robert Gordon states that at some
point highly demanding laws become less effective than those that are less restrictive
such as providing set grounds upon which divorce can be sought. 30 Moreover, he
also notes that conditioning divorce on fault is more likely to encourage destructive
behavior to children and leaves parents less financially secure due to the costs of
long tedious litigation. He shuts down the argument that tougher divorce laws can
help both the parents and children by stopping the divorce. 31 In stipulating a limited
number of grounds from which divorce can be sought the Law fails to recognize that
doing so does not stop divorce.

In his paper, ‘The Law of Divorce and the Problem of Marriage Stability’ 32 Max
Rheinstein argues that divorce should not be based solely on traditional fault grounds
26
Allen D, No-Fault Divorce and the Divorce Rate: Its History, Effects and Implications, Simon
Fraser University Review, 1998, 6.
27
Tennenhaus R, Dissolution: No-fault Divorce, Marriage, and the Future of Women, iUniverse,
Spain (1998), 19.
28
Tennenhaus, Dissolution: No-fault Divorce, Marriage, and the Future of Women, 20.
29
Gordon R, The Limits of Limits on Divorce, The Yale Law Journal Company, (1998), 12.
30
Gordon, The Limits of Limits on Divorce, 13.
31
Gordon, The Limits of Limits on Divorce, 14.

8
such as adultery, cruelty or desertion. He proposes that divorce should be viewed as
a regrettable, but necessary, legal definition of marital failure, where very often the
factors leading to the marriage breakdown were not all one-sided and based solely
on the fault of one guilty party, but they were also caused by the incompatibility and
irreconcilable differences of both spouses.33 However, the Law fails in its duty to
protect the spouses divorce by necessitating parties prove of fault which in many
instances leaves parties bitter and angry.

In his book ‘The Grounds for Divorce: The Australian Experience’ 34 H.A Finlay
presents a question on whether fault should be a factor in divorce proceedings. He
advances that in passing the irretrievable breakdown of marriage as a ground for
divorce, the Law sought to rid divorce proceedings of the previously existing
disfigurements of perjury, humiliation and bitterness and to simply base the
dissolution of marriage on the proof of the marriage having irretrievably broken
down with a separation period of twelve months thus negating the need for
matrimonial offence. In Kenya, the irretrievable breakdown of marriage was
introduced in our Marriage Act 2014 but it attaches several considerations for a
marriage to be considered to have broken down which are fault based. The Law fails
to take into consideration that there are marriages which disintegrate in the absence
of fault by attaching fault considerations to a no-fault ground.

1.9 Research Design

1.9.1 Research Methodology

This study will constitute mainly of qualitative data analysis and review of literature
that exists on the irretrievable breakdown of marriage as a ground for divorce. It will
be a purely desktop research thus no field activities will be conducted due to time
32
Rheinstein M, The Law of Divorce and the Problem of Marriage Stability, Oxford Press, (2013),
87-105.
33
Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 87.
34
Finlay H, The Grounds for Divorce: The Australian Experience, Oxford University Press,
Australia, 1986, 5.

9
and resource limitations. This study will predominantly use primary sources
including the Constitution of Kenya 2010, Statute, Case law and books with the
inclusion of secondary sources such as reports, internet sources, and journal articles
from both renowned institutions and authors. There will also be analysis of both
Kenyan and Australian case law in order to identify the differences in the application
of the irretrievable breakdown of marriage as a ground for divorce by courts in both
countries.

Research on this study will be purely comparative, critical and analytical without
any religious or emotional arguments. It will be purely factual thus relying and
borrowing heavily from existing literature on this accessed through the internet and
the school's library. This comparative approach will aid in bringing forth Australia’s
application of the irretrievable breakdown of marriage as the sole ground for
divorce.

This research will also undertake to review literature covering both policy and
academic texts, drawing from studies and reports on the irretrievable breakdown of
marriage as ground for divorce. It will focus on documents whose dates of
publication falls within the last two decades.

A comparative analysis will also be undertaken as a means of comparison between

the application of the irretrievable breakdown of marriage in Kenya and Australia.
At both the federal and State levels, the substantive law of Australia is generally
borrowed from the common law system of English law, which is also the case in
Kenya, a British colony, thus making Australia a good fit for a comparative analysis.

1.9.2 Assumptions

The study will be carried out based on the assumption that the introduction of the
irretrievable breakdown as a ground for divorce facilitates the dissolution of
marriages that disintegrate outside the traditional grounds.

1.9.3 Limitations

10
As part of the partial fulfillment of the degree of Bachelor in Law, time constraints
will act as a hindrance towards the completion of the research and the occurrence of
technological difficulties including the disruption of wireless connectivity of the
internet resulting in a halt in the research process. I therefore intend to mitigate the
aforementioned by allocating at least two hours a day towards the completion of my
research and use the computer laboratory when I experience technological
difficulties.

Moreover, acquisition of research materials on this topic proved to be difficult owing

to the fact that there is little research done on this particular topic in the Kenyan
context.

1.9.4 Chapter Breakdown

Chapter One: Introduction

This chapter provides the background of the study, the statement of the problem, the
literature review, the objectives and questions, the hypothesis, the theoretical
framework and the design methodology of the study.

Chapter Two: Historical Development of Marriage Laws in Kenya

This chapter will outline the historical development of marriage laws in Kenya and
highlight the evolution of divorce laws in our jurisdiction, by applying a
chronological order.

Chapter Three: Irretrievable Breakdown of Marriage

This chapter will look into the working definition of the irretrievable breakdown
ground for dissolution of marriages with an aim of examining its application in
Kenya.

Chapter Four: Comparative Analysis

This chapter will deal with a comparative analysis and take a look at Australia’s
irretrievable breakdown ground. This country is relevant to the study for comparison

11
owing to the fact that its divorce regime is a no-fault divorce regime that only
necessitates proof of separation for twelve months before the marriage can be legally
terminated.

Chapter Five: Findings, Recommendations and Conclusion.

As the final chapter of the dissertation, it will focus on the findings of the study, the
conclusion and the recommendations of the researcher.

1.3.5 Timeline

This dissertation will commence on April 2019 and take seven months to be
completed. Submission of the final copies to the school will be done on 4 th
December 2019.

12
 CHAPTER TWO: HISTORICAL DEVELOPMENT OF THE
IRRETRIEVABLE BREAKDOWN OF MARRIAGE AND
KENYA’S CONTEXT
2.0 Introduction

To appreciate the author’s research, it is key to begin by establishing a definition of

the term irretrievable breakdown of marriage before proceeding to outline the
evolution of the aforementioned ground as a ground for dissolution of marriages.
The second part of this chapter seeks to outline the historical development of laws on
marriage in the Kenyan context with the aim of highlighting the evolution of divorce
laws in Kenya to the point of the introduction of the irretrievable breakdown of
marriage as a ground for divorce in the Marriage Act, 2014. This chapter also seeks
to look into Kenya’s legal regime in relation to divorce laws with the aim of
understanding the irretrievable breakdown of marriage as a ground for divorce as
provided for in the Marriage Act 2014 and its application in Kenyan courts. In order
to do so, it is important to categorically look at the existing legislative framework by
first establishing what grounds the Marriage Act 2014 provides for the dissolution of
marriages then proceed to narrow down on the irretrievable breakdown of marriage
and its application in Kenya through case study.

2.1 Defining irretrievable breakdown of marriage

The author seeks to consolidate legislative provisions, dictionary definitions and

definitions from legal precedent on irretrievable breakdown of marriage in coming
up with a working definition. The irretrievable breakdown of marriage refers to a
situation where either or both spouses are no longer able or willing to live with each

13
other thereby breaking the husband-wife relationship with no hope of resuming their
spousal duties.35
As per legislation, a marriage has irretrievably broken down where:

a) a spouse commits adultery;

b) a spouse is cruel to the other spouse or child of the marriage;
c) a spouse willfully neglects the other spouse for at least two years
immediately preceding the date of presentation of the petition;
d) the spouses have been separated for at least two years, whether
voluntary or by decree of the court;
e) desertion for at least three years immediately preceding the date of
presentation of the petition;
f) a spouse has been sentenced to a term of imprisonment for life or
seven years onwards;
g) incurable where two doctors, at least one of whom is qualified or
experienced in psychiatry, have certified that the insanity is incurable
or that recovery is improbable during the life time of the respondent
in the light of existing medical knowledge; or
h) any other ground as the court may deem appropriate.36

Black’s Law dictionary defines it as a broad ground for divorce that is predicated on
the development of incompatibility between marriage partners and that is used in
many states as the sole ground of no-fault divorce.37 In Joy v Joy38, it was held that:
“a marriage is irretrievably broken when, for whatever reason or cause and
no matter whose fault it is, the marriage relationship is for all intents and
purposes ended; when the parties are unable, or refuse, to cohabit; or when

35
Legal Definition of Irretrievable Breakdown of Marriage - https://legal-
dictionary.thefreedictionary.com/Irretrievable+Breakdown+of+Marriage on 21 October 2019.
36
Section 66(6), Marriage Act (Act No 4 of 2014).
37
Black’s Law Definition of Irretrievable Breakdown of Marriage -
https://blacks_law.enacademic.com/14419/irretrievable_breakdown_of_marriage on 21 October
2019.
38
Joy v Joy (1977), The Supreme Court of Connecticut.

14
 it is beyond hope of reconciliation or repair. The principal question to be
determined is whether the marriage is at an end and beyond
reconciliation.”39

2.2 Evolution of the Irretrievable Breakdown of Marriage as a Ground for

Divorce

In so far as Commonwealth countries are concerned, the origin of the irretrievable

breakdown of marriage as a ground for divorce may be traced to the legislative and
judicial developments of New Zealand in The (New Zealand) Divorce and
Matrimonial Causes Amendments Act, 1920. 40 The Act was the first to include a
provision that a separation agreement for three years or more was a ground for
making a petition to the court for divorce and the court was given discretion
41
(without guidelines) whether to grant the divorce or not. The case of Lodder v
Lodder42 pioneered the exercise of the discretion conferred by the aforementioned
statute. Salmond J., in a passage which has now become classic, enunciated the
breakdown principle in these words:

“The Legislature must, I think, be taken to have intended that separation for
three years is to be accepted by this Court, as prima facie a good ground for
divorce. When the matrimonial relation has for that period ceased to exist de
facto, it should, unless there are special reasons to the contrary, cease to
exist de jure also. In general, it is not in the interests of the parties or in the

39
Joy v Joy (1977), The Supreme Court of Connecticut.
40
Irretrievable Breakdown of Marriage as a Ground for Divorce -
https://www.massdivorceattorney.net/irretrievable-breakdown-of-marriage-as-grounds-for-divorce/
on 28 November 2019.
41
Irretrievable Breakdown of Marriage as a Ground for Divorce -
https://www.massdivorceattorney.net/irretrievable-breakdown-of-marriage-as-grounds-for-divorce/
on 28 November 2019.
42
New Zealand, New Zealand Family Law Reports,12 April 1921, 78.

15
 interest of the public that a man and woman should remain bound together
as husband and wife in law when for a lengthy period they have ceased to be
such in fact. In the case of such a separation the essential purposes of
marriage have been frustrated, and its further continuance is in general not
merely useless but mischievous.”

In England, the case of Masarati v Masarati43 commenced the application of the

breakdown theory of marriage where the Court of Appeal observed that the marriage
had broken down.44 Moreover, The law commission of England in its report said:

“the objectives of good divorce law are two: one to buttress rather than to
undermine the stability of marriage and two, when regrettably a marriage
has broken down, to enable the empty shell to be destroyed with maximum
fairness, and minimum bitterness, humiliation and distress”.45

On the recommendation of the Law Commission, Irretrievable Breakdown of

Marriage was made the sole ground for divorce under section 1 of the Divorce Law
Reforms Act, 1973.46

2.3 The Development of Marriage Laws in Kenya

2.3.1 Pre-colonial era

Prior to Kenya's declaration as a British protectorate, the institutions of family and

marriage were regulated by the customs, traditions and customary laws of the ethnic
communities. These customs, traditions and laws differed from one ethnic
community to the other owing to the different circumstances and challenges faced by
the different communities. African Customary Law provided for institutions and

43
Masarati v Masarati (1969) WLR.
44
Diwan P, Family Law, 6 ed, Allahabad Law Press, India, 2001, 29.
45
Law Commission of UK, Reform of the Grounds of Divorce: The Field of Choice, 10, 12
November 1966, 26.
46
Section 1, Divorce Law Reforms Act (1973).

16
procedures that regulated the subsistence and conclusion of marriages, including
dispute resolution mechanisms and dissolution of customary marriages.47

2.3.2 Colonial era

British colonization, whose goal was the expansion of the British Empire, has long
been credited for the advancement of Kenya's modern legal system and the
application of common law.48 As is, Kenya is among the many countries whose legal
development as a common law legal system was spearheaded by its transplantation
in the context of colonial repression.49 This legal development was not only aided by
the colonization of the Republic of Kenya, but also the struggle for its independence
and its eventual independence which stimulated Kenya's institutional advancement
and the application of statute law.50

Kenya had its first British contact in the late 19 th century when the British were in
contention for the hegemony of Eastern Africa with the Germans and was officially
declared a crown protectorate in 1920 putting it under the control of the British. 51
The first common law courts in Kenya were established in 1897 and used Indian
codes and policies during the years of colonial control, a pattern that had been
established by the incidents of the courts in Zanzibar.52

The provenance of family law in Kenya can be drawn back to the 1897 East African
Order in Council, which not only introduced the application of determined Indian
47
Historical Development of Family Law in Kenya-
https://coggle.it/diagram/Wbf9rBmxiAAB3KiU/t/historical-development-of-family-law-in-kenya-
articles on 9 September 2019.
48
Joireman S, ‘The Evolution of the Common Law: Legal Development in Kenya and India,’
Political Science Faculty Publications, 2006, 6.
49
Joireman S, 'The Evolution of the Common Law: Legal Development in Kenya and India,' 6.
50
Joireman S, 'The Evolution of the Common Law: Legal Development in Kenya and India,' Political
Science Faculty Publications, 2006, 6.
51
Joireman S, 'The Evolution of the Common Law: Legal Development in Kenya and India,’ 7.
52
Joireman S, 'The Evolution of the Common Law: Legal Development in Kenya and India' Political
Science Faculty Publications, 2006, 7.

17
and British acts of Parliament to what was now referred to as the East African
Protectorate, but also applied England's common law that was in operation at that
time.53 The Order realized the introduction of the first statute law that served to
govern the personal law of inhabitants within the protectorate. In so far as the locals
were concerned, the Order had restricted application by providing that any cases
against locals would be taken to the Native Courts. A Commissioner was accorded
the power to establish and abrogate those Native Courts, manage their procedure and
give directions with regard to the use and application of any native customs and
laws.54 The result of this power was that the Commissioner made the Native Court
Regulations of 1897, which stipulated that in issues affecting the individual status of
the indigenous people, then the law of their tribe or caste could be used to the extent
that it was ascertainable and not repugnant to morality. However, matters affecting
the personal status of the indigenous Africans who had converted to Christianity
could be handled in ordinary courts. Islamic law would then apply to the indigenous
people who conformed to Islam in issues concerned with individual status.55

There being two other communities in Kenya at the time, the Indians who had been
brought in as laborers and British Colonizers, it was necessary to determine whether
they were to apply the Indian Act or British Laws. It is worth noting that Indian Law
was essentially British Law that had been enacted in India with their being very few
differences between the two. They were clearly designed for application to the
British Settler but a question arose as to whether they applied to the Hindu. In
Kenya, the assumption was that they would apply.56

A case in point is that of the Indian Succession Act of 1865, an Indian act that was
applied under the 1897 Order in Council. In India, an explicit expression had been
made that the aforementioned Act was not relevant to Hindu succession matters in
53
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 7-10.
54
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-11.
55
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-11.
56
Historical Development of Family Laws in Kenya -
http://www.kenyalawresourcecenter.org/2011/07/historical-development-of-family-laws.html on 10
September 2019.

18
which case the Hindus would apply their customary laws of succession. Contrary to
this, when the Act was applied in Kenya, such an exclusion was not applicable in
respect to Hindus.57 Where issues of marriage and divorce arose, English Marriage
Laws were applied. Between 1897 and 1898, an issue arose concerning the Hindus
in Kenya when it was stated that the Indian Succession Act did not apply to the
Hindus requiring them to be governed by their own customary law. Two Acts were
passed to govern succession matters for the Hindus that had converted to
Christianity, the Probate and Administration Act of India and the Hindu Wills Act.
The supposition was that for conventional or orthodox Hindus, customary laws were
applied in succession matters.58

The East African Order in Council was implemented in 1902 whose principle
purpose was to further explain instances that would require application of customary
law. It was advanced that in cases where the natives were parties, whether criminal
or civil, native law would guide the courts to the extent that it was relevant and not
repugnant to morality and justice or in conflict with any law passed within the
protectorate.59 Through this Order, the Commissioner was vested with the authority
to pass laws. As a result, among the first laws to be made was the Marriage
Ordinance of 1902 which sought to replace the reliance on the Indian Divorce Act of
1869, which had served as a foundation for divorce law in Kenya, having been
applied by the East Africa Order in Council of 1897 with an aim of providing or
affording relief to monogamous marriages. The relief was restricted to issues to do
with restitution of conjugal rights, child custody and separation.60

The Marriage Ordinance Act applied to all inhabitants within the protectorate as it
was neither tethered to religion nor race making it a law of general application. 61
Under this Ordinance, a provision was made for a strictly monogamous Christian

57
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-11.
58
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-11.
59
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 12.
60
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-12.
61
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-12.

19
marriage. This provision made it an offense for an individual married under
customary law to enter into a marriage under the ordinance and vice versa.
Moreover, it provided a platform for settlers to enter into marriage and the converted
natives to contract a Christian marriage. Key to note is that, any native who
contracted marriage under the Marriage Ordinance Act of 1902 had to cut ties with
their customary way of life and embrace Christianity in totality.62

Several cases such as that of Cole v Cole63 contextualize what occurred in the event
that one contracted marriage outside the Marriage Ordinance. In this case, a Nigerian
couple contracted a Christian marriage under the Nigerian Marriage Ordinance from
which a mentally incapacitated son was born. After the death of the husband, an
issue emerged as to who was entitled to the deceased's property. The deceased's
brother contended that in accordance to Nigerian Customary Law, he was entitled as
an heir to the deceased's property. However, the spouse to the deceased that the act
of contracting a Christian marriage completely distanced them from the practices of
their native law and put them under the umbrella of English Succession Law. She
was therefore entitled to inherit the property both in her own right and as her son's
guardian. The court endorsed her argument fundamentally expressing that
contracting a marriage under the Marriage Ordinance excluded them from the
practices of African customary law.

Moreover, in R v Amkeyo64 an issue arose in the course of trial as to whether a

spouse, having contracted marriage under African customary law, had the protection
of spousal privilege. In coming to his decision, Hamilton C.J. declared that a spouse
under customary law was not considered a spouse in the eyes of the law thus the
wife was compelled to testify against her husband. A statement by the judge in R v
Mwakio65 referring to a wife as a concubine under customary marriage thus

62
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 8-12.
63
Cole v Cole (1944) Supreme Court of Canada.
64
(1917) EALR.
65
(1934) eKLR.

20
disregarding her as a legal wife further advances the importance placed in the
separation of customary and Christian practices.

The Native Christian Marriage Ordinance was enacted in 1904 to apply to natives
who converted into Christianity and contracted monogamous marriages. It served to
supplement The Marriage Ordinance of 1902 thus liberating the natives from having
to conform to formalities that had been set out in the aforementioned Ordinance. In
addition, it served as a source of protection for widows in Christian unions by
exempting them from wife inheritance as set out in customary laws. This Ordinance
was then replaced by the African Christian Marriage and Divorce Act of 1937 that
sought to handle matters pertaining to marriage and its dissolution for Africans that
had converted to Christianity.66

The Mohammedan Marriage & Divorce Registration Ordinance 67 was enacted in

1906 allowing Muslims to not only register their unions but also seek for divorce as
a remedy. The Act was however not substantive but fundamentally procedural. 68 Its
territorial extent was extended to all Mohammedan Natives inhabiting the mainland
in 1926 after having been confined to areas governed by the Sultanate of Witu and
the Sultan of Zanzibar.

The Separation & Maintenance Ordinance of 1928 brought about change by enacting
judicial separation as a redress mechanism other than the already existing option to
divorce. It was however confined to monogamous unions allowing spouses to seek
financial maintenance while the marriage subsisted. 69Eventually, the Matrimonial
Causes Act was ratified in 1941, replacing the Divorce Ordinance of 1904 with

66
African Christian Marriage and Divorce Act (CAP 151 of 1931)
67
Mohammedan Marriage & Divorce Registration Ordinance (CAP 156 of 1906).
68
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967,10.
69
Historical Development of Family Laws in Kenya -
http://www.kenyalawresourcecenter.org/2011/07/historical-development-of-family-laws.html on 4
June2019.

21
majority of its provisions stemming from the Marriage Act, 1902 70 and the English
Supreme Court of Judicature (Consolidation) Act, 1925.71

In 1946, a breakthrough was realized for Hindu marriages with the ratification of
Hindu Marriage Divorce and Succession Ordinance resulting in Hindus parting ways
with Hindu Customary Law. The provisions of this Act required all Hindu marriages
to be contracted as per Hindu customs. The Hindu Marriage and Divorce Act replace
it and stipulated monogamy for all future marriages. Moreover, it extended to
Hindus the remedies available under Matrimonial Act and under the Subordinate
Courts (Separation & Maintenance) Act of 1928.72

2.3.3 Post Independence

Kenya gained independence on 12th December 196473 and with that came the need
for a change of the laws that had been passed during the colonial era. This was due
to the dissatisfaction and the plethora of issues that had come about as a result of the
plurality of laws dealing with marriage and divorce. 74 The treatment of polygamous
marriages as inferior despite their recognition was one of these issues. This is seen in
several court decisions including R v Amkeyo75 as hereinbefore discussed. Therefore,
his excellency the Late Mzee Jomo Kenyatta formed a commission on the Law of
Marriage and Divorce to come up with marriage law that attempted to consolidate
marriage law thus coming up with an autochthonous Marriage Act. 76 A number of
recommendations were propounded with the main idea being that the proposal of a
complete remake of the laws pertaining to marriage and divorce on the grounds that

70
M6-5, Marriage Act (Act No. 7 of 1975).
71
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 10.
72
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 11.
73
The African Christian Marriage and Divorce Act, 1931 -
https://unstats.un.org/unsd/vitalstatkb/KnowledgebaseArticle50762.aspx on 11 June 2019.
74
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 13.
75
EALR (1917) Kenya.
76
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 14.

22
making changes on only some aspect would not serve to accomplish any significant
changes thus necessitating a fresh approach.77

In trying to formulate new laws relating to marriage and divorce, the Muslims
forwarded a plea requesting the non-interference with their personal law to include
marriage and divorce, advancing that Islam is a complete way of life divinely
ordained and relying on the freedom of religion guaranteed to them by the then
Constitution of Kenya. However, the Commission was of the view that marriage,
divorce and matters pertaining to the family's structure required the State's concern
and their interconnection with religion did not justify the State's abdication of its
responsibility.78

Subsequently, there were three failed attempts to pass the bill drafted by the
Commission with the last attempt taking place in 1979. 79 This failure was mostly
attributed to political reasons with claims that the proposed bill not only conferred a
lot of undeserved rights to women but also veered away from African customs 80 Of
interest however is that the Commission recommended the move from a fault based
divorce regime to a no-fault divorce regime.81

The implementation of the current statute on marriage and divorce took place in
March 2014, when the current President, His Excellency Uhuru Kenyatta assented
the Marriage Act No. 4 of 2014, which consolidated all laws on marriage and
divorce, providing for grounds upon which divorce could be sought and granted in
Civil, Christian, Customary, Islamic and Hindu marriages in Kenya.82
Among the many changes that were introduced by the legislation, the introduction of
the irretrievable breakdown ground for dissolution of Christian, Civil, Customary
and Hindu marriages is what is relevant to this research. In examining the rationale
77
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 14.
78
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 15.
79
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 15.
80
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 16.
81
Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967, 16.
82
http://kenyalaw.org/lex/actview.xql?actid=No.%204%20of%202014 on 12 June 2019.

23
behind the passing of the aforementioned provision, there is need to point out that
the reason provided in the National Assembly for the introduction of this ground was
for the expansion of the grounds from which divorce could be sought.83

2.4 Current Legal Position of Divorce in Kenya

The Republic of Kenya not only recognizes Christian marriages but also Customary,
Civil, Hindu and Islamic marriages.84 It is primarily a fault-based divorce regime
which means that the grounds provided for divorce have fault attached to them. 85
Under the Marriage Act 2014, the grounds for divorce for a Christian, Civil and
Customary marriages are similar and include:
a) adultery by the other party one or more times;
b) the infliction of mental or physical cruelty by the other party on either the
petitioner or the children;
c) desertion by the other party for at least three years directly predating the
date of submission of the petition;
d) exceptional depravity by either party; and
e) the irretrievable breakdown of marriage.86

Under customary marriage, when the parties are seeking a divorce, the court tends
to lean towards the reconciliation of the parties and therefore insists on reconciliation
procedures.87 However, where reconciliation is not possible, the grounds provided

83
National Assembly Official Report (Hansard) -
https://info.mzalendo.com/hansard/sitting/national_assembly/2014-03-20-14-30-00#entry-452899 on
3 March 2020.
84
Highlights of the Marriage Act 2014 - http://kenyalaw.org/kenyalawblog/highlights-of-the-
marriage-act-2014/ on 25 September 2019.
85
Marriage, Family and Property Rights in Kenya -
https://www.ohchr.org/Documents/Publications/PractitionerToolkit/WA2J_Module2.pdf on 25
September 2019.
86
Section 65, 66, 69 and 70, Marriage Act (Act No. 4 of 2014).
87
Customary marriage in Kenya; Registration, Divorce, Procedure - https://www.tuko.co.ke/269501-
customary-marriage-kenya-registration-divorce-procedure.html on 30 September 2019.

24
for in Section 69 of the Marriage Act 2014 stand. In Isaiah Bedi v Ether Munyasia88
the husband's grounds for divorce were his wife's cruelty. He therefore brought
forward evidence to prove that his wife had organized for members of the public to
publicly beat him. Moreover, she was unfaithful and had borne a child with another
man. The court in granting the divorce relied on the evidence brought by the
husband since they were not mere allegations.89

For Hindu marriages, the grounds for divorce include:

a) the marriage has irretrievably broken down;
b) the other party has deserted the petitioner for at least three years before
making of the petition;
c) the other party's conversion to another religion;
d) the spouse has committed sodomy, rape, adultery or bestiality since the
celebration of the marriage;
e) the infliction of cruelty by the other party; and
f) exceptional depravity by either party.90
Finally, for Islamic marriages, the dissolution of the marriage shall be administered
by Islamic law.91

In the case of W E L v J M H92 the petitioner filed for divorce from his wife on the
grounds that his wife had committed adultery. As per Section 66(2) of the Marriage
Act 2014, among the grounds for divorce, adultery by the other spouse is provided
for. The petitioner claimed that his wife had not only had affairs with other men on
several occasions but that she was also cruel to him and would come home late in the
night. In coming to its decision, the court recognised that the petitioner had failed to
adduce evidence to prove that the respondent had committed adultery relying on the
fact that he who alleges must prove. The petitioner had to be ready to prove fault by

88
(2009) eKLR.
89
(2009) eKLR.
90
Section 70, Marriage Act (Act No. 4 of 2014).
91
Section 71, Marriage Act (Act No. 4 of 2014).
92
(2014) eKLR.

25
giving evidence in the form of names, occasions and even times since suspecting
was not enough.93

The above goes on to show that Kenya is primarily a fault-based divorce regime that
necessitates the proof of fault by the spouse seeking divorce to establish their claim.

2.5 Irretrievable Breakdown of Marriage as a Matter of Proof

There are seven facts The Marriage Act 2104 provides that a marriage has
irretrievably broken down when:

a) a spouse commits adultery;

b) a spouse is cruel to the other spouse or child of the marriage;
c) a spouse willfully neglects the other spouse for at least two years
immediately preceding the date of presentation of the petition;
d) the spouses have been separated for at least two years, whether voluntary or
by decree of the court;
e) desertion for at least three years immediately preceding the date of
presentation of the petition;
f) a spouse has been sentenced to a term of imprisonment for life or seven
years onwards;
g) incurable where two doctors, at least one of whom is qualified or
experienced in psychiatry, have certified that the insanity is incurable or that
recovery is improbable during the life time of the respondent in the light of
existing medical knowledge; or
h) any other ground as the court may deem appropriate.94

93
(2014) eKLR.
94
Section 66(6), Marriage Act (2014).

26
The above provisions make it clear that what is traditionally a no-fault divorce
ground is in our jurisdiction characterised as a fault-based ground due to the
considerations or facts attached to it that need to be proven for a marriage to be
dissolved. In order to understand Kenya's application of this ground, there is a need
to look into existing court decisions on this subject. court decisions.

2.6 The Courts’ Interpretation of Irretrievable Breakdown of Marriage in the

Kenyan Jurisdiction

a) C W C v J P C95

In this case, the court was in agreement with the spouses that the marriage had
irretrievably broken down owing to the fact that it was a loveless marriage and the
parties had been living separately as presented by the Petitioner. It held that, “in any
event, parties should not be forced to stay together if such relationship is full of
bitterness, mistrust and hatred against each other.” The Judge proceeded to hold that
in such circumstances, he was inclined to let each party move on with their lives
without being held in a marriage which was akin to bondage or servitude.96

b) K A S v M M K97

The court relied on the fact that the husband had been separated from his wife for
three years. However, the court went a step further to declare that their marriage was
nothing but a shell of what it used to be because as the court noted, it was clear from
the pleading that the parties hated each other and that their attraction was far gone,
swept away by the winds of distrust demonstrated by the accusations they have
levelled against each other. The Judge was of the opinion that there was before the
court a marriage by name and paper alone, a shell of its former self that has lost hope

95
(2017) eKLR.
96
(2017) eKLR.
97
(2016) eKLR.

27
of being salvaged and as such he was inclined to allow the spouses to part ways as
the marriage had irretrievably broken down.98

c) J M M v J M N99

The court observed that there was evidence from both parties that they were unable
to reconcile and that their marriage had irretrievably broken down. From the
evidence on record the parties had been separated from late 2013 and the petition
was filed in March 2015. The Judge proceeded to note that Section 66 (6) of the
Marriage Act is clear on what constitutes a marriage that has irretrievably broken
down. Before the petition was filed, the parties had been separated close to two
years, they were not in the same house, thus were physically separated. Moreover,
there was mistrust between them, their commitment to each was no longer there and
it was apparent that they had no chance of resuming their spousal duties and there
was a very slim chance of the marriage ever working again. The Judge was therefore
of the view that the marriage between the petitioner and the respondent had
irretrievably broken down. 100

98
(2016) eKLR.
99
(2015) eKLR.
100
(2015) eKLR.

28
 CHAPTER FOUR: A CASE STUDY OF AUSTRALIA’S
IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A
GROUND FOR DIVORCE
4.1 Introduction

In some jurisdictions, irretrievable breakdown of marriage is a sole ground for no-

fault divorce with either a few or no considerations attached to it thus there is a need
to look into one such jurisdiction. This chapter seeks to look into Australia’s
irretrievable breakdown of marriage as a ground for divorce owing to the fact that it
is the sole ground for divorce in what was traditionally a fault-based divorce regime.
This will be done through a look into the background of this ground and the
legislative framework of divorce law in Australia, which is now a no fault divorce
regime. This country is relevant to the study for comparison owing to the fact that its
divorce regime is a no-fault divorce regime that only necessitates proof of separation
for twelve months before the marriage can be legally terminated.

4.2 Background of irretrievable breakdown of marriage as a ground for divorce

in Australia

29
In Australia, family law has its principal foundation in the Family Law Act (FLA) of
1975, the laws of equity and common law. 101 With the enactment of the FLA came
the overhaul of Australia’s regulations on divorce and other legal family matters
which established no-fault divorce in Australia where proof of misconduct by one or
the other party is not a requirement. As a result, irretrievable breakdown of marriage
denoted by a 12-month separation has been the only ground for divorce in Australia
since 1975. This separation need not include living in separate houses so long as
spouses residing in the same house can swear an affidavit to prove that they had
separated for 12 months.102

The meaning of separation was discussed the case of Fitzgerald v Fitzgerald103 to

mean the ‘active withdrawal from an existing cohabitation’ and the withdrawal from
a state of things rather than from a place as developed out of the mainstream of the
traditional English divorce law doctrine.104 The Australian case of Tulk v Tulk105
provides a checklist from which absence of which results in separation being
concluded to have taken place and the ceasing to exist of the marital relationship and
include residing under the same roof, marital intercourse, support, recognition in
both public and private and protection. 106 It can then be concluded that where the
aforementioned elements are absent or present, then it is more or less conclusive that
the matrimonial relationship has ceased to exist. The court in the case of Pavey v
Pavey107 included ‘the support and nurturing of the children’ in the aforementioned

101
Reader's Digest, Know Your Rights and how to Make Them Work for You, Reader's Digest
Association, 1995, 137.
102
Finlay H, The Grounds for Divorce: The Australian Experience, Oxford Journal of Legal Studies,
Oxford University Press, 1986, 368-391.
103
(1869), The Supreme Court of Virginia.
104
(1869), The Supreme Court of Virginia.
105
(1907) Supreme Court of Victoria.
106
(1907) Supreme Court of Victoria.
107
(1976), Family Court of Australia.

30
checklist which was further supported by the judge in the case of Russell v Russell108
who emphasized that:

“the recognition by the society of the rights and duties of spouses in relation to their
children springing from their status as children of the marriage lies not on the
periphery but at the core of the social institution of marriage”.

Fault therefore only remains as a residual element in cases relating to property

settlement issues and child custody.109

Prior to the FLA of 1975, divorce laws were regulated by the Matrimonial Causes
Act of 1961 which was among the first uniform national law that was enacted by the
Commonwealth. The aforementioned Act had until then had the power to make laws
on divorce and matters such as maintenance and custody. 110 The Matrimonial Causes
Act 1961 provided for a fault-based divorce system with the requirement that the
petitioning spouse prove at least one of the fourteen grounds that had been set out in
the Act. Among those grounds was adultery, cruelty, desertion, insanity, habitual
drunkenness and imprisonment.111

Divorce had until then been characterized by humiliation, bitterness, perjury and
hypocrisy. The no-fault divorce replaced the fault-based system with the aim of
ridding the law of the aforementioned disfigurements by simply basing the
dissolution of marriage on proof that the marriage has irretrievably broken down
with the parties having lived separately for at least twelve months. 112 This
contributed to easing the cynical nature of divorce and encouraging alternative
108
(1941), The Supreme Court of Victoria.
109
Finlay, The Grounds for Divorce: The Australian Experience,368-391.
110
Family Law Act, 1975 - http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-
matters/family-law-in-australia/no-fault-divorce/ on 29 October 2019.
111
Family Law Act, 1975 - http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-
matters/family-law-in-australia/no-fault-divorce/ on 29 October 2019.
112
No Fault Divorce in Australia -
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/judgments/law-reporting-in-family-
court-cases/ on 29 October 2019.

31
dispute resolution and mediation as opposed to conflict, perjury and unnecessary
massacres of personality. It was also intended to ease the stress of divorce and render
the maintenance of civil ties easier for erstwhile spouses. This, in effect, also made it
simpler for kids to cope with their parents' divorce.113

4.3 Legislative Framework

In order to avoid veering off topic, there is a need to analyse Legislation that is
relevant to the irretrievable breakdown of marriage as a ground for divorce.
Australia’s legal framework on divorce can thus be broken down as done below:

4.3.1 Statute

As earlier mentioned divorce laws in Australia are governed by the FLA of 1975
which replaced the Matrimonial Causes Act of 1961. Part VI of the Act in its
provisions on divorce and nullity of marriages provides that:

(1) An application under this Act for a divorce order in relation to a marriage
shall be based on the ground that the marriage has broken down
irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by such an application,

the ground shall be held to have been established, and the divorce order
shall be made, if, and only if, the court is satisfied that the parties separated
and thereafter lived separately and apart for a continuous period of not less
than 12 months immediately preceding the date of the filing of the
application for the divorce order.

(3) A divorce order shall not be made if the court is satisfied that there is a
reasonable likelihood of cohabitation being resumed.114

113
Finlay H, The Grounds for Divorce: The Australian Experience, Oxford Journal of Legal Studies,
Oxford University Press, 1986, 368-391).
114
Section 49, Family Law Act (Australia).

32
The Act further proceeds to define separation owing to the fact that is the only
consideration attached to Australia’s no fault divorce regime. It stipulates that parties
to a marriage may be held to have separated notwithstanding that the cohabitation
was brought to an end by the action or conduct of one only of the parties and
notwithstanding that they have continued to reside in the same residence or that
either party has rendered some household services to the other.115

4.3.1.1 Children and No Fault Divorce

A no fault divorce in Australia will not take effect until the relevant court has
concluded that suitable arrangements have been made for the welfare, development
and care, welfare of the couple’s spouses’ children. 116 If during divorce proceedings,
the court doubts that proper arrangements have been put in place for the children,
then at that point the court may dismiss the proceedings until a family consultant has
furnished the court with a report about the children’s arrangements. A child is
viewed as a child of the marriage regardless of the fact that he or she is not an
offspring of either spouse, insofar as the child was treated by the couple as a child of
their family immediately before the husband and wife separated. 117 Section 55A
solidifies this by providing that:

1) A divorce order in relation to a marriage does not take effect unless the
court has, by order, declared that it is satisfied:
a) that there are no children of the marriage who have not attained 18
years of age; or
b) that the only children of the marriage who have not attained 18 years of
age are the children specified in the order and that:

115
Section 49, Family Law Act (Australia).
116
‘No Fault’ Divorce - https://www.gotocourt.com.au/family-law/no-fault-divorce/ on 28 November
2019.
117
‘No Fault’ Divorce - https://www.gotocourt.com.au/family-law/no-fault-divorce/ on 28 November
2019.

33
 i. proper arrangements in all the circumstances have been made for
the care, welfare and development of those children; or
ii. there are circumstances by reason of which the divorce order
should take effect even though the court is not satisfied that such
arrangements have been made.118

4.3.2 Case Law

4.3.2.1 In the Marriage of Todd119

Mr. and Mrs. Todd contracted a marriage in 1960 and had two children. Mrs. Todd
left the couple’s matrimonial home on 23 November 1974 with the two children, but
on 21 April 1975, all three moved back in and continued to reside there until the
parents decided to divorce in 1976. They made an application for divorce under the
FLA which was initiated in the Family Law Division of the Supreme Court of New
South Wales but later transferred to the Family Court of Australia. On the question
of divorce, one key issue was what constituted “separation” and “separated and
apart” for a continuous period of not less than 12 months. The court held that this
marriage had irretrievably broken down since 23 November 1974 owing to the fact
that there had been continuous separation for 12 months. The Court advanced that
the application for divorce had thus been satisfied from the facts. The Court held that
“separation” was broader than mere physical separation and concerned the marital
relationship itself. According to the Court:

“Separation can only occur in the sense used by the Act where one or both of
the spouses form the intention to sever or not to resume the marital
relationship and act on that intention, or alternatively act as if the marital
relationship has been severed.”

In this case, the Court held although the spouses moved back in together in April
1975, they never restored the marital relationship.120
118
Section 55A, Family Law Act (1975).
119
In the Marriage of Todd (1976) Family Court of Australia.
120
(1976), Family Court of Australia.

34
4.3.2.2 Pavey v Pavey121

In this case, it was advanced that spouses may mutually agree to separate and bring
their marriage to an end. On the other hand, separation may also be agreed upon in
the hope that the marriage will be improved either from an economic standpoint or
using separation as an aid to reconciliation. This means that separation is physical
and does not involve the breakdown of the marital relationship. Where this physical
separation takes place with either the hope or intention of resuming the marriage
after a duration of time then something must happen subsequently before the
separation can be said to have taken place within the provisions of Section 48 of the
FLA 1975. The subsequent event must have taken place more than twelve months
before the application of the dissolution of the marriage is filed.

Therefore, separation can only be viewed as used in Todd’s case where it was stated
that:

“separation can only occur in the sense used in the Family Law Act 1975 where one
or both of the spouses form an intention to server or not to resume the marital
relationship and act upon that intention, or alternatively act as if the marital
relationship has been severed.”

Therefore, mutuality is not necessary to prove separation as observed in the passage.

A conscious decision to separate can be inferred from one of the parties.122

CHAPTER FIVE: FINDINGS, RECOMMENDATIONS AND

CONCLUSION
5.1 Introduction

121
(1976), Family Court of Australia.
122
(1976), Family Court of Australia.

35
This chapter seeks to reflect on the findings of this study in relation to the previous
chapters. It then proceeds to present recommendations directed towards making
Kenya’s legislative framework on irretrievable breakdown of marriage as a ground
for divorce more receptive to the ever evolving causes of the breakdown of marriage.

5.2 Findings

This study has found that irretrievable breakdown of marriage as a ground for
dissolution of marriages in Kenya has fault considerations thus implying the
encroachment of fault in what is traditionally a no-fault ground. There is however,
the last consideration which stipulates that the court may grant divorce on the
aforementioned ground through its own discretion of what it deems appropriate to
fall under this ground. Through a comparative analysis, this study has also found that
countries such as Australia have irretrievable breakdown of marriage as the sole
ground for a no-fault divorce with no further considerations.

5.3 Recommendations

The research has gone over and above to prove that the considerations attached to
the irretrievable breakdown of marriage in Kenya are mostly fault-based which
implies that fault factors have encroached in what is traditionally a no-fault divorce
ground. Below are some recommendations made towards this research:

i. Prudent and adequate measures have to be employed to ensure that this

ground combats any negativity associated with divorce proceedings due
to the requirement of apportionments of fault otherwise introducing this
ground in our Marriage Act will have resulted in naught. Kenya could
borrow from countries such as Australia whose irretrievable breakdown
of marriage as a ground for divorce is purely no-fault thus negating the
need to apportion fault. Including a no-fault ground in our Marriage Act
2014 and attaching fault-considerations to it beats the very essence of a
no-fault divorce; the absence of apportionment of fault.

36
 ii. Section 66(6) of the Marriage Act 2014 must be redesigned to have its
own definition rather than it being a combination of most grounds in the
aforementioned Act. The current considerations attached to this ground
are inadequate owing to the fact that they are a mirror image of all other
fault grounds provided in the Marriage Act 2014. This confuses rather
than clarifies what the irretrievable breakdown of marriage in Kenya
entails.

5.4 Conclusion

The Marriage Act provides grounds upon which the dissolution of a marriage can be
sought in Kenya. This study does not claim to be the solution to the negativity
attached to divorce proceedings, rather it is an intellectual discourse whose deductive
analysis reveals that the divorce conundrum cannot be answered until Kenya
rethinks the fault considerations attached to the irretrievable breakdown of marriage
as a ground for divorce. Whereas matrimonial offence is absent for this ground in
jurisdictions such as Australia, matrimonial offence is still given priority in our
jurisdiction while using this ground to petition for dissolution of a marriage. This
then implies that this ground exists only as a remedy to the lacunas in the existing
system of divorce. Moreover, the study proves that courts have also found grounds
such as lovelessness in a marriage to fall under this ground which then removes the
element of fault where such a judgement is passed. As a result, one can only
conclude that there is now no-fault in what was once a purely fault-based divorce
regime and fault even in no-fault due to the nature of the irretrievable breakdown of
marriage as a ground for divorce in the Marriage Act 2014.

In conclusion, the introduction of this ground does not imply that the floodgates of
divorce have been activated, rather it means that divorce can be granted where a
marriage disintegrates beyond the traditional fault ground of divorce. Consequently,
the Marriage Act has left it upon courts to determine which other ground may fall
under the irretrievable breakdown of marriage and thus with time, there will be a
clearer picture of what this discretion will mean for divorce proceedings. The
introduction of the irretrievable breakdown of marriage as a ground for divorce

37
therefore signals Kenya’s potential to shift to a purely no-fault divorce regime. This
study therefore makes recommendations inclined towards the irretrievable
breakdown of marriage as a ground for divorce in the Marriage Act 2014 taking a
purely no-fault divorce approach rather than its pluralistic nature which only
promotes negative attitudes towards divorce.

38
 BIBLIOGRAPHY
Books

Rheinstein M, The Law of Divorce and the Problem of Marriage Stability, Vand. L.
Rev. 1956.

Sugarman S & Hill H, Divorce Reform at the Crossroads, Yale University Press,
1990.

Brentano C, Clarke-Stuart A, Divorce: Causes and Consequences Yale University

Press, 2007.

Wadlington W, Divorce Without Fault Without Perjury, 52 Vand. L. Rev. 32 (1966).

Ellman I.M, The Place of Fault in a Modern Divorce Law, Arizona Publishers, 1996.

Woodhouse B & Bartlett K, Sex, Lies, and Dissipation: The Discourse of Fault in a
No-Fault Era, 1994.

Kumar V, ‘Irretrievable Breakdown of Marriage: Right of a Married Couple’ 5(1)

NALSAR Law Review, 2010.

Cotterrel R, Law’s Community, Clarendon Press Publication, Oxford, 1997.

Hervada J, Critical Introduction to Natural Law, Wilson & Lafleur, United Kingdom
2006.

Yenor Scott, Family Politics: The Idea of Marriage in Modern Political Thought,
Baylor University Press, 2011.

Tamanaha B, A General Jurisprudence of Law and Society, Oxford Press, Oxford,

2001.

Joireman S, ‘The Evolution of the Common Law: Legal Development in Kenya and
India,’ Political Science Faculty Publications, 2006

39
Ecclesiastes 9:9

Matthew 19:3-6

List of Cases

C W C v J P C [2017] eKLR

K A S v M M K [2016] eKLR.

J M M v J M N [2015] eKLR.

EKG v CK & Another (2017) eKLR.

R v Amkeyo E.A.L.R (1917) Kenya.

R v Mwakio (1934) eKLR.

W E L v J M H (2014) eKLR.

C W C v J P C (2017) eKLR

K A S v M M K (2016) eKLR.

J M M v J M N (2015) eKLR.

Cole v Cole, Supreme Court of Canada, 1944.

Mordaunt v Mordaunt (1870) Divorce Court of Great Britain.

Fitzgerald v Fitzgerald (1869), The Supreme Court of Virginia.

Tulk v Tulk (1907) Supreme Court of Victoria.

Pavey v Pavey (1976), Family Court of Australia.

Russel v Russel (1941), The Supreme Court of Victoria.

40
In the Marriage of Todd (1976), Family Court of Australia.

Pavey v Pavey (1976), Family Court of Australia.

List of Legal Instruments

Marriage Act, (Act No.4 of 2014).

Constitution of Kenya (2010).

African Christian Marriage and Divorce Act, CAP 151.

Marriage Act, (Act No. 7 of 1975).

Mohammedan Marriage & Divorce Registration Ordinance (CAP 156 of 1906).

Family Law Act (Australia).

Reports

Kenya, Report of the Commission of the Law of Marriage and Divorce, 1967.

New Zealand, New Zealand Family Law Reports,12 April 1921.

Law Commission of UK, Reform of the Grounds of Divorce: The Field of Choice,
10, 12 November 1966.

Journals

American Law Institute, Principles of Family Law Dissolution, American Law

Institute Publishers, 2002.

Joireman S, 'The Evolution of the Common Law: Legal Development in Kenya and
India' Political Science Faculty Publications, 2006.

41
Reader's Digest, Know Your Rights and how to Make Them Work for You, Reader's
Digest Association, 1995.

Finlay H, The Grounds for Divorce: The Australian Experience, Oxford Journal of
Legal Studies, Oxford University Press, 1986

Online resources

http://www.contrariwisejournal.com/media/documents/khadijah_mccarthy.pdf

https://www.christianitytoday.com/women/2016/april/when-does-bible-allow-
divorce.html

http://kenyalaw.org/lex/actview.xql?actid=No.%204%20of%202014>

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/
family-law-in-australia/no-fault-divorce/

http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/judgments/law-
reporting-in-family-court-cases/

https://legal-dictionary.thefreedictionary.com/
Irretrievable+Breakdown+of+Marriage

https://www.christianitytoday.com/women/2016/april/when-does-bible-allow-
divorce.html

https://www.gotocourt.com.au/family-law/no-fault-divorce/

http://www.kenyalawresourcecenter.org/2011/07/historical-development-of-family-
laws.html

https://www.tuko.co.ke/269501-customary-marriage-kenya-registration-divorce-
procedure.html

https://blacks_law.enacademic.com/14419/irretrievable_breakdown_of_marriage

42