NO DIVORCE BY CONSENT! High Court roars in Constitutional Petition No. E075 of 2022

This article provides a comprehensive analysis of the High Court of Kenya’s judgment in Constitutional Petition No. E075 of 2022, which considered a challenge to Part X of the Marriage Act, 2014. The petitioner sought to have the provision declared unconstitutional for failing to provide for divorce by mutual consent, arguing that the current fault-based system is detrimental to parties and families.

Case Overview and Petitioner’s Challenge

The case, Coppler Attorneys & Consultancy versus Attorney General and National Assembly, with the Law Society of Kenya and Legal Aid Clinic as Interested Parties, and ISLA and FIDA Kenya as Amici Curiae, centred on a petition filed on February 18, 2022. The petitioner, through its Executive Director, Akusala A. Boniface, argued that Part X of the Marriage Act, which outlines the prerequisites for marriage dissolution, is unlawful because it does not include dissolution by consent of the parties.

The petitioner contended that this omission contravenes Articles 2, 10, 36, 45, and 259 of the Constitution. Consequently, the petitioner sought several declaratory orders, including a declaration that Part X is unconstitutional and that parties to a marriage are at liberty to terminate it by consent, upon which a court decree should issue. A mandatory injunction was also sought to compel the National Assembly (2nd Respondent) to amend the Marriage Act, 2014, and the Matrimonial Causes Act Cap 152 to allow for termination by consent for all marriage regimes.

Arguments Against the Current Fault-Based System

The petitioner highlighted several perceived drawbacks of the existing fault-based divorce system under Part X of the Marriage Act. While Section 3(1) defines marriage as a voluntary union, the dissolution process outlined in Part X is described as attracting aggressiveness and convolution, even when parties are willing to end the marriage.

Key criticisms raised by the petitioner included:

• Parties are subjected to a fault-based litigation system that compels them to degrade and tarnish each other’s reputation to apportion blame.
• The cost and combative nature of the proceedings discourage parties in abusive marriages from seeking divorce.
• Children are forced to bear the shame and public humiliation of their parents’ court battles, affecting their mental health and view of marriage.
• Relations between parties are damaged, making co-parenting and property distribution difficult.
• In extreme cases, the acrimony has reportedly led to incidents where one party ends the other’s life.

The petitioner argued that the freedom to enter a marriage union voluntarily should correspond with an equal right of exit without additional constraints. Drawing on the constitutional guarantee to enter and exit any association, the petitioner asserted that this principle should extend to marriage. The aim was to make the end of marriage less acrimonious and costly while maintaining civility.

Respondents’ Opposition and Legal Arguments

Both the Attorney General (1st Respondent) and the National Assembly (2nd Respondent) opposed the petition, primarily arguing that it lacked merit and failed to demonstrate the unconstitutionality of Part X. Their grounds of opposition raised several key legal points:

• Lack of Precision: The petition allegedly failed to disclose any unconstitutionality, specify which sections of Part X were violated, demonstrate how they were violated, or show the harm suffered. They argued there was no factual matrix creating a legal controversy, rendering the petition speculative and hypothetical.
• Presumption of Constitutionality: Respondents asserted that Acts of Parliament are presumed constitutional, and the burden of proof lies with the party alleging unconstitutionality. The petitioner had not rebutted this presumption.
• Public Interest vs. Private Interest: The 1st Respondent argued that declining the orders was in the public interest, which outweighs narrow private interests. They contended that protecting the institution of marriage, as the fundamental unit of society, is a crucial public interest.
• Separation of Powers: Both respondents strongly argued that the prayer for a mandatory injunction compelling Parliament to amend the law infringed upon the doctrine of separation of powers. Legislative authority is vested in Parliament under Article 94(5), and courts should refrain from interfering with this legislative function.
• Purpose of Marriage Act: Respondents argued that the Marriage Act regulates both entry and exit from marriage to safeguard the rights and interests of all parties. The regulations ensure divorce is done lawfully and protect rights, freedoms, and interests. The purpose rests on strong policy considerations, including ensuring marriage is not a “trial and error game”.
• Constitutional Protection of Family: Article 45(3) guarantees equal rights at marriage, during marriage, and at dissolution. The Constitution acknowledges the family as the fundamental unit and basis of social order, entitled to state protection.
• On-going Legislative Process: The 2nd Respondent noted that the issue of consensual divorce was already before the National Assembly in the Marriage (Amendment) Bill 2023, further arguing against judicial intervention.

Arguments from Interested Party (Legal Aid Clinic) and Amici Curiae

The 2nd Interested Party, Legal Aid Clinic, supported the petition, echoing the petitioner’s view that the right to enter a marriage should correspond with the right to exit without restriction. They argued that Part X contravenes Articles 10, 28, 29(d), 36, and 45. They contended that the fault-based system violates human dignity by requiring parties to prove grounds, leading to psychological torture, public humiliation, false accusations, and enmity. They believed amending the Act would reduce divorce cases and public airing of disputes.

The Amici Curiae (ISLA & FIDA Kenya) provided historical and comparative context. They noted Kenya’s divorce system is influenced by English law. Historically, English divorce required proof of aggravated adultery, evolving to include cruelty, desertion, and later, irretrievable breakdown, although still requiring proof of particulars. They highlighted the shift in England to the Dissolution and Separation Act, 2020, which no longer requires proving particulars of breakdown.

In Kenya, customary law initially governed marriage, followed by the application of British Acts. A 1963 Commission recommended against easy consensual divorce. The Marriage Act 2014 added “irretrievable breakdown” as a ground but still requires proof. The Amici cited case law interpreting “irretrievable breakdown” based on factors like separation period, antagonism, commitment, and chances of resumption.

The Amici argued that the fault-based system is inconsistent with human rights, including the right to establish a family under Article 45(2) and Article 16 of CEDAW. They cited cases supporting the idea that the right to family includes the right to leave a marriage. They emphasized the need to reform the law to protect dignity and remove discriminatory provisions, noting that several countries have moved to ‘no-fault’ or mixed systems. They urged the Court to consider international standards.

The Court’s Analysis and Determination

The Court identified two main issues: the constitutionality of Part X of the Marriage Act and whether the petitioner was entitled to the relief sought.

The Court first addressed the respondents’ argument that the petition was speculative due to the lack of a factual matrix. The Court dismissed this, stating its constitutional duty under Article 165(3)(d)(i) to determine the constitutionality of a live statute.

The Court outlined key principles of constitutional interpretation, including promoting the Constitution’s purposes and values, advancing human rights, permitting law development, reading the Constitution as an integrated whole (harmonization), and the presumption of constitutionality. The Court also emphasized considering the purpose and effect of legislation.

Examining Part X, the Court summarized the existing grounds for dissolution, including adultery, cruelty, desertion, exceptional depravity, and irretrievable breakdown (with various specific conditions).

Crucially, the Court analyzed Article 45 of the Constitution, which recognizes the family as the natural and fundamental unit of society and the basis of social order, enjoying state protection. The Court stated that society has an interest in the success of marriages. The law regulates marriages to ensure there is an opportunity for interventions to rescue a marriage from collapse, such as requiring separation periods to allow for counselling or reconciliation.

The Court’s central finding was that acceding to the consensual principle for divorce would erode the leverage society has created to preserve the institution of marriage, which is key to social survival. Discarding society’s stake in marriage would be an affront to Article 45. The Court found the argument that failure to allow consensual divorce violates Article 36 (association) to be ill-conceived, stressing that the Constitution must be read harmoniously, with Article 45 safeguarding society’s interest in marriage alongside the parties’ interests. The Court noted that marriage is often a communal affair, involving not just the couple but families, friends, religious groups, and even the government.

Parliament’s enactment of the Marriage Act under Article 45(3) was viewed as protecting a cherished societal institution from destruction by “impulsive urges of individuals”. The grounds for divorce are intended to protect marriages from the “ignominy of casual dissolution” and underscore that dissolution is a solemn matter not left to casual wishes.

The Court concluded that failure to recognize mutual consent as a ground for dissolution does not invalidate Part X as unconstitutional; rather, it safeguards society’s interest in marriage. Therefore, the Court declined to issue the declaratory order allowing parties to terminate marriage by consent and have a decree issue upon filing consent.

Regarding the prayer for a mandatory injunction compelling Parliament to amend the law, the Court found this to be an invitation to infringe upon the doctrine of separation of powers. Reiterating that legislative authority is vested solely in Parliament, the Court stated it has no authority to direct Parliament on how to legislate but only to stop unconstitutional legislation. Compelling Parliament to include a specific provision was deemed constitutionally inconceivable.

In view of these findings, the Court dismissed the petition in its entirety. No orders were made as to costs. The judgment was dated, signed, and delivered virtually on April 24, 2025.

Conclusion and Implications

The High Court’s judgment in Constitutional Petition No. E075 of 2022 firmly upholds the current fault-based divorce system in Kenya, as outlined in Part X of the Marriage Act, against a constitutional challenge based on the lack of a consensual divorce option. The Court’s decision heavily relies on the interpretation of Article 45 of the Constitution, emphasizing the paramount importance of the family unit to society and the State’s interest in protecting the institution of marriage. It views the current grounds for divorce not as an undue burden on individuals but as a necessary safeguard against casual dissolution, reflecting marriage’s communal and societal significance. Furthermore, the judgment reinforces the principle of separation of powers, declining to compel Parliament to legislate on consensual divorce, noting that this is a matter already being considered within the legislative branch. This ruling maintains the status quo regarding divorce procedures in Kenya, emphasizing societal preservation over individual autonomy in the dissolution of marriage, as interpreted by this Court.

Contribution by Murithi Antony.