You will not win your divorce case. And neither will your spouse.
If all goes well, your lawyer will be less a “gladiator”, fighting in an arena against your spouse, and more a diplomat, seeking common ground.
A couple said “I do” in France in the early 1990s. They filed their first divorce petition in France (2011), their second in Italy (2013), and their third in Kenya (2014).
Court documents show that the husband alleged adultery, desertion and cruelty— a trifecta of divorce causes according to Kenyan law. She countered that he had abandoned his duties as a father and a husband, accumulating thousands of Euros in unpaid alimony and child support.
She wrote to the Italian consulate to expose his perceived misdeeds. He slung back the mud, claiming that she may have been involved in a robbery at his home. Their teenaged son was dragged into the melee to testify.
Six years after the first divorce petition was filed in France, the High Court in Nairobi delivered what seemed an anti-climactic conclusion to the Kenyan chapter of this saga— it washed its hands of the case, saying that though the union had clearly broken down, a local judge lacked “legal basis to grant dissolution” of marriage vows taken by foreigners while they lived abroad.
There was no winner in this case as in most divorces, a truth that many family lawyers advise their clients to accept.
If a marriage is too toxic, as was the case for our globe-trotting couple, the lawyer will still fight it out but you should have no illusions — there will be no winners here. Your spouse, yourself and your children will emerge with battle scars that may never fade.
“It is not a question of winning. It is a question of settling the family, either reconciliation or going through the divorce in a civil way,” says Anne Mbugua, a veteran practitioner of family law and senior partner at Musyimi and Company Advocates.
Ending up with the more palatable of these no-win scenarios requires following a counter-intuitive path— civility. Except in cases where divorce is occasioned by violence, husband and wife must talk to each other and deliberate rationally the dissolution of their union.
One of the first things that Mrs Mbugua does for prospective divorcees is triage, to determine the “health” of a marriage. Can the marriage be “resuscitated” or is it beyond all efforts at rescue, in the “morgue”?
During this process, lawyers may recommend that a couple separates. Living apart provides the perspective needed before making the final leap into divorce. And sometimes, legal separation is granted by the courts pending divorce, especially if one party is afraid that they may be harmed by the other.
But a separation does not dissolve marital commitments. A man who moved in with his girlfriend after separating from his wife in 2001 discovered this the hard way after the court found that this amounted to adultery.
“If we determine that the marriage has completely broken down, then the goal is to make it possible to be dignified as they exit,” says Judy Thongori, who runs a family law practice in Nairobi. The law provides five grounds for filing a divorce petition— adultery, cruelty, extreme depravity, desertion for at least three years, and irretrievable breakdown.
“Irretrievable breakdown” was introduced in the Marriage Act 2014 and, Ms Thongori says, it has helped to cloak the divorce process in dignity, allowing couples to go their separate ways without airing their dirty laundry in public record.
The filing of the petition is only the beginning of what could be a long and odious journey. Ms Thongori estimates that a divorce could take as little as a year but this is rarely the case.
A Nairobi couple, identified only as JNC and WCG in court papers, married in 1981 and begun divorce proceedings in 2001.
It took them 15 years to finalise the divorce, only five years shy of the time they spent in wedded bliss.
The cost of dissolving a marriage is equally varied. Rough averages by BD Life indicate that a very cheap divorce can cost about Sh100,000.
Acrimony, fights over the division of property and the custody of children are factors that complicate cases, dragging parties back to court year after year and leading to racked up bills in the hundreds of thousands, if not millions of shillings.
Lawyers may advice clients to come to an agreement on parental responsibility and division of property before actually dissolving a marriage.
“Sometimes we shelve the marriage. We put it on the backburner. We first deal with the children,” says Mrs Mbugua.
While the couple can go to court to have custody settled, a less bumpy path is to negotiate a parental responsibility agreement out of court.
These agreements can be very detailed— be prepared to plan out how and where you child will holiday; the approved caregivers; and even where you will pick up the child after a weekend or away with your ex-spouse.
Conversations about the division of property ought to start long before a petition is filed, preferably even before you walk down the aisle. Everybody, “even young journalists”, should have a prenuptial agreement that outlines how their financial affairs will be handled once married, says Ms Thongori.
“You needn’t have an empire. But think that you could get an empire,” she says.
And the value of these agreements is not so much in the paper they are written on, but that they give a couple the opportunity to honestly deliberate their financial affairs.
The law gives judges the power to set aside prenuptial agreements. The Marital Property Act (2013) says that division of property ought to be based on the contribution of the spouses to the acquisition or improvement of the assets, will apply.
This contribution is defined as both monetary and non-monetary such that a spouse who helped till a farm is also entitled to a share of that property as is the spouse who acquired the land.
However, the definitions “contribution” are still been hashed out and while Ms Mbugua says that increasingly judges are putting a premium on non-monetary contribution, the courts have not been shy about declaring that this ought not be a blanket for laziness.
Are divorce rates on the rise? Why?
Data from the Kenya Health Demographic Survey (KHDS) shows that the percentage of women who self-reported as either divorced or separated increased from 4.6 per cent to 7.7 per cent between 1989 and 2014. Between 1991 and 2009 the divorce cases filed at the High Court had risen to 386 in comparison to 152 in 1991.
Mrs Mbugua cautions taking these statistics at face value. The divorces recorded in the courts only account for those people that go to the bother of divorcing formally.
However, there are many divorces and separations that may never be considered by the courts— though the legal recognition of these could be dubious.
In surveys, people may underreport in order to avoid the perceived shame and stigma associated with divorce.
To address these challenged, researchers from the Canadian McGill University in 2015 tried to estimate the number of divorces in 20 African countries based on raw demographic health survey data. They focused on the date of first union and the current marital status of 500,000 women to “indirectly estimate the probability that a marriage will end”.
They found that the risk of divorce in these countries was on the decline. In the case of Kenya, however, the risk of divorce “remained remarkably constant over the last 20 years”. Kenya was doing better than its regional peers.
Although the data is not clear, Ms Thongori and Mrs Mbugua nevertheless argue that there is a changing perception of the value and nature of marriage that is having an impact on divorce.
Where before financial security and social status may have been prime considerations in sticking to a failed marriage.
Happiness and companionship were always part of that calculation but perhaps they carry greater weight today where people, and women especially, can find stability and status without the necessity of marriage.