Why Divorce in Kenya Still Requires More Than Just Mutual Consent

In Kenya, divorce isn’t as straightforward as both spouses agreeing to go their separate ways. Even when both parties are willing to end the marriage amicably, the law doesn’t allow them to simply sign papers and move on.

This issue came to the forefront in 2022, when Coppler Attorneys & Consultancy filed a petition at the High Court in Nairobi, challenging the country’s existing divorce laws. The firm argued that Part X of the Marriage Act is outdated and unfair because it doesn’t permit couples to divorce by mutual consent.

A Legal System Rooted in Proof and Blame

Under the current law, couples must prove that the marriage has broken down for serious reasons such as:

• Adultery
• Cruelty
• Desertion
• A partner being jailed for more than seven years
• Or an “irretrievable breakdown,” which itself must be backed by evidence, like living apart for at least two years.

The petitioners claimed this legal structure creates unnecessary conflict, forcing couples—who may already agree the relationship is over—into blame games and court battles just to satisfy legal requirements.

They also warned that this system leads to emotional harm, public shaming, and strained co-parenting, and may even compel individuals to remain in abusive relationships to avoid the stressful court process.

The Government’s Stand: Marriage Is a Social Institution

However, the Attorney General and National Assembly pushed back, defending the law as it stands. Their argument: marriage is not just a personal contract, but a social institution that affects families, communities, and the broader nation. Because of this, the law must safeguard it from being dissolved too easily.

Justice L. N. Mugambi agreed with this view in his ruling. He argued that allowing divorces by mutual consent could weaken the societal value placed on marriage, which is a fundamental pillar of social stability in Kenya.

He also emphasized that the courts cannot rewrite the law—that power lies with Parliament. Forcing lawmakers to amend the Marriage Act, he said, would violate the principle of separation of powers.

For Now, Divorce Still Requires Evidence

The court’s decision means that, at least for now, Kenyan couples cannot legally end their marriages based on mutual agreement alone. They must still provide legal proof that the union has broken down.

Calls for reform continue, with some arguing that the current process causes more harm than good. But until Parliament decides to act, divorce in Kenya will remain a legally demanding process—one that requires far more than just two people agreeing to walk away.