Court refuses to dissolve marriage after lady sued her husband over conjugal rights

A Machakos woman who had sought divorce accusing her husband of denying her conjugal rights for 5 years and threatening to kill her has suffered a major blow after a court declined to dissolve the customary marriage.

A landmark judgement rendered by Magistrate Charles Ondieki rejected a plea by the lady whose name has been withheld for legal purposes on grounds that a customary marriage which has not been registered is not a marriage to be dissolved.

Magistrate Ondieki found that all parties to a customary marriage who had not registered their marriage with effect from August 1, 2020, when the Marriage Act 2014 took effect can only petition the court for annulment and not dissolution.

Ondieki declined to dissolve the marriage of the Machakos Couple noting that although the woman and the husband admitted that they were so married in accordance with the customary rites of the Akamba community, by force of section 12(e) of the Marriage Act, 2014, it follows that purported marriage was rendered voidable effective August 1, 2020.

He also noted that failure to show a marriage certificate meant that they could not prove their marriage.

“Turning to the evidence adduced by both parties, this court finds that neither the Petitioner nor the respondent exhibited the documentary evidence contemplated by section 59 of the Marriage Act, 2014,” Ondieki stated.

Further, the court held that with effect from August 1, 2020, having been rendered voidable, the Machakos Couple were deprived of the right to petition or cross-petition for divorce (dissolution of the purported marriage).

“Having failed to surmount the test of sections 59 read with sections 3, 12(e), and 96 (2) & (3) of the Marriage Act, 2014, leads this court, that neither the petitioner nor the respondent has generated persuasion in my mind that the subject marriage is neither void nor voidable, as to entitle any of them to petition for divorce. This court so concludes,” Ondieki stated.

According to the magistrate, the grounds for divorce of a marriage are a world apart from the grounds for nullification, the magistrate also asserted that nullification of a marriage is completely absent in both the petition and cross-petition lodged by the couple.

The court decision comes after a Machakos woman on June 8, 2023, filed a divorce petition in court seeking that the customary marriage between her and her husband is dissolved.

The woman known as EMM sought a divorce claiming that she contracted a marriage with the husband in June 1987, in accordance with the Kamba customary law on marriage, within Machakos County.

She averred that they lived as husband and wife after the said celebration at their matrimonial home at Katelembo until December 2018.

The petitioner informed the court that her husband is a person of ungovernable temper and has been committing acts of cruelty through physical and emotional violence and that her husband whom she claimed has frequently threatened to kill her, attempted to stab her using a knife in May 2018.

The woman told the court that she was forced to move out of their matrimonial home in December 2018 to Kenol where she rented a house and put up with the children.

“My husband has since sold the land upon which their matrimonial stands. In addition to cruelty, he has since 2018 committed acts of exceptional depravity by failing to maintain and educate his two children and denying me my conjugal rights and deserting me for five 5 years,” she told the magistrate

She contends that she tried to salvage the marriage in 2023. Accompanied by her brother, she visited her husband’s home in Kamuthanga with elders but negotiations were not fruitful.

On his side, the husband denied the allegations by the wife and instead stated that she is very hostile to him.

Although he confirmed to the court that the petitioner was his wife, he denied ever assaulting her.

In his cross-petition, he avers that the wife has frequently been cruel to him by leaving her matrimonial home in 2018 without provocation while he was away at work, and by gossiping that he has extra-marital affairs.

In his decision, the magistrate declined to dissolve the marriage of the couple, faulting them for failure to file a petition for nullification since it is the proper procedure to dissolve their marriage.

“Ultimately, this court reaches a conclusion that both the petition and cross-petition seeking dissolution of the asserted customary marriage, are incompetent. In the upshot, both the petition and cross-petition, having been found incompetent, are struck out,” Ondieki ruled.

The magistrate held that before the Marriage Act, 2014 was enacted and came into force, a party to a customary marriage, did not need to approach the court for divorce.

“A party who was desirous of divorce had two conclusive but alternate trajectories at his/her disposal to wit, securing a divorce by invoking the divorce rites of the community under which the customary marriage was contracted or in exceptional circumstances, approaching a court of law seeking a divorce decree.

“Within the Akamba community, a wife needed only to return mbui ya ulee to the parents of the husband, to mark a conclusive divorce, although full dowry may not be returned,” the magistrate stated.

In his decision, Ondieki added that some of the notable exceptional circumstances where a party to a customary marriage needed to approach a court of law seeking a divorce decree, is whenever the desirous party was frustrated or the attempt to divorce under the said rites was rejected or rendered insurmountable or impossible.

Additionally, he stated that after the Marriage Act, 2014, came into force, the trajectories available for divorce of a customary marriage were reduced from two to only one, which is court action.

Magistrate Ondieki stated that the Marriage Act, 2014, in respect to customary marriages, marked a fundamental shift from the varied and uncodified divorce grounds based on marriage customary laws of individual communities, to standardized and codified (statutory) grounds common to all communities.

He said that the act also brought a transformative approach to the manner of proving a customary marriage.

The magistrate, however, advised the couple that they were at liberty to file a petition or cross-petition for annulment of the same marriage.

A customary marriage is conducted in accordance with the customs of communities of either both or one of the marriage parties.

Following the Act taking effect in 2020, all parties who were already married before the gazette notice are only required to register the marriage and be furnished with a marriage certificate.

The government announced that both parties had to appear before the registrar, who conducts an interview to ascertain the legality of the marriage and whether both parties are consenting adults.

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