Deciding to end a marriage is rarely easy, and the legal process can feel daunting when you are already under strain. This guide explains how divorce works in Kenya under the Marriage Act, 2014, what you need to prove, how the court process runs, and what happens to property and children.
Which law applies?
The Marriage Act, 2014 brought all forms of marriage in Kenya under one statute. It recognises five systems of marriage: Christian, civil, customary, Hindu and Islamic. The grounds and procedure for divorce depend on which system your marriage was celebrated under, so the first step is to confirm the type of marriage you have and locate your marriage certificate.
Grounds for divorce
Kenya does not grant a divorce simply because both spouses want one. A petitioner must prove one of the grounds set out in the Act. For Christian marriages (section 65) and civil marriages (section 66), the grounds are broadly the same:
- Adultery by the other spouse.
- Cruelty, whether physical or mental, towards the petitioner or the children of the marriage.
- Desertion for at least three years before the petition is filed.
- Exceptional depravity on the part of the other spouse.
- Irretrievable breakdown of the marriage.
The Act describes circumstances in which a marriage is treated as having irretrievably broken down. These include, for example, where the spouses have lived apart for a sustained period. Section 66(6) sets out the full list, and it is worth reviewing with your advocate because it often provides the most straightforward route.
Customary marriages may be dissolved on similar grounds, and also on any valid ground recognised under the customary law of the community concerned. The Act expects the parties to first attempt conciliation or customary dispute resolution, and the court will want to know what was done. Hindu marriages have their own grounds under section 70. Islamic marriages are dissolved in accordance with Islamic law, usually before the Kadhi’s Court.
The three-year rule for civil marriages
Section 66(1) of the Act originally barred spouses in a civil marriage from petitioning for divorce until three years had passed since the wedding. The High Court declared that restriction unconstitutional in 2019. In June 2022 the Court of Appeal upheld that finding, but suspended its declaration for three years to give Parliament time to amend the law. That period ran out in June 2025 without an amendment, so as matters stand a spouse in a civil marriage may petition for divorce at any time after the wedding, provided a ground under section 66(2) can be proved. Because this position rests on a court declaration rather than a change to the text of the Act, take advice before filing.
The divorce process, step by step
- Gather your documents. You will need your marriage certificate, copies of your identity documents, details of any children, and the evidence supporting your ground for divorce, such as messages, photographs, medical records or witness details.
- Prepare and file the petition. Your advocate prepares a divorce petition setting out the facts and the ground relied on, supported by a verifying affidavit. It is filed in a court with jurisdiction, which in most cases is a designated Magistrate’s Court. Filing is done through the Judiciary’s e-filing system.
- Serve your spouse. The petition must be formally served on the respondent, who then has a set time to enter appearance and file an answer.
- Undefended or defended. If your spouse does not respond, the petition proceeds as undefended and is usually heard faster. If your spouse opposes it, the matter becomes a defended cause, with a full hearing and witnesses.
- Decree nisi and decree absolute. If the court is satisfied that a ground is proved, it first grants a decree nisi. This is later made absolute, and only then is the marriage formally dissolved and either party free to remarry.
Courts often encourage court-annexed mediation, particularly on property and children. Mediation can save time and cost, and it keeps decisions in the hands of the spouses.
What happens to matrimonial property?
Property is governed by the Matrimonial Property Act, 2013 and Article 45(3) of the Constitution, which guarantees spouses equal rights at the dissolution of a marriage. In JOO v MBO [2023] KESC 4 (KLR), the Supreme Court clarified that equality of rights does not mean an automatic 50:50 split. Each spouse must prove their contribution to the acquisition of the property.
Contribution can be monetary, such as paying for land or servicing a loan. It can also be non-monetary, such as domestic work, childcare, companionship, or managing the family business or farm. Keep records: receipts, bank and M-Pesa statements, loan documents and title documents all matter. Property division is a separate claim from the divorce itself and is often filed alongside or after the petition.
Children
The welfare of children is the paramount consideration. Custody, access and maintenance are decided under the Children Act, 2022, which gives both parents equal parental responsibility whether or not they are married. These issues can be resolved by agreement, through mediation, or by the court. Our separate guide on child custody and maintenance explains the principles the court applies.
Practical tips
- Do not move out of the matrimonial home or transfer assets without first taking legal advice.
- Keep communication with your spouse civil and in writing where possible, because messages may become evidence.
- Prioritise the children’s stability, routines and schooling throughout.
- Be realistic about timelines. An undefended divorce may conclude within months, while a contested divorce with property disputes can take considerably longer.
Frequently asked questions
Can we divorce by mutual consent?
Not as such. Kenyan law requires proof of a ground, but where both spouses agree the marriage is over, the petition is usually undefended and can proceed quickly, often on the ground of irretrievable breakdown.
Does my spouse have to agree or sign anything?
No. Your spouse must be served with the petition and has the right to respond, but their consent is not required for the court to grant a divorce.
Can I file for divorce if my spouse lives abroad?
Yes, provided the Kenyan court has jurisdiction, for example because the marriage was celebrated in Kenya or you are domiciled here. Service abroad has its own procedure, which your advocate will handle.
How we can help
At Odek Law Advocates we advise and represent clients in divorce, matrimonial property and children’s matters, and we approach these cases with discretion and care. If you are considering a divorce or have been served with a petition, contact us to discuss your options.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. The law and court practice change, and every case turns on its own facts. Please seek advice on your specific situation.