Constitutionality of Kenya’s Fault-Based Divorce System and the Legal Rejection of Divorce by Mutual Consent
Introduction
This opinion addresses the recent High Court decision in Constitutional Petition No. E075 of 2022 (Cooper Attorneys & Consultancy v Attorney General & Others), delivered on 25th April 2025, which dismissed a constitutional challenge to Kenya’s existing fault-based divorce system. The petitioners had sought judicial affirmation that parties to a marriage should be entitled to dissolve the union by mutual consent, without having to prove fault or wrongdoing. The Court, however, upheld the constitutionality of the current legal framework under the Marriage Act, 2014, rejecting the proposition that mutual consent alone can ground a lawful dissolution of marriage in Kenya.
Factual and Legal Background
The core of the petition was a constitutional challenge to Part X of the Marriage Act, which regulates the process of dissolution of marriage. The petitioners contended that forcing parties to go through adversarial fault-based proceedings infringes upon their constitutional rights under:
- Article 2 – the supremacy of the Constitution;
- Article 10 – national values and principles of governance;
- Article 36 – freedom of association;
- Article 45 – the right to marry and found a family;
- Article 259 – interpretation of the Constitution in a manner that advances the rule of law and human rights.
In particular, the petitioners argued that the absence of a mutual consent mechanism in divorce proceedings violates personal dignity, autonomy, and promotes needless acrimony, particularly when the marriage has already failed in substance.
They further relied on Section 3(1) of the Marriage Act, which defines marriage as a voluntary union, to argue that the law should equally allow for voluntary dissolution.
High Court’s Key Findings
- Preservation of Marriage as a Societal Institution
The Court strongly reaffirmed the constitutional and societal value placed on the institution of marriage. Invoking Article 45, the Court noted that marriage is not merely contractual but is foundational to Kenyan society. As such, the legal framework must prioritize stability, reconciliation, and protection of the family unit. Divorce, the Court said, should remain exceptional and not merely a procedural convenience.
- Justification of Fault-Based System
The Court held that the fault-based approach, coupled with the ground of irretrievable breakdown, is neither irrational nor oppressive. While the Act permits a broad view of irretrievable breakdown, the Court emphasized that it still requires proof of breakdown through factual circumstances, not mere agreement or consent of the parties. The law does not recognize mutual consent alone as a sufficient condition for divorce.
- No Constitutional Right to Divorce by Agreement
The Court found no constitutional guarantee of a right to dissolve a marriage by mutual agreement. In its view, the omission of mutual consent from the statutory grounds for divorce does not of itself offend the Constitution. Instead, it supports the public interest in discouraging impulsive or unconsidered marital dissolution.
- Legislative Domain, Not Judicial Innovation
Importantly, the Court underscored its institutional restraint, holding that it cannot compel Parliament to legislate in a particular direction. It emphasized that any reform to include mutual consent as a ground for divorce lies within the policy discretion of the legislature, not the judiciary.
Commentary and Constitutional Implications
From a legal policy perspective, the judgment is conservative but legally coherent. It emphasizes judicial deference to legislative intent and preservation of public morality. However, it does raise questions on whether the current system sufficiently respects the dignity, autonomy, and mental well-being of adults in irreparably broken marriages.
This is especially relevant in light of the now-stalled Marriage (Amendment) Bill, 2023, which had proposed to introduce mutual consent as a legitimate basis for divorce. The bill’s failure to pass suggests a broader societal and political hesitation to liberalize divorce laws, even as global trends move in that direction.
Further, the continued insistence on fault introduces practical hardships: unnecessary litigation, emotional strain, public airing of private grievances, and often counterproductive outcomes for children in affected families. In many cases, couples who have already emotionally separated must feign conflict to meet the legal threshold for divorce.
Comparative Analysis: Gender and Access to Justice
While the judgment did not expressly engage with the gendered dimensions of divorce law, the adversarial nature of fault-based proceedings often disproportionately affects women. Accusations of adultery or cruelty are weaponized, and the stigma of “at fault” may limit women’s access to child custody or property rights. By contrast, a system based on mutual consent would potentially allow for more dignified exits from dysfunctional relationships and reduce gendered harm in litigation.
Matrimonial Property Division
While divorce remains fault-based, the law on division of matrimonial property is more nuanced. Under Article 45(3), the courts have clarified that equality in marriage does not mandate a 50-50 split. Instead, division is based on actual contribution, whether monetary or non-monetary, reinforcing equity over formalistic equality.
Conclusion and Recommendations
The High Court’s ruling in Cooper Attorneys & Consultancy v Attorney General upholds the constitutionality of the fault-based divorce regime and signals strong judicial support for the preservation of marriage. However, the decision also highlights a growing tension between evolving personal liberties and traditional societal values.
From a constitutional and policy standpoint, there remains a legitimate argument that the absence of a mutual consent pathway infringes upon personal dignity, particularly where both spouses agree that the marriage is irretrievably broken. It is recommended that:
- Legislative reform be revived to reintroduce the 2023 Marriage (Amendment) Bill with stronger protections and procedures for consensual divorce;
- Parliament conduct public participation to determine whether societal values still require a strictly fault-based system;
- Strategic litigation may be developed to highlight the disproportionate impacts of the current system, especially on women and children.
Until then, parties must continue to navigate the fault-based system, with judicial discretion being their only limited refuge for fairness. For trusted legal guidance, contact our team of top family & divorce lawyers at Kimiti & Associates Advocates.
