Attorney General Justin Muturi (Photo courtesy Africa Intelligence)

Two weeks ago, the Kenya Forum posed the question, ‘Is it about to get easier to divorce in Kenya?’ when reporting that Parliament was debating a new law, the Marriage (Amendment) Bill 2023, that if passed would make divorce easier and less expensive if both partners consent to the annulment of the marriage.

It looks like that is not to be. The National Assembly has now put a stop to the Bill that was sponsored by Suna West MP Peter Masara.

The new Bill would have amended provisions of the Marriage Act, 2014, and if passed mark a departure from the existing divorce procedure that is ‘fault-based’ on the grounds of abuse or infidelity, for example.

The Attorney General Justin Muturi has in effect vetoed the Bill saying that allowing divorce by mutual consent as proposed is not a solution to family disputes.

Justice and Legal Affairs Committee

In his submission to the committee on Justice and Legal Affairs Muturi argued that most divorces take under six months and that contrary to what is stated in the draft Bill the would-be divorcing parties represent themselves and therefore the cases are not lengthy and expensive.

Muturi told MPs that the idea of allowing divorce by mutual consent should be dropped and instead an ‘Alternative Disputes Resolution’ process should be introduced to solve family disputes.

“We can both agree,” Muturi said, “that discussions on allowing divorce by mutual consent should be shelved. Focus now shifts towards strengthening alternative dispute resolution in resolving family disputes, capitation of relevant institutions that handle family matters and formulation of policies and programmes to ensure protection of and assistance for the family.”

Family the Natural and Fundamental Unit of Society

The Attorney General further argued that Article 45 of the Constitution recognises the family as a natural and fundamental unit of society and the necessary basis of social order which as such must have the recognition and protection of the State.

On this point Muturi asked, “Should we therefore lessen the requirements for dissolution of a marriage? Should we allow parties to mutually agree to separation? The National Assembly has now put a stop to the Bill that was sponsored by Suna West MP Peter Masara.

Staying with the subject of Article 45 (4) of the Constitution, Muturi told the committee that it already allows Parliament to enact legislation that recognizes marriages concluded under any tradition or system of religious, personal or family and divorce by mutual consent is not envisioned by the sub-article.