On April 17, 2025, the High Court of Kenya at Nairobi, in Constitutional Petition No. E075 of 2022 (Coppler Attorneys & Consultancy v. Attorney General & National Assembly), delivered a significant judgment affirming the constitutional validity of Part X of the Marriage Act, 2014 to the effect that a party wishing to divorce must prove the grounds cited in statute, and that a no-fault divorce is not permissible under Kenya’s marriage law.
Background
The petitioner, Coppler Attorneys & Consultancy, challenged the constitutionality of Part X of the Marriage Act, which outlines the grounds for divorce, including adultery, cruelty, desertion, exceptional depravity, and irretrievable breakdown. The petitioner argued that these provisions contravene Articles 2, 10, 25, 28, 29, 31, 36, and 45 of the Constitution by failing to allow divorce by mutual consent. They contended that the fault-based system fosters acrimony, subjects parties to psychological distress, and undermines the voluntary nature of marriage as defined in Section 3(1) of the Act. The petitioner sought a declaration of unconstitutionality, an order allowing consensual divorce, and a mandatory injunction compelling Parliament to amend the Marriage Act.
The respondents, the Attorney General and the National Assembly, defended the Act, asserting its constitutional soundness and emphasizing the presumption of constitutionality for statutes. They argued that the petition lacked specificity and that societal interest in preserving marriage justifies the regulated divorce process. The Legal Aid Clinic supported the petitioner, while the Law Society of Kenya’s response was unavailable. Amici curiae, including the Federation of Women Lawyers (FIDA) Kenya, highlighted the historical fault-based divorce system’s gender biases and advocated for reform based on international trends toward no-fault divorce.
Main Legal Principle
The court’s ruling establishes that Part X of the Marriage Act is constitutionally valid, as it aligns with the societal and constitutional imperative to protect marriage as the foundation of social order under Article 45 of the Constitution. The court rejected the petitioner’s claim that excluding mutual consent as a ground for divorce violates constitutional rights, emphasizing that marriage is not merely a private contract but a communal institution with societal stakes. The decision underscores the following key principles:
- Societal Interest in Marriage: Article 45 recognizes the family as the “natural and fundamental unit of society,” deserving state protection. The court held that allowing consensual divorce without conditions could erode societal mechanisms, such as reconciliation and mediation, designed to preserve marriages. This reflects a harmonized reading of constitutional provisions, balancing individual rights (Article 36) with societal interests (Article 45).
- Presumption of Constitutionality: Citing precedents like Ndyanabo v. Attorney General [2001], the court reaffirmed that statutes are presumed constitutional unless proven otherwise. The petitioner failed to demonstrate specific violations or harm, rendering the petition speculative.
- Separation of Powers: The court declined to issue a mandatory injunction compelling Parliament to amend the Marriage Act, citing Article 94 of the Constitution, which vests legislative authority exclusively in Parliament. This reinforces judicial restraint in interfering with legislative functions unless statutes are demonstrably unconstitutional.
Implications
This judgment maintains the status quo for divorce proceedings in Kenya, requiring parties to prove statutory grounds under Part X.
Clients contemplating divorce should prepare for a fault-based process, which may involve public litigation and evidence of grounds like irretrievable breakdown. Parties wishing to divorce on grounds of irretrievable breakdown of marriage under section 66(6)d of the Marriage Act may separate for a period of at least two years and then approach court for divorce to avoid a publicized trial.
The High Court decision signals that reforms toward no-fault divorce, as seen in jurisdictions like England, must originate from Parliament. Businesses and individuals involved in family law should note the court’s emphasis on societal interests, which may influence future legislative and judicial approaches to marriage and divorce. For now, the fault-based system remains intact, prioritizing stability over individual autonomy in marital dissolution.
