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In Kenya, getting a divorce is not as simple as two people agreeing to end their marriage and going their separate ways.
Even if both partners are unhappy and want to move on peacefully, the law does not currently allow them to just sign a consent form and walk away.
This issue was at the heart of a past case heard at the High Court in Nairobi. In 2022, a law firm called Coppler Attorneys & Consultancy filed a petition asking the court to change the current divorce system.
They argued that the law, as it is now written in Part X of the Marriage Act, is unfair and outdated because it does not allow couples to divorce simply by mutual agreement.
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Instead, Kenyan law says that couples must prove that their marriage has broken down for serious reasons.
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These include things like adultery, cruelty, desertion, or if one partner has been jailed for more than seven years.
Even the idea of “irretrievable breakdown” must be supported with evidence, like living apart for at least two years.
The petitioners said this system causes unnecessary stress, especially when both partners agree that the marriage isn’t working.
They argued that couples are forced into bitter court battles where they blame each other just to meet the legal conditions for divorce.
This, they said, leads to shame, emotional damage, and makes it harder for people to co-parent or split property peacefully.
In some extreme cases, they warned, people may stay in abusive marriages just to avoid going through a painful court process.
However, the government disagreed. Both the Attorney General and the National Assembly said the law is fine the way it is.
They argued that marriage is not just a private agreement between two people, it is a social institution that affects families, communities, and the country.
Because of this, the law must protect marriage from being ended too easily or casually.
The judge, Justice L. N. Mugambi, agreed with the government. In his final ruling, he said that allowing mutual consent divorce would weaken the value society places on marriage.
He explained that marriage is a key foundation of social order and stability in Kenya, and the law is designed to protect it.
The judge also reminded the petitioners that only Parliament has the power to change laws, not the courts.
He said that asking the court to force lawmakers to rewrite the Marriage Act went against the principle of separation of powers.
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So, for now, couples in Kenya cannot legally end their marriages by just agreeing to do so.
They must still follow the current law and go through court, proving that their relationship has truly broken down.
The debate continues, and some people are calling for changes in the law.
But unless Parliament acts, divorce in Kenya will remain a process that demands more than just mutual agreement, it demands legal proof.