Woe unto you if you separated from your partner without adhering to the formal divorce process by completing and filing the legal divorce papers in the hope of benefiting from the estate of your partner in case of his or her demise.  The court has now pronounced itself on presumption of divorce.

In a Judgment by the High court of Kenya at Malindi, the court observed that where it appears to it that spouses have separated from each other for a considerable number of years, no responsibility is being taken by either in an effort to bring back the union and none of them appears to bother about the union or relationship that existed between them, then the court has no option other than to presume the couple as permanently divorced.

In succession cause No. 9 of 2018, the objector; Amos Okoth Oluoch objected to the grant of letters of administration to Simon Harold Shiels who happened to be the new husband to the deceased; following their separation with the objector close to nine years before her death. The objector moved to court objecting the grant on the ground that they had not permanently divorced their customary marriage with the deceased and that prior to their separation, they had been blessed with 3 children together. He also alleged that they had never formalized their separation through a legal divorce process and that by law they were still considered as husband and wife.

In response to the objection, Simon Harold Shiels started that he got engaged to the deceased wife in 2009 and together had two children as at the time of her wife’s death. That Amos Okoth Oluoch has never appeared in the picture ever since he got engaged to the deceased wife however, he did recognize the three kids her deceased wife came with before they got married. Additionally, that he had included the three step children in the list of beneficiaries and therefore the objector had no valid claim over the estate of the deceased wife.

In dismissing Amos Okoth’s Objection and agreeing with Simon Harold Shiels, the court had this to say:

Having made a finding that the marriage between the deceased and the objector (Amos Okoth Oluoch) can be said to have ended by presumption of divorce, the provisions of article 45 of the Constitution of Kenya guarantees every adult the right to marry a person of the opposite sex, based on the free consent of parties. This suggest that one may walk into a marriage voluntarily and may also leave voluntarily. On top of this the constitution guarantees freedom of choice and association. It seems that in realization of the aforesaid rights the deceased made a choice to abandon her first marriage and decided to live a life as a single person. Even before she met the Petitioner (Simon Harold Shiels) in 2009, the deceased had been in and out of other relationships in exercise of her constitutional rights.

The fact that her previous marriage had not been formerly dissolved, should not be a hindrance for her exercise of fundamental rights and freedoms to choose and to associate. In my view, the objector’s cause does not hold water. It is the view of this court that the deceased moved on with her life as she had abandoned the marriage with the objector, engaged in relationships with other men other that the objector, behaved and conducted herself like a single person, a free woman capable of entering into a marriage and actually solemnized the marriage with the petitioner and acquire properties together, after many years of having lived away from the objector. This shows that she had no intention of going back to the objector.

The court went ahead to define divorce and stated that divorce is not the procedure of filing for a decree nisi in court per se. On a much broader perspective, divorce pertains to the intention and conduct of parties. If parties in a marriage shows an intention not to continue with their marriage or conduct themselves as unmarried persons, then the same should be treated as such. The law cannot attach obligations upon persons who have decided to part ways but fail to formalize the same, because that is not the true reflection of what they want. In that regard the objector stopped being the deceased’s husband when they separated and moved on.

The court then concluded that pursuant to Section 119 of the Evidence Act, its proper for their marriage to be construed for purposes of the Law to have ended by presumption of divorce, notwithstanding that no formal petition was filed in a Court of Law to be decreed as such in accordance to the Law.”

This is an interesting development in jurisprudence of the law of succession in Kenya as well as issues relating to marriage.

At A.O.WANGA ADVOCATES we are happy to assist you in all succession and marriage related issues. Contact us on or +254794600191.

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