The High Court at Nairobi in Cooper Attorneys & Consultancy v Attorney General & others  [2025] KEHC 4927 (KLR) held that divorce by mutual consent was not tenable stating that the provisions of the Marriage Act, 2014 (‘the Act’) requiring demonstration of valid grounds before a marriage is dissolved safeguard the interests of the society in the institution of marriage. The Court reaffirmed the constitutional validity of Part X of the Act on the grounds for dissolving a marriage. Part X provides that a party to a marriage may pursue divorce on the following grounds: adultery; cruelty; desertion by either party for at least three years; exceptional depravity by either party or irretrievable breakdown of marriage.

Case background

The Petitioners challenged the constitutionality of Part X of the Act arguing that it conflicted with Section 3(1) of the Act where parties are allowed to voluntarily enter into a marriage union. They contended that the cost of divorce proceedings and fault-based litigation system, has compelled parties in abusive marriages choose to remain in such unions so as to evade their private disputes being publicized and incurring the cost.

The Respondents on the other hand, defended the provisions of the Act asserting that the petition was unmerited and did not disclose any constitutional violations. The interested parties including the Federation of Women Lawyers (FIDA) Kenya filed a joint response critiquing the historical fault-based divorce system as rooted on gender stereotypes and advocated for reforms to no-fault divorce based on international trends.

An analysis of the judgment on Part X of the Act.

The Court upheld the constitutional validity of Part X of the Act finding that it serves the society’s interest in marriages which is to ensure their success and not failure. The court dismissed the petitioner’s claim that exclusion of mutual consent as a ground for divorce violates constitutional rights, highlighting the fact that marriage is a social institution with societal implications rather than just a private contract.

 The court further noted that acceding to dissolution of marriage by mutual consent would erode the leverage that the society has created in order to preserve the institution of marriage.

Consequently, the judgment maintains the status quo in divorce proceedings where parties seeking to dissolve a marriage need to prove the grounds enshrined in Part X of the Act.

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