On 8th July 2020, the Government Press published the Marriage (Matrimonial Proceedings Rules) 2020 (‘the rules’). The rules are made pursuant to Section 95 of the Marriage Act Number 4 of 2014 and provide for the procedure for instituting and responding to matrimonial proceedings.
Some of the provisions relating to the filing procedure are:-
Petitions
The rules provide that a spouse may institute proceedings for separation, divorce, annulment and proceedings for the presumption of the death of a spouse and restitution of conjugal rights by filing a Petition.
A Respondent to a petition may file an Answer to the Petition and a Cross-Petition accompanied by a list of witnesses, witness statements and copies of documents forming the Respondent’s evidence.
The rules allow a Respondent to a Petition who has not filed an Answer to Petition or a Cross Petition to cross-examine witnesses and make submissions on questions of law. Previously, under the Matrimonial Causes Rules, a Respondent who has not filed an Answer to Petition could only cross-examine witnesses and make submissions on the issues of costs, damages and custody or access to children.
Further, the rules permit a Respondent to adopt the Answer to Petition as their written statement in the absence of a written statement. Previously, the Matrimonial Causes Rules did not expressly allow a party to adopt their Answer to Petition as their written statement.
Applications
The rules provide that a Petitioner or a Respondent can make an application for orders of maintenance and orders restraining against harassment or abuse of a spouse at any stage during the proceedings through an interlocutory application.
The rules provide that a married couple who has reached an agreement to live apart may approach the court for an order to ratify the agreement through a miscellaneous application. A year after the court ratifies an agreement to live apart; the couple may file a separate application for the court to determine their status.
Interestingly, the rules make a provision for a party to a civil marriage to apply for leave to present a divorce petition before the lapse of three years. The High Court in Tukero ole Kina v Attorney General & another [2019] eKLR declared Section 66(1) of the Marriage Act 2014, which barred parties to civil marriage from petitioning for divorce before the lapse of three years, to be unconstitutional.Therefore, the provision for an application for leave to present a divorce Petition before the lapse of three years contradicts the decision of the High Court without being supported by any primary legislation. We anticipate that the courts will address this issue as parties challenge applying/not applying for leave to divorce in marriages before the lapse of three years.
Conclusion
The purpose of these Rules is to regulate Court Practice and Procedures for matrimonial proceedings. Before their publication, court practice and procedures were regulated in accordance with the Matrimonial Causes Rules in so far as they were not inconsistent with the provisions of the Marriage Act.
Please find a copy of the rules here and the High Court’s decision here.
Please contact us at Info@cfllegal.com should you require further information.
