The Court of Appeal has declared Section 66 (1) and (2) of the Marriage Act 2014 unconstitutional, effectively removing the three-year minimum period that couples were previously required to wait before filing for divorce, as Danstan Omari explains.
The ruling, delivered by a three-judge bench, allows individuals in civil marriages to file for divorce immediately, even on the same day as their wedding if circumstances warrant.
Previously, couples seeking to dissolve their marriage were legally required to remain married for at least three years, regardless of abuse, infidelity, or violence.
Legal practitioners described the prior rule as forcing victims to endure abusive marriages, with reports of domestic violence including physical assault, destruction of property, and emotional abuse.
Danstan Omari Highlights Implications
Family law expert Wakili Danstan Omari, who appeared on Court Helicopter News, explained that the previous three-year requirement contributed to rising cases of domestic violence and even femicide.
“You don’t have to die in a marriage; you don’t have to kill or be killed. The law now allows you to walk into court and dissolve the marriage immediately,” he stated.
Danstan Omari emphasised that the new ruling is crucial for both men and women suffering in abusive relationships, reducing risks of depression, alcohol abuse, and criminal acts stemming from prolonged marital conflict.
Grace Period and Implementation
The Court of Appeal ruling was initially issued in June 2022, providing a three-year grace period for the Attorney General to amend the law.
As of June 2025, the grace period has lapsed, and the ruling is fully in effect. Under the revised law, couples can now marry and file for divorce without any mandatory waiting period.
Legal practitioners note that there is currently no challenge to the Supreme Court, meaning the appellate decision stands as the law of the land.
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This is a milestone in Kenya’s family law, providing immediate legal recourse for individuals trapped in unsafe or incompatible marriages.
“If the marriage does not work, walk to court and dissolve it. There is no time limit anymore,” Danstan Omari explained.
The Initial Marriage Laws
Under the original Marriage Act 2014, Section 66(1) required that a person in a civil marriage must wait at least three years before filing for divorce or legal separation.
This applied regardless of abuse, neglect, or breakdown in the marriage, effectively forcing couples to remain married for a minimum period before seeking legal relief.
“A party to a marriage celebrated under Part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds; (a) adultery by the other spouse; (b) cruelty by the other spouse; (c) exceptional depravity by the other spouse; (d) desertion by the other spouse for at least three years; or (e) the irretrievable breakdown of the marriage,” read a section of the Act.
Section 66(2) outlined the specific grounds under which a civil marriage could be dissolved.
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These included adultery, cruelty, exceptional depravity, desertion for three or more years, and irretrievable breakdown of the marriage.
The section ensured that divorce petitions had to be based on one or more of these conditions.
Kenya’s Court of Appeal declared Section 66(1) unconstitutional in June 2022, removing the three-year waiting requirement.
This means that individuals can now file for divorce immediately, even on the day of the marriage, if there is a valid reason under Section 66(2).
The grounds for divorce remain intact, but the waiting period no longer applies, giving victims of abusive or broken marriages faster legal recourse.
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