The High Court in Nairobi on Thursday dismissed a petition that sought to allow married couples to part ways through mutual consent, without exposing each other’s faults before a magistrate or judge.
Justice Lawrence Mugambi, who delivered the judgment, emphasized that permitting couples to dissolve their marriages simply by signing a consent would undermine the societal value placed on the institution of family.
He stated that the family unit remains the cornerstone of social order and must be protected, even amid personal struggles.
The case had been filed by a woman who claimed that her husband was depriving her of rest at night by persistently demanding conjugal rights, saying, “Si rahisi usiku,” highlighting the difficulty she faced.
Justice Mugambi, aligning with the arguments presented by Attorney General Dorcas Oduor and the National Assembly, upheld the constitutionality of the current fault-based divorce system enshrined in the Marriage Act.
He argued that the law is designed not only to address marital breakdowns but also to shield society from the consequences of impulsive or emotionally charged decisions.
“Acceeding to the consensual principle as a ground of dissolution of marriage that the petitioner is advocating will erode the leverage the society has created to preserve the institution of marriage,” the judge remarked.
The ruling has stirred mixed reactions, with some praising the court for safeguarding family values, while others criticize it for forcing individuals to remain in unhappy unions.
As it stands, couples in Kenya must still prove fault — such as cruelty, adultery, or desertion — to secure a divorce in court.
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