Many couples in Kenya experience marital difficulties but are not ready, or are not permitted by faith or culture, to dissolve their marriage through divorce. In such cases, the law provides an alternative known as judicial separation.
A judicial separation is a court order that allows spouses to live apart legally without dissolving the marriage. The marriage continues to exist, but the duty of cohabitation is suspended.
Grounds for Judicial Separation
The grounds for judicial separation are similar to those used in divorce proceedings under the Matrimonial Causes Act and the Marriage Act, 2014. These include:
- Adultery by one spouse
- Cruelty (physical or psychological abuse)
- Desertion
- Exceptional circumstances that make it unreasonable for the spouses to continue living together
The petitioner must prove to the court that such grounds exist.
The Process of Applying for Judicial Separation
- Filing a Petition – The spouse seeking separation files a petition in court, setting out the facts and grounds relied upon.
- Service of Documents – The petition is served upon the other spouse, who has the right to respond.
- Court Hearing – The court examines the evidence and hears both parties.
- Decree of Judicial Separation – If satisfied, the court issues a decree allowing the spouses to live apart legally.
Effects of Judicial Separation
- Marriage Continues: Unlike divorce, judicial separation does not end the marriage. Neither spouse is free to remarry.
- Separation of Rights and Duties: The duty to cohabit ends, but financial and parental obligations, such as child maintenance, remain.
- Custody and Maintenance Orders: The court may issue orders regarding custody, maintenance, and property use.
- Inheritance Rights: Unless otherwise ordered, spouses under judicial separation may still inherit from each other.
Judicial Separation vs Divorce
It is important to distinguish between judicial separation and divorce:
| Judicial Separation | Divorce |
|---|---|
| Marriage continues | Marriage is legally dissolved |
| Spouses cannot remarry | Spouses are free to remarry |
| Often chosen for religious, cultural, or personal reasons | Chosen when parties wish to end the marriage permanently |
| May serve as a step towards reconciliation | A final termination of the marriage |
Why Couples Choose Judicial Separation
- Religious or cultural reasons where divorce is discouraged or forbidden
- Personal preference to allow time apart and consider reconciliation
- Legal clarity for matters such as custody, maintenance, and property management
Conclusion
Judicial separation offers couples a legal way to live apart without dissolving the marriage. It is especially useful where divorce is not acceptable for cultural, religious, or personal reasons, or where spouses wish to take time apart before making a final decision.