Couples married through civil process are now free to divorce any time.
Initially, the law provided that couples in civil unions could only file for divorce after three years.
However, Justice Reuben Nyakundi yesterday declared section 66 (1) of the Marriage Act that barred such couples from divorcing within the three years unconstitutional.
According to the judge, marriage is a union of willing partners, hence they should be at liberty to leave any time they feel not contented.
“Corollary to the above is the fact that by imposing the three-year limitation, the impugned Section had the effect of forcefully keeping parties in a situation they no longer wished to be part of,” Justice Nyakundi ruled.
Civil marriages are conducted at the Attorney General’s offices or before the county commissioner’s offices.
The judge said it was an affront to a person’s human dignity to confine one in a failed marriage for three years.
Justice Nyakundi was of the view that the limitation set by Parliament would not have passed if lawmakers had carried out public participation while enacting the same.
The case was filed by a lawyer Tukero ole Kina, who argued that those married under Christian, Muslim and Hindu religions had no three-year limitation.
He argued that MPs never factored in that marriages could have differences and hardships hence a person could not be kept in such union if they wanted to walk away.
Mr Kina equated holding aggrieved couples together for three years to slavery.
While opposing the case, the Attorney General argued that all laws passed by Parliament were presumed to be constitutional.
Parliament also defended itself, saying it factored in responses from the public when it was coming up with the contested law.
According to Parliament, marriage was an individual’s choice, hence it gave each citizen freedom to decide what to do.
After hearing the differing arguments, the judge found that although the section was meant to protect marriages by restricting parties from moving in and out while the marriage is stabilising, there was no proof why MPs chose three years and not more or less.
While making the ruling, the judge observed that there was no explanation why the same was not imposed on Christian, Muslim, Hindu and traditional marriages.
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