Ask a lawyer:
can i draft my own divorce document?

Introduction

In Kenya, the process of divorce is governed by various laws and regulations, primarily the Marriage Act, 2014, and the Matrimonial Causes Act, Cap 152. While it is possible to draft your own divorce documents, it is highly recommended to seek legal advice to ensure that all legal requirements are met and that your rights are adequately protected. This response will provide a detailed overview of the legal framework governing divorce in Kenya, the necessary documents, and the steps involved in drafting your own divorce documents.

Table of Contents

1. Legal Framework Governing Divorce in Kenya

   • Marriage Act, 2014

   • Matrimonial Causes Act, Cap 152

2. Grounds for Divorce

   • Adultery

   • Cruelty

   • Desertion

   • Irretrievable Breakdown of Marriage

3. Necessary Documents for Filing a Divorce

   • Petition for Divorce

   • Affidavit

   • Notice to Appear

   • Decree Nisi and Decree Absolute

4. Steps to Draft Your Own Divorce Document

   • Step 1: Gather Necessary Information

   • Step 2: Draft the Petition for Divorce

   • Step 3: Draft the Affidavit

   • Step 4: Draft the Notice to Appear

   • Step 5: File the Documents in Court

5. Conclusion

1. Legal Framework Governing Divorce in Kenya

Marriage Act, 2014

The Marriage Act, 2014, is the primary legislation governing marriages and divorces in Kenya. It outlines the legal requirements for a valid marriage and the grounds upon which a marriage can be dissolved.

Matrimonial Causes Act, Cap 152

The Matrimonial Causes Act, Cap 152, provides the procedural framework for filing for divorce, judicial separation, and nullity of marriage. It also outlines the jurisdiction of the courts in matrimonial matters.

2. Grounds for Divorce

Under the Marriage Act, 2014, and the Matrimonial Causes Act, Cap 152, a marriage can be dissolved on the following grounds:

Adultery

• One spouse has committed adultery, and the other spouse finds it intolerable to live with them.

• Evidence of adultery must be provided to the court.

Cruelty

• One spouse has treated the other with cruelty, making it unsafe or intolerable to continue living together.

• Cruelty can be physical or emotional.

Desertion

• One spouse has deserted the other for a continuous period of at least three years immediately preceding the presentation of the petition.

• Desertion must be without the consent of the other spouse and without reasonable cause.

Irretrievable Breakdown of Marriage

• The marriage has broken down irretrievably, and there is no reasonable likelihood of reconciliation.

• This ground can be established through various factors, such as continuous separation for at least two years.

3. Necessary Documents for Filing a Divorce

To file for a divorce in Kenya, the following documents are typically required:

Petition for Divorce

• This is the primary document that initiates the divorce process.

• It outlines the grounds for divorce and the relief sought by the petitioner.

Affidavit

• An affidavit is a sworn statement that supports the petition for divorce.

• It provides additional details and evidence to substantiate the grounds for divorce.

Notice to Appear

• This document notifies the respondent (the other spouse) of the divorce proceedings.

• It includes the date and time of the court hearing.

Decree Nisi and Decree Absolute

• The Decree Nisi is a provisional order that declares the marriage will be dissolved unless sufficient cause is shown within a specified period.

• The Decree Absolute is the final order that officially dissolves the marriage.

4. Steps to Draft Your Own Divorce Document

Step 1: Gather Necessary Information

• Collect all relevant information, including marriage certificates, evidence of grounds for divorce, and personal details of both spouses.

• Ensure you have a clear understanding of the legal requirements and procedures.

Step 2: Draft the Petition for Divorce

• Use a standard template or format for the petition for divorce.

• Include the following details:

  • Names and addresses of both spouses

  • Date and place of marriage

  • Grounds for divorce

  • Details of any children and arrangements for their custody and maintenance

  • Relief sought (e.g., dissolution of marriage, custody of children, division of property)

Step 3: Draft the Affidavit

• Prepare an affidavit to support the petition for divorce.

• Include a detailed account of the grounds for divorce and any supporting evidence.

• Swear the affidavit before a Commissioner for Oaths or a Notary Public.

Step 4: Draft the Notice to Appear

• Prepare a notice to appear, informing the respondent of the divorce proceedings.

• Include the date, time, and place of the court hearing.

• Ensure the notice is properly served on the respondent.

Step 5: File the Documents in Court

• Submit the petition for divorce, affidavit, and notice to appear to the appropriate court.

• Pay the required filing fees.

• Attend the court hearing and present your case.

Conclusion

While it is possible to draft your own divorce documents in Kenya, it is advisable to seek legal assistance to ensure that all legal requirements are met and that your rights are protected. The process involves gathering necessary information, drafting the petition for divorce, affidavit, and notice to appear, and filing the documents in court. By following the legal framework and procedural requirements outlined in the Marriage Act, 2014, and the Matrimonial Causes Act, Cap 152, you can navigate the divorce process more effectively.