In many modern conversations, divorce is increasingly framed as a mature decision between two adults who have accepted that love, partnership or shared purpose has come to an end. Couples speak of “conscious uncoupling”, peaceful co-parenting and walking away without destroying each other.

But in Kenya, the idea of an amicable divorce remains complicated. While some couples may separate quietly and respectfully, the legal, financial and emotional structure around divorce often makes true amicability difficult to sustain.

At the heart of the issue is Kenya’s divorce framework, which still requires parties to provide legal grounds for ending a marriage. Under the Marriage Act, divorce may be sought on grounds such as adultery, cruelty, desertion, exceptional depravity and irretrievable breakdown of the marriage. This means that even where both parties privately agree that the marriage is over, the formal process still tends to invite a narrative of failure, injury or blame.

Family law practitioners often distinguish between an uncontested divorce and a no-fault divorce. In an uncontested divorce, one party may simply choose not to oppose the petition. But that does not automatically make the process no-fault. As Koya & Company Advocates notes in its legal commentary, “no fault divorce lawyers are a misnomer in Kenya as divorce is always fault based.”

This is where many “amicable” divorces begin to unravel. A couple may agree to separate, but once one spouse has to cite cruelty, adultery, desertion or another ground, old wounds can quickly resurface. What began as a quiet decision can become a record of accusations, denials and counterclaims.

Legal scholars have argued that a no-fault system would reduce this emotional burden. In a 2022 Strathmore Law Review article, M. Mukono argues in support of a uniform no-fault divorce system, noting that the current framework still places significant emphasis on proving grounds for divorce.

The Initiative for Strategic Litigation in Africa has similarly argued that “a no-fault divorce law is desirable,” stating that it should be enough for parties to say the marriage has broken down irreparably without the court examining who caused the collapse.

Beyond the law, property often becomes the second battlefield. In Kenya, the end of a marriage can reopen years of questions around contribution, sacrifice and entitlement. Who paid the mortgage? Who raised the children? Who left work to support the home? Who bought land, built a house or sustained the family business?

The Supreme Court’s 2023 decision in JOO v MBO, commonly discussed as Ogentoto v Ogentoto, clarified that matrimonial property is not automatically divided on a 50:50 basis.

The court emphasized contribution, including both monetary and non-monetary contribution, as a key consideration in division of matrimonial property.

This has made property disputes more evidence-driven. For some spouses, especially those whose contribution was domestic, emotional or caregiving, the divorce process can feel like a second trial – first proving the marriage failed, then proving their value within it.

Children also complicate the idea of a clean break. The Children Act, 2022 places the best interests of the child at the centre of decisions affecting children, including care, contact and separation from parents. It also provides that a child separated from one or both parents should maintain personal relations and direct contact with the parent or parents on a regular basis, unless this is not in the child’s best interests.

In practice, however, custody and access disputes are rarely just about schedules. They are often shaped by hurt, mistrust, financial pressure, family interference and the fear of being replaced or excluded from a child’s life.

This is why amicable divorce in Kenya is not impossible, but it is fragile. It requires more than two people saying they want peace. It requires emotional discipline, responsible legal guidance, honest financial disclosure, mature co-parenting and, ideally, a legal framework that does not force couples to wound each other further in order to leave.

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