An analysis of the irretrievable breakdown of marriage as ground for divorce in Kenya

Mbatia, Lucy Waringa
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Strathmore University
Marriage is the very bedrock of the family and consequently of the society without which no civilization can endure. Once parties contract a marriage, the law steps in and binds the parties to various liabilities and obligations thereunder. Under the Marriage Act, 2014 both spouses have been guaranteed a right to have their union dissolved by a decree of divorce on more than one ground. The Republic of Kenya is traditionally a fault-based divorce regime owing to the nature of the grounds stipulated in the Marriage Act 2014. However, the Legislature has been aware of the social advancements and the need to avail the remedy of divorce in increased circumstances through the implementation of the irretrievable breakdown of marriage as a ground for dissolution of marriages in Kenya.
As the institution of marriage increasingly evolves, there has been a growing awareness of the fact that although most, if not all spouses intend for marriage to be a lifelong union, there could arise unavoidable circumstances that result in the eventual disintegration of the marriage. These include but are not limited to: infidelity, unrealistic expectations, the lack of affection and intimacy, lack of equality in the marriage, cruelty and adultery. 1 As a result, the legal framework in majority jurisdictions provides for the choice of divorce. 2 In trying to understand and justify divorce, one needs to understand marriage.