A better judicial approach to the “irretrievable breakdown” of marriages

In a judgment delivered at the High Court at Nakuru on 18th April 2024, the court dissolved the Hindu marriage between NHS and TSS. As a justification for this decision, the Honorable Judge SM Mohochi, stated its reasoning in the following succinct terms: “No man and woman can be bound by law or religion where no love and feelings exist in holding the union of marriage together.” This single statement seems to encapsulate the increasingly common view of courts presented with divorce matters.

The Marriage Act of 2014 provides for five grounds of divorce: adultery, cruelty, desertion, exceptional depravity, and “irretrievable breakdown of the marriage”. The first four of these grounds belong to a fault-based divorce system, that is, one in which marriages can be dissolved only upon proof of a matrimonial fault by either of the spouses. The last ground, however, is (perhaps intentionally) nebulous. In the absence of sufficient proof of a matrimonial fault, the courts have tended to rely on the ground of “irretrievable breakdown” of the marriage (whether or not either of the parties brought it forward as a ground for divorce) to dissolve the marriage because, in the words of the Honorable Judge Wananda in the high Court at Eldoret, “the couple no longer benefits from or enjoys any companionship”. In effect, this development has transformed Kenya’s divorce system into a no-fault divorce system, in which a marriage is dissoluble almost at the will of the parties, culminating in the brief statement of Honorable Judge Mohochi.

In Kamweru vs Kamweru [2000] eKLR, a much-cited decision, the Court of Appeal defined irretrievable breakdown as “the situation where one or both spouses are no longer able or willing to live together and, as a result, the husband-and-wife relationship is irreversibly destroyed with no hope of resumption of spousal duties.” In a further attempt to clarify the meaning of “irretrievable breakdown”, the Court of Appeal made a non-exhaustive list of considerations that a court may take into account in determining whether a marriage has irretrievably broken down:

• the length of the period of physical separation,
• the levels of antagonism, resentment, or mistrust between the parties,
• the concern of the parties for each other’s emotional needs,
• the commitment of the parties to the marriage,
• the chances of the parties resuming their “spousal duties”, and
• the chances of the marriage ever working again.

Yet even then, is not at all clear whether or when a marriage can be said to be “irretrievably” broken down, to have no possible recourse by which to achieve reconciliation, especially given the fact that a marriage is built on the free (and, therefore, unpredictable) decisions of a man and a woman. And this lack of clarity is especially glaring when the parties have made no attempts at reconciliation—without such attempts, it is difficult to say with any adequate level of certainty that reconciliation is impossible. However, precisely such a lack of clarity is perpetuated by the interpretation of the courts, a number of which deem marriages to be irretrievably broken down without deeming it necessary to demonstrate any attempts at reconciliation. In fact, on 25th January 2024, the High Court at Kisii ruled in SKN vs SSS [2024] eKLR that, when judging a marriage to be irretrievably broken down, it is simply unnecessary for a court to satisfy itself that parties have tried to salvage their union. Such an interpretation of the provision seems erroneous, and much more so given the historical and contemporary precedents of unlikely marital reconciliations that even a cursory Google search will unearth. In light of this, it appears that there is indeed reason to place much more hope in the marital promise of “Till death do us part” than the courts have been doing recently.

In addition to this, there is a second and complementary reason why it is erroneous to deem a marriage to be irretrievably broken down even in the absence of attempts to salvage it. As the National Family Policy of October 2023 notes, the family is the fundamental unit of society, both biologically (through procreation, it is the source of new members of the society) and socially (the family is the first school of social virtues such as fraternity and trust, without which a society degenerates into a conflictive mass of individuals). For this reason, the State has an interest in protecting and promoting the family and, indeed, a duty to do so. In recognition of this duty, Article 45 (1) of the Constitution states that: “The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.”

This is not just an arbitrary dictum of the Executive, or of the drafters of the Constitution.

Regarding the status of the family as the biological foundation of society if founded on stable marriage, historical evidence testifies to the truth of this claim. For example, in the Roman Empire, the family was characterized by frequent divorce and the (socially accepted) access of men to prostitutes and concubines. As a result, childlessness prevailed and men and women had recourse to available methods of abortion, contraception, and even infanticide – which was most common.^[1]

Empirical evidence likewise demonstrates the enduring truth of the claim in our day and age. Changes in fertility or marriage behavior cause changes in the other behavior.^[2]

This fact also has economic implications. The natural fecundity of the marital union produces labor, one of the three main factors of the production of wealth. Indeed, at present, countries with low fertility rates rely, to an increasing extent, on immigrant labor – that is, on labor produced by countries with high fertility rates.^[3] The fecundity of the marital union, then, is necessary for the creation of wealth.

Moreover, stable marriage is an indispensable agent for an upright distribution of wealth—this is an economic and a moral implication. In a family animated by the unconditional love of the spouses for each other, the children too are loved unconditionally as the fruit of the spouses’ union. Thus, the children learn that people are not instruments to be used but instead persons to be affirmed in one’s action – including (eventually) in one’s economic activity – even though this requires sacrifice. They learn to put others above themselves.^[4] Without this, children, and the workers they will eventually become, may easily lack the desire to safeguard the vulnerable: the poor, the elderly, the disabled, etc. They will also tend to place higher values on so-called “goods and services” that reduce others to objects of use and accumulate self-centered material wealth or pleasure. This shapes economic markets according to the mold of self-centeredness.^[5]

Rather than make the summary declaration that a marriage is irretrievably broken down even in the absence of attempts to reconcile, the courts should attempt to encourage the parties to pursue some form of reconciliation, in their own best interest, for the benefit of society, and in the fulfillment of the constitutional duty of the State to recognize and promote the family.

For instance, as happens in some jurisdictions, where one spouse applies for divorce over the objections of the other, the parties should be required to attend a pre-trial conference. The conference should be designed to clarify the points of disagreement between the spouses. The petitioner’s attendance at such a conference should constitute a condition precedent for the further continuation of the divorce proceedings.

The powers of the officer conducting the pre-trial conference should include the power to recommend that the spouses or their children have recourse to counseling. Such counseling would be directed to assisting the spouses to reconcile and, only if reconciliation seems impossible, to resolve or understand the emotional turbulence they are encountering because of marriage breakdown. Such a better understanding would frequently contribute to the prospects of an amicable and equitable settlement of the collateral issues arising from divorce.

Although the unconditional union of marriage often entails difficulties, it leads to profound fulfillment and lasting satisfaction – much more so than marriage as a conditional union. The State should aim to help married couples overcome their challenges and achieve enduring happiness rather than undermine the marriage bond.

Featured photo by Sid Suratia on Unsplash.

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