Till death do us part: Man battles divorce, defends religious vows

The National Assembly and a woman have asked the High Court to dismiss a case in which a man claims it is illegal for Catholics to divorce under secular law.

The man, identified by the initials PKG, is suing the Attorney General, the National Assembly, his estranged wife (identified as MWW), and the Kenya Conference of Catholic Bishops. He argues that the Marriage Act 2014 should not apply to him, as he is a Catholic whose marriage, according to his faith, can only be dissolved by mutual consent or death.

“Section 65 of the Marriage Act 2014 allows for divorce without mutual consent between parties who have entered into a marriage by vows. This encourages blatant violation of such vows and thus undermines the national value of integrity, rendering it null and void,” PKG argues.

However, in separate responses, both the National Assembly and MWW have asked the court to strike out or dismiss the case.

The Clerk of the National Assembly, Samuel Njoroge, argues that while PKG adheres to Canon Law, he remains subject to national laws enacted to govern the formation and dissolution of families. He notes that the 2014 Act consolidated previous laws, including the African Christian Marriage and Divorce Act, the Mohammedan Marriage, Divorce and Succession Act, the Hindu Marriage and Divorce Act, and the Married Women’s Property Act, all of which were repealed.

“On the question of religious manifestation, which lies at the heart of this case, I am advised by the Second Respondent’s advocate—which I believe to be true—that it must be consistent with basic standards of human dignity. Furthermore, the enjoyment of one’s rights cannot infringe on the rights of another,” Njoroge states.

He adds that the law does not compel anyone to divorce but instead offers a legal framework to guide the dissolution of marriages that cannot be salvaged.

Meanwhile, MWW contends that the case is an abuse of the court process, as she had already filed for divorce. She claims PKG is using the High Court to delay or avoid the inevitable end of their marriage.

PKG filed his case in the High Court seeking to block divorce proceedings initiated by MWW, arguing that their church vows—"till death do us part"—bind them irrevocably and that MWW cannot seek a divorce in a secular court.

The couple were married on 23 March 2019 in a Catholic Church ceremony, during which they vowed to stay together in good times and bad, for richer or poorer, in sickness and in health, until death. The priest officiating their wedding declared that no one should separate what God had joined together.

Following this spiritual union, PKG claims he never imagined that irreconcilable differences would arise, or that MWW would resort to a secular court to end their marriage.

However, less than four years later, MWW filed for divorce in a magistrates’ court. In response, PKG moved to the High Court to stop the proceedings.

According to PKG, the vows made before God are sacred and binding. He insists that the Catholic Church views marriage as indissoluble and argues that both he and MWW, being Catholics, are bound by church doctrine.

“The ceremony was conducted according to the rite of Holy Matrimony of the Roman Catholic Church, following the book Order of Celebrating Matrimony approved for ritual use in Kenya. I am a Catholic in good standing… The petitioner in the divorce is also an adherent of the Catholic faith,” he states.

PKG further notes that the Catholic Church has a judicial arm, the Metropolitan Tribunal, to handle legal matters under Canon Law. He argues that while the Marriage Act 2014 provides for divorce in Christian marriages, it is silent on cases involving individuals whose religious beliefs prohibit divorce.

He draws a comparison to Islamic marriages, where divorce proceedings are guided by religious law under a Kadhi’s court, and asserts that the case against him violates his constitutional rights to freedom of conscience, religion, and belief, as enshrined in Articles 32(1) and 32(2) of the Constitution of Kenya, 2010.

“The Catholic Church holds the belief that marriage is indissoluble. The Church has codified its marriage laws in the Code of Canon Law and established ecclesiastical courts to resolve marital disputes. By being named a respondent in a divorce petition, I am being compelled to participate in a process that contravenes my religious beliefs, in violation of Article 32(4) of the Constitution,” PKG argues.

He is now seeking a declaration that Section 65 of the Marriage Act 2014 is unconstitutional for failing to provide for the dissolution of a Christian marriage according to the Canon Law or any other ecclesiastical law recognised by the Catholic Church.