The court has ruled that the man’s 22-year relationship with mother of his kids was not marriage
The High Court has dismissed an appeal brought by a man identified as JTO to protect his identity, seeking the dissolution of his marriage to AP, the respondent.
The judge ruled that the woman (AP) with whom he lived with for 22 years and raised three children, was not legally considered his wife.
The man had filed the appeal after a lower court dismissed his petition for divorce in a ruling delivered on November 28, 2022.
The crux of the appeal revolved around whether a valid Luo customary marriage existed between the parties, as claimed by the man.
He petitioned the lower court for a divorce on grounds of cruelty, asserting that woman had caused him significant emotional distress by leaving for the United States in December 2020 and failing to return.
The lower court dismissed the petition, ruling that the man had failed to prove the existence of a valid customary marriage as required by law.
His claims of long cohabitation and having three children together did not satisfy the legal standard for proving a customary marriage.
The court noted that the man did not provide expert testimony or other evidence to establish the existence of a customary marriage under Luo traditions.
Further, the court highlighted that, according to the Marriage Act, 2014, couples married under customary law were required to register their unions. The court ruled that since the marriage had not been registered, it could not legally recognise the union.
In his appeal, the man argued that the trial court erred by requiring him to provide expert evidence of the marriage when the woman had not contested the petition.
In his submissions, the man contended that the trial court failed to recognise that the matter was undefended and that the woman’s failure to participate should have been considered an admission of the facts.
Moreover, the man claimed that he had met the necessary requirements to prove the existence of the marriage on a balance of probabilities.
Justice Namisi, in her ruling, affirmed the lower court’s decision, noting that the man bore the burden of proving the existence of the marriage and that he had failed to do so.
While the man argued that the woman did not dispute the marriage, the court found that this did not absolve him from proving its existence.
The High Court emphasised that under the Marriage Act, a customary marriage must be proven through the provision of evidence such as registration, expert testimony, or other legal documentation.
Justice Namisi further pointed out that the man’s decision to pursue the appeal was perplexing, given that the trial court had techincally ruled in his favour by not recognising the marriage.
The High Court suggested that the man may have had other motives beyond simply dissolving the marriage, given the length of their cohabitation and the existence of children.
Justice Namisi concluded by calling for increased civic education to ensure that couples understand the legal requirements for marriage registration to avoid similar disputes in the future.
