Family Law in Kenya: Essential Guide for Individuals and Families

What does family law in Kenya cover?

Family law in Kenya covers marriage, separation and divorce, child custody and maintenance, matrimonial property, domestic violence, adoption, guardianship, and succession. It sets out both your rights and your responsibilities within the family unit and provides the court processes to resolve disputes when agreement fails.

Kenyan family law is mainly contained in the following statutes:

• Marriage Act, 2014 - types of marriages, registration, separation, divorce and nullity.
• Matrimonial Property Act, 2013 - ownership and division of property between spouses.
• Children Act, 2022 - parental responsibility, custody, maintenance, child protection, adoption and guardianship.
• Protection Against Domestic Violence Act, 2015 - protection orders and remedies in domestic violence cases.
• Law of Succession Act, Cap 160 - inheritance of property when someone dies, with or without a will.

Key institutions involved in family matters include:

• Magistrates Courts - handle most divorce, maintenance, and domestic violence cases.
• High Court of Kenya (Family Division) - complex divorces, constitutional questions, some adoption and succession matters.
• Children's Courts - custody, maintenance, child protection, and related applications.
• Office of the Registrar of Marriages - registration of marriages and some divorces.
• Children's Services Department, Children's Officers - child protection, supervision, and social inquiries.

What are the legal types and requirements of marriage in Kenya?

Kenya recognises civil, Christian, customary, Hindu, and Islamic marriages, all of which require both parties to be at least 18 years old and consenting. Most marriages must be registered to be fully recognised in law, and polygamy is only allowed under customary and Islamic regimes, not under civil or Christian marriages.

Recognised types of marriage

• Civil marriage - conducted before a Registrar or designated public officer.
• Christian marriage - conducted by a licensed minister of faith under Christian rites.
• Customary marriage - under the customs of an African community, provided they are consistent with the Constitution.
• Hindu marriage - between Hindus performed under Hindu rites.
• Islamic marriage - between Muslims, governed partly by Islamic law and the Kadhi's Courts.

Minimum legal requirements

• Age: Both parties must be at least 18. Child marriages are void and criminal.
• Consent: Marriage must be voluntary. Forced or fraudulent marriages can be annulled.
• Capacity: Parties must be mentally capable of understanding the marriage.
• Monogamy vs polygamy:
  • Civil and Christian marriages are strictly monogamous.
  • Customary and Islamic marriages may be polygamous or potentially polygamous.
• Prohibited relationships: Close blood relations (e.g. brother-sister) cannot marry.

Registration and documentation

Registration is crucial because it provides written proof of the marriage for purposes of succession, property, and divorce.

• Most civil and Christian marriages must be registered within 6 months.
• Customary marriages must be registered within 3 months after completion of customary rites.
• Documents usually needed:
  • National ID cards or passports
  • Passport photos
  • Birth certificates (sometimes)
  • Affidavits where necessary (e.g. single status)

Indicative costs of formalising a civil or Christian marriage

How do separation and divorce work in Kenya?

Divorce in Kenya is filed in court under the specific marriage regime, and you must show legally recognised grounds such as cruelty, desertion, adultery, or irretrievable breakdown of the marriage. You can also seek judicial separation instead of divorce, especially if you are not ready to end the marriage but need legal protection.

Grounds for divorce

Exact grounds vary slightly between Christian, civil, customary, Islamic, and Hindu marriages, but common reasons include:

• Adultery
• Cruelty (physical, emotional, or economic)
• Desertion (usually for at least 3 years)
• Irretrievable breakdown of the marriage
• Exceptional depravity or serious misconduct
• For Islamic marriages, grounds recognised under Sharia, handled in Kadhi's Court where applicable

Where to file a divorce in Kenya

• Magistrates Court - most divorces, especially where the value of property is within the court's monetary jurisdiction.
• High Court (Family Division) - complex property issues, foreign elements, or where required by law.
• Kadhi's Court - divorce between Muslims married under Islamic law, where both parties submit to its jurisdiction.

Basic divorce process

1. Consultation and evidence gathering: Gather marriage certificate, evidence of grounds (messages, medical reports, witnesses), and details of children and property.
2. Filing a petition: Your lawyer or you file a divorce petition in the appropriate court.
3. Service of documents: The petition is formally served on your spouse.
4. Response: Your spouse files an answer and may file a cross-petition.
5. Interim applications: Court can make temporary orders on custody, access, maintenance, occupation of the home, or protection from violence.
6. Hearing: The court hears both parties and witnesses (if any).
7. Judgment: Court issues a decree (conditional, then absolute, depending on regime).
8. Ancillary matters: Property division, long-term maintenance, and parental orders are finalised, sometimes in separate proceedings.

Timelines and costs

Timelines depend heavily on the court's workload, whether the divorce is contested, and how complex the issues are.

Legal Aid, pro bono services, and organisations like FIDA-Kenya may assist low-income litigants, especially in cases involving gender-based violence or serious vulnerability.

Judicial separation vs divorce

• Judicial separation allows spouses to live apart and regulate property, maintenance, and child care without ending the marriage itself.
• It may be used for religious or personal reasons where divorce is not immediately acceptable.
• Grounds are similar to divorce, and the case is filed in court.

How are child custody and parental responsibility decided in Kenya?

Kenyan courts decide child custody and parental responsibility based on the best interests of the child, not the wishes of the parents. Both parents generally retain parental responsibility, but one parent may be given primary physical custody while the other gets access or visitation rights.

Key legal principles under the Children Act 2022

• Best interests of the child are paramount in every decision.
• Non-discrimination: No child should be discriminated against based on the parents' marital status, gender, religion, disability, or other status.
• Right to be heard: Older children should be given a chance to express their views in decisions affecting them.

Custody, care and control, and access

• Legal custody: Major decisions about education, religion, health, and general welfare.
• Physical custody / care and control: Who the child lives with on a day-to-day basis.
• Access / visitation: Time allocated to the non-resident parent to interact with the child.

Court orders can:

• Give joint legal custody but primary physical custody to one parent.
• Specify weekend, holiday, and phone/video access.
• Restrict or supervise access where there are serious safety concerns (e.g. violence, substance abuse).

Factors courts consider when deciding custody

• Child's age and attachment to each parent (young children often live with the primary caregiver, often the mother but not automatically).
• Each parent's ability to provide a safe, stable home.
• History of violence, neglect, or substance abuse.
• Special needs of the child (health, education, disability).
• Existing arrangements that are working well for the child.
• Child's own wishes, especially for older children, though the court is not bound by them.

Children's Court process for custody disputes

1. Filing a Children's Case - either parent or a guardian applies to the Children's Court for custody, access, or related orders.
2. Interim orders - the court can give temporary custody and access terms within days or weeks for urgent stability.
3. Children's Officer report - the court may order a social inquiry report on each parent's home and the child's situation.
4. Hearing - parties give evidence, and the Children's Officer may testify.
5. Final orders - custody, access, and sometimes maintenance are set, with flexibility to review in future if circumstances change.

How is child maintenance calculated and enforced in Kenya?

Child maintenance in Kenya is not calculated using a fixed formula, but courts consider each parent's income, the child's needs, and the standard of living the child would have enjoyed if the parents lived together. Either parent can apply to the Children's Court for maintenance, and orders can be enforced through salary attachment, property seizure, or even short jail terms for persistent non-payment.

Who is responsible for maintenance?

• Both parents have a legal duty to support their child, whether or not they were married.
• Responsibilities can be shared with guardians or other relatives in some circumstances, but this does not absolve parents.
• Maintenance applies to all children, including those born out of wedlock or from previous relationships.

What does maintenance cover?

• Food and basic needs
• Clothing
• Housing or rent
• Education and school-related costs
• Medical care and health insurance where possible
• Transport and reasonable social needs

How courts decide the amount

The Children's Court will typically consider:

• Each parent's income and earning capacity.
• Number of children the parent supports.
• Child's age, schooling, and health needs.
• Standard of living prior to separation, as far as practical.
• Whether either parent has other obligations, such as loans or dependants, balanced against the child's right to an adequate upbringing.

Applying for maintenance in the Children's Court

1. Visit the Children's Court registry and ask to file a maintenance application or a Children's Case.
2. Fill in forms with details of the child, each parent, and estimated monthly needs.
3. Attach supporting documents:
   • Birth certificate or notification of birth
   • School fee structure, receipts, medical bills
   • Evidence of the other parent's income where available (payslips, business licences)
4. Pay filing fees (often in the range of KES 500 - 1,500 for basic applications, or get a waiver if indigent).
5. Attend court on the date given for mention or hearing.

Enforcement of maintenance orders

• Salary attachment order - directs an employer to deduct maintenance at source and pay to the applicant or into court.
• Distress for goods - seizure and sale of property to cover arrears.
• Committal to civil jail - short-term imprisonment for wilful refusal to pay, usually after several warnings.
• Travel restrictions or passport orders in exceptional cases.

How is matrimonial property divided after separation or divorce in Kenya?

Kenyan courts divide matrimonial property based on each spouse's contribution, both financial and non-financial, rather than automatically sharing it 50-50. Property acquired during the marriage and used as the family home or for the benefit of the family is usually considered matrimonial, while premarital and inherited property may remain separate unless contribution is proven.

Legal framework and key principles

• Matrimonial Property Act, 2013 is the main statute.
• Both spouses have equal rights to acquire, own, and dispose of property individually or jointly, but equality of rights does not always mean equal shares.
• Contribution includes:
  • Direct financial contributions (salary, business income)
  • Indirect contributions (paying household bills, supporting spouse's career)
  • Non-monetary contributions (childcare, emotional support, housework)

What is matrimonial property?

Typically includes:

• The matrimonial home and any other residences used by the family.
• Household goods and effects.
• Other movable and immovable property acquired during the marriage for the benefit of the family.

Usually excludes, unless contribution is shown:

• Property acquired before marriage by one spouse.
• Inherited or gifted property to one spouse only.

Bringing a matrimonial property claim

1. Identify property that may qualify as matrimonial (land, houses, vehicles, businesses, investments).
2. Gather evidence of your contribution:
   • Bank statements and M-Pesa records
   • Receipts, agreements, title documents
   • Witness statements (e.g. relatives, workers)
3. File a suit in the High Court or in a court that has jurisdiction over the value of the property.
4. The court will evaluate contributions and make a declaration of each spouse's share, which can then be used to transfer title or sell the property.

Common outcomes and practical tips

• The court may award unequal shares where one spouse contributed markedly more than the other.
• Non-financial contributions like raising children and running the home are increasingly recognised and can result in significant shares.
• Keep personal records and avoid signing documents transferring property to others without understanding the effect.
• Whenever possible, register high-value property in joint names or clearly mark beneficial interests in formal agreements.

What legal protections exist for domestic violence and child abuse in Kenya?

Kenya provides legal protection from domestic violence and child abuse through the Protection Against Domestic Violence Act 2015 and the Children Act 2022, alongside the Penal Code. Victims can obtain protection orders, emergency shelter, and police assistance, and abusers can face both civil and criminal consequences.

What counts as domestic violence?

Domestic violence under Kenyan law covers more than physical assault. It includes:

• Physical abuse and threats
• Sexual violence and marital rape
• Emotional and psychological abuse
• Economic abuse, such as withholding money or controlling all finances
• Stalking and harassment
• Damage to property

Protection orders under the Protection Against Domestic Violence Act

• Who can apply:
  • Spouses and former spouses
  • People in a dating or intimate relationship
  • Children, relatives, or people sharing a household
• Where to apply:
  • Magistrates Court in your area
  • Through a lawyer, Children's Officer, or in person at the court registry
• Types of orders:
  • Emergency protection order
  • Interim protection order
  • Full protection order after hearing

Steps to seek protection

1. Get to safety: Go to a trusted friend, relative, shelter, or safe public place.
2. Report to authorities:
   • Nearest police station (obtain an OB number and P3 form if injured)
   • Chief or local administrator
   • Children's Officer if children are involved
3. Seek medical attention and keep records of injuries.
4. File for a protection order at the Magistrates Court, with or without a lawyer.
5. Attend the hearing where the court will decide on longer-term orders.

Child abuse and neglect

• The Children Act 2022 criminalises cruelty, neglect, sexual abuse, and harmful cultural practices against children.
• Anyone can report suspected abuse to:
  • Children's Officer
  • Police
  • National Child Helpline (e.g. toll-free 116 when available)
• Children's Courts can:
  • Remove a child from a harmful environment
  • Place a child under foster care or institutional care
  • Restrict or terminate parental rights in extreme cases

How do adoption and guardianship work in Kenya?

Adoption in Kenya permanently transfers parental rights to the adoptive parents, while guardianship gives someone authority to care for a child without permanently ending the birth parents' rights. Both processes are tightly regulated under the Children Act 2022 and require court approval.

Adoption in Kenya

• Local adoption is primarily for Kenyan citizens adopting Kenyan children.
• Intercountry adoption for foreigners is heavily restricted and often suspended or subject to strict conditions.

Basic requirements for adoptive parents

• At least 25 years old and at least 21 years older than the child (with some exceptions).
• Generally not older than 65 years.
• Of sound mind and with no serious criminal record involving violence or child abuse.
• Single or married; additional rules apply for single male applicants adopting female children and vice versa.

Adoption process overview

1. Assessment by a registered adoption society:
   • Home visits
   • Interviews and counselling
   • Matching with a child declared free for adoption
2. Placement of the child with the prospective parents for a probation period.
3. Filing adoption proceedings in the High Court or designated court.
4. Guardian ad litem appointment to represent the child's interests.
5. Social inquiry reports by Children's Officer and adoption society.
6. Hearing and adoption order, after which a new birth certificate may be issued listing the adoptive parents.

Guardianship

• Guardianship is used where:
  • Parents are dead, incapacitated, or absent
  • A child needs someone to make decisions for them
• The court appoints a guardian to:
  • Care for the child (guardian of the person)
  • Manage property on behalf of the child (guardian of the estate)
• Guardianship can be revoked or varied if the guardian fails in their duties or circumstances change.

When should you hire a family lawyer in Kenya?

You should hire a family lawyer in Kenya when your matter involves court proceedings, significant property, complex relationships, or risk to children or personal safety. A lawyer is not mandatory for every family issue, but professional help can save time, protect your rights, and reduce long-term losses.

Situations where a lawyer is highly advisable

• Contested divorce involving disagreement over grounds, children, or property.
• High-value or complex property (land, companies, pensions, international assets).
• Cross-border issues such as foreign marriages, expatriate spouses, or children living abroad.
• Serious domestic violence where you need urgent, layered protection (criminal complaint, protection orders, custody, property occupation).
• Adoption or complex guardianship, especially where procedural errors can delay or defeat the application.

Situations where you may manage with limited legal help

• Uncontested divorce with no children or property and both spouses cooperating.
• Simple maintenance or custody applications in the Children's Court, with guidance from a Children's Officer.
• Basic customary marriage registration where the Registrar's office provides clear instructions.

How to choose and work with a family lawyer

• Look for experience in family law and litigation, not just general practice.
• Ask about:
  • Estimated costs and fee structure (fixed fee, hourly, or stage-based)
  • Expected timelines
  • Alternative dispute resolution options, such as mediation
• Prepare documents before your first meeting:
  • IDs, marriage certificate, birth certificates of children
  • Title deeds, bank statements, payslips
  • Previous court orders, if any

What are the next steps if you have a family law issue in Kenya?

The best next step is to clearly identify your main problem (marriage, safety, children, or property), gather key documents, and consult a qualified family lawyer or relevant authority as early as possible. Early action often reduces conflict, cost, and emotional damage.

Action checklist

1. Clarify your goal:
   • Do you want safety, separation, divorce, custody, maintenance, or property division?
2. Collect key documents:
   • Marriage certificate or evidence of customary rites
   • Children's birth certificates and school/medical records
   • Property documents and financial records
3. Reach out for help:
   • Family lawyer or law firm with a family law department
   • Children's Officer or Children's Court for child-related emergencies
   • Police, chief, or gender desks for domestic violence
   • Civil society organisations like FIDA-Kenya, CREAW, or local legal aid centres if you need support
4. Consider mediation where safe:
   • Try structured negotiation on custody, access, and property to reduce court battles.
5. File applications in court:
   • Divorce or separation, if marriage has broken down
   • Custody and maintenance for children
   • Protection orders for domestic violence
   • Matrimonial property suit where division is disputed

Taking early, informed steps and using the legal tools available under Kenyan law increases your chances of a fair, stable outcome for you and your family.