Court allows Machakos man to divorce wife after accusing her of adultery, cruelty

Court allows a man divorce.[File, Standard]

A Machakos man has been allowed to divorce his wife after accusing her of adultery and cruelty, ending their 23-year marriage following nearly five years of separation and no intimacy.

In a judgment delivered by High Court Judge Noel Adagi dissolved the marriage after finding that the relationship had irretrievably broken down noting that the law does not require spouses to remain legally bound in marriages that have become a source of emotional or psychological suffering.

“The law does not require spouses to endure emotional, psychological or social imprisonment under the guise of marriage,” Justice Adagi  observed adding that courts should not force parties to remain in unions that no longer function.

The court noted that marriages should not be preserved at the expense of the well-being of the spouses.

The judge however overturned a February 2023 magistrate’s decision that had given the estranged couple another chance to reconcile through judicial separation.

The couple, identified in court documents as SKK and EWK had been married since November 7, 2003  but their relationship eventually deteriorated into years of separation and an absence of intimacy.

“For close to 5 years, the Parties have not consummated the marriage and have not seen eye to eye,” Justice Adagi said.

The husband had filed a divorce petition in August 2021 accusing his wife of cruelty, desertion and adultery.

He told the trial court that the marriage had become unbearable and that he did not want his children exposed to continued conflict.

SKK said he had attempted to involve his wife’s parents, brother and sisters in efforts to save the relationship, but the attempts failed.

He described his wife as reckless and disrespectful and maintained that he had not deserted the marriage but left because he wanted peace.

The wife rejected the allegations of cruelty and adultery, instead accusing her husband of desertion.

EWK told the court that he had left in July 2020 and had withdrawn conjugal rights.

She said she had tried to persuade him to be intimate with her but he refused.

The wife sought judicial separation instead of divorce saying she was Catholic and that her church did not entertain divorce.

She also accused her husband of cruelty, alleging that he beat her in front of their children and workers.

In February 2023, the trial magistrate sided with her position finding that the marriage had not irretrievably broken down and that the couple could still redeem their relationship.

The magistrate granted judicial separation hoping the time apart would allow the spouses to reflect and make a sober decision on the future of their marriage.

But Justice Adagi found that the magistrate had misdirected herself by attempting to preserve a relationship that, on the evidence, had already collapsed.

“It is my considered view that the trial court erred in holding that the prayer for judicial separation in the Cross Petition merited,” the judge ruled.

He further described the decision to grant judicial separation as a grave misdirection in law, noting that the remedy was intended to give couples an opportunity to reconcile.

He found there was little evidence that reconciliation remained possible in the marriage.

The court emphasized that once a marriage loses its core foundation, companionship, love, and mutual support, there is no legal basis to keep the parties bound together.

“The glue to a marriage is love and passion to soldier on no matter what. When parties to a marriage have no love or passion left, no law can keep them together," he stated.

The judge said the evidence in the case showed that neither spouse was willing or able to resume life together.

“The instant case clearly paints out a picture of a situation where none of the spouses are able or willing to live together or reconcile due to the relationship being irreversibly destroyed with no hope of resumption of spousal duties,” he said

He noted that the wife had acknowledged that the couple had not continuously lived together since July 2020, with each living in separate homes for years.

“This clearly shows that there is an irretrievable breakdown which was sufficiently established,” Justice Adagi ruled.

The judge rejected the idea of forcing the spouses to remain legally married despite the collapse of their relationship.

“Forcing the parties to remain legally bound serves no rational purpose where the matrimonial bond has collapsed,” he said.

In his decision, Justice Adagi said the marriage had reached a point where there was no legitimate reason to retain the marital bond.

“Accordingly, I find that there is no legitimate purpose that will be served by the retention of the marital covenant which is better untied to set each spouse free,” he ruled.

The judge allowed the husband’s appeal and set aside the magistrate’s judgment delivered on February 8, 2023.

He allowed the original divorce petition and dissolved the marriage solemnize on November 7, 2003.

A decree nisi was ordered to issue forthwith and become absolute after 30 days.