Marry Today and Divorce Tomorrow – Why the 3-Year Waiting Period Is History in Kenya

If you’ve ever asked: “Can I marry today and divorce tomorrow?” – the short answer in Kenya is increasingly: yes, under certain conditions. The long-standing rule that parties to a civil marriage had to wait three years before filing for divorce is no longer absolute.

What Was the ‘3-Year Waiting Period’?

Under the Marriage Act 2014 (Kenya), section 66(1) stipulated that a party to a civil marriage “may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.”

In effect, if you were married under the civil marriage regime, you had to wait three years before you could petition for a divorce. That waiting period did not apply in exactly the same way to customary, Islamic, or Hindu marriages.

The rule was criticised as discriminatory because it treated civil marriages differently and prevented people in dysfunctional or abusive unions from quickly seeking relief. In one legal challenge, the rule was held to violate rights of equality and human dignity.

What Changed? The Legal Shift

In September 2019, the High Court of Kenya (Malindi) in the case Tukero ole Kina v Attorney General & National Assembly declared section 66(1) unconstitutional, null and void to the extent that it imposed a three-year limitation on civil marriages.

Then, in July 2022, the Court of Appeal of Kenya affirmed that the law imposing the three-year wait was unconstitutional.

In short, the rule requiring three years before filing for divorce under a civil marriage can no longer be strictly enforced in all cases.

So Does That Mean You Can Actually Marry Today and Divorce Tomorrow?

Practically speaking: yes — under certain conditions. Here’s how:

✔ Yes, you can petition for divorce before three years

• Because the waiting period rule has been declared unconstitutional, one party to a civil marriage may now petition for dissolution earlier than three years.
• For example, in the blog by legal specialists, it is stated: “only civil marriages were bound by the 3-year rule, which has since been declared unconstitutional.”
• The earlier ruling noted that a party to an abusive/cruel marriage need not wait three years before instituting divorce proceedings.

✔ But there are caveats and still legal process to follow

• While the waiting rule is struck, you still must satisfy the grounds under the Act for dissolution (unless other reforms apply). Under section 66(2), a petition may still only be filed on certain grounds (adultery, cruelty, exceptional depravity, desertion, irretrievable breakdown) in a civil marriage.
• You must follow the court procedures, file a petition, attend hearings, and comply with rules for matrimonial proceedings.
• If you file very soon after marriage, you may face issues with the division of property or probably fewer entitlements because of the short marriage duration. In one commentary, “a party who files for divorce proceedings after a week may not get any share of the property from the other spouse.”

✔ Important note

• These changes apply to civil marriages (Part IV of the Act). Other forms of marriage (customary, Hindu, and Islamic) have different rules.
• The Act itself has not been fully reformulated to remove every limitation, so lawyers advise seeking legal leave of court before petitioning for divorce in less than three years.

Why Did This Matter? What Was the Context?

• The three-year rule created a binding minimum period where parties could not legally seek dissolution, even if the marriage had broken down or was abusive. That raised concerns about rights of access to justice, equality, and human dignity.
• Critics argued that the rule discouraged early separation in bad marriages, trapped people in dysfunctional relationships.
• Supporters of reform argued that the rule discriminated by treating civil married couples more harshly than those married customarily or under Hindu/Islamic law.

Now, the abolishment or invalidation of the rule means the legal system is more responsive to the reality of marriages that collapse early — aligning with global trends toward more flexible divorce laws.

What This Means for Couples in Practice

Here are actionable takeaways:

1. If you’re married under a civil marriage
   • You no longer must wait exactly three years before petitioning for divorce — especially if your circumstances meet one of the grounds (cruelty, irretrievable breakdown, etc.).
   • If your marriage is extremely short and you are seeking a divorce, consult a family lawyer to determine whether your case meets the grounds and safe procedure.
   • Be aware of property/matrimonial asset questions: a very short marriage may affect what you can claim.
2. If your marriage is customary, Islamic, or Hindu
   • Check how the law applies in your specific category. The three-year wait rule may never have applied in the exact same way.
   • Regardless, legal advice is key.
3. Before filing for divorce early
   • Ensure you have legal grounds and evidence (cruelty, abandonment, irretrievable breakdown) — because the court still expects bona fide cause for dissolution.
   • Consider mediation: the Act encourages referral to reconciliation/conciliation before dissolution.
   • Think about post-divorce consequences: property division, maintenance, and child custody/maintenance. The court still has powers for orders under sections 77-80 of the Act.
4. If you’re planning to marry
   • This change doesn’t just affect divorce — it affects how quickly someone might seek a divorce post-marriage. Therefore, the quality of decision-making matters.
   • Recognise that marriage remains a serious legal and personal commitment; the fact that divorce is more accessible doesn’t make it trivial.

Frequently Asked Questions

Q: Does this mean you can get divorced the very next day after marriage?
Technically, yes, you could file a petition soon after marriage if you satisfy the ground(s) for dissolution and the court accepts. But practical, evidential, and procedural factors mean that immediate divorce is not ‘automatic’ and you might face challenges.

Q: Does this apply to all marriages in Kenya?
This change addresses the civil marriage category under the Marriage Act (Part IV). Customary, Islamic, and Hindu marriages may follow different rules. Always check your category.

Q: Is there no waiting period now at all?
Not exactly — although the rigid three-year bar is unconstitutional, the court still retains discretion. And you still must meet the statutory grounds for petitioning for divorce.

Q: What about matrimonial property and rights gained during a very short marriage?
The law around matrimonial property and its division is still valid. A short marriage may affect contributions and, therefore, how property is divided. (See commentary on short-marriage divorces.)

Conclusion

The headline “marry today and divorce tomorrow” captures a legal reality more than it ever did before — thanks to the invalidation of the three-year waiting rule under civil marriages in Kenya. But this does not make marriage or divorce trivial. The legal system still imposes conditions, rights, and responsibilities.

If you’re marrying (or thinking of divorcing), it is critical to:

• Understand what kind of marriage you have.
• Know your rights and the grounds for divorce.
• Have a lawyer or legal expert walk you through the process.
• Be aware of consequences beyond the when of divorce — the how, why, and what after are equally important.

With this guide, you now have a grounded understanding of the shift from the traditional three-year waiting period to a more flexible, legally responsive framework. Use it wisely — because while a quick divorce is now more feasible, the impact is real.