Frequently Asked Questions

Divorce is the permanent ending of a marriage. It exclusively applies to legally recognized marriages, meaning common-law or informal unions cannot be formally dissolved through divorce. The specific process depends on which type of marriage the individuals entered into.

Separation is a situation where a husband and wife stay away from each other either because they have agreed (separation by agreement) or because the court has ordered it (judicial separation). Separation only pauses certain marital rights and does not dissolve the marriage. Both parties remain legally married and cannot remarry. The maximum duration is two years.

Statutory divorce applies to those who entered into civil and church marriage. Before applying for divorce, the couple should have been married for at least three years, except in grave situations where they cannot continue living together. The application is made in the high court.

Courts recognize: adultery by either spouse; cruelty toward the spouse; desertion for two years without justification; bigamy; religious conversion accompanied by remarriage; and sexual crimes including rape, sodomy, or bestiality. The most common grounds are cruelty, adultery and desertion.

The court will not grant a divorce when: one party's conduct encouraged the other spouse to commit the offence; the offended spouse encourages, agrees to, or forgives the offence; and when there is connivance, collusion and condonation. These restrictions discourage divorce over minor disagreements and preserve the institution of marriage.

The divorce involves two stages. First, the court issues a separation order for 6 months (decree nisi) as a cooling-off period, allowing couples to reconcile or confirm they wish to end the marriage. Second, if reconciliation fails, the court makes a final order (decree absolute) which permanently terminates the marriage.

Customary divorce is available to couples married under customary law. Such couples may apply the customary law of their community to end the marriage. There are no set rules and guidelines on how this divorce should be undertaken. The divorce follows the traditional practices and procedures specific to each community.

Under Islamic law, a husband can divorce a wife by pronouncing the word talak three times at a go, or once monthly over three months. The declaration can be written (talakahama) or spoken but must be communicated to the woman. It should not occur when the wife is menstruating or pregnant. In certain sects, the wife can also divorce the husband. The pronouncement requires registration with the registrar of marriages and divorces for Muslims.

Divorce ends the marriage and all rights and privileges that accrue to married people. The court may issue orders regarding property division, spousal maintenance, child custody and support. Under Islamic law, the wife retains property in her possession while children remain with the father. Both parties regain single status and may remarry. Critically, divorced people do not benefit from the estate of the other should one die.