The High Court has declared that one cannot divorce in a foreign country, but remain married in the native land.
Justice William Musyoka declined to lift a divorce order that was issued by a US court, noting that it is binding locally. The judge turned down a prayer to save a broken marriage between two Kenyans who were ordered to part ways by a court in Florida. He said that although they were married in Kenya and moved to the US where they divorced, the orders by the foreign court apply here. “I cannot proceed as if the order does not exist. It binds me in view of the very clear provisions of section 9 of the Civil Procedure Act, Cap 21, Laws of Kenya, on the effect of foreign judgments,” the judge ruled.
Magdaline and Phillip (not real names) were married here in Kenya under customary law. They moved to the US in 1992, but their marriage hit the rocks, which prompted the court in Florida to dissolve it after 10 years. READ MORE Court dissolves unconsummated marriage after protest by wife Woman’s 10-year divorce battle from ‘cruel’ husband Kenyan man in bitter court battle with ex-wife over daughter’s body.
However, Magdaline was not satisfied with that decision and she filed a case before the magistrate’s court in Kenya (dealing with family matters) seeking to quash orders by the US-based court on account that it could not dissolve customary marriages contracted in Kenya. The magistrate threw out Magdaline’s case, prompting her to file an appeal before High Court. Judge Musyoka said he could not entertain the appeal. “The appellant sought to persuade the court that the decree of the Florida court ought not to be recognised in Kenya. The provisions of the Foreign Judgments (Reciprocal Enforcement) Act were cited in that regard.
It was suggested that foreign judgments in matrimonial causes are not recognised in Kenya. That cannot be the correct position,” said the judge. “I have not been persuaded that the Florida court had no jurisdiction to entertain the matter. Consequently, the order in question is an order of a court of competent jurisdiction. It is valid and binding, unless it is set aside, reversed or varied by the court which made it or by a higher court on appeal. The court, which made the order, declined to vacate it or vary it.
“There is no evidence that a higher court in US has interfered with it,” judge Musyoka ruled. Magdaline’s argument was that Florida court, on the basis of consent, had dissolved the marriage, yet under Kenyan law marriage, by consent, is not recognised. The judge noted that Magdaline had contracted two other marriages following the fallout with Phillip and she had filed another case here in Kenya to facilitate division of their matrimonial property. Her lawyer argued that if the Kenyan court lifted the orders made by the Florida one, it would mean that the couple would be divorced in the US but remain married Kenya. “Such a scenario would suggest that the parties would be forced to file for divorce whenever they changed jurisdictions,” judge Musyoka heard.
The woman was ordered to pay the cost of the suit to her ex-husband.