The Marriage (Amendment) Bill 2023, which is currently before Parliament, seeks to introduce major but progressive changes in the area of separation and divorce in Kenya. The bill proposes to allow couples to separate or divorce by consent, without having to prove irretrievable breakdown of marriage or a matrimonial offence, as is currently required by the law. The bill has generated mixed reactions from the public. Some people have welcomed the bill as a positive development that will make it easier for unhappy or abusive marriages to end peacefully and amicably. Others have expressed concerns that the bill will undermine the sanctity and stability of marriage as the basic unit of society, and that it will lead to more conflicts over property and children.

Those against the bill argue that divorce by consent makes it too easy for couples to end their marriage without trying to resolve their issues or considering the impact on their children and society. They also fear that divorce by consent will lead to more divorces and more broken families, which may have negative consequences for the moral and social order.

The entire debate against divorce by consent hinges on the following points:

• Divorce by consent violates the vows and promises made by the spouses at the time of marriage when marriage is supposed to be a sacred and lifelong commitment that should not be broken by mere mutual agreement. Divorce by consent devalues the meaning and purpose of marriage, and encourages a culture of selfishness and irresponsibility
• Divorce by consent harms the children who may suffer from emotional, psychological, and behavioral problems as a result of their parents’ separation. Divorce by consent also deprives the children of the benefits of having both parents in their lives, and may affect their future relationships and well-being. Divorce by consent does not take into account the best interests of the children, who may not have a say in their parents’ decision.
• Divorce by consent erodes the social fabric and cohesion of society, which depends on stable and lasting marriages and families. Divorce by consent weakens the bonds and values that hold society together, such as trust, loyalty, respect, and cooperation. Divorce by consent also increases the social and economic costs of divorce, such as legal fees, welfare payments, child support, alimony, etc., which may burden the state and the taxpayers.

The points raised against divorce in general and divorce by consent in particularly got me thinking, “do people generally prefer dysfunctional families over divorced ones?” A common saying in Kenya and I believe in several other societies when it comes to offering marital advice is “watu ni kuvumiliana“. That no matter how dysfunctional a couple is, they should not opt for separation/divorce unless the violence between them is too severe that death may occur. Psychological well-being, individual happiness, and mental health of the couple are all secondary when it comes to marriage in Kenya and in many societies. The argument for maintaining marriage, however dysfunctional it is, is that the family unit is the basic unit of the society, so we should all sacrifice our happiness and wellbeing to make the society work. And there data to support this argument.

For example, one study found that children who live in single-parent families are twice as likely not to graduate from high school as children who live with two biological parents. Another study found that children who experience parental divorce or separation are more likely to have lower grades, repeat a grade, and be suspended or expelled from school . These findings suggest that single parenthood and parental divorce or separation may have some negative effects on a child’s academic achievement, on average.

Based on the findings of those studies, should we therefore argue for making it very hard for people to divorce? No matter how the married couple hate each other?

It should be noted that the negative effects of divorce/separation on children are not necessarily caused by the family structure itself, but rather by the associated factors that often accompany single parenthood and parental divorce or separation. For example, single parents may have less time, money, and energy to devote to their children’s education and well-being. They may also face more stress, isolation, and stigma from society. Parental divorce or separation may also expose children to more conflict, instability, and trauma. These factors may affect a child’s emotional, psychological, and behavioral health, as well as their learning environment and opportunities.

Therefore, it is possible that some children from dysfunctional two-parent families may perform better academically than some children from divorced or separated families, if they have more access to resources and support that can buffer them from the negative effects of family dysfunction. However, it is also possible that some children from divorced or separated families may perform better academically than some children from dysfunctional two-parent families, if they have more access to resources and support that can buffer them from the negative effects of parental divorce or separation. The key point is that family structure is not the only or the most important factor that determines a child’s academic performance. Rather, it is the quality of the relationships and the availability of the resources within the family that matter more.

My conclusion is that there is no clear-cut answer to whether a dysfunctional family is better than a divorced or separated family for a child’s academic performance. Different families and different children may have different experiences and outcomes. However, based on the data from the web search results, it seems that both single parenthood and parental divorce or separation may pose some challenges and risks for a child’s academic achievement, on average. Therefore, it is important to provide more support and assistance to these families and children, such as through family policies, social services, educational programs, counseling services, etc., that can help them overcome their difficulties and achieve their potential.

What is clear in my mind is that divorce by consent is a progressive concept that recognizes the autonomy and agency of the parties involved in a marriage. It allows couples to separate or divorce by mutual agreement, without having to prove irretrievable breakdown of marriage or a matrimonial offence, as is currently required by the law. Divorce by consent respects the wishes and preferences of the parties, and does not impose any external or arbitrary criteria on their decision to end their marriage.

Divorce by consent is also progressive because it reduces the stigma and trauma associated with divorce. It eliminates the need for a lengthy and costly legal process that may further damage the relationship between the parties and their children. It also avoids the adversarial and accusatory nature of divorce proceedings, where parties have to blame each other for the failure of their marriage. Divorce by consent promotes a more peaceful and amicable way of ending a marriage, where parties can focus on their future rather than their past.

Divorce by consent is not only progressive for the parties involved, but also for the society at large. It acknowledges that marriages are diverse and dynamic, and that not all marriages are healthy or happy. It also recognizes that there are different forms and types of families in Kenya, such as single-parent families, blended families, extended families, etc., that deserve equal recognition and protection by the state. Divorce by consent does not undermine the institution of marriage, but rather enhances it by making it more flexible and responsive to the changing needs and expectations of Kenyan couples.

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