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In a recent discussion, Lawyer Danstan Omari brought to light an intriguing aspect of marital law that is catching the attention of many.
He delved into the legal grounds for divorce and highlighted an often overlooked but important issue: can a ‘side chick’ or an extramarital partner be compelled to pay compensation to the legitimate wife in the event of adultery?
The answer, according to Omari, lies within the law’s definition of adultery and its legal consequences.
Adultery is one of the five grounds for divorce, and it has serious legal implications.
An AI-generated image of a young Black woman in a coral shirt looking pensive, while a blurred black couple in the background shares an intimate embrace
For a divorce to be granted on the grounds of adultery, the offending party (the spouse having the affair) and their extramarital partner (the "third party") can both be sued in a court of law.
Omari explained that for adultery to be considered as a valid ground for divorce, there must be clear evidence of carnal knowledge (sexual intercourse) outside of the marriage.
This means a relationship without physical intimacy will not be enough to file for divorce on the basis of adultery.
Additionally, the burden of proof is on the person alleging the affair, requiring concrete evidence such as DNA tests or material evidence to substantiate the claim.
So, what happens when the side chick is involved? If the wife successfully proves that her husband has been engaging in an extramarital affair, she is legally entitled to sue both her husband and the person with whom he had the affair.
This, Omari emphasised, is because the extramarital partner is seen as a "sexual thief" who intruded into the marriage.
If found guilty, this third party can be ordered by the court to pay compensation to the wife, compensating her for the emotional and psychological distress caused by the affair.
READ ALSO: Why married couples in Kenya cannot divorce by mutual consent
Proving Adultery
However, Omari cautioned that proving adultery is not a simple task.
Allegations need to be backed by substantial evidence, and courts are usually careful before making such a ruling.
For example, many men often accuse their wives of infidelity merely based on their wives having lunch with colleagues or spending time with other men.
The courts take such accusations seriously and require undeniable evidence before taking action.
So it is a very serious ground to prove you must either produce a child who has been born and you go for DNA testing and that child comes out that his child does not belong to Omari. His child belongs to another person. Or material evidence, serious material evidence to prove adultery.
Adultery cases can be particularly sensitive, as the emotional toll it takes on the individuals involved cannot be understated.
An AI-generated image of a young Black woman in a coral shirt looking pensive, while a blurred black couple in the background shares an intimate embrace
While the legal process provides a framework for seeking justice, Omari noted that the broader consequences of infidelity extend beyond legal compensation. They often involve significant emotional and psychological consequences for all parties.
This discussion sheds light on the legal protections available to spouses in the event of adultery and highlights the serious implications of infidelity in marriage.
While the road to proving adultery and seeking compensation may be challenging, Omari’s final take is that a side chick or any third-party extramarital partner can, under certain circumstances, be held financially accountable for their role in breaking up a marriage.