What is spousal maintenance?

This is money awarded to a spouse by the family court in a divorce case alongside orders of divorce that dissolve the marriage. The amount may be payable in instalments or in a lump sum.

 What is the law governing orders of spousal maintenance?

Section 77(1) of the Marriage Act, 2014, provides that the court may order maintenance to a spouse or former spouse.

Is it mandatory for the court to grant spousal maintenance if a party asks for it?

The stated Section 77(1) of the Marriage Act, 2014, provides that the court has discretion to grant maintenance, it is not obligatory.

When is the court likely to grant a prayer for spousal maintenance?

Courts have routinely held that spousal maintenance is not automatic and must be based on actual financial need.

The Marriage Act does not specify the criteria for grant of maintenance and courts have developed jurisprudence that the main criteria are for the person seeking maintenance to prove actual need and the court is entirely within its right to exercise its judicial discretion to either award maintenance or not The specific factors stipulated in section 25(2) of the repealed Matrimonial Causes Act, are instructive and include:

1. The fortune of the spouses,
2. the ability of the spouse
3. the conduct of the parties.

Other relevant factors include the income and liabilities of each party,

Current financial needs and responsibilities present and in future and the duration of the marriage.

What is the main document courts rely on to determine a claim for spousal maintenance?

The family courts have stated that a party seeking to rely on the court exercising its discretion to grant them maintenance must provide an affidavit of means to support their claim and failure to do so could be fatal to a claim for maintenance from a party, and the court may reject a claim such as this as well as open up the maintenance issue to a likely appeal e.g. where maintenance is granted without parties filing affidavits of means.

What is the content of the affidavit of means in respect of a maintenance claim?

This affidavit highlights alongside annexed documents the following information:

1. Assets of a spouse
2. Liabilities of a spouse with adequate description and proof by way of supporting affidavits e.g. loan documents, school fees invoices, medical bills, expense receipts etc.
3. Income of the parties both from employment and business sources

Note that each party ought to provide their affidavit of means to prove or disprove the specified claim for maintenance and it is prudent to provide information rooted in evidence as it can be prejudicial to your claim (or defence if you are opposing the claim for spousal maintenance) if your affidavit of means does not stand up to cross examination and court scrutiny.

 What does the Constitution say on spousal maintenance?

Article 45(3) of the Constitution provides that parties to a marriage have equal rights at the time of marriage and after; and courts have determined that in respect of spousal maintenance, this also means that neither the wife nor husband has a superior right to maintenance merely by reason of gender e.g. in the days of old it was more common for wives to seek to rely on their husbands and it was easier to assert alimony as a right rooted in a patriarchal culture that saw women as dependents of men.

In light of this equality provision in the Kenya Constitution, the spouse claiming alimony should be prepared to prove their financial need and not merely rely on gender and patriarchal culture as their main basis for their alimony prayer.

 What is the amount of spousal maintenance you can receive?

There is no stipulated amount; neither a maximum nor minimum and the main criteria the court will look at is your actual need and the ability of a spouse to pay the maintenance. Definitely, one can persuasively underline that their need is based on a standard of living they have had within that marriage as well as the ability of the other spouse to afford the claimed maintenance amount.

What is the duration of spousal maintenance if your prayer is granted?

There is no stipulated time period for maintenance and courts have the discretion to determine how long this should run for. It may be for some months or years. Rarely will maintenance be granted for an indefinite period.

Ordinarily, a new marriage will terminate the requirement to pay someone maintenance if that person receiving the maintenance remarries.

What is Interim Spousal Maintenance versus Final maintenance?

Interim maintenance is awarded for the duration of the divorce case following an interim application for maintenance. Final maintenance is granted as a final order once the divorce case is heard and finally determined, i.e. upon final judgement in the divorce case.

Can parties agree beforehand on the amount of spousal maintenance instead of the court deciding the amount?

Yes, parties can (amicably) draft a settlement agreement on maintenance and ask the court to adopt it as part of the judgement on dissolution of the marriage.

Is spousal maintenance different from child support?

Yes, spousal maintenance is to cater to the financial needs of a spouse and is  issued by the divorce court while child support or child maintenance is money awarded by the court towards the maintenance of a child. One should ask for the specific type of maintenance from the appropriate court.