FAQs on Spousal Maintenance in Kenya

What is spousal maintenance?

Spousal maintenance is an order for payment of money that a divorcing party makes to the court in their divorce petition. The prayer for maintenance may seek payment of a lump sum or periodic payments.

Is alimony the same as spousal maintenance?

Yes, the two mean the same thing and historically and culturally, alimony has been used in connection with the payment of spousal maintenance by an ex-husband to an ex-wife.

Can men apply for spousal maintenance in Kenya?

Yes, the Constitution of Kenya in Article 45 provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

This enshrines gender equality and a man is as entitled to apply for spousal maintenance as a woman is.

Can a woman apply for spousal maintenance for herself and her children?

A woman can apply for both spousal maintenance and child support maintenance. The distinction is that spousal maintenance is applied for in the divorce court which is ordinarily the magistrate’s court while maintenance to support the children commonly called “child support payment” is applied for in the children’s court.

What is the difference between a final maintenance order and an interim maintenance order?

The Marriage Act allows a spouse to apply for maintenance to support them during the pendency of the divorce case. This is to provide financial support to enable the spouse in need, to have their needs financially covered before conclusion of the divorce case.  A final maintenance order is a final order issued alongside the order of dissolution of the marriage stating the amount of spousal maintenance to be paid by one spouse to the other. The order will stipulate the duration of the payment, that is for how many months or years the spousal maintenance amount should be paid. The final maintenance order will also stipulate the amount to be paid as well as whether the amount will be paid in instalments or in lump sum.

How is a maintenance order enforceable?

If a party that is to pay spousal maintenance fails to do so as stipulated in the order, you can apply to the court to attach the defaulting ex-spouse’s assets or income for instance attach their salary, pension, etc. The application for enforcement is made to court.

How to prove your need for maintenance

A fundamental document that accompanies a request for a maintenance order is an affidavit of means. In PKM V RPM [2017] eKLR, the court stated as follows:

“We venture to suggest that whenever a court is faced with an application for maintenance, whether seeking interim relief or upon dissolution of marriage, it must direct the parties to furnish the court with comprehensive information by way of affidavit relating to their respective financial circumstances.”

The Affidavit of means sets out each party’s expenses, income, assets and liabilities that the court should take into consideration prior to the court deciding a spousal maintenance prayer. This comprehensive affidavit should be accompanied by supporting evidence such as pay slips, bills, receipts etc., to buttress the prayer or defence against the prayer for spousal maintenance.

How should evidence to sustain a maintenance application be submitted?

The person applying for maintenance should systematically set out proof to support their case and include relevant information pertaining to length of the marriage; economic status and income earning of each parties; non-financial contribution by the party to the marriage, professional qualifications of the parties, conduct of the parties during the marriage financial needs and obligations of the party including their future needs; age of the parties etc.

The threshold to prove a maintenance claim is high and therefore one needs cogent proof to be successful in such a claim for maintenance.

Can parties come to a settlement agreement on maintenance in lieu of litigating the issue in court?

Yes, a divorce settlement agreement covering the issue of spousal maintenance is a good way to circumvent the acrimonious proceedings as regards spousal maintenance. Ideally, this should be drafted by a lawyer so as to get a document that adequately represents both parties’ interests.

The parties can then ask the court to enforce the agreement in the event of a dispute or even at the time of the divorce the parties can ask the court to issue an order adopting the agreement as part of the divorce decree.