When equality meets divorce: Can a husband claim maintenance?
A judge's gavel, two wedding rings and a legal document; symbols of a landmark Kenyan divorce case that tested whether a wife can be ordered to pay her ex-husband maintenance.
What you need to know:
- A court ordered a university professor to pay her unemployed ex-husband Sh20,000 a month in maintenance following their divorce.
- The ex-wife challenged the order at the Court of Appeal, where three judges unanimously overturned it.
- The appellate court found that the evidence did not justify the maintenance order.
On March 19, 2015, the High Court of Kenya in Eldoret made a ruling that is rare in Kenya's legal history.
This came about 10 months after the commencement of the Marriage Act 2014, which was explicit on the grounds under which a court may order payment of maintenance to a spouse or former spouse.
Section 77 of the law provides five grounds, including where a person has refused or neglected to provide for the spouse or former spouse, or has deserted them. The court may also order maintenance during the course of any matrimonial proceedings, when granting or after granting a decree of separation or divorce, or if, after making a decree of presumption of death, the spouse or former spouse is found to be alive.
Unlike the repealed Matrimonial Causes Act (Cap. 152), which expressly provided that the husband was to pay alimony , spousal support or maintenance , not exceeding one-fifth of his average net income for the three years preceding the order, the current legal framework is founded on the principle of equality between spouses.
However, a simple search on the National Council for Law Reporting (Kenya Law), the official repository of Kenya's laws and over 275,000 judicial decisions, reveals a disparity.
Of the first 20 results, none involved a husband or estranged husband seeking alimony from a wife or estranged wife.
What the court ordered
The High Court ordered the ex-wife, identified as M.E.K., to pay her ex-husband, G.L.M., maintenance of Sh20,000 every month, effective April 30, 2015, and on the last day of each succeeding month. She was to continue paying until he became capable of supporting himself, remarried, or died.
The wife had petitioned for the dissolution of their civil marriage in 2001, which was later dissolved on the grounds of desertion and legal cruelty.
In making the order for maintenance in favour of the husband, the judge invoked Article 45(5) of the Constitution, which states: "Parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of the marriage."
Referring to that provision, the judge argued that "equality in marriage must surely relate to support of an impecunious spouse at the time of divorce."
In arriving at the monthly maintenance figure of Sh20,000, the judge considered that the ex-wife was a woman of means, a professor at a university, while the ex-husband had no means, having not held a job since December 1990.
M.E.K. challenged the maintenance order at the Court of Appeal in Eldoret, where her appeal was heard by Judges E.M. Githinji, Hannah Okwengu, and J. Mohammed.
No guidelines
Judge Githinji said that in the absence of statutory guidelines on specific factors to be taken into account when exercising discretion to grant maintenance to a spouse, courts would consider all the circumstances of the case and exercise that discretion judicially.
He noted that the specific factors stipulated in Section 25(2) of the repealed Matrimonial Causes Act, namely the fortune of the spouses, the ability of the spouse, and the conduct of the parties, remain relevant. Other factors include the income of the respective spouses, their financial needs, obligations and responsibilities, both present and future, and the duration of the marriage.
He disagreed with Judge Okwengu on one factor to be considered in applications for maintenance by a husband: that in such cases, justification for reversing traditional gender role expectations should be taken into account.
He argued that, having accepted that Article 45(3) of the Constitution creates gender equality in family affairs and entitles either spouse to maintenance from the other, it would be a derogation from that constitutional principle to prescribe differential treatment for a husband seeking financial provision from his wife.
In his view, the so-called traditional gender role had been superseded by the Constitution and the Marriage Act 2014, and was therefore not a relevant factor in determining whether an order for maintenance should be made in favour of a husband.
He held that the primary and relevant consideration when either spouse seeks maintenance from the other is the financial position of the parties.
Notwithstanding this, the court unanimously found that the trial judge had erred in ordering the ex-wife to pay maintenance to the ex-husband.
Reminder of a failed marriage
Judge Okwengu concluded that the evidence before the trial court did not justify the exercise of discretion in ordering maintenance in favour of the ex-husband, nor did the court have sufficient information on which to make an informed decision regarding the financial ability of the ex-wife and the needs of the ex-husband.
"It would be against public policy to encourage a situation where a spousal maintenance order is granted to a man for the simple reason that the woman has proved more industrious than the man," she said.
"The order of maintenance issued in favour of the respondent is nothing more than the sword of Damocles hanging over the appellant's head to remind her of her failed marriage. Such an order is neither fair nor just," she added.
Judge Mohammed said he was in "full agreement with Judge Okwengu's reasoning and conclusions" and therefore had "nothing useful to add."
