The Star (Nairobi)

Kenya: The Wind of Change in Alimony Matters

Photo: Capital FM
Marriage: prenuptial agreements bill to be passed

Alimony is a legal obligation on a person to provide financial support to their spouse after marital separation and divorce. It is also known as maintenance in Britain and spousal support in the US and Canada.

Alimony has its origins in the Code of Hammurabi, the ancient Babylonian code, ca. 1780 BC. Under the Code of Hammurabi, divorce created a substantial financial burden for the husband.

He had to cough up the dowry and provide an allowance sufficient to sustain his former spouse. The husband was required to give her a "bride price" and return the dowry.

However, since the 1970s there has been a revolution in many Western countries as regards gender equality with a corresponding recognition that a former husband may also be entitled to alimony from his former wife. Alimony is designed to provide the lower-income spouse with money for living expenses

Section 25 (1) of the Matrimonial Act of Kenya provides that in any suit under this Act, the wife may apply to the court for alimony pending the suit and the court may thereupon make such order as it may deem just.

However the alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years preceding the date of the order, and shall continue until the marriage is annulled.

The court may, if it thinks fit, on any decree for divorce, order that the husband shall support his ex-wife. This provision has outlived its purpose in Kenya since it places the burden on the husband exclusively to maintain the spouse.

This inequality has been cured by Article 46(3) of the Constitution which provides that all 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.

Article 27 of the Constitution buttresses the position by upholding the national values and the tenets of social justice in that it stipulates that everyone is all equal before the law irrespective of sex.

Legislators are in the process of giving Kenyans the Marriage Act. Under Section 106 (1) of The Marriage Bill 2012, the court may order a person to pay maintenance to his or her spouse or former spouse if the person has refused or neglected to provide for the spouse as required by this Act.

The deserter will be condemned to maintain their spouse if the person has deserted his or her spouse, for as long as the desertion continues. The court can also order one spouse to maintain the other during the course of any matrimonial proceedings.

Under Section 107 of The Marriage Bill 2012, the amount of any maintenance ordered by the court to be paid by one spouse to the other shall ordinarily be assessed according to the needs of the parties, but for this purpose regard shall be paid to the degree of responsibility which the court may apportion to either party for the breakdown of the marriage and the capacity and ability of either party to earn a living.

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