Quote from Lawyer on June 9, 2025, 10:00 am

Spousal maintenance, often referred to as alimony, is a critical aspect of family law in Kenya, designed to provide financial support to a spouse during or after the dissolution of a marriage. In Kenya, the legal framework for spousal maintenance is anchored in the Constitution of Kenya 2010, the Marriage Act of 2014, and judicial precedents that emphasize fairness and equality. This article explores the intricacies of spousal maintenance in Kenya, including who qualifies, the factors courts consider when awarding it, how it is calculated, and how legal firms can assist in navigating this complex process.

Legal Framework for Spousal Maintenance in Kenya

Spousal maintenance in Kenya is governed by several legal provisions, ensuring that both parties to a marriage are treated equitably. Article 45(3) of the Constitution of Kenya establishes that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. This principle of gender equality ensures that spousal maintenance is not limited to one gender, allowing both men and women to apply for support based on their financial needs and circumstances.

The Marriage Act of 2014, specifically Section 77, provides for spousal maintenance during marriage, separation, or divorce. It allows courts to issue maintenance orders, which can be paid as a lump sum or periodic payments, depending on the circumstances of the case. Additionally, the Matrimonial Property Act of 2013 plays a role in related financial considerations, such as the division of matrimonial property, which can influence maintenance decisions.

Judicial precedents, such as WMM v BML and Kershaw v Kershaw, further clarify the principles guiding spousal maintenance. These cases emphasize that maintenance orders aim to prevent a spouse from being relegated to a lower standard of living post-divorce and ensure fairness without being punitive or unenforceable.

Who Qualifies for Spousal Maintenance?

Spousal maintenance is not an automatic entitlement in Kenya. To qualify, a spouse must demonstrate a genuine need for financial support and the other spouse’s ability to provide it. The following circumstances typically determine eligibility:

1. Financial Need: The requesting spouse must show they are unable to meet their basic needs due to insufficient income or assets. This often applies to a spouse who was financially dependent during the marriage, such as one who sacrificed career opportunities to manage household responsibilities or raise children.

2. Ability to Pay: The court assesses whether the other spouse has the financial capacity to provide maintenance without undue hardship. This includes evaluating their income, assets, and liabilities.

3. Duration of Marriage: Longer marriages often increase the likelihood of maintenance awards, as financial interdependence is typically more pronounced. Courts consider the length of cohabitation, including periods before formal marriage, especially in cases of presumed marriage under cohabitation arrangements.

4. Contributions to the Marriage: Both monetary and non-monetary contributions, such as homemaking or child-rearing, are considered. A spouse who supported the other’s career or managed the household may qualify for maintenance to offset economic disadvantages post-divorce.

5. Special Circumstances: Factors such as disability, health issues, or caregiving responsibilities for a child with special needs can justify maintenance. Additionally, victims of family violence may qualify, particularly if the violence impacted their earning capacity.

6. Gender Neutrality: The Kenyan legal system adopts a gender-neutral approach, meaning both husbands and wives can apply for maintenance. For instance, in the case of M E K v G L M (Court of Appeal at Eldoret, 2018), the court affirmed that a husband could seek maintenance from his wife, reflecting the principle of equality under the Constitution.

Factors Courts Consider When Awarding Spousal Maintenance

Kenyan courts exercise significant discretion when determining spousal maintenance, guided by principles established in case law and statutory provisions. The following factors are considered to ensure a fair and equitable award:

1. Standard of Living During the Marriage: Courts aim to ensure that the requesting spouse maintains a standard of living comparable to that enjoyed during the marriage. This prevents a significant decline in lifestyle post-divorce.

2. Income and Earning Capacity: The court examines the income, earning potential, and financial resources of both spouses. This includes wages, investments, and other income sources, as well as the potential for the requesting spouse to become self-supporting through education or employment.

3. Conduct of the Parties: While the grounds for divorce (e.g., adultery or cruelty) do not automatically disqualify a spouse from receiving maintenance, the conduct of the parties may influence the court’s decision. For example, if a spouse’s behavior, such as abuse, significantly impacted the other’s earning capacity, this may be considered.

4. Duration of the Marriage: The length of the marriage significantly impacts the amount and duration of maintenance. Longer marriages often result in higher or longer-term awards due to greater financial interdependence.

5. Non-Monetary Contributions: Courts recognize contributions such as homemaking, childcare, or supporting the other spouse’s career. These contributions are weighed equally with financial contributions to ensure fairness.

6. Age and Health: The age and health of both spouses are critical. Older spouses or those with health challenges may have limited earning capacity, justifying a maintenance award.

7. Financial Obligations and Liabilities: Courts review each spouse’s expenses, debts, and other financial responsibilities, such as child support or caregiving costs, to determine a reasonable maintenance amount.

8. Matrimonial Property Division: The division of assets under the Matrimonial Property Act of 2013 can influence maintenance orders. If one spouse receives significant assets, their need for maintenance may be reduced.

How Spousal Maintenance Is Calculated

Unlike some jurisdictions with statutory formulas for calculating spousal maintenance (e.g., New York or Texas), Kenya does not have a fixed formula. Instead, courts rely on the factors above and detailed financial disclosures to determine the amount and duration of maintenance. The process typically involves:

1. Affidavit of Means: Both parties must submit an Affidavit of Means, detailing their income, expenses, assets, and liabilities. This affidavit, supported by evidence such as payslips, bank statements, and receipts, helps the court assess financial need and capacity.

2. Lump Sum vs. Periodic Payments: Maintenance can be ordered as a lump sum or periodic payments (e.g., monthly). The choice depends on the financial circumstances of both parties and the court’s discretion. For example, a lump sum may be preferred if the paying spouse has significant assets, while periodic payments are common for ongoing support.

3. Duration of Payments: Maintenance may be temporary (e.g., during divorce proceedings or until the recipient becomes self-supporting) or permanent (e.g., until the death of either spouse or the remarriage of the recipient). Secured maintenance (backed by assets) lapses upon the death of the maintained spouse, while unsecured maintenance ends upon the death of the paying spouse.

4. Termination Conditions: Maintenance typically ceases upon the remarriage of the recipient, cohabitation with a new partner, or a significant change in financial circumstances (e.g., job loss or promotion). Courts may also set a fixed term for rehabilitative maintenance, allowing the recipient time to gain financial independence.

Challenges in Spousal Maintenance Cases

Navigating spousal maintenance in Kenya can be complex due to several factors:

• Lack of a Fixed Formula: The absence of a standardized calculation method can lead to unpredictable outcomes, making legal representation essential to present a compelling case.

• Cultural and Social Barriers: Traditional practices and gender biases may influence negotiations, particularly in customary or Islamic marriages, where outcomes can vary based on cultural interpretations.

• Enforcement Issues: Ensuring compliance with maintenance orders can be challenging, especially if the paying spouse is uncooperative or has limited resources.

• Jurisdictional Overlaps: Confusion over which court (e.g., magistrate’s court, High Court, or Kadhi’s court for Islamic marriages) has jurisdiction can cause delays and additional costs.

Conclusion

Spousal maintenance in Kenya is a vital mechanism to ensure financial stability for a spouse post-divorce, reflecting the principles of equality and fairness enshrined in the Constitution and the Marriage Act. While eligibility depends on financial need and the other spouse’s ability to pay, courts consider a range of factors, including the standard of living, income, contributions, and conduct of the parties. The absence of a fixed formula underscores the importance of skilled legal representation to navigate the process effectively.

We are dedicated to guiding clients through the complexities of spousal maintenance with expertise and compassion. Whether you’re seeking maintenance or responding to a request, are here to advocate for your best interests, ensuring a fair resolution that supports your financial future. Contact us today at +254 706 808 104 or info@lawguide.co.ke for expert advice.