What is Alimony?
Alimony, also known as spousal maintenance or spousal support, is a financial obligation that one spouse may be required to pay to the other after a divorce or separation. This financial support is intended to help the receiving spouse maintain a similar standard of living to what they had during the marriage. The amount and duration of alimony depend on various factors such as the length of the marriage, financial status of both spouses, and their ability to support themselves independently.
What Law Governs the Issue of Alimony in Kenya?
In Kenya, alimony is governed by Section 77(1) of the Marriage Act, which states that a court may order one spouse to pay maintenance to the other under the following circumstances:
- If a spouse has refused or neglected to provide for the other as required by law.
- If a spouse has deserted the other, maintenance may be required for as long as the desertion continues.
- During the course of any matrimonial proceedings.
- When granting or after granting a decree of separation or divorce.
- If a decree of presumption of death is issued and the spouse is later found alive.
Additionally, Article 45(3) of the Constitution of Kenya provides that both parties in a marriage are entitled to equal rights before, during, and after marriage. This legal provision ensures that neither spouse is superior to the other and that maintenance responsibilities are shared equally where applicable.
Who Can Apply for Alimony?
Historically, alimony was granted to women, as they were traditionally seen as financially dependent on their husbands. However, under the Constitution of Kenya, both husbands and wives have equal responsibilities to support themselves. Therefore, either spouse can apply for alimony if they can prove financial need and that they were financially dependent on their partner during the marriage.
The law discourages any spouse who is capable of working from avoiding self-sufficiency. Courts will only grant alimony to a spouse who genuinely needs financial support to maintain their standard of living post-divorce.
What Does the Court Consider When Granting Alimony?
The court considers several factors when determining whether to grant alimony and the amount to be paid:
1. Financial Capacity of Both Spouses
The court assesses the financial ability of both parties to determine if one spouse can afford to support the other. The alimony amount should not cause undue financial hardship to the paying spouse.
2. Standard of Living During Marriage
The lifestyle maintained during the marriage is taken into account. The aim is to ensure that the spouse seeking alimony can continue living in a similar manner, at least for a transitional period.
3. Duration of the Marriage
Longer marriages are more likely to result in higher alimony payments, as the dependent spouse may have built their entire financial well-being around the union.
4. Contribution to the Marriage
Non-financial contributions, such as homemaking and childcare, are also considered when determining alimony. A spouse who sacrificed their career to support the other or raise children may receive maintenance.
5. Age and Health of the Spouse Seeking Alimony
A spouse in poor health or advanced age may require more financial support, as they might be unable to secure employment or earn a stable income.
6. Earning Potential and Employment Status
If the spouse seeking alimony has the ability to work but chooses not to, the court may deny or reduce the maintenance request.
Types of Alimony in Kenya
The court may order different types of alimony, depending on the circumstances of the case:
1. Temporary Alimony
This is granted during the divorce proceedings and helps the dependent spouse manage expenses until a final decision is made.
2. Permanent Alimony
In some cases, long-term maintenance may be awarded, especially if the spouse is unable to support themselves due to health issues, old age, or lack of skills.
3. Rehabilitative Alimony
This is granted for a specific period to allow the dependent spouse to gain employment or further their education to become self-sufficient.
4. Reimbursement Alimony
If one spouse financially supported the other’s education or career development during the marriage, the court may order reimbursement maintenance.
Can Alimony Be Modified or Terminated?
Yes, alimony can be modified or terminated under certain conditions, such as:
- If the financial situation of either spouse changes significantly.
- If the recipient remarries or starts cohabiting with another partner.
- If the paying spouse retires or faces financial difficulties.
- If the court deems the original alimony arrangement unfair over time.
Conclusion
Alimony in Kenya is designed to ensure fairness and financial stability for both spouses after a divorce. While both men and women can apply for maintenance, the court will only grant it to those who genuinely need it. Factors such as financial capacity, duration of marriage, and standard of living play a crucial role in determining the amount and duration of spousal support. Ultimately, alimony aims to provide a fair transition for both spouses as they move on with their lives post-divorce.
Frequently Asked Questions (FAQs)
1. Can a husband request alimony in Kenya?
Yes, under Kenyan law, both husbands and wives have equal rights to apply for alimony if they can prove financial need.
2. How long does alimony last in Kenya?
The duration of alimony varies depending on the circumstances. Some payments may be temporary, while others may be long-term or permanent, depending on the court’s ruling.
3. Can alimony be refused if a spouse refuses to work?
Yes, the court may deny alimony if the spouse seeking support is capable of working but chooses not to be gainfully employed.
4. What happens if a spouse refuses to pay alimony?
Failure to comply with an alimony order can result in legal action, including fines or even imprisonment for contempt of court.
5. Can alimony be settled outside of court?
Yes, spouses can agree on maintenance terms outside of court through mediation or mutual agreement, as long as both parties consent to the terms.
