Who Should Pay Alimony After Separation?
K. M v Attorney General & T.W.M
Petition No. 458 of 2012
High Court of Kenya at Nairobi-Constitutional and Human Rights Division
D. S Majanja J.
November 15, 2012
The petitioner and the Interested Party in this case were married under the African Christian Marriage and Divorce Act and had one child.
However, their marriage broke down and hence the proceedings in various courts including the Children’s Court. However, the instant petition was prompted by the interested party (wife to the petitioner) who had earlier on moved the subordinate court under the Matrimonial Causes Act seeking monthly maintenance in the sum of Sh150,000 per month from the petitioner who was her husband.
In response, the petitioner moved the High Court for a declaration that section 25 of the Matrimonial Causes Act was unconstitutional since it only provided for payment of alimony by husbands to their wives.
He contended that it was a violation of Article 27 of the Constitution of Kenya, 2010 which prohibits discrimination and Article 45 which entitles parties to a marriage with equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
Section 25 of the Matrimonial Causes Act provides for alimony to the wife and is to the effect that a wife may apply to court for alimony pending the divorce proceedings and that the court may make orders as it deems fit.
Further, Section 26 gives the courts additional power to make an order of maintenance where the husband is guilty of willful neglect to provide reasonable maintenance for his wife and children.
Alimony is money paid by one spouse (Usually the husband) to another spouse (Usually the wife) for the purpose of continuing to live after divorce.
It has been defined by Black’s Law Dictionary as a court ordered allowance that one spouse pays to the other spouse for maintenance and support while they are separated, while they are involved in a matrimonial lawsuit, or after they are divorced.
It is however notable that alimony is distinct from a property settlement in that alimony payments are taxable income to the receiving spouse and are deductible by the paying spouse whilst payments in settlement of property rights are not.
The obligation to pay alimony is commonly associated with the husbands paying alimony to their wives after divorce and this has been witnesses in various divorce proceedings where the courts have ordered the male spouses to pay alimony to their wives.
In P.M.K v T.N.K  eKLR, Justice Martha Koome observed that the court had power under the Matrimonial Causes Act to make orders for alimony pending the main suit and maintenance for the children.
In granting the prayers seeking alimony the court enumerated the various factors it considers in assessing the amount payable which includes school fees, transport, meals, rent, medical, clothing, utility and other miscellaneous expenses.
The same was held in SK v BZ  eKLR where a husband was compelled to pay alimony to the wife pending determination of the divorce proceedings. Most recently, in a series of cases in R. P.M v P. K. M  eKLR, Justice G.B.M Kariuki issued a warrant of arrest and detention of the respondent in civil jail for 30 days for failure to pay maintenance that had been ordered by court to be paid to the wife.
The judge in that case observed that unless the husband had tendered evidence in court to prove his inability to pay the maintenance ordered by court, he was required to adhere to the court order.
Court will in all instances amongst other considerations take into account the man’s total income and his expenses in computing the amount of maintenance to be paid to the wife.
Further, the judge held that it was the duty of the court to ensure that the rights of the petitioner (wife) and her children were enforced and redress obtained where the respondent (husband) had failed to shoulder his obligations as a husband and a father.
Counsel for petitioner in this case stated that the court should in the circumstances issue a conservatory order as the petitioner’s case would be prejudiced in the event that the court declared the provision of the Matrimonial Causes Act Unconstitutional.
However, counsel representing the interested party who was the wife to the petitioner opposed the application on the grounds that the matter was moot as the facts of the case could not have supported the relief that was sought as the petitioner had not sought maintenance.
He also averred that on the facts of the case the petitioner could not possibly have sought for maintenance as he earned a better salary than did the interested party. He therefore submitted that the matter should be struck out as an abuse of the court process.
The court agreed with counsel for the interested party in finding that the petitioner had not made out any case for conservatory relief or any other relief as against the interested party who was entitled to apply for maintenance.
The main issue in this case for determination by the court therefore was whether Section 25 of the Matrimonial Causes Act was discriminatory or contrary to Article 27 of the Constitution of Kenya, 2010, which provides for equality and outlawed discrimination and Article 4(3) which provides for equality of parties within a marriage.
Justice Majanja found that indeed the provision of the Matrimonial Causes Act was discriminatory in so far as it permitted only a wife to apply for maintenance on account of her status.
However, the judge referred to Section 7(1) of the Sixth Schedule of the Constitution which provides a solution to the petitioner’s grievance in that it provides that “all law in force immediately before the effective date continues in force and shall be construed with alterations, adaptations, qualification and exceptions necessary to bring it into conformity with the Constitution.”
The court therefore observed that an application of Section 7(1) of the Sixth Schedule to the Constitution entitled the court to read into the Act words that would bring the Act in conformity with the Constitution.
In the circumstances, the court held that Section 25 of the Matrimonial Causes Act which applied to the wife was now to be read as “spouse” to bring it in conformity with Articles 27 and 45 of the Constitution of Kenya, 2010 and Section 25 of the Act shall be read with all the necessary alteration to make it gender neutral. Prayers declined