The wind of change in family law is here. Provisions for alimony are found in Section 25 of the Matrimonial Causes Act which provides that in any suit under this Act, the wife may apply to the court for alimony pending the suit, and the court may make such order as it may deem just provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order.
The court can also give alimony as part of its final orders, after hearing of the petition. Section 25(2) provides that the court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life, as, having regard to her fortune, if any to the ability of her husband and to the conduct of the parties, the court may deem to be reasonable.
This provision has caused a lot of controversy among husbands. It provides that it is the wife that will apply for alimony, and does not make provisions where the husband can apply.
This is oblivious to the fact that in some of our family setups, it is the woman that provides for the family. This provision does not envisage a scenario where the wife earns more than the husband, hence making it impractical for the husband to maintain someone already earning more than him.
In Western countries, moves towards gender equity have enabled them recognise that husbands can apply for alimony. In Kenya, a recent decision by the High Court provided that the constitution of Kenya has now allowed husbands to apply to the court for alimony.
The petitioner had asked the court to declare that Section 25 of the Matrimonial Causes Act unconstitutional as it discriminates against husbands.
The petitioner alluded that the provisions of the Matrimonial Causes Act requiring alimony to be paid to wives was contrary to Article 27 which provides for equality and outlaws discrimination and Article 45(3) which provides for equality of parties within a marriage.
In deciding the matter, the court held that section 7(1) of the Sixth Schedule to the Constitution provides a solution to the petitioner’s grievance by entitling the court to read into the Act, words that would bring it in conformity with the Constitution.
In the circumstances, Section 25 of the Matrimonial Causes Act which applies to the wife is now to be read as “spouse” to bring it in conformity with Article 27 and 45 of the Constitution and section 25 of the Act and shall be read with all the necessary alteration to make it gender neutral.
This judgement has ensured that the law is applied equally among all the parties to a marriage. In granting alimony, the court considers several factors.They include:-
• Need. For a court to award alimony, the recipient applicant must show a reasonable need. The expenses stated in the application should be reasonable, and should be consistent with the expenses during the marriage, and they should be approved.
• Financial Capacity. Before the court grants alimony, it must ascertain the financial capacity of the person that is to pay the alimony, so as not to make orders that are not practicable. Parties will have to file their affidavits of means to enable the court determine their capacity.
• Lifestyle during marriage. The longer the marriage, the more important lifestyle during the marriage becomes. The court in granting alimony considers the recent lifestyle of the parties, in determining the alimony payable.
• Employment status of the applicant. The employment status of the applicant is also considered by the court in making alimony orders. This enables the court analyse the ability of the other party to take care of themselves. If the applicant is unemployed, the court will grant more alimony unlike where the applicant is employed.