THE CONCEPT OF SPOUSAL MAINTENANCE

Before you start to study the nature of the orders that can be made for financial and property assets
when a couple divorce, it is perhaps wise to think about why these orders are needed. The law
operates on the basis that there is a mutual obligation on spouses, and ex-spouses, to maintain one
another. The extension of the obligation after divorce may strike you as strange: if the obligations
arise from the entering into of a marriage contract, surely they should end when that contract is
ended?

If you consider the marriage contract purely from a contractual position then, arguably, the
maintenance that is sought equals the damages that could be claimed when a contract is brought to
an early end.

Question
Why should these obligations be extended beyond the divorce?

Maintenance also illustrates the unequal status of women in society, especially those women with
childcare responsibilities. Women who marry, and have children, will often (although not always) face
a loss of marketability in employment terms, a career may have been broken or entirely given up on
marriage. Despite the Equal Pay Act 1970, women’s salaries are still consistently lower than men’s
and this will inevitably place women at a disadvantage after divorce. If a couple do have children, the
law places an obligation upon the parents to care, or to pay for care, for them. The societal
constraints within the family see the mother as the primary carer and the man as the breadwinner
and the mother will often retain this primary carer role after any separation. If unable to work as
well, she will need some form of support. Politically it is not acceptable for that ‘provider’ to be the
state.

Maintenance pending suit (while application for divorce is in process) – This order also called
“interim maintenance”. As its name suggests, this order is for the provision of maintenance pending
the grant of final divorce decree. This is because very often there would be an interim period or a

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time gap between the filing of petition for divorce and the court hearing and the grant of the final
divorce decree. Such kind of order cannot last beyond the final divorce decree. It will terminate in
any event upon the death of either party. This order is subject to variation and the amount so
ordered to be paid is not necessarily any indication of the amount which may be order to be paid
upon the granting of the decree.
Av A (Maintenance Pending Suit: Provision of Legal Fees) [2001] 1 WLR 605. H and W
were involved in divorce proceedings with substantive issues still to be decided. W had been in
receipt of state funding for the proceedings but, upon being awarded maintenance pending suit under
s 22, her state funding was withdrawn resulting in increasing legal costs to be paid by her. W sought
to increase the maintenance pending suit to include an amount towards the ongoing legal costs. The
court held that the sums should be increased to assist W to pay her legal fees. Per Holman J:
“The periodical payments must be ‘such ... as the court thinks reasonable’ but must also be
‘for his or her maintenance’ i.e. the maintenance of the payee ... There is no doubt that in all
sorts of ways ‘maintenance’ does extend to, and orders for maintenance pending suit have for
many years been intended to cover, matters which are not ones of ‘daily living. Provision may
be included, if there has been a history of it, to enable the payee to make charitable
payments or payments to a third party ... Such payments are not part of the ‘living’ expenses
of the payee at all, but may be a component of the order. Further, provision can clearly be
made to cover legal costs as such ...”

Question
Do you agree/disagree with the opinion of the Judge in the above case?

Periodical payments order – This is an order for maintenance which is to be paid after the final
decree. The Court is empowered to limit the duration of the maintenance to a specified time,
subject to the needs of the payee (the receiving party) and the circumstances of each case. This kind
of order will normally terminate upon the death of either party or the remarriage of the payee.
However, the Court may limit the duration of the order to an earlier time. Also, if there is any
subsequent change of circumstances on the part of either payee or payer, this order can be varied.

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Secured periodical payments order – secured periodical payments are ordered where there is
reason to believe that the party ordered to make the payment will not pay them. As its name
suggests, these are maintenance payments which are secured or guaranteed. However, it is pertinent
to note that the secured provision is not to be a general charge on all assets. The Court is obliged to
specify the assets on which security is to be given. The payments will continue until the death of the
payee (not the payer, the party making payment), or the remarriage of payee, or an earlier date as
specified by the Court. This order will only be imposed if there are reasonable grounds to believe
that the common periodical payments order will be ineffective to carry out in practice and there are
sufficient funds or assets of the payer whereby the payments can be secured e.g. where the payer has
sufficient means but has a history of failing to abide by order so made (as in the interim maintenance
order), poor record of financial irresponsibility, or has vowed to resist payment of maintenance if so
ordered.

Lump Sum Order – It is an order for the payment of a capital sum in the case when the payee is
entitled to one lump sum only. This order is closely related to the 'clean break' sought by a claimant.
The capital sum payable under such order can be paid in various installments. However, this order
cannot be varied subsequently, because it is an ‘once and for all' order that is intended to create
finality in litigation. The amount paid out is not recoverable in any event.

Spousal Maintenance Kenya’s Jurisprudence

M S V v S J V& another [2015] eKLR where it was stated that:

“In considering a claim for maintenance, regard must be had to the provisions of Article 45(3)
of the Constitution of Kenya which recognizes that “parties to a marriage are entitled to
equal rights at the time of the marriage, during marriage, and at the dissolution of the
marriage …it relates to and recognizes personal rights of each spouse to enjoy equal rights to
property and personal freedoms and to receive equal treatment without discrimination on the
basis of gender and without being shackled by repugnant cultural practices or social
prejudices. Article 45(3) is in harmony with Article 21(3) of the Constitution which enshrines

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equality of men and women and specifically states that “women and men have the right to
equal treatment…

…the age-old tradition in which men were deemed to be the sole bread winners and to carry
the burden of maintaining their spouses does not hold true anymore …

No spouse who is capable of earning should be allowed to shirk his or her responsibility to
support himself or herself or turn the other spouse into a beast of burden but where a spouse
deserves to be paid maintenance in the event of divorce or separation, the law must be
enforced to ensure that a deserving spouse enjoys spousal support so as to maintain the
standard of life he or she was used to before separation or divorce. The financial capacity of
the spouses has to be examined before the Court makes a finding as to whether a spouse
should pay maintenance and if so how much …”

It was further held that: -

“neither alimony nor maintenance should be paid as a matter of course. It should not be used
as a field where spouses cash in on their partners. It should be established that the party
claiming such alimony or maintenance is incapacitated to make his/her own earnings and
therefore deserves the support of the other partner.”

Ougo, J. expressed similar views in another High Court decision in P. M. A. V. vs. G. M. L.

[2016] eKLR where she stated that in seeking to ascertain maintenance, the court should have
regard to existing and potential means of the parties, their respective earning capacities, financial
needs and obligations, the duration of the marriage, the conduct of the parties prior to divorce, their
conduct that led to the breakdown of the marriage remembering that both parties have equal rights
under Article 45 (3) of the Constitution.

39. In order to properly and judiciously exercise its discretion when considering an application for
maintenance, the court must delve into the financial affairs of the spouses before deciding whether to
make an order for maintenance, and if so, the quantum….”

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…. The common law rules that govern post-divorce maintenance derived from Kenyan as well as
comparative case law indicate that the exercise by this Court of its discretionary power to award
maintenance must be informed by an examination of all the circumstance (sic) of the case including:
the present and future assets, income, and earning potential of the parties, taking into account their
ages and professional qualification; the financial needs and obligations of the parties; the duration of
the marriage and the duration of time in which the parties lived separately; the standard living prior
to the breakdown of the marriage; the contributions of the parties to the welfare of the family; and
the conduct, where relevant, of each party in relation to the eventual breakdown of the marriage.”

Compulsory watch:

✓ Life Sentence: Florida’s Alimony Problem Documentary ( total watching time 26:08)

Recommended Watches:

✓ Breaking Up With the Joneses (Divorce Documentary) | Real Stories- available on

You Tube (total watching time 1:15:08)

✓ Divorce Sharia Style (Islam Documentary) | Real Stories- available on You Tube
(total Watching time: 47:50)

Compulsory reading:
✓ Section 77-82 of the Marriage Act
✓ W.M. M v B.M.L [2012] eKLR
✓ M E K v G L M [2018] eKLR
✓ S M R v P H S [2013] eKLR

Reflection
Do the courts need to rethink their positions/application of the law in matters
concerning Spousal Maintenance?

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