Ask a lawyer: Can he get spousal support upon divorce?

We were already discussing divorce when my husband lost his job. And now he tells me that he wants me to support him financially. Might the court allow this?

Yes, a spouse can request a court of law to issue maintenance orders from their spouses upon divorce. Both men and women are entitled to benefit from the maintenance orders in line with both the Constitution and the Marriage Act.

The court would even hear spouses with jobs seeking financial support if they prove that their meagre income cannot support their lives.

There can be several reasons why one spouse may be financially dependent on the other. For instance, there is an emergence of stay-at-home dads who may have given up work to care for the children or be unable to work due to illness.

It may also be that their spouse earns a high income and they mutually agreed that the other does not have to work.

The constitution provides that spouses are entitled to equal rights at the time of the marriage, during the marriage and upon dissolution of the marriage.

Therefore, equality in marriage must relate to support a struggling spouse at the time of divorce.

The law provides for several grounds which the courts should consider before issuing maintenance orders in favour of a spouse.

For instance, a maintenance order may be issued if a husband or wife has refused, deserted or neglected to provide for a spouse or former spouse. The order can also be issued during the course of any matrimonial proceedings in court.

The maintenance orders can however, stop following the death of a spouse or once the spouse that was being maintained is subsequently able to financially support himself or herself. The order can also lapse when the person who is being financially maintained re-marries.

However, the Court of Appeal was recently split on whether women should pay men maintenance upon divorce in the event the women earn more.

Court of Appeal Judge Erastus Githinji could not agree with his peers on the Bench – Lady Justices Hannah Okwengu and Jamila Mohammed - on who, between a man and a woman, should maintain the other.

Justice Githinji was of the view that the interpretation of the law on paying alimony is archaic and against men.

He said” It is my humble view that the so-called traditional gender role has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is therefore, not a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband.

In many developed countries, spousal maintenance is paid by one spouse (usually the higher earner) to the financially weaker one to support them following separation and divorce. 

If the higher earning spouse has surplus income after meeting their living expenses, this can be paid to the financially weaker spouse to help them to meet their living expenses.

Harold Ayodo is an Advocate of the High Court of Kenya