Divorce does not win a spouse automatic right for maintenance allowance, the High Court has decided in a judgment. File
What you need to know:
The plaintiff – only identified in the petition as Mr WEL to safeguard his privacy – is facing a counter-suit from his estranged wife, Mrs JMH, in which she is demanding that the marriage be dissolved and she be awarded maintenance at the rate of Sh60,000 per month.
Divorce does not win a spouse automatic right for maintenance allowance, the High Court has decided in a judgment that legal experts say has set a new precedent. Maintenance is only warranted where a spouse has proved incapable of supporting him or herself, and must not be used to the detriment of either party, the High Court said in Mombasa.
The decision was made in a divorce petition in which a German national sought to divorce a Kenyan woman he met in Mombasa in 2010 and married a year later. The plaintiff – only identified in the petition as Mr WEL to safeguard his privacy – is facing a counter-suit from his estranged wife, Mrs JMH, in which she is demanding that the marriage be dissolved and she be awarded maintenance at the rate of Sh60,000 per month.
Mr MEL met Mrs JMH as a widow and a mother of two at a popular hotel resort in Mombasa where the woman ran a business. The two became friends and lived together whenever the petitioner visited Kenya from Germany. On October 20, 2011 they solemnised their union at the Registrar’s office in Mombasa.
The couple then moved into a flat in Mtwapa area but barely three months later in January 2012, Mr MEL left their matrimonial home and filed for divorce citing drunkenness and infidelity by his wife.
In her cross-petition, Mrs JMH also claimed that her husband was cruel and adulterous and sought to divorce him. Neither couple could prove their claims against each other, even though Justice Maureen Odero observed that the marriage was “irretrievably broken down”. The court, however, observed that a claim by Mrs JMH for maintenance after the divorce was not justified.
In her petition, she claimed that the petitioner provided fully for their expenses such as rent, food and utilities whilst they were married. Mr MEL told the court that when he first met the respondent and moved to Kenya from Germany, he sold his home in Germany and realised about 5,000 Euros (Sh589,000 in today’s exchange rate).
He said he spent all this money on Mrs JMH, her children and in improving her mother’s rural home. When the couple met, Mrs JMH was running a salon and massage parlour at Sun ‘N’ Sand Hotel.
A letter from the German Pension Authority dated July 1, 2011 and presented to the court showed that the monthly pension due to Mr MEL is about 720 Euros (about Sh85,000). This is barely enough for the petitioner to rent a home, buy his food and given his old age cater for any medical needs, the court observed.
Sufficient
On the other hand, Mrs JMH told the court that she engages in various businesses that give a good income. She sells charcoal, has a vegetable kiosk and sells firewood. From all her businesses, Mrs JMH estimates that she earns roughly Sh50,000 a month.
“This, in my view, is sufficient to enable her live comfortably and to meet all her needs. No doubt this is why she had sought no financial help from the petitioner for the past two years. It is clear from the material before me that the respondent is quite capable of (and indeed has been) supporting herself and her children,” Justice Odero said in a ruling delivered on August 1, 2014.
She said maintenance will only be ordered where it is warranted, such as in cases where a spouse is incapable of supporting herself or in an instance where one spouse cannot meet all their needs.
“A spouse who is capable of supporting himself ought not to be allowed to shirk this responsibility and turn the other spouse into a money machine or an ATM,” Justice Odero said. “Thus no spouse has an inherent right to be maintained at the detriment of the other.”
Mr Aggrey Mwamu, an advocate of the High Court, said the judgment would help provide clarity in an area often misunderstood by spouses seeking divorce. “The ruling helps to clearly differentiate the grounds in which one can claim for support or maintenance. While claims for child support or division of matrimonial property are clearly provided for, one has to prove the need for maintenance by the other spouse” Mr Mwamu said.
Ms Odero, however, declined to make a ruling on the fate of Mrs JMH’s children, arguing it wasn’t within her purview.
“The question of whether or not the petitioner did acquire parental responsibility for the two children is one which ought to have been placed before the Children’s Court as the proper forum to make such a determination at the first instance. I will, therefore, make no pronouncement on this aspect,” she said.
