The Court of Appeal is split on whether women should pay men maintenance upon divorce in the event the women earn more.
The Court of Appeal judge Erastus Githinji could not agree with judges 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He said:”It is my humble view that the so-called traditional gender role has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is not therefore a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband...”
He observed that the country had accepted in Article 45(3) of the Constitution that marriage is made of equals, hence it would be unfair not to open doors for men to claim maintenance from their wives.
At the centre of the case is a university lecturer named MEK, who had been ordered by the High Court to pay her economist husband named GLM Sh20, 000 every month on account that she earned more than him.
The lecturer, who had accused her husband of adultery, also asked that he maintains her. In a counter claim, the former husband asked that the woman pays him Sh50, 000 as he had contributed to her career growth.
GLM told the court that he had not been working since 1990 and his former wife was a woman of means teaching at a South African University. He said he had only been doing voluntary work.
He also told the court he was diagnosed with a heart condition and treated; and that he had to take medication worth Sh500 daily. The two separated in 1996 and the case was filed in 2015.
Justices Okwengu and Mohamed said men should not tag along successful women expecting a windfall once their love goes sour. Okwengu said: “It would be against public policy to encourage a situation where a spousal maintenance order is granted to a man for the simple reason that the woman has proved more industrious than the man. The order of maintenance issued in favour of the respondent is nothing more than the sword of Damocles hanging over the appellant’s head to remind her of her failed marriage. Such an order is neither fair nor just”. Justice Mohamed was in agreement.
Okwengu and Mohamed ruled that it would be wrong to allow the respondent to treat the divorce as a windfall to improve his standard of living by extracting maintenance from the appellant. “Maintenance is neither a right nor an entitlement,” they said.
The three judges, however, unanimously agreed that the High Court erred by ordering the woman to pay her husband’s alimony as both of them did not have supporting evidence on each other’s income and wealth.