By Sam Alfan.
Divorce does not come with automatic maintenance.
Parting ways formally with a former partner does not guarantee one monthly upkeep, the High Court has ruled.
Justice Hellen Namisi of the Family division of the High Court quashed decision by the magistrate directing a man to pay her former wife monthly maintenance of Sh50,000 saying the findings of trial court that the former wife was destitute is a palpable misapprehension of evidence.
Justice Namisi said that maintenance is not a right to be claimed as a matter of course.
The judge said the fee is a remedy intended to provide a safety net for a spouse who is financially disadvantaged by the marital breakdown and is unable, for valid reasons, to support themselves.
She added that the burden of proof lies squarely on the applicant to demonstrate the need for maintenance.
“This requires such an applicant to place before the court sufficient material to prove their financial position including their income, assets, expenses and liabilities,” said the judge.
Judge Namisi the information would enable the trial court to make an informed decision on whether, from evidence on record and applicable law, one is entitled to alimony or maintenance or not and if so, how much?
“Having keenly perused the Record of Appeal, I note that there are no Affidavits of Means filed, despite the trial court’s directions to file the same. Since the Respondent did not raise any objection on the completeness of the Record, it is assumed that no such Affidavits were filed before the trial court,” observed the judge.
The judge observed that the question that arises then is if the trial court’s decision to award alimony to was supported by evidence.
“This finding is in direct and irreconcilable contradiction with the ex-wife’s own sworn testimony. In her testimony, she indicated that she is a business woman. On cross examination, she added that she is a tailor by profession,” ruled Justice Namisi.
The Judge noted that the term ‘destitute’ connotes a state of utter penury, a complete lack of means for subsistence.
The court said a person who runs a business and possesses a professional skill, however modest their income may be, cannot be described as destitute.
Justice Namisi ruled that beyond her oral plea that she had no help, the woman placed no evidence before the trial court to substantiate her need to maintenance.
“The record is entirely bereft of the financial particulars of her business and expenses necessary to justify an award of Sh. 50,000 per month. She failed to discharge her burden of proving her need for alimony,” family court ruled.
The former husband challenged the decision of the magistrate court that directed him to pay his ex-wife Sh50,000 monthly maintenance.
In his appeal, the man argued that magistrate erred by making a finding that the ex-wife is entitled to the monthly maintenance fee. The lower court had directed the money to be paid before the 5th day of every month.
He faulted the magistrate decision arguing that by awarding alimony to the ex-wife whereas the same was not pleaded by any of the parties.
The man faulted the magistrate for awarding alimony to the woman whereas there was no evidence adduced to justify the same.
