After 3 or more years of marriage, an aggrieved party to a marriage may petition the court for divorce. This dissolution could be based on various grounds such as adultery, cruelty, desertion for more than 3 years, exceptional depravity, or the irretrievable breakdown of the marriage. While the divorce process may be understandably difficult and emotionally taxing, it is important for parties to understand their rights and responsibilities a dependent former spouse and any children of the relationship.
The Marriage Act of 2014 permits individuals to form an arrangement regarding spousal maintenance during and after divorce while the Children’s Act outlines parental responsibility, custody, and parental care and protection which is in the best interest of the child.
Spousal Maintenance Agreements
These agreements are provided for under Section 77 of the Marriage Act, 2014. A maintenance agreement can be granted when; a spouse neglects to provide as required for a dependent spouse, if one spouse has deserted the other for as long as the desertion continues, throughout the course of any matrimonial proceedings or upon granting of a decree of separation or divorce, and finally if after making a decree of presumption of death the presumed-dead spouse is found alive.
Property division and spousal maintenance agreements may be agreed upon during divorce proceedings. It is often more favorable to parties to make these agreements amicably, however if need be, they can be court ordered during contentious divorce proceedings.
It is the court that sets the amount and duration of spousal maintenance. To settle on a figure, the courts factor in the standard of living during the marriage, the type of income earned over the course of the marriage by both parties, and the circumstances and surrounding conduct of the parties in the course of the marriage.
Terms Of A Maintenance Agreement
A maintenance agreement ought to include the following terms:
- Tailored specification of the maintenance amount to be provided by one spouse to the other during divorce proceedings, post-divorce decree issuance, or for the duration of separation.
- Definition of circumstances leading to the termination of the maintenance agreement. This clause typically highlights cessation of payments upon remarriage of the party receiving maintenance.
- Clarity on whether the maintenance will be paid as a lump sum or through installments.
- Protocols for addressing changes in income for either party.
- Consideration of the impact of additional financial assistance provided by one spouse to the recipient of spousal maintenance.
- Protocols and procedures for addressing any overdue payments
Lapse And Revocation Of Maintenance Orders
Maintenance orders may sometimes lapse/end under specific conditions as provided for in section 78 of the Marriage Act. These conditions include: If the maintaining spouse dies and the maintenance was unsecured, if the beneficiary spouse dies, if the supported individual becomes capable of self-sufficiency and finally upon the remarriage of the beneficiary.
Revocation of maintenance orders is also a possibility if the orders were obtained through fraudulent means. Section 80 of the Act provided that the court holds the authority to revoke or modify existing maintenance orders whether they were court ordered or made through agreements if the granting of the orders was based on misrepresentation, mistake, or there has been a significant change in circumstances.
Maintenance Of Children
It is the duty of both parents to take care of the child and act in his/her best interest. Section 31 of the Children’s Act lays a duty of equal responsibility of both parents to maintain the child and provide it with adequate physical needs such as food, shelter, clothing and medical care. It also creates the responsibility to protect the child from neglect, and the requirement to provide for moral and psychological needs as well as identity. In Section 32, the Children’s Act ascertains that neither parent has a superior claim to the child whether the child is born within or outside wedlock.
The Children’s Act grants the Children’s court jurisdiction to hear matters regarding the rights of children in Section 91. The Court has power to hear matters on custody and maintenance and is therefore responsible for granting orders on those issues based on the best interests of the child.
Legal Position On Child Custody
Child custody is divided into 2 types; legal and actual custody. Legal custody bestows rights and responsibilities to the parents/guardian of a child through a custody order. Only persons who have legal custody of a child are obliged to pay maintenance and therefore the court often grants legal custody to both parents. Actual custody denotes the day-to-day care, control and residence of the child. It is determined and assigned by the court designating the primary caregiver to the child.
In determining the eligibility for a custody order, the court considers various factors. These principles are provided in Section 103 of the Children’s Act and include; assessing the conduct and preferences of the child’s parent or guardian, as well as the wishes of relatives and the child themselves, taking into account their age and level of understanding. Additionally, the court evaluates whether the child has experienced or is at risk of harm if the order is not granted, along with considering community customs and the child’s religious affiliation.
The court also assesses based on the existence and implications of whether a care, supervision, personal protection, or exclusion order concerning the child was ever in existence or remains in force. Finally, the court examines the circumstances of any siblings or other children in the household.
Nevertheless, in cases where a custody order grants custody of a child to one parent or guardian, the Court may order that the non-custodial party retains all or some rights and responsibilities concerning the child, except for the right to physical possession.
Conclusion
The complexities of divorce and child custody proceedings can be emotionally challenging for all parties involved. However, understanding the legal frameworks and rights outlined in the Marriage Act of 2014 and the Children’s Act is crucial for ensuring fair outcomes and the well-being for parties negatively impacted by the dissolution of marriage. Maintenance and custody agreements, both serve as vital tools for providing financial stability and security for vulnerable people post-divorce. However, while the courts plays a significant role in determining the terms of these agreements, parties are encouraged to negotiate amicably whenever possible.
DATE: 19th March, 2024 BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke