Family Law Assignment

Question 1

a) Ahmed Mutuku has met the love of his life- Naliaka. The two have decided to get married. Naliaka is undecided about whether to convert to Islam, Ahmed's religion, and marry under Islamic law of marriage and divorce. Ahmed does not wish to compel her, and is willing to settle for a civil marriage, especially if her Christian family is opposed to her conversion to Islam. Being a prudent man, however, he would like to know what they each separately stand to lose or gain by choosing to marry and regulate their family affairs under either Islamic law or the civil marriage and divorce system. Write an opinion advising Ahmed and Naliaka on this issue. (15 marks)

b) One year prior to meeting Naliaka, Ahmed Mutuku had just ended a three-year cohabitation with Syovinya. Ahmed's father had made the customary visit to her family to inform them of the relationship, but no further steps were taken toward formalizing marriage. Together they have a son, now four years old. Syovinya had brought with her into the relationship a daughter, now 18 years old, whom Ahmed supported along with her half-sibling during the cohabitation. He now sends intermittent support to them on request. Ahmed would like to put things in order before he enters into marriage with Naliaka. Advise him on:

i) The legal status of his relationship with Syovinya; (5 marks)

ii) His legal rights and obligations concerning his four-year old son and Syovinya's 18-year old daughter; (5 marks)

To what extent would your advice under (ii) above differ if you were applying the Children Act 2001 rather than the Children Act 2022? (5 marks)

Question 2

Shirley and Victor were married for 30 years. They divorced in November 2023. Shirley has filed a case in the High Court seeking division of the matrimonial property. Shirley was a primary school teacher for the first 10 years of their marriage after which she resigned to take care of the children, her husband and the home. Based on their agreement, she contributed towards buying the furniture, kitchen accessories and groceries and management of the household. Victor on the other hand has always worked for a Non-Governmental Organization (NGO) and earns a salary of Ksh 500,000. Mortgage payments for the matrimonial house in Matasia were made from Victor's salary. Victor has always assured Shirley that while the matrimonial home was paid for by him and registered in his name, it is as much hers as it is his. After resigning from her teaching job, Shirley also helped to run a business they established together with Victor which sold imported ladies and men's clothing and footwear. The business was registered as Shirvic, a limited liability company with Shirley and Victor as the only directors and shareholders. While Victor provided the initial capital, Shirley managed the business while Victor worked for the NGO. The company made profit and expanded under Shirley's management. Profits from the business were used to buy 1 hectare of land in Ngong which was also registered in Victor's name. Victor assured Shirley that despite his sole registration, the land was as much hers as it was his. Shirley later learnt that Victor had transferred the land to the company without consulting her.

Victor further inherited a piece of land located in Aljororok from his father. They have been using the said land for farming to feed the family, selling the excess produce, with Shirley supervising operations at the farm.

In her petition to the High Court, Shirley is claiming the following;

i) A 50 percent share in the matrimonial home.

ii) A half share of the Aljororok land.

iii) Half of the 1-hectare piece of land in Ngong.

iv) Half of the value of Shirvic Limited.

Shirley backs up her arguments by referring to Article 45 of the Constitution and the provisions of the Matrimonial Property Act 2013.

On the other hand, in his cross petition, Victor is seeking a 100 percent share of the matrimonial home on the basis that he paid for it solely, and it is registered in his name. Victor too bases his claim on the Constitution and the Matrimonial Property Act 2013. Victor also seeks to fully retain the full value of Shirvic Ltd, as well as the 1-hectare piece of land in Ngong bought with the proceeds from the business. He also categorically states that the Ngong land is registered in the company name and cannot be considered part of the matrimonial property.

As the judge hearing the above petition, give your verdict on each claim, supporting your verdict with relevant authorities. (20 Marks)

Question 3

Zak and Lydia have three children named Charlotte (10 years old), Raven (11 years old), and Peter (19 years old). Charlotte and Raven attend a private school while Peter is a second-year student at Lund University. Zak and Lydia have just divorced. Lydia works as a company secretary earning Ksh 300,00 monthly while Zak earns Ksh 400,000 a month. One ground for the divorce was Zak's adultery. Zak has two other children with his mistress. Zak supports the children born out of wedlock.

Charlotte, Raven and Peter are beneficiaries under a trust established by Zak's late father, their grandfather, that generates an income of 1 million shillings per year for each child. Their financial needs go beyond 1 million per year, and additional expenses have previously been met by their parents Lydia and Zak. Lydia is seeking child maintenance orders for Charlotte, Raven and Peter from the court. In her prayers, she asks the court to order that 75% of Zak's income should be directed towards Charlotte, Raven and Peter's schooling and general upkeep. Lydia has offered to pay for the food and clothing for the children.

a) As Zak's lawyer, advise him on the relevant legal principles governing child maintenance in Kenya based on the above facts and the likelihood of success or otherwise of Lydia's case. (12 marks)

b) Discuss whether the court should order Zak to pay 75% of his salary towards the maintenance of Charlotte, Raven and Peter. (8 marks)