Before the promulgation of the Constitution in 2010, the law did not stipulate the fate of children born out of wedlock, in terms of maintenance and child support. Section 24 (3) of the Children Act, 2001 provided that where the child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other, the mother shall have parental responsibility at the first instance. Under Section 25, the father only acquired parental responsibility for the child if he applied to the court for it, through an agreement with the mother. Needless to say, the law was quite discriminative.
Currently, Article 53 (e) of the Constitution, provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.
This is also highlighted in the landmark case of “Zak & Another vs The Attorney General & Another (2013) eKLR”, wherein the petitioner challenged the Constitutionalism of Section 24(3) and Section 25of the Children Act. She argued that these sections infringed Article 27(1) of the Constitution, which states that every person is equal before the law and has a right to equal protection and equal benefit of the law. In line with that argument, Justice Mumbi Ngugi stated that it was unconstitutional for the Children Act place the responsibility of the children born outside marriage only on the mother. In this regard, the provisions of section 90(a) and (e) of the Children Act were unconstitutional, considered alongside the provisions of Section 24(3), which placed the responsibility of the child on the mother at the first instance where the mother and the father are not married.
Justice Ngugi then proceeded to rule that in line with the provisions of Section 7 of the Sixth Schedule of the Constitution, the Children Act must be read as imposing parental responsibility on both of their biological parents, whether they were married to each other or not at the time of the child’s birth.
Over the years, the dirty tugs of war during child custody cases and child maintenance cases have led these specific family law matters nicknamed the “maintenance business”. Every single case is different and there are no accurate answers in the case of divorce or out-of-wedlock conceptions.
One main reason child support creates such controversy is due to the fact that partners feel an awfully high level of resentment and anger when they are ordered to pay former spouses or partners every month. A false illusion people have of paying child support is that they are paying their former partners, which is untrue in most cases.
Divorce is expensive, which is why it has been christened the rich man’s struggle. A number of couples have end up in financial doldrums due to the cost of divorce cases. The emotional and financial torture often leaves those involved emotionally constipated.
Many have come to believe that the trend has been to haul wealthy men to court to extract money out of them, while low-income men are seldom sued. This leads to the question, has child custody become an enterprise?
It is true that women manipulate men after deliberately falling pregnant, especially by prominent or wealth men, for financial benefit. However, contrary to what most may believe, the process is quite straightforward, and courts work to ensure it doesn’t turn into a business.
In essence, it is the bitterness between the couples, out of the spite such circumstances create, that leads to the false impression that the women involved are after money. Objectively it is the cost of life – in terms of rent, school and medical fees and other basic needs, when a child is involved, that compel women to go to court to force unwilling men to look after them and their children.
Often, women are not aware of their rights when it comes to child maintenance. Even where the man is not wealthy, the excuse of unemployment is not taken into consideration; no matter how low one’s income, the court can still to demand that monthly child upkeep, however little, be paid.
According to Lucy Gitari, Chief Magistrate in the Family Division at the Makadara Law Courts, some of the main challenges in this area are the high levels of default and the fact that the court cannot oblige the parties involved to appear in court – a number of parents decide not to go to court, despite having being served.
“Prevalent illiteracy is a point of concern. To mitigate this, the court plans to introduce open days and judicial matches to educate & sensitise the general public on their rights and those of their children” says Gitari.
Do women pay maintenance?
Very few women do. The exception arises where the couple have shared custody, and both have well-paying jobs to cater for the needs of their children.
Family Law attorney Judy Thongori describes elements which must exist in order for child maintenance and custody to run smoothly. First, there must be an emotional level of participation for the parent in question to feel the need to provide for the child.
Second is physical participation, to ensure the child knows who the father is; this way, a bond is created between them as well. Third is financial participation, to be able to cater adequately for the needs of the child. If these elements are lacking, maintenance remains locked.
“One loophole in Family Law is that there are no guiding tariffs, which make it rather difficult to make a decision on how much money to pay in specific circumstances. Currently, a decision is made on a case-by-case basis, which makes it very complicated.
“This can be corrected by developing proper jurisprudence and introducing a tariff system,” she explains.