The battle to get a deadbeat father to pay up child support is never easy. It could take years, especially if you do not have a lawyer or if you do not know your way around the court systems and procedures.
Lack of knowledge on how to file for child upkeep has kept many women away from pursuing child support. There is also the social myth and stigma associated with taking a deadbeat to court because of the belief that mtoto huzaliwa na sahani yake. So how do you go about it?
To get a lawyer or not
Murigi Kamande, an Advocate of the High Court of Kenya, says that it is not always a must for you to get a lawyer. “You can successfully make a personal file at the children’s court,” he says. “Where a lawyer is engaged, the charges will be influenced by the kind of demands being made. For example, if the case is against an influential figure where demands are high, the charges will also likely be high,” he says.
Shared responsibility
In most cases, it is assumed that the burden of child upkeep lies solely with the child’s father. This may now change if the High Court decision by Justice Florence Muchemi sets precedence. The ruling states that a child ought to be maintained by both parents, and responsibility should be apportioned to each party according to their ability and the needs of the child.
“The child belongs to both parents and as such, they ought to take full mutual responsibility,” Justice Muchemi ruled in the case of a woman who was identified in court as DKM and a man identified in court as RMN. In her ruling, Justice Muchemi had invoked Article 53 of the Constitution, which dictates that children have a right to parental care, and protection, which includes equal responsibility of the mother and the father regardless of their marital status.
The child’s financial upkeep
Monetary support is not arrived at out of the blue. While the court may order the child’s parent to provide for them financially, it usually considers the financial means and ability of the parent involved. Additionally, the court will look at the present and past status of the child. This is the status that the court tries to uphold in its order.
A precedence-setting ruling by Lady Justice Ali Abida Aroni in 2020 declared that when it comes to financial support of the child, both parents will share the burden of raising the child equally after a divorce. Justice Aroni ruled that separated couples should carry out parental responsibilities of their children jointly, and should share the financial expenses of the child together.
“Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility.” Justice Aroni said, quoting Section 24 of the Children Act. However, one parent can be compelled by a court of law to be the bigger financial provider where income is proven and the other partner’s lack of income is also proven.
Needs and costs
Caroline Maina, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates says that you should consider the basic needs of your children when seeking child upkeep. These are, food, shelter, clothing, healthcare, schooling. “Make a summary of the ascertained children’s needs including their respective costs to form the basis of your claim in court,” she says.
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Noting that parental responsibility is supposed to be equally borne by the parents, you will need to pick out which of these needs you can comfortably meet for the children and which of the needs you need to have the court’s intervention to compel the father of the children to meet. “The amount to be assigned as maintenance from the children’s father will be at the discretion of the court, based upon the evidence and information given in your pleadings and the entire court proceedings,” she says.
How child support is determined
Caroline explains that the court will be guided by the income or earning capacity, property and other financial resources which you and the father of the child have or are likely to have in the foreseeable future. It will also be guided by the financial needs, obligations, or responsibilities which each of you has or is likely to have in the foreseeable future, and the financial needs of the children and the children’s current circumstances. “If the court gives a maintenance order, this order shall be enforceable even without an order for attachment of salary,” she says.
When he refuses to pay child support
Assuming that the father of the children does not comply with the maintenance orders issued and fails to remit funds as per the judgment, Caroline says that you will have the option to enforce the order by making an application for the attachment of his salary to the extent that is allowed.
“This avenue is available with respect to persons employed in the private or the public sector. Non-compliance with the maintenance order could be punishable by jail term,” she says. The amount to be attached does not exceed more than 45 per cent of his income. The court can also issue a warrant for imprisonment for a period of not less than five days and not more than four weeks.
