By Irene Maithya
Families within and without the marriage institution break down. Relationship breakdown between parents should not affect the respective duties and obligations of the separating parents towards any child of the relationship. This paper asserts that a child should not be punished on account of his parents’ inability to continue with their family union.
The law provides for mechanisms that seek to ensure that the rights of a child who find themselves in this unpleasant environment are not denied their basic decencies.
This paper examines the principles, law and emerging practice relating to the protection of the rights of children in situations of family breakdown. The paper also appraises the concept of ‘adult or spousal maintenance’ as introduced in the new Kenyan marriage laws. The emerging issues in child and adult/spouse support are highlighted and viable solutions suggested at the end.
Child maintenance during Family proceedings
Child support is also known simply as child maintenance rights. It is anchored in the best interest principle.When it comes to maintenance, the Kenyan law is fairly straightforward and rich in jurisprudence. It is in the application of the law that difficulties lie. One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person/s obliged to pay. The obligation does not rest solely on the father; it rests on both parents, according to their respective means. The fact that the father can adequately support the child on his own does not mean that the mother can avoid contributing.
Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must institute action in his/her personal capacity and demonstrate that there are special circumstances that warrant support beyond their eighteenth birthday.
The Legal Protection
The 2010 Constitution transformed Kenya from a dualist to a monist State by providing that all treaties ratified by Kenya would form part of the law of Kenya. This means that there is no longer need for implementing legislation and international treaties can now be invoked before the courts, tribunals and administrative authorities in the Republic.
At the international level, Kenya has ratified the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The legally recognized and protected interest of the child to secured access to basic decencies of life: children’s economic and social rights. Child support is normally addressed by the provision of economic resources. These rights are codified under the CRC by dint of articles 6 and 27, further by the ACRWC and at the domestic legislation by Children Act (2001) sections 4,5,6,7 and 9.
Basic principles that govern child support
The Best Interest Principle
A court will use different factors when it comes to interpreting the child’s best interests. This may vary depending on the uniqueness of each case. The judges will generally consider factors such as each parent’s financial situation, the child’s special needs, each parent’s ability to provide for the child’s emotional, physical, educational and social needs and the child’s preference—if the child is of a sufficient age and maturity.
Children come first under the ACRWC. Article 18(2) expressly states that children should be the first to receive support when things fall apart. Under the Geneva Declaration, 1924 Principle 3 also reiterates this provision by noting that the child must be the first to receive relief in times of distress: child support takes precedence over adult dependency claims.
At the domestic level, there is equal responsibility of parents in addressing the economic needs of the child regardless of marital status. The best interest of the child in the context of the capabilities and resources of the parents is enshrined under Art. 53(1) (e) of the Constitution 2010 as read together with ss. 4(1), (2) of the Children Act.
Child support payments should not be diverted or misused for care-giver’s personal gain or ulterior motives eg. enrichment, settling scores etc.
Child support rights should not stop at 18 years: must extend to cover the period required for the child’s human capital development: Children Act 2001, s. 28
No child shall be deprived of maintenance by reference to the parents’ marital status: family breakdown not fatal to child support. Relationship breakdown between parents should not affect the respective duties and obligations of the separating parents towards any child of the relationship: a child should not be punished on account of his parents’ inability to continue with their family union. This principle is enshrined by Article 18(3) of the ACRWC and the Children’s Act.
Enforcement of child support
The Jurisdiction and Procedure of enforcing child support are vested in the Children’s courts by dint of the Marriage Act 2014, s. 85 and the Children Acts. 73(a). With respect to legal aid section, 78 of the CA appears to exclude access to legal aid except in criminal proceedings
Jurisprudence on Child Support
Previously under the Kenyan laws, the mother was deemed to have parental responsibility over the child at first instance The position of joint responsibility of both parents whether married to each other or not, is guided by Article 53 (e) of the Constitution which provide 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 provision was upheld in a landmark case of Zak & Another vs. The Attorney General & Another (2013) KLR. In this case, the petitioner challenged the Constitutionalism of Section 24(3) of the Children Act and Section 25. 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 placing 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 places the responsibility of the child on the mother at the first instance where the mother and the father are not married.The judge then proceeded to find that in line with the provisions of Section 7 of Schedule 6 of the Constitution, the Children Act must be read as imposing parental responsibility on both of their biological parents, whereby they were married to each other or not at the time of the child’s birth.
Some jurisdictions such as South Africa provide for spousal maintenance during family proceedings. Although women and men are equally entitled to seek maintenance awards, in practice, for historical reasons, the majority of cases at present involving maintenance are brought by women. For this reason, there is a wide perception that usually alludes to the woman as the one seeking maintenance. Spousal maintenance is a fairly novel concept in Kenya having been introduced recently by the Marriage Act, 2014.
Legal Protection of Adult Maintenance
Neither spouse has a statutory right to maintenance. The language in the Marriage Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such.
Sec 77 of this Act provides that a court may order one to maintain a spouse or former spouse during the course of any matrimonial proceedings. It is interesting to note that the Act further provides that the Order of Maintenance is to last until death of the spouse (unsecured); death of the spouse in whose favour it was made (secured); or the person being maintained is subsequently able to support himself or herself.
Revocation and variation of maintenance order
The order can be set aside, where the court is satisfied that the adult maintenance order was obtained as a result of a misrepresentation, mistake or where there has been a material change of circumstances. The court may vary terms where there’s a material change of circumstances despite any provision in the maintenance order itself.
Jurisprudence on Adult Maintenance
Currently, there is no case law on the issue of adult maintenance during family proceedings; this being a fairly new area. It will be interesting to see how the Kenyan courts will interpret this provision. However, in other jurisdictions such as South Africa, the courts take into account several factors. Factors taken into account include; the financial needs and obligations of the parties, the best interests of the spouse’s children, the childcare responsibilities of the dependent spouse, the high rate of inflation and the way in which each party conveyed his or her financial position and needs. It is important to note that the interests of the child are a key factor in determining spousal maintenance.
The South Africa’s Supreme Court of Appeal in the case of EH v SH 2012 (4) SA 164 (SCA) found that a spouse claiming maintenance must establish a need to be supported by the other spouse and that if no such need is established, it would not be “just” for a maintenance order to be issued. Therefore proving a need for maintenance is vital for obtaining maintenance.
Conclusion and emerging issues
Child support and Spousal maintenance can be abused and used as a tool of revenge or punishment by one spouse. In some instances the Applicant eg. the mother may not acknowledge the equal obligations and contribution of the custodial parent and often they tend to be one-sided claims. They can be abused to fight and punish the man for the failed relationship. As such there is need to rethink creative strategies to reduce the adult’s heat from child support claims proceedings.
This polarization can be reduced by neutral Next Friend – an independent professional, such as a civil society.
In addition to this, there are limits of family child support due to financial constraints. This was demonstrated in the case of Susan Mwita Mutongori v R where the child’s father was in remand prison for robbery with violence and the mother unable to afford to feed the child was said to have strangled her child to escape the burden of child support. There is need on the part of the state to step up efforts on family planning education, information and services.
Finally, it is important to note that there is no supervision of money received towards child support. There is no strict requirement for accounting for child support funds: no guarantee the child benefits and therefore the funds may be misused rendering the child more vulnerable and helpless. There is need to reform this and introduce a supervision mechanism for parties and Courts to attach conditions to account for funds received as part of the legal process of protecting child support rights.
Irene Maithya LL.M. (Pretoria), LL.B. Hons. (Moi), Dip. Law (Kenya School of Law), is an Advocate of the High Court of Kenya and Lecturer in Law at Moi University School of Law