The judge assigned to our case is my ex-wife's relative.
My husband recently found a job after being unemployed for some time. During his unemployment, I was solely responsible for supporting our family. Last week, I spoke with him about contributing to our children’s school fees.
He said he needs about six months to pay off his debts and organise his finances before he can help with family expenses, and asked me to continue managing as before. I am now considering separation. Can I apply for child support from my husband while still married to him, or is divorce required first?
Children are protected and empowered by the law. Their rights, as outlined in Article 53, Clause 2, and Section 8 of the Constitution and the Children’s Act of 2022 respectively, prioritise their best interests above all else. Every action or inaction—by individuals or institutions—must uphold the best interests of the child, regardless of the circumstances facing their parents.
It is important to maintain legal objectivity, especially when discussing marital disputes. The law serves as an impartial guide, distinguishing between thoughts, intentions, offences, and remedies. Article 22 of the Constitution affirms that every person, regardless of status, has the right to sue and be sued. Article 27 further guarantees equality before the law and equal access to legal protections.
This means everyone can seek legal remedies in court, no matter their status, background, gender, nationality, race, marital status, health condition, or any other identity, as protected by Article 27(4) and (5).
The law treats divorce, child support, property division, and other marital matters as separate legal processes, even though one can file them in a single application. Article 53(1)(e) of the Constitution requires both parents to provide for their children, regardless of their marital status or relationship to each other.
Parental responsibility ends when one turns 18, though exceptions exist under special circumstances.
Child support is independent of whether the parents are married, separated, or in other unions. In legal terms, child support and divorce are distinct issues, and one does not depend on the other, regardless of any conflict or connection between the parents.
To seek child support, the petitioner must show that the other parent has failed to meet their legal and social parental responsibilities. Child maintenance cases often involve custody disputes, reflecting a breakdown or ongoing breakdown in the parental relationship. Such situations can make objective decision-making difficult. In these cases, the court will first determine custody based on the criteria set out in Section 101 of the Children Act of 2022.
The court’s primary consideration is the child’s well-being and rights. Section 8 of the Children’s Act and Article 53(2) of the Constitution serve as the main legal references for judges. While the court may consider the wishes and conduct of the parents, these factors are only relevant if they align with the child’s best interests.
This case highlights a strained parental relationship and a father’s lack of consideration for the child’s welfare. When appropriate for the child’s age and maturity, the court may hear the child’s wishes and preferences, and may also consider input from relatives genuinely concerned for the child.
The court will assess whether the child has suffered, or is at risk of suffering, harm in the care of either parent. Cultural background and religious beliefs are also considered, as they can influence the child’s upbringing.
Child support is determined after custody is decided, based on the principle of equality in Article 53(1)(e) of the Constitution and Section 31 of the Children Act.
Parents who are committed to their child’s best interests can establish a Parental Responsibility Agreement (PRA) without court intervention, as long as the agreement complies with Sections 31(2)-(4) and prioritises the child’s needs.
The Supreme Court of Kenya, in Mutheu Agatha Khimulu v Raheem Mehdi Aziz Azad & 4 others (Petition No. E003 of 2022), affirmed that PRAs are legally binding and enforce the law.
A PRA can only be terminated by a court order from a competent jurisdiction, or through an application made by the child named in the PRA or by someone with parental responsibility, as determined necessary by the court.
Married couples do not need to divorce to petition for child support. The procedures for divorce are detailed in Sections 64 to 75 of Part X of the Marriage Act. However, it is important to note that child custody can be requested when a marriage breaks down, whether through divorce or legal separation.
