How is child support determined in divorce?

Dear Reader,

Before alluding to child-specific laws, the readers need to know that right to the inherent dignity of all persons, including children, is given in Article 28 of the Kenyan Constitution. Further, the Constitution at Article 53 (2) and consequent statutory laws, in particular, Section 4(2) and 3 (b) of the Children’s Act, direct that a children’s best interests are of paramount importance in every matter concerning them.

 On issues of divorce, it is mandatory to invite Article 53 (1-e) of the Constitution, which grants every child the right to equal parental care and protection, irrespective of whether such parents exist in a marriage or not.

This is the first consideration the court makes when faced with an issue of child support, whether, in dissolution proceedings or just a child support petition. The other foundational principle is found in Article 43 of the Constitution, which offers every person the right to the highest attainable health standards, including healthcare services and reproductive healthcare, accessibility to adequate housing, with reasonable standards of sanitation.

The Article further offers the right to access sufficient food of acceptable quality and for one to be free from hunger, similarly access to clean and safe water, besides the right to social security and education. Similar provisions specific to children are emphasised in Article 53 (1-a to c). Since the child is dependent, it becomes the responsibility of the parents and government to provide such services, which are defined as rights, to avoid situations where people and government claim lack or absence of funds to support.

Child support

The law anticipated two essential things on parenting: first, the likelihood of a child being borne of irresponsible parents or parents: and second, the probable misunderstanding and difficulty for parents to agree on independent roles when their relationship experiences turmoil, become unstable and likely unreliable to the well-being of a child, which is why Article 53 (1-e) is categorical on equal parental responsibility.

If moved to determine child support will, the court first recognises the absence of a wilfully written Parental Responsibility Agreement. If there is proof that such an attempt failed to materialise, it may proceed so. If not, the court will likely request a Court Annexed Mediation process to lead to parental agreement on such matters, through the help of Directorate of Children services if favour and will prevail between the feuding parents.

The court in determining child support will be guided by the concept of custodial and non-custodial parenting. Since the custodial parent will physically stay with the child, the threshold set by law is for the non-custodial parent as espoused at Section 94 of the Children Act, this includes: first, the court considers, income or earning capacity, property and other financial resources which the parties or any other person, in whose favour an order can be made, have or are likely to have in the foreseeable future; second, the financial obligations or responsibilities which each party has or is expected to have in the foreseeable future; thirdly, the financial needs of the child and the child’s current circumstances; fourth, the income or earning capacity, if any, property and other financial resources of the child: fifth, the court will pay attention to any physical or mental disabilities, illness or medical condition of the child: sixth, the manner in which the child is being or was expected to be educated or trained: sixth, the court scrutinises the circumstances of any of the child’s siblings: seventh, the court will recall the customs, practices and religion of the parties and the child: eighth, will be whether, the parent from who support is sought has assumed any such responsibility and for long, and in what manner: ninth, will be whether such parent assumed responsibility to maintain the child without first knowing if he or she were the real biological parent of the child: and tenth, the court will review the liability of any other person to maintain the child and the liability of such person to maintain other children.

As elaborated, the court mainly relies on the current circumstances when determining the amount of child support payments.

If such conditions change, one can go back and request the court to modify child support terms. Note that the change in circumstances must be significant to justify a review of the child support orders. There are consequences for non-remittance or payment of child support. If the party with such responsibility fails to remit payments despite child support orders, one may request the court by a petition of contempt of court to enforce its orders.

The court will summon the respondents to explain the reasons for non-payment. The court can enforce child support orders by issuing orders to recover the arrears, attachment of the respondent’s property or salary, prevent the respondents from selling or transferring their assets, or commit the respondent to jail. Remember, every child has right to support irrespective of how they came to be, cohabitation or marriage. The result is constant, uncontested parental responsibility.

Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected].