The law provides a clear path to dissolving a toxic union and placing the child’s safety above all else.
I’ve been with my second wife since March 2018, although our marriage isn’t formalised. After separating from my first wife in 2014 due to her infidelity, I stayed with our three children.
Initially, my second wife was reasonable, and we built a home together, but things turned disastrous. She became emotionally abusive and physically harmed the children.
I had to take them away, and she sold my belongings before leaving. Recently, she gave birth to our second child after our first passed away last year.
Now, she threatens to abandon the infant with me. I don’t want her in my life anymore. I’m willing to support the baby, but I fear she may cause more harm. What can I do to prevent her interference?
Dear disturbed spouse,
Marriages, before obtaining a legal definition, are fundamentally relationships based on specific human principles such as love, happiness, companionship, comfort, and peace.
These values may vary depending on individual preferences and needs. The relationship is recognised by Article 45, Clause (1) of the Constitution, which states that it deserves recognition, protection, and promotion as the fundamental unit of the family.
Additionally, Clause (3) of the same Article grants equal rights to couples legally living as husband and wife.
This includes equal rights within the institution of marriage, covering aspects related to its formation, maintenance, and dissolution. According to the Marriage Act, which makes practical Article 45 of the Constitution, marriage is defined in Section 3 as the union of two adults who willingly choose to live together as husband and wife, in accordance with the fundamental principles that define marriage, as defined by this law.
Unless the unions you have entered into are faithful customary unions, where polygamy is accepted, they are simply indications of cohabitation.
The law mandates that all marriages must be registered, regardless of their type or legal framework. There are two legal options available to you and your estranged wife that could help alleviate the tension within the union.
If you are genuinely married, your message suggests that separation and potentially divorce may be necessary for both your peace and that of your child.
It is essential to remember that Article 53,Clause (2) emphasises that parents, the government, society, and organisations should always act in the best interest of the child.
From your conversation, it appears there is a concerning lack of focus on the child’s welfare, especially when the infant becomes an instrument of threat.
Children, particularly infants, must enjoy their human rights as they are inherently equal under the law, just like everyone else, regardless of their age. Article 27, Clauses (4) and (5), prohibit anyone or any state agency from using age as a basis for discrimination.
From the conversation herein, a notable lack is evident, especially when the infant becomes a tool of trading threats between the couple.
Approach the Court to address two main issues: The termination of the marriage and the determination of child custody, particularly concerning an infant who, in terms of child development, needs the mother, unless it is deemed to be in the best interest of the child otherwise.
According to Section 8 of the Children’s Act, the Court is guided by the principle of the child’s best interest, which restricts the judge or magistrate’s options.
This means that both parents have an equal opportunity to seek and receive custody rights.
It is also worth noting that this matter could potentially be resolved amicably between you and the child’s mother, provided that mutual respect, honesty, and decorum are maintained.
By doing so, you both can develop a parental responsibility agreement that benefits your child. In Kenya, marriage can be terminated in court, even when the emotional connection and safety between the couple no longer exist.
If the union fails to produce the desired results, which often serve as its foundation, Sections 64 to 78 of the Marriage Act outline all the legal grounds for dissolution.
Justice Reuben Nyakundi has repeatedly stated in his judgments that courts do not exist to force couples to remain together.
Regarding the matter of cruelty, it is important to recall Lord Stowel’s assertion in the case of Evans vs Evans, where he stated that proof must be provided of a reasonable apprehension of bodily harm.
This apprehension should be reasonable. The court should not wait for actual harm to occur. The concern must not stem merely from an irrational sensitivity of mind.
However, if after the separation process there is need to discuss the matrimonial property that you have alluded to, then the court may, by employing the Matrimonial Property Act, intervene on the issue regarding the sale of part of the property as alleged.
As for now, we can only speculate, and it is unjust to cast aspersions without facts.
