My wife abandoned me and our daughters

My wife walked out on me three months ago and left me with our daughters. Please help. She has a good job, and I don’t. I am taking care of our daughters alone. How can I compel her to support the family and also have a relationship with our children? I am desperate.

Dear Distressed Husband,

This legal response challenges long time cultural stereotypes about men and women. Equal opportunities such as employment, besides non-discrimination even with a clear division of labour between men and women, has not reduced gender assumptions that prevail the institution of marriage.

It remains an unspoken and largely unwritten law for men to provide, especially those who are husbands. Even then, those who are just fathers are expected to. The drafters of the Kenyan Constitution had this dilemma in mind, and crafted Article 45 (3), which states: parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. It is believed marriage brings forth benefits and duties that are of economic, social and emotional nature, often ring-fenced by the law.

Sometimes, these benefits and accompanying burdens are never halted either by separation, divorce or death. In these circumstances, is it possible that your wife, though you seem separated, has any obligation regarding the responsibility of children that are a product of your loins?

What we must be reminded of is that the law favours children. This is because minors are assumed to be vulnerable, dependants, and often powerless, even though the law deems the question of powerlessness differently. The Constitution at Article 53 (2) emphasises that any action, program, decision, and love, even handling a misunderstanding between two feuding parents, must be in a child’s best interest.

There are three circumstances under which issues of parental responsibility arise. The first is where a parent applies to the court for parental responsibility against one who has either absconded or is a no-show parent; the second is where the father and mother of the child enter into a parental responsibility agreement recognising a parent’s parental responsibility midwifed by Children officers in the locale of the child; the third, is where the father either acknowledges paternity of the child or where has maintained the child. Parental responsibility, according to the administration of justice processes, can only be sought after in court in cases where civil non-litigation mechanisms have failed.

You have a right to move the court seeking for three things: a) the court should order that the mother of your children plays her fair share of equal parental responsibility as espoused in Article 53 (1-e), is the right given to a child, but a fundamental duty of the parent: However, you must know that equal responsibility is many times apportioned using different approaches including consideration of biological functions of either parent. It is not an automatic 50-50 weighing scale logic b) the court should provide a decree of custody that your spouse supports in the context of child support, visitation: c) the court, if possible to consider that your wife supports part of your survival since you do not have a good job, as stated. Remember, the court must be moved; it never sits on to deliberate a matter of its own accord. Remember, you must seek prayers (which you wish the court granted) before the magistrate or judge. Your pleadings must be clear and precise.

When the court decides your situation, it is guided by Section 76 (3), 83, and 99 of the Children’s Act, pursuance of Article 53 of the Constitution. First, the court will consider each parent's financial needs, responsibilities, and obligations, which will include contextualising earning capacity or income, property or financial resources of both parents. Further, the court will seek to understand the religion, custom (for as long as it does not injure the constitution), the child's circumstances and financial needs, and any mental or physical disabilities, medical conditions or illnesses.

At this point, the court relies heavily on children’s officers who work under the Directorate of Children services and government sanctioned psychological therapists to arrive at an assessment constructed in the child's best interest.

If the court finds merit in this matter, it should award you the herein aforementioned prayers. If your spouse decides not to respect or respond to such court orders, many legal actions are open to you, all enshrined in the principle of contempt of court. You may troop back to court and ask for any or a combination of the following: that your wife appears before court and show cause why she cannot or do not support her son: that your wife be committed to civil jail: that your wife’s salary be attached to support the child, or her property be auctioned for the same.

While the court seems to be the option, we encourage you first to seek an amicable way of taking care of your son. Unless this civility fails, alternative dispute resolution has better relationship building outcomes that your son needs going forward. Courts can sometimes expose parents to a lot of acrimonies.

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]