Help! My ex-boyfriend wants to sell a home I helped build and relocate overseas with our son
Father with his son.
What you need to know:
- Regarding your son, the Children Act requires that both parents share parental responsibility until the child turns 18, regardless of marital status.
- If he proceeds without approval, that could amount to child abduction under the Penal Code—a serious criminal offence.
Dear Vivian,
Seventeen years ago, I met a British man online, we got into a relationship, bought land in Nakuru and built. We later had a son, who is now 15. We then separated immediately after his birth. We have an existing agreement to co-parent. He was given physical custody, but he now wants to relocate with our son to Ireland. I have also heard that he intends to sell our home. What can I do?
Sarah Naserian,
Nakuru
Dear Sarah,
First, you have both occupational and beneficial interests in that land. Even though the title is in the man’s name, the law recognises that someone who has lived on and contributed to property within a long-term relationship may have a beneficial claim to it. You have occupied the land for 15 years or more, raised a child there, and contributed to its upkeep; that gives you standing to protect your interest.
Start by placing a caution on the land title at the Lands Registry where the property is registered. You should engage a qualified lawyer who will prepare the necessary application to lodge the caution, which will include an affidavit showing your interest in the land, how long you have occupied it, and that it has been your home with your child. Once the Registrar of Lands records the caution, the property cannot be sold, transferred, or subdivided until your claim is resolved.
After lodging the caution, the next step is to move to the Environment and Land Court. Your lawyer will help you file a civil suit seeking a declaration of beneficial interest or constructive trust. This means asking the court to recognise that part of the land rightfully belongs to you because of your long-term occupation, contribution, and the fact that it has served as your family home.
Notably, Kenyan courts have recognised this principle where long occupation and proven contribution within a relationship created a beneficial interest enforceable by law. The courts have powers to issue orders stopping the sale and can direct that a portion of the land be registered in your name or held in trust for your benefit and that of your child.
On the issue of child support, the man remains legally responsible for your son until he turns 18, whether you relocate or not. The Children Act places parental responsibility on both parents, regardless of their marital status. This means each parent must provide for the child’s needs according to their ability and income.
Additionally, the Act affirms that parent with responsibility cannot relocate a child outside Kenya without the consent of the other parent or a court order. If a parental responsibility agreement is in place, the parent with whom the child lives must seek written consent from the other parent, or apply to the court for permission to relocate. Failure to obtain consent or court approval may constitute child abduction, which is a criminal offence under the Penal Code.
Vivian
The author is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
