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Divorced partners have equal responsibilities in raising children – judge

Separates partners they have equal responsibility on their children, a High Court in Nairobi has ruled in a landmark child support dispute between former lovers.

In a decision that is likely to send shockwaves to those who sue their ex-lovers seeking to have them compelled to carry all the financial expenses of the children, Justice Ali Aroni said the separated couples should have an equal joint parental responsibility.

Justice Aroni said, according to Section 24 of the Children Act, “where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in (the) exercise of such parental responsibility.”

Lower court’s decision

He was ruling on an application filed by a man challenging a lower court’s decision to apportion him the biggest financial burden of maintaining a three-year-old child he sired with his former wife.

The magistrate court had directed the man to be paying Sh97,000 as school fees of the minor, finance other school-related expenses and pay Sh20,000 a month to cater for food.

In the contested order dated September 13, 2019, the mother was to offer the minor shelter, clothing and pay the nanny.

The trial court further granted the man access to the child on Saturdays and return the minor on Sunday afternoon on alternative weekends and half of the school holidays.

Both parties were to maintain an insurance cover for the child.

Pending hearing of his appeal

But in his application to have the order varied or suspended pending hearing of his appeal, the man told Justice Aroni that the school fees and maintenance amounts were excessive and beyond his means and was likely to affect his future.

Justice Aroni noted that the evidence before the court was that both parties had income and therefore the responsibilities should be shared equally.

“Both parties are in salaried employment and earn (a) substantial income so that none of them should be hard-pressed to take up a higher responsibility than the other. Both should realise that it is not the same since their divorce and they should as of necessity build consensus on which school they will both be comfortable to pay,” said the judge.

While suspending the magistrate’s decision and varying the orders isssued, Justice Aroni directed both the man and the ex-wife to equally share school fees and school-related costs of the minor until further orders of the court.

Justice Aroni also reduced the man’s monthly maintenance duty of the child to Sh10,000, which will go to assist the ex-wife with costs of food and clothing for the minor pending the hearing and determination of the appeal.

Each will also continue to run a health insurance cover for the minor.

The man who selected the school

The woman had opposed the application on grounds that the lower court considered the facts of the case before arriving at the contested ruling and that it was the man who selected the school the minor was attending.

She said the ex-husband had even paid the initial deposit and first term fees, hence he cannot turn around and complain that the same was expensive.

Further, that she stays with the minor, pays for rent, upkeep, clothing, entertainment and the nanny.

But Justice Aroni said since they live separately, it is assumed that each has a house with rent or mortgage to be paid for, they both incur utility bills, purchase food and will need a nanny because each has access to the child.

“These bills would be incurred anyway with or without the minor and should not be an issue before (the) court. The only issues for consideration are school fees, school-related expenses and clothing for now,” the judge ruled.