- If there is separation, the law is likely to insist that the children remain where they are used to, and that will probably see the father going out.
- The other issue is that the mother will remain with the children for a long time while the father will only benefit from visitations.
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In the bravado powered by African traditions, no man will even think of moving out of his home because they have disagreed with his wife.
But the law being what it is, ejecting a man from his home is now possible if there are children in the equation.
To make matters worse, says lawyer Samuel Gichigi, the father may be forced out of the house but be the one to pay rent for his estranged wife and their children.
Nation.co.ke sought the views of Mr Gichigi, a family lawyer, and those of celebrated advocate Judy Thongori on how recent changes in the law affect today’s father.
Mr Gichigi has been an advocate of the High Court since 1995, and family law is one of his specialties. Mrs Thongori was admitted to the bar in 1988 and has taken part in some of the biggest family cases in Kenyan litigation history.
What is the one thing that puts the Kenyan father in a tight spot in child upkeep cases?
Gichigi:It has to be the policy that children of tender years should stay with their mothers, such that even if the father has a better relationship with the child, the likelihood of him retaining a child when there is separation is very slim.
So, you find that unless the mother is a horrible parent — is a drunkard, violent or mentally ill — the child will always go with the mother in the event of separation.
And what happens with the father? If there is separation, the law is likely to insist that the children remain where they are used to, and that will probably see the father going out.
The other issue is that the mother will remain with the children for a long time while the father will only benefit from visitations.
And, when the wife remains with the children, there are issues of accommodation.
Even if it is a rented the house, the mother will usually enjoy the house yet the father is contributing towards the rent and the like.
Thongori: Acceptance of a court order in that very personal space is usually the most difficult stage.
But that acceptance is made easier when you are part of the process in having the order made.
Kindly, therefore, respond to court summons and be sure to place your side of the case before the court.
Judicial officers are human; they live with us. So, they are likely to appreciate your unique circumstances.
Remember, however, that the judicial officers have to balance your circumstances with those of the defenceless child who needs your help to grow up in dignity.
What is the first step a man should take when the mother of his child or children files for upkeep?
Gichigi:Come up with your own assessment of how much, before the separation, was being used to maintain the child.
Because the law will try to maintain that child within the standards that he or she is used to.
So, do your maths well and then the next thing is that you need to document your sources of income because when it comes to how much you should contribute in terms of maintenance of the child, you have to show your ability.
Usually, the demands are much higher than you can afford.
The tendency is for the mother to ask for money as if you don’t have another life after you separate.
You are earning Sh100,000; they want Sh75,000. Probably by the time they are filing the case, you have moved on and you have another family. Yet they want you to treat them as the only family.
Thongori: Whatever the case, dear friends, take responsibility for procreation because the law expects that you will provide for those that bear your biology.
Would you advise a man to go for DNA testing when paternity is in question?
Gichigi:I think human beings tend to resist change but to me, I think the DNA is here to stay and people should be ready to undergo that.
And some of us, during our practice, have come to realise that DNA will help the man more than the woman.
Very many cases have happened where, after the DNA, the man is proved not to be the father. And again, since DNA is almost 100 per cent accurate, it is the only way to remove any lingering doubt especially on the part of the man as to whether he is the father or not.
If you have any doubt, instead of getting tortured forever, go for DNA.
Thongori: For the fathers out there who doubt paternity of the children that they are requested to bring up, science in the form of DNA has become the go-to test in children’s matters where there is a contest.
Please invest in it. It exists at affordable prices at the Government Chemist and elsewhere.
What advice would you give to a man who wants to leave a marriage blessed with children?
Gichigi:What you need to think about is the welfare of your children, and my advice is that your issues with your wife should not cloud your decisions when it comes to the children.
And, my fellow man, what I say is this: There is no way out of the responsibility of taking care of your children. Just forget about any attempt to run away from it.
The other thing is that perhaps you need to start preparing before you separate by way of knowing the income of your wife, because as you and I know, we hardly have a clue as to how much our wives earn or what is in their accounts.
So, you need this information if you can get it. Perhaps, you might even have to hire a private investigator to get this information as it will help when it comes to sharing responsibilities.
Thongori: Remember that the children need you more than ever before. They need your support financially, emotionally and physically.
Even if you do not have money, please be there for the children.
For those in disputes over when to have access to the children, do not despair even if the mothers seem to hold onto little children a tad tightly.
In many cases it is instinctive for a mother to protect her young from hurt. Eventually, mothers ease their grip when they can trust the destination and when they learn that they cannot be mama and baba; that the child needs both.
It might also help if you keep a new partner from the children until they ease into the new space.
Men are usually the family breadwinners and when they die, the issue of succession often becomes thorny. What advice would you give on writing wills?
Gichigi:Writing a will is not an issue of age or thinking of meeting your maker because you’re getting old.
Once you get a child, my advice is that you should come up with a will.
Why? You might be doing well; you might have wealth. But if you don’t take care of it through protection by way of a will, it can be squandered the first month and everything can go, especially when you’re young and, say, your wife gets remarried and befriends men and they take control of her life.
Whatever you had earned and left behind for your child might vanish.
Also, start creating some sort of trusts and putting conditions onto disposal of your wealth.
If you have, say, three titles deeds, you can put conditions that ‘these parcels of land can only be sold clearly for purposes of education or health of my child’.
Thongori: Fathers, write wills. It makes life easier for your children and family members. Do not leave your families wishing they had known your wishes.
Do not allow that which you have so painfully earned to be applied as other people see fit or not to benefit your family as you wished.
Death is the one event that none of us knows when to expect so please do not wait for a convenient time; do it now.
How have recently enacted laws empowered mothers?
Gichigi:Previously, the law almost gave 100 per cent responsibility to mothers especially where there was no marriage.
These days, as long as there is evidence that you’re the biological father of your child, you’re likely to take responsibility of that child unless another man has already taken lawful responsibility.
Also, the past, if a custody case arose at a point where you had never assisted the child or admitted paternity, usually you were not responsible.
But these days, the law has changed and if there is a challenge and paternity is proved by way of DNA, you must be ready to support that child.
Thongori: If you think about it and for those who have engaged with the courts, the standards that are enforced are not alien.
You have always known them; that a parent should take care of their young and that those who fail to do so will be reminded so to do.
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