LEGAL AID: My friend’s abusive ex forced her to change her son’s name

Hi Eric, 

I have a female friend who happened to fall in love with "a stranger". I refer to him as a stranger because after se close to one year of dating, he never revealed to her the location of his house in Nairobi, his rural home, where he works, his age, his networks (friends and relatives) marital status among other relevant information.

During that time, he kept promising this girl so many things that never came to materialise. These included things like paying her rent, son's school fees, upkeep (shopping and other care).  In the process, instead, he was the one taking the girl's money. He asked the girl to allow him to change the son's names on the original birth certificate to reflect him as the father so that he could enroll him (son) and the mother in a health insurance scheme.

But after a short period, he took the girl’s phone and disappeared for months only to show up when the girl was  in another relationship. He's been threatening the girl with death. Lately, he sent her an email asking whether she knew the repercussions of changing the son's name.

My question is, can anyone like the way I have explained above make such changes, if yes, what's the legal procedure of doing so? Secondly, how can the girl stop this guy from causing her unnecessary distraction that's likely to affect her current relationship?

Kind regards,

Alinory Kwena.

Dear Alinory,

Relationships are meant to create joy, bliss and mutual benefits between people. Nonetheless, unfortunate events sometimes kill the intended symbiosis. Stories of broken relationships are heart-breaking and distressful especially for those directly affected.

Your friend is a victim of such circumstances but quite lucky because you have stood with her. We commend you.

You have painted an awful scenario to readers which invites legal and social discussion on issues of parenting. First is to understand how a person acquires parental responsibility. The second is to get to know the process of changing a name on a birth certificate and the likely implications though from your text it is not clear if the change occurred.

Thirdly, deduce how threats amount to criminality.

Parental accountability is obligatory by law as indicated in Article 53 of the Constitution, where both biological parents are given equal opportunity to take care of the child whether married to each other or not. Having said that, and as expected by society, it behooves a parent to demonstrate his or her capacity to take care of a child irrespective of the relationship between them.

Should one undertake this responsibility with full knowledge of not being the biological parent, and in the absence of legal documents sanctioning such a relationship, then that individual assumes parental position of either mother or father, through the concept of contract by conduct.

However, the law allows such persons without biological connection as herein explained to sign a parental responsibility agreement before a court of competent jurisdiction or pursue an adoption process.

With regard to the second issue, change of name has two levels of engagement. Where the child is less than two years the concerned parent, in this case your friend, can invite the revocation of the initial registration by filling relevant forms addressed to the registrar of births. Where the period of two years has elapsed, another process is followed through the execution of a deed poll, which is a legal instrument that even requires the participation and sometimes authority of the child. While change of name holds insignificant legal weight, many people do so to protect the identify of their children, besides preparing to ease access to inheritance, if not fitting the child into a new cultural set up for instance moving from Christian to Islamic faith and vice versa.

REPORT THE THREATS

On the third issue, which is a culmination of the misunderstanding, emphasis is that every threat is potential source of violence and must be treated with seriousness.

Your friend is therefore advised to report these threats to the nearest police station, considering that some threats such as one to kill is categorised as an offence that attracts 10 years’ imprisonment upon conviction. Should the threat-monger decide to execute, your friend would have already taken measures that predispose her matter to good legal standing during prosecution.

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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]