Judge declares responsibilities equal after divorce

A separated couple have equal responsibility to their children and none has a superior or inferior burden, the High Court in Milimani, Nairobi, has ruled on a child-support dispute between former lovers.

In a decision that is likely to send shock waves through people who sue their ex-lovers seeking to have them compelled to shoulder all the financial expenses of the children, Justice Abida Ali Aroni said 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 exercise of such parental responsibility.”

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

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

In the contested order dated September 13, 2019, the mother was to offer the minor shelter and clothing and pay the nanny. The trial court also 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 a health cover for the child.

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

The judge noted that the evidence in the court was that both parties had income and therefore the responsibilities should be shared equally.

“Both parties are in salaried employment and earn 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.”

Suspending the magistrate’s decision and varying the orders issued, Justice Aroni directed the man and his wife to equally share school fees and school-related costs for the minor until further orders of the court.

The judge also reduced the man’s monthly maintenance duty for the child to Sh10,000, which will cover the 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 woman had opposed the application on the grounds that the lower court considered the facts of the case before reaching the contested ruling and that it was the man who chose the school.

She said the man had even paid the initial deposit and first-term fees and could not complain that it 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 any ways with or without the minor and should not be an issue before court. The only issues for consideration are school fees, school related expenses and clothing for now," said the judge.