I’m married with two sons. I doubt whether I’m their father because I caught my wife in bed with another man. She also openly confessed to having been with that man for long time. I never took parental responsibility for the children because I don’t trust her. I now want a divorce even though we are not legally married. What is the legal implication?
Thank you for seeking legal guide on this matter.
Your question is not only a reflection of the challenges faced by a number of couples today, it is also a reminder of the changing composition of families in the contemporary world.
There are two legal issues to consider. First, we will explore whether the marriage exists and secondly whether the relationship with your children remains if you were to terminate the relationship with your wife.
In Kenya, marriage is considered legal upon registration. In your case, you have not formalised the marriage and hence cannot institute divorce proceedings.
In layman’s language, what you would be doing is to end the relationship where you cohabited.
On the second matter, the law provides for different scenarios where one is said to have acquired parental responsibility.
These include: 1. Having cohabited with the woman for a period of over 12 months; 2. Having acknowledged paternity of the children and 3. Having maintained the children. In your case the assumption is that you have lived with your wife for at least two years (since you have two children) and during that period you have maintained them.
This means the children are still your responsibility and that you should continue providing for them until you go to court to prove you are not the father.
Therefore, to clear the doubt on paternity, a DNA test will be required as proof in court for necessary orders to be made.
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