LEGAL AID: Must I provide for my wife if we're separated?

I am a man aged 40. Ten years ago, I married a lady who already had a son aged five. l loved and provided for him as my own. We now have two more children aged 12 and nine years.

All the three children attend school. Now, the problem is that I have tried to adopt this boy through the legal process by changing his birth certificate details but my wife has been sabotaging the process.

Last year, we separated and she took away the children.

She has now taken this matter to the children’s department so that I can be tasked to pay her upkeep money.

We never had a violent relationship nor have I ever abused her and I have been paying for the children’s education in a private school.

Are there any legal implications if I stop and disassociate myself from providing for her son?

Can the court also give orders for the mother to provide for the children as she is in a formal job?

Please advise. 

This question demonstrates courage and desire on your part to find a solution to a problem that has occurred in the privacy of your family. This is the dilemma of many married partners today.

Your questions bring out two legal issues 1) acquisition of parental responsibility by a father and 2) financial provision to a child by a step-parent on separation. According to Kenyan law, one acquires parentage and parental responsibility through legal or biological means.

In your case, you acquired parental responsibility by agreeing to take in and provide for the boy which you have done for over 12 years.

Your attempts to amend the boy’s birth certificate to include your name demonstrates commitment to the child.

It is also very important to note that the Constitution bestows equal parental responsibility to both parents regardless of their (both parents) respective financial ability to take care of the child.

In the event of a dispute over parental responsibility or any matter relating to children, the same can be addressed through the Department of Children Services, or filed in court should the parties fail to reach an agreement.

Now that your estranged wife has referred the matter to the Children Department, you are at liberty to pursue an agreement that is in the best interest of your children.

However, if you feel that you are not ready to continue providing for the child in question, having separated with the mother, only a court of law can decisively and conclusively determine the issue.

Before arriving at any decision, the court is guided primarily by ‘the best interest of the child’ principle.

Other factors may include earning capacity of the parents, financial needs of a child, any medical condition of a child, education and social interests of a child, and whether the either parent has assumed parental responsibility knowing the child was not his or her right from the start, among others.

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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]