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LEGAL AID: I want to marry her but I’m not the father of her children

Wednesday September 25 2019

Sad man.

She has two children and the name of the biological father is in their birth certificates. My question is: Will this cause trouble in future? PHOTO | FILE | NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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Hello Sir,

I am in a stable relationship with my girlfriend and want to marry her very soon but I have a problem. She has two children and the name of the biological father is in their birth certificates. My question is: Will this cause trouble in future?

Dear Sir,

These are the assumptions to contextualise the distress likely to arise: First, the place of the birth certificate is sacrosanct to a person’s journey of growth and development.

Second, that the biological father of the two kids will make claim over his children at some point during your marriage yet he hasn’t been supporting them in anyway.

Third, that the children are below the age of 18. Fourth, your legal marriage to the mother of the two kids will create a father-child relation recognised in law: Fifth, both of you (mother and yourself) will agree on the maintenance of the children, in spite of their biological father’s name in the birth certificate.

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First things first: It is legal and mandatory by the Births and Deaths Registration Act to capture the name of the biological father of a child in the birth certificate.

This allows ease in establishing paternity, provides insights into medical history and other related matters such as a share of an estate whenever such circumstances arise.

The courts in Kenya have cemented this position in various cases.

Secondly, we have assumed that the children are below the age of majority and require parental care, guidance and love.

Therefore, your worries in this context demand we review scenario three where the biological father makes claim in the subsistence of your marriage and the matter goes to court for adjudication.

In this case the court will be guided by the following the principle of the best interest of the child that is found in the Constitution of Kenya and the Children’s Act of 2001.

The claim will be measured against historical patterns of responsibility between the biological parents.

Should there be history of maintenance from the biological father then, the court may grant him continued privilege of parenting, and the opposite of this is true as well, based on Article 53 of the Constitution where parental care and protection is a responsibility borne by both parents, irrespective of their marital status.

However, if a claim for custody arises, the court becomes the immediate protector of the child and may seek to confirm with whom are the children best suited to be.

On the other hand, if the children are above 18, then they are at liberty to make personal decisions based on individual preferences.

If your marriage is recognised in law and both of you opt for parental responsibility of the two kids, the following is likely.

First you must demonstrate that you have voluntarily assumed parental responsibility towards the kids, but remember this does not confer legal parentage.

Simply put, you must not be coerced into assuming fatherhood to the two kids. Similarly, as parents you would have consented to take care of the children jointly.

Second, in a scenario where your spouse’s children seek allocation or inheritance of all or part of your estate, then an adoption order recognising the two kids as your own must be in place.

For one to arrive at such an ideal situation the biological father must have waived all his parental responsibilities and rights to you within a child adoption process. Should the matter be before an administrator such documents must be produced as proof.  

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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]  

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