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LEGAL AID: My ex has sued me for child support

Wednesday January 8 2020

My ex-wife has sued me for child support, yet I have been sending her money via M-Pesa. PHOTO| FILE| NATION MEDIA GROUP

My ex-wife has sued me for child support, yet I have been sending her money via M-Pesa. PHOTO| FILE| NATION MEDIA GROUP 

ERIC MUKOYA
By ERIC MUKOYA
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Hello,

My ex-wife has sued me for child support, yet I have been sending her money via M-Pesa. I also pay for the child's school fees and pay for both their medical bills.

Since June 2019, I have been sending her monthly support at the sum of Sh10,000.

I think her intention is to get the money through my employer, which is embarrassing to me. I am also working towards a promotion, so that they can at least receive a higher amount.

The case is coming soon, can the court agree for me to continue sending the money to her directly instead of going through my employer? Please advise.

Thanks

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Regards,

Stephen

Hi Stephen,

You have demonstrated good manners and fatherhood to fathers and men out there. You consistently pay school fees for your child, besides putting both the mother and child on a medical scheme.

In addition, since June 2019, you have been sending direct financial support of Sh10,000 to your estranged wife. This is commendable. While parenting is a responsibility, it is love for those who are passionate about it.

The suit by your ex-wife is about child support. This means we highlight basic tenets of child support in the context of law.

Second, it raises the concept of equal but differentiated parenting between father and mother. Consequently, a small conversation about the role of both parents in bringing up a child.

Third, the intention of the suit by your ex-wife, especially the timing to move the court for child support, yet there is evidence you have been providing the same.

In principle the court will be guided by Article 53 of the Constitution which provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to take care of the child, whether married to each other or not.

On specifics, the court will interrogate income or earning capacity, property and other financial resources of both father and mother, against the needs of the child contextualised as food, education, shelter, health and clothing, as well as the current child’s living conditions.

Furthermore, the court will also review other obligations of both parents requiring finances to ensure that likely orders do not jeopardise their stability and ability to take care of the child.

Moreover, the court will examine the historical relationship between you and the child to ascertain your presence in their growth and development, on the hindsight that custody is with the mother. 

On both counts of your response, you will have to do the following: Convince the court that you have been giving child support. In this regard share with the court M-Pesa records indicating the amounts and dates for which support is given as evidence: persuade the court, you have been paying school fees consistently.

In this case, provide banking slips and likely receipts as proof: inform the court that you have provided medical support for both mother and child. As proof, share with the court medical scheme records and cards showing the purported provisions.

Having shared this, you are then at liberty to tell the court that your ex-wife’s suit is veiled with malice.

This is because, the issue upon which her suit is based is already being executed by you voluntarily. Therefore, you find no legal basis to support her prayers. 

You can request the court to strike out the suit making claim that intentions in it cannot be contextualised as child support.

Nevertheless, we cannot with certainty guarantee you that the court will order continuation of voluntary support without passing through your employer, but you have a strong case, if presented well.

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