The Marriage Act, as read alongside the constitution, offers the structure on how people marry in Kenya.
Although it is a divine calling to populate the world, there is no statutory requirement that makes it mandatory to get children.
Many of us however end up getting children when we get married. A host of laws come into operation once a child is born. For instance, the Children’s Act sets out the rights and duties of parents and the children. The Registration of Births and Deaths Act makes it mandatory for the parents to get a birth certificate for their children. The constitution has specific provisions for children in Article 53.
Unfortunately, not all marriages live to see the realisation of the vows made during the wedding.
Some fall by the wayside as a result of the many challenges, which lead to the dissolution of the marriage. The Marriage Act has set out grounds on the basis of which a marriage can be dissolved like cruelty, desertion, insanity amongst others.
Realising that there is a need to take care of the children after the dissolution of the marriage, the act provides that the children’s issues shall be dealt with in accordance with the law. The Children’s Court has the jurisdiction to deal with the children’s issues including those in breaking or broken marriages.
At the court, the best interest of the child principle, under Section 4 of the Children Act, as read alongside Article 53 of the Constitution, guides the magistrates whenever they have to determine the issues of these children.
The most problematic issues that the court has to deal with include the question of the custody, access and parental responsibility during and after the separation or dissolution of the marriage.
Some customs dictate that upon dissolution of the marriage, the children belong to the father or the mother. Customary law is now constitutionally provided for under Article 2 of the constitution.
A further reading of the customary law restated by Eugene Cotran will shed more light on the subject of the children after divorce.
It is sad to note that some parents blame the children for the breakdown of the marriage and the children end up being neglected and even abandoned by their parents after divorce.
The Children’s Act has a way of dealing with such parents since it is a crime to abandon children. The court has the powers to issue orders placing such children in registered homes.
On the other hand, many children silently believe that they are the cause of the matrimonial breakdown. They lack the mental capacity to appreciate the cause, the depth and the nature of the challenges bedevilling their parents’ marriage. They are often confused and lost. Many end up withdrawn and feeling guilty. They become very vulnerable to drugs, drinking, premature sex and violence. Depression is never too remote.
During the matrimonial breakdown process, children need a lot of emotional support and assurance that all will be well. Unfortunately, the parents, who are supposed to offer this, are themselves in dire need of support. Such parents unknowingly tend to forget the children’s needs as they seek to survive at this critical hour when the person they depended on and loved most becomes the oppressor.
The children are placed as a secondary point of focus.
Children counsellors and marriage professionals are supposed to kick in at this point. They are trained to offer children the much needed counselling and therapy as the parents go through the divorce proceedings in court.
The courts handling the dissolution, separation or the children issues have the discretionary powers to direct parents to take the children for counselling. However, most of the courts appreciate that this has a cost implication and implementation challenges as a result of which we don’t read a lot of such directions in the children court and the dissolution judgments in Kenya.
With the emerging and evolving nature of children rights, I believe we shall be seeing more of these directions in future judgments.
The preamble to our constitution sets out a commitment that we the people of Kenya made to nurture the individual, the family, the community and the nation for not only our own benefit but for the benefit of the future generations. If we must divorce, then we must always ensure to insulate the children and make sure they have a bright future.
As the marriage breaks down, if it must, we must deal with the hard questions around the welfare of the children so as to ensure that there is minimum emotional and psychological damage once the marriage is dissolved.
Counsellors and the children officer’s reports help the court determine the future of these poor children.
Divorce process has devastating effects on the children. It takes away their happiness, erodes their confidence in school and around friends. It leaves the children with a lot of emotional trauma. Parents have a duty to always safeguard the dignity and security of the children. The best way of achieving this is by making a choice to remain in the marriage.