COSTLY OFFSPRING

Cruelty of women weaponising child support

Men who used to pay school fees and didn't initiate the break-up find themselves alienated and exploited when their exes sue them for custody and child support, knowing the law is usually in their favour

In Summary

• In most cases, the court awards custody to the mother and entitles her to maintenance from the father until the child attains the age of majority

• While this protects vulnerable women and children in many cases, in some it provides a loophole for women to take advantage of otherwise responsible men

Break-up
Break-up
Image: COURTESY

Break-ups are challenging at the best of times, but the people who suffer the most are the ones who got children during the marriage or relationship. Women are mostly favoured by the law when it comes to the custody of the children, whereas the men are left to take care of the financial needs of the children.

In most cases, the court considers the mother as best able to take care of young children, for they know their interests and needs. Where custody is bestowed on her, she is entitled to maintenance from the father until the child attains the age of majority.

This has not gone well for responsible men who have had to bear the consequences of a broken relationship or marriage even when the woman is the one who initiated the breakup.

Take, for instance, the case of Administration Police corporal Henry Kamwara, who mans banks in Kiambu town. He was sued by his estranged wife for child support after she left him for another man. The court ruled that he be paying child support of over Sh84,000.

Kamwara is in Job group F, which pays a basic salary of Sh42,600. He is unable to raise the amount and is contemplating quitting his job, despite having another family with one newborn child.

His ex-wife sued him in Thika law court in June 2018, in the Children's Case 204 of 2018. In October 2019, resident magistrate NM Kyan'ya ordered that Kamwaro be paying school fees, clothing, food and medical expenses, whereas his ex should cater for rent and food for their nine-year-old daughter.

During the decree, Kamwara did not attend court session as he was on duty and his advocate offered to represent him, only to learn later that the advocate did not attend the court session.

 
 
 

Kamwara said the orders were not served to him, whereas his ex went back to court, accusing him of not honouring the orders, and an arrest warrant was extended on December 2 last year. Senior resident magistrate OM Wanyanga ordered the Thika subcounty criminal investigation police unit commander to ensure he was arrested and brought to court on December 23.

Kamwara was taken to court and he informed the court he was not aware of the orders as he was not served. The breakdown of the orders was school fees and related expenses, clothing, food, medical and particulars of any cost. This came to an amount of Sh84,300, to be paid to the decree holder (his ex) and a mention of the case to be held on February 10 this year.

In an interview, Kamwara said it was a deliberate move by his ex to conceal the orders so the appeal period should lapse, binding him to comply with the orders.

"Where will I get that kind of amount and yet my job description is well defined?" Kamwara said.

Administration Police officer Henry Kamwara. He was ordered by court to pay Sh84,000 for child support, despite earning Sh42,000
Administration Police officer Henry Kamwara. He was ordered by court to pay Sh84,000 for child support, despite earning Sh42,000
Image: Stanley Njenga

FEAR OF 'DEADBEAT' TAG

Most men interviewed indicated they are afraid of cohabiting with women as it has become a trend that women get pregnant and then leave, only to arm-twist the men into paying child maintenance after being labelled deadbeat dads.

Kamwara said they parted ways because of his ex's promiscuity and lies. Before they broke up, he used to pay school fees for his daughter, including for a firstborn child of his ex who was not his offspring.

"I used to pay school fees, though I was giving the money to my ex-wife. One day I decided to ask for the balance I had in school and I was informed I had not been paying school fees, which had accumulated, and I realised the money I was sending was not going to the intended place," Kamwara said.

He said he had secured a business for his ex-wife worth over Sh100,000, but she squandered the business soon after they separated.

Kamwara said there is no justice for him since his ex-wife has denied him access to his daughter, despite the court orders allowing him to see her during two weekends in a month and a half of her school holiday, yet he is supposed to pay up.

For Silvester Walukhe, an accountant, a bitter fallout has led him to depression. He met a woman he thought was the love of his life, only for her to leave him after they got a child as she did not want to be married. To add insult to injury, he was tasked with providing child maintenance of over ShS100,000 through court orders.

"I met this lady and we cohabited and got a baby boy after one year," Walukhe said.

"When we were about to hold a one-year birthday party, the woman left me with our child and told me she only wanted a child from me and that she will take all the responsibility of the child, so I should not bother with them. Later on, I was served with a court order of neglect and was ordered to be paying over Sh100,000 for the child."

Most men interviewed indicated they are afraid of cohabiting with women as it has become a trend that women get pregnant and then leave, only to arm-twist the men into paying child maintenance after being labelled deadbeat dads.

"There are men who are sincere and want a family but there are also a breed of women out there seeing it as a way to cash in on men through child maintenance," said Peter Mwendwa.

There are men who are sincere and want a family but there are also a breed of women out there seeing it as a way to cash in on men through child maintenance 
Peter Mwendwa

LEGAL REPRIEVE

In June 2019, Justice Joel Ngugi made a landmark ruling in favour of men that they can be allowed sole custody of children, revoking a long-held view that only women are primary caregivers.

The ruling came after a child custody battle between an estranged couple that parted ways after the man caught his wife in their matrimonial bed with their house boy.

The man, named in court records as JKN, lost custody of his two children in 2014. The magistrate’s court ruled that it was impossible for him to have child custody as he was required to be out fending for the family.

The magistrate ruled that it was safer for the children’s mother to take custody rather than them ending up under the care of house helps.

JKN appealed at the High Court, where Justice Ngugi said it was wrong to assume that men are naturally meant to be the breadwinners and women to be caregivers.

According to the judge, child custody, whether actual or legal, should not be given to one parent or person alone. He said the Children’s Act envisages that custody should either be shared or joint.

The judge ruled that both parents have a right to participate and make input in the major decisions concerning the children, including but not limited to the educational, religious and medical.  

He ordered the man and woman to agree on how they would share custody and responsibility over the children, failing which the court would make adverse orders on whoever refused to compromise.

In general, the courts tend to consider that where the parents of the child are unmarried, it is in the child's best interests to live with its mother. The unmarried mother has a superior legal position to the unmarried father and will usually be granted custody. However, the courts will usually grant a right of access to the unmarried father so he can have regular contact with his child.

As part of the decision-making process, the court will consider the moral example given by a parent to his or her child, the influence that parent's behaviour may have on the child's development and the manner in which the parent's conduct is likely to affect the child's welfare.

It is not uncommon for a judge to place restrictions on access where one parent has a new relationship. This is done on the basis that introducing a new partner to a child can be a delicate matter.

The court may require (or you might want to present) a psychological assessment carried out by a child psychiatrist or psychologist. Legal aid may pay for this assessment. Usually, where professional opinions are sought by the court, it will be greatly influenced by the conclusions of the professional.

DEPRESSING RELATIONSHIPS

In a recent incident in Mombasa at God’s Gospel 3G Ministries in Bamburi, Kiembeni, evangelical pastor Elisha Nyadoya, 55, stabbed his wife of 20 years, Anne Maghanga, and later slit his throat and died instantly.

In a 17-page suicide note titled 'Betrayal and It's consequences', Nyadoya accused his wife of infidelity, conspiracy to swindle him of church property and causing him to be held in police cells on false charges. 

Nyadoya claimed his wife, with whom he had four children, falsely accused him of sleeping with her relatives. He blamed her for their troubled marriage, saying Anne left with their children two years ago and he had not seen them since, although he paid their school fees and upkeep. He also said he had proof that his wife was set to get married to another man.

Studies have shown non-marital unions are much less stable, so it’s important to protect your interests before a break-up. Reports have shown that the number of cohabiting couples is rising and by the time children reach 12 years, over 50 per cent have lived with a cohabiting couple.

If you are in a cohabiting relationship, you need to beware of your rights to your children and whether your partner has any rights to your assets should the relationship end. 

A report released by the World Health Organisation on the world mental health situation placed Kenya as the sixth most depressed country in Africa, with 2 million Kenyans being depressed.

The report indicates that in Kenya, men are the most affected by mental illness, which mostly goes undiagnosed because most people have no clue what to look for as symptoms. 

It has become evident that depression is commonly brought about by relationship struggles among couples, which range from separation, infidelity, child custody rights, traditions and hard economic times.

A growing sentiment among men is that when cohabiting couples separate, investigations should be launched just as criminal justice is done to ascertain who was in the wrong and how best custody of children and financial responsibility can be shared, without men being victimised by default.