Child Maintenance and Support for Parents not Living Together
If you are not living together with a partner you have a child together, and you do not have the child's custody, you are responsible and expected to provide child maintenance, also known as child support, for the child's upkeep.
According to Children Act 2022; “maintenance order” means an
order issued by a court directing a specified person to make such periodic or
lump sum payment for the maintenance of the child on such terms as the Court
may consider appropriate;
In Kenya, child maintenance is a legal obligation placed on both parents to provide financial support for their children until they reach the age of 18 years, or until they finish their education, whichever comes last. The law that governs child maintenance in Kenya is the Children Act of 2022.
Source: PinterestSection 110 of Children Act 2022 states that: (a) the
following presumptions shall apply with regard to the maintenance of a child—
(a) it shall be the joint duty and responsibility of both
parents to maintain the child whether or not the parents are married to each
other;
(c) where two or more custodians have been appointed in
respect of a child, it shall be the joint responsibility of all custodians to
maintain the child;
(e) where the mother and father of a child were not married
to each other at the time of birth of the child, and have not subsequently
married and where the father or mother of the child have acquired parental
responsibility of the child, it shall be the joint responsibility of the mother
and father of the child to maintain that child.
Who can apply for child maintenance
Section 111 of Children Act 2022 states that: (1) A parent, guardian or custodian
of a child, or an authorized officer, may apply to the Court to determine any
matter relating to the maintenance of the child and to make a maintenance order.
Under the Children Act, the obligation to provide child
maintenance rests on both parents, regardless of whether they were married or
not. The amount of child maintenance is determined by the court based on the
needs of the child and the ability of the parents to pay.
The court may also take into account other factors such as
the standard of living the child was accustomed to before the separation or
divorce, any special needs of the child, and any contributions made by the
parents towards the child's upkeep.
If a parent fails to pay child maintenance, the other parent
may seek enforcement through the court. The court has the power to order the
parent to pay the outstanding amount, as well as any interest or penalties that
may have accrued.
It is important to note that child maintenance is a legal
right of the child, and both parents have a legal obligation to ensure that the
child is provided for. Failure to pay child maintenance can have serious legal
consequences, including imprisonment.
child maintenance and child support are similar terms that
refer to the same legal obligation of parents to provide financial support for
their children.
The term "child maintenance" is used in the
Children Act of 2022, which is the main law governing the rights and protection
of children in Kenya. The term "child support" is more commonly used
in other countries, but it means essentially the same thing as child
maintenance.
Both terms refer to the obligation of parents to provide
financial support for their children, regardless of whether the parents are
married or not. The amount of child maintenance or child support to be paid is
determined by the court, based on the needs of the child and the ability of the
parents to pay.
Ultimately, whether we use the term "child maintenance" or "child support", the legal obligation of parents to provide financial support for their children is the same in Kenya.
How much am I supposed to pay for child maintenance?
Section 113 of Children Act 2022 states that: The Court
may order the person against whom a maintenance order is made to make a
financial provision for the child by—
(a) periodic payments; or
(b) such lump sum payment, as the Court shall deem fit,
to the person in whose favor the order is made, or to any
other person appointed by the Court.
The amount a parent is required to pay for child maintenance
in Kenya is not specified in the law. This is because child maintenance is
determined on a case-by-case basis, taking into account the individual
circumstances of the child and the parents.
The court has the discretion to determine the amount of
child maintenance based on several factors, including the needs of the child,
the income and expenses of both parents, the standard of living the child was
accustomed to before the separation or divorce, and any special needs of the
child.
The court may also take into account any other relevant
factors, such as the contributions made by each parent towards the child's
upkeep.
It is worth noting that the amount of child maintenance ordered by the court may be reviewed from time to time, depending on the changing circumstances of the child and the parents.
It should be noted and
kept in mind that the outcome of your case is dependent on various factors, and
it is not possible to foretell the precise result. However, before proceeding
to court, here are some essential details that you should be aware of.
Child support is typically a set amount of money that the
non-custodial parent pays each month to help the custodial parent care for the
child's needs. The amount of child support may be set out in a maintenance
agreement or court order.
A custodial parent is the parent who lives with the child,
while a non-custodial parent is the parent who has been granted visitation
rights. Parents can come to a child support agreement on their own, but the
court must review the agreement to ensure it adheres to the Children's Act. In
Kenya, most parents rely on their advocates to guide them while drafting the
child support agreement.
If the parents cannot settle on an agreement out of court, a
hearing may be necessary, resulting in a child support order. Any future adjustments
to the child support arrangement must take place before a children's court.
Factors Considered When Granting Child Support
Child Support Calculation
Under Section 114 (2) of the Children's Act 2022, there are a few factors that typically influence how much child support the non-custodial parent must pay, including:
- The income or earning capacity, property, and other financial resources of the parties or any other person in whose favor the court proposes to make an order, and what they are likely to have in the foreseeable future
- The financial needs, obligations, or responsibilities that each party has or is likely to have in the foreseeable future
- The financial needs of the child and the child's current circumstances
- The income or earning capacity, if any, property, and other financial resources of the child
- Any physical or mental disabilities, illness, or medical condition of the child
- The manner in which the child is being or was expected to be educated or trained
- The circumstances of any of the child's siblings
- The customs, practices, and religion of the parties and the child
- Whether the respondent has assumed responsibility for the maintenance of the child, and if so, the extent to which and the basis on which he has assumed that responsibility and the length of the period during which he has met that responsibility
- Whether the respondent assumed responsibility for the maintenance of the child
Where one parent is given custody, the other parent still
has all or any rights and duties in relation to the child, other than the right
of possession, jointly with the person who is given custody of the child.
Joint Custody
Where joint custody of children is awarded to the parents or guardians, both parties are expected by law to be jointly responsible for the maintenance of the children.
If my partner had children from another partner, will be compelled
to also pay maintenance for those step children?
Section 114 (1) of Children Act States that: The Court may make a maintenance order in respect of a child, including a child of the other parent who has been accepted as a child of the family notwithstanding the absence of an adoption order.
Specifically, Section 114 of Children Act 2022 is clear that if you took the child knowing is not yours and the time you have taken the responsibilities of that child: Section 114 (2)
(g) whether the respondent has assumed responsibility for the maintenance of the child and, if so, the extent to which, and the basis on which, he or she has assumed that responsibility, and the length of the period during which he has met that responsibility;
(h) whether the respondent assumed responsibility for the maintenance of the child knowing that the child was not his child;
In some cases, a court may consider the financial responsibilities of the partner towards their stepchildren while determining the amount of child support to be paid for the children of the current relationship. This will depend on the specific circumstances of the case and the discretion of the court.
What if I do not have a job or income and am not able to pay child maintenance?
If you do not have a job or income and are unable to pay
child maintenance, you can apply to the court to have the amount of maintenance
reduced or temporarily suspended. This is known as a variation of the
maintenance order.
To apply for a variation of the maintenance order, you will
need to show evidence to the court that you are unable to pay the required
amount of child maintenance. The court will then consider your circumstances,
including your income and expenses, and may adjust the amount of child maintenance
accordingly.
It is important to note that failure to pay child
maintenance without a valid reason is a serious offense in Kenya, and can
result in legal consequences, including imprisonment. It is therefore important
to apply for a variation of the maintenance order if you are unable to pay the
required amount, rather than simply failing to pay.
If you are having difficulty finding employment, you may
also want to seek advice from a lawyer or a government agency that provides
support and assistance to job seekers.
Is it a must we make the agreement through the court?
No, a maintenance agreement in Kenya does not have to be
made only in court.
A maintenance agreement can be made in the Children's
Office, which is also known as the Children's Department. The Children's
Department is a government agency in Kenya that is responsible for the welfare
and protection of children. They provide services to children and their
families, including counseling, mediation, and support in legal matters related
to children.
In cases where the parents of a child cannot reach an
agreement on child maintenance, they can seek the assistance of the Children's
Department. The department may offer mediation services to help the parents
come to an agreement on child maintenance. If the parents are able to reach an
agreement through mediation, the agreement can be formalized and signed at the
Children's Department.
However, if the parents are unable to reach an agreement
through mediation, the matter may be referred to court for resolution. It's
worth noting that any maintenance agreement made at the Children's Department
must adhere to the Children's Act and be approved by the court to be
enforceable.
Parents can also settle on a child support agreement out of
court or out of the Children’s Office, which can be in the form of a private
agreement or a consent order.
In a private agreement, the parents mutually agree on the
amount and frequency of child support payments and other relevant terms without
involving a court. However, such agreements may not have the same legal
enforceability as a court order.
On the other hand, a consent order is an agreement between
the parties that has been approved and made into a court order by a court. A
consent order has legal force, and either party can take legal action to
enforce it if the other party breaches the terms of the order.
In some cases, a court may require the parties to attempt to
reach an agreement out of court before proceeding to a court hearing, which can
result in a child support order if the parties fail to reach an agreement.
Can I stop paying child maintenance if the person staying with the child is abusing and not using it for the child?
No, you cannot stop paying child maintenance if the person
staying with the child is abusing or misusing the funds. Child maintenance is a
legal obligation and it is meant to support the child's needs, regardless of
how the custodial parent is using the funds.
If you suspect that the child is being abused or neglected,
you should report the matter to the relevant authorities such as the Children's
Department or the police. It is also possible to apply to a court to vary the
child maintenance order if there has been a significant change in
circumstances.
However, it is important to note that making false
allegations or refusing to pay child maintenance without a valid reason can
result in legal consequences. It is important to seek legal advice if you have
concerns about the use of child maintenance funds or if you want to change a
child maintenance order.
The best way is to apply to children court whereby, Section
115 of Children Act 2022 states; the court may appoint any other person whom it
considers fit and proper to receive and administer any maintenance monies
required to be paid under a maintenance order, or order the person required to
make a payment of the maintenance monies, if the person currently receiving the
money:
(a) is not a fit person to receive any maintenance monies
specified in the order in respect of a child;
(b) has left the jurisdiction of the Court for an indefinite
period, or is dead, incapacitated, imprisoned or has been declared bankrupt; or
(c) has
misappropriated, misapplied or mismanaged any maintenance monies paid to him
for the benefit of the child,
A parent or party may also apply to vary or revoke a child
maintenance/support order for various reasons, including:
- The
child requiring specialized medical care or education beyond the age of 18
- Changes
in the financial status of either parent
- Agreement
between the parents to alter the contribution and make it binding by the
court
- The
parent refusing to increase child support payments and it being in the
best interest of the child to have the amount increased
- Increasing
needs of the child, such as unforeseen medical costs
- Need
to bring the living standard of other siblings/half siblings in line with
that of the child in question
- The
parent receiving child support being unable to use the money for the
child’s needs, such as failing to spend the money on the child or misusing
the funds.
When does the paying of maintenance order end?
In Kenya, the obligation to pay child maintenance ends when
the child turns 18 years old, or when the child completes their education,
whichever comes later. However, if the child is physically or mentally
disabled, then the obligation to pay child maintenance may continue for as long
as the disability persists.
Additionally, if the child is married or employed and
financially independent, the obligation to pay child maintenance may also come
to an end. However, it is important to note that the specific circumstances
surrounding the end of the obligation to pay child maintenance can vary
depending on the individual case, so it is always advisable to consult with a
legal professional for specific guidance on your situation.
Children Act 2022 section 116. (1) state that; A maintenance
order requiring financial provision to be made through periodic payments shall
commence on the date of the application, or on such later date as the Court may
direct.
(2) An order under subsection (1) shall remain in force
until the child’s eighteenth birthday subject to the provisions of section 111.
(3) The Court may review the order for periodic payment upon—
(a) the death of the person liable to make the periodic
payment;
(b) significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.
Let us be responsible to our children, as our parents brought us up. Parents should learn to separate themselves and their issues from the child. The sad bit is that majority of separated couples try to score goals and punish each other through the child maintenance and access.
Children are innocent and they should not bore the pain of the separation of their parents. They have the right to grow up in safe and sustainable families as, our parents brought us up. Let's be responsible and provide for our children and prevent ourselves from hurting them. There are options provided when making the maintenance agreement such as paying directly to the school where the child attends, insuring the child's medical and sending a shopping for the food that is adequate for the child, if contributing maintenance in form of money is the source of contention between couples. But this should be discussed during the agreement or, you can apply to court for the review of agreement to demonstrate that the money you send is not being used to meet the needs of the child.
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