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Everything you need to know when…

By Harold Ayodo | Nov 3rd 2019 | 5 min read

Seeking child custody after divorce

1. A mother can keep baby but shouldn’t deny father access...

In separation or divorce disputes, there is a glaring rule that mothers retain custody of children of tender years. It does not end there as the parent having actual custody of the baby must allow access to the other parent!

Courts take into consideration that to deprive a parent access to his/her child is to deny the baby an important contribution to his/her emotional and material growing up.

2. Child custody doesn’t have to be decided in court...

The divorces recorded in the courts only account for spouses who divorce formally through the legal system.

It is also a reality that several other matrimonial disputes are not resolved in court as spouses prefer Alternative Dispute Resolution (ADR) and resolve differences by mediation. They agree on who has custody of the children, upkeep, visitation rights and sharing of matrimonial property.

3. If it is good for the child, it is good for the courts...

Family lawyers concur that during disputes involving parents, the best interest of the child must remain paramount.

“When adults make decisions, they should think about how their decisions will affect children, “Lawyer Judy Thongori says and explains that in physical custody cases, the courts perform a delicate balance to ensure that even if children live with the mother, the father is not alienated.

“We have cases where school terms are split between the parents and the holidays equally shared,” she says.

She explains that there are also cases in which courts direct that parents take alternate weekends to be with the babies - their presence is encouraged.

4. What is joint or sole custody?

Lawyer Leah Kiguatha says that courts can either issue orders on joint or sole legal custody of children.

“Joint legal custody means both parents share the right and responsibility to make decisions relating to the health, education and welfare of the child. Sole Custody means one parent can have either sole legal custody or sole physical custody of a child,” Kiguatha says.

Kiguatha also explains that Section Six of the Children’s Act provides that a child has a right to live with and be cared for by his parents.

5. What if one parent decides to move abroad?

There are situations whereby separated or divorced parents are living in different country – one may be living and working abroad.

“Parents should be able to agree on co-parenting even when they live in different countries. Issues arise where an agreement cannot be reached or in attempts to enforce the agreement when there is breach,” Kiguatha says.

She explains that courts ordinarily allow a child to travel to another country to be with the non-resident parent even for holiday.

“Courts usually decline to restrict the freedom of movement of the child but may require that security to ensure their return.”

Article 53 highlights some of the rights that a child is entitled to, including right to a name, nationality from birth, free and compulsory education, basic nutrition, shelter, protection from abuse and neglect, parental care and right not to be detained unless as last resort.

She explains that the court can also be guided by the age of the child as children below 10 are in most cases decided to live with their mothers.

You have been kicked out of matrimonial property

Kicking out spouses from matrimonial homes when relationships turn sour remains the hallmark of domestic disputes.

In most cases, the spouse with financial muscle who either pays a chunk of the monthly rent, bought the house or is paying mortgage often has the audacity to kick out the partner after disagreements.

Residents in many apartments, flats or controlled developments are often treated to charades of couples ‘evicting’ mostly late at night of the wee hours.

In most cases, women are the ones who are often on the receiving end even though they contributed to buying the matrimonial home and allowing it registered under the name of the husband as traditionally, women were not ‘allowed’ to own property.

There are also cases of spouses who have been given property as gifts which are repossessed when marital disputes shift to top gear.

It is illegal...

Fast forward today, new family laws have made it illegal to kick out a spouse (either husband or wife) out of a matrimonial home without a court order.

The Matrimonial Property Act which is in line with Article 45(3) of the Constitution provides for equality in marriage.

Unless there is violence, and a court order...

The Protection Against Domestic Violence Act empowers an aggrieved spouse to seek a court order to bar the aggressive spouse from the matrimonial home. According to the Kenya Demographic and Health Survey of 2009, the number of women who suffer from domestic violence is far much higher than that of men. Court can order evictions when the conduct of a spouse is either wanting or endangers the children or the other spouse.

“A spouse shall not – during the subsistence of marriage – be evicted from the matrimonial home by or at the instance of the other spouse except by a court order,” says Section 12(3) of the Matrimonial Property Act.

“The purpose of the Section is to remind spouses that they have no legal right to evict their partners until matrimonial disputes are heard and determined in court.,” lawyer Caroline Khasoa says.

Moreover, the law further prohibits transactions (sale, mortgage or lease) of the matrimonial home(s) without the written and informed consent of both spouses. A spouse can prove that they contributed in non-monetary terms to the acquisition of the property. And in instances where there is no agreement as to who should own the property, the court can offer guidance. Non-monetary contribution includes domestic work and management of the matrimonial home, family business, property childcare, companionship and farm work.

What legal options does an evicted spouse have?

Spouses facing eviction following marital disputes have legal remedies to protect their property rights. A threatened spouse can go to the Ministry of Lands and file a preventive caution and also apply for an injunction to prevent eviction during hearing.

According to Khasoa, the affected spouse can also apply for co-registration of the matrimonial home(s).

“If the marriage fails, a spouse can apply to court for his/her matrimonial share which will be decided based on monetary or non-monetary contribution towards acquisition.”

According to Kooke, spouses should ensure that property acquired after marriage is registered in their joint names to safeguard continual occupation.

“Joint ownership is important as in the event of death of a spouse, the surviving partner becomes the owner automatically without legal complications,” Kooke says.

Also, if one spouse has a sentimental attachment to the matrimonial home(s), he/she has the option of buying out the share owned by his/her partner. In other cases, the court can order sale of the property and proceeds divided according to monetary or non-monetary contribution toward acquisition.

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