How to change names

Anthony Thiong’o

Q

I am a Kenyan woman living in Mombasa. I had a daughter with a man who later died when our child was two years old. I later married a wonderful man with whom I have two sons. I now want to change the surname of my daughter to my husband’s. Please advise on the process I need to follow to do this?

A

The simple or direct answer is that you need to have a deed poll prepared to change the name of your daughter from that of her late biological father to your husband’s name. The deed poll is a declaration to the world that your daughter has ceased to use her current surname and has now taken on a new surname. The deed poll is registered under the Registration of Documents Act (currently done at the lands’ office) and then advertised in the Kenya Gazette. This would enable your daughter to have the same surname as her stepbrothers. A lawyer can assist you in preparing and registering the deed poll.

I, however, suspect that other than your daughter’s social status, you are also grappling with issues concerning her legal status vis-‡-vis your husband and her half brothers. A simple change of name by your daughter to take up your husband’s name shall not confer parental responsibility on your husband. Your husband would need to formally adopt your daughter to change the legal status between them. The Children’s Act provides the procedure to follow for the High Court to grant an adoption order. Once he adopts your child, your husband is under legal duty to maintain her since he is now recognised as her father.

Similarly, your daughter is currently not entitled to inherit from your husband. If adopted, your daughter would become a dependant under the Law of Succession Act and is, therefore, entitled to a share of your husband’s estate.

Q

What do you do when you discover that your wife has been forging your signature and withdrawing money from your bank account? I recently discovered that my wife has been stealing from me in the last few months and I have lost all trust in her. Do I have sufficient grounds for a divorce? Do I have sufficient grounds to ask for custody for our two children as their mother is a criminal who has been stealing from me?

A

There are general legal principles that guide the courts in arriving at a decision. However, each case is unique and decided on its own merits. The law allows the courts to grant a divorce on four main grounds: adultery, desertion, cruelty and where one spouse is incurably insane. In your case, you could file for divorce on grounds of cruelty but whether the court grants you a divorce shall depend on the evidence that would be adduced during the hearing.

You will need to convince the court that your wife was intentionally mean or unkind with the intention of causing you either physical or psychological harm. If you were not married to your wife, her actions would have been a simple straightforward criminal case of fraud. However, theft from a spouse is a complicated area of law. Numerous questions arise such as your financial arrangements as a couple, her contributions to the account and the provision made for your wife. She may claim that you did not give her adequate money for maintenance of the home and children and she was, therefore, compelled to take the same with a view of maintaining the household. In such a case, she would not have been acting with malice to hurt you and, therefore, cannot be held to have been cruel to you. On the other hand, if she was siphoning the money to give a third party, she may be held to have been cruel as she knew that you would be hurt by the disappearance of your hard earned money.

I would suggest that you first establish the reason she withdraws money from your account without your permission before deciding the next step to take. Counselling may help her open up and reveal the reasons for her actions.

Q

A father has four sons and three daughters. He dies and leaves a will bequeathing everything to the two sons and leaving nothing for the daughters. Do the girls have any recourse in law?

A

The Law of Succession Act provides that the children of a deceased person are his dependants. The daughters may challenge the will as not making a reasonable provision for them and ask the High Court to make such reasonable provision from their father’s estate as the court deems reasonable. The Courts consider various factors in deciding whether to make provision for dependants. Some of the factors would include the conduct of the daughters towards their father before he died, the daughter’s existing and future needs, any gifts the father had made to the daughters in his lifetime and the reasons for their father not leaving them any property.