Ruling on child upkeep ignores unpaid care

Court decision on equal child responsibility subjugates already disempowered, overburdened women
Landmark ruling on child upkeep ignores unpaid care

What you need to know:

  • Pundits say High Court ruling that separated couples have equal responsibility to their children is a loss for women seeking child upkeep support.
  • Ruling based on  application by a man challenging  lower court’s decision to apportion him a bigger financial burden of maintaining a three-year-old child he sired with his ex-wife.
  • Family lawyer Ms Judy Thongori considers ruling more as a joint responsibility, than equal responsibility due to unequal income witnessed between parents.
  • Crispin Afifu, a gender and governance expert faults the ruling terming it impractical, egotistic and blind.
  • Eva Komba, a gender expert says that as long as unpaid care work is unquantified, unrecognised and unpaid, ruling continues to be gender insensitive/blind.
  • Court ought to have considered the huge disparity in gender pay gap between men and women.
  • Maendeleo ya Wanaume Chairman Mr Nderitu Njoka welcomes move, says many  separated men have it difficult time seeing their children.


A landmark ruling by the High Court that separated couples have equal responsibility to their children has elicited sharp reactions.

Pundits see the recent ruling by Justice Abida Ali-Aroni as a loss for women seeking child upkeep support. The ruling offers reprieve for men facing such charges. 

In her ruling, Justice Aroni observed that according to Section 24 of the Children Act, “Where a child’s father and mother were married to each other at the time of birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental reasonability”.

The judge was ruling on an application by a man challenging a lower court’s decision to apportion him a bigger financial burden of maintaining a three-year-old child he sired with his ex-wife.

The magistrate’s court had directed the man to pay Sh97,000 as the minor’s school fees, finance other school-related expenses, and pay Sh20,000 a month for food.

JOINT RESPONSIBILITY

The mother, in the contested order dated September 13, 2019, would offer the minor shelter, clothing and pay the nanny.

Family lawyer Ms Judy Thongori considers the ruling a win for children as it gives both parents equal responsibility towards them.

Ms Thongori says the judge was right in stating the law to the effect that both parents share responsibility on the child and that neither has a superior or inferior burden.

The lawyer say she sees the matter more as a joint responsibility, than equal responsibility due to unequal income witnessed between parents.

“The ruling should not be looked at in terms of who has lost and who has won. To me, the children have won since they are able to get the best out of their parents,” says Ms Thongori.

She notes that each case should be based on facts at hand since there will be scenarios where both parents have unequal income.

“If, for example, we have one parent earning Sh10,000 and the other earning Sh2 million, the one earning more will have greater responsibility. However, in an instance where one parent earns Sh200,000 and the other Sh400,000, both can provide equally,” she says.

Crispin Afifu, a gender and governance expert faults the ruling terming it impractical, egotistic and blind.

Mr Afifu says the ruling will only subjugate the already disempowered and overburdened women irrespective of their status.

REPRODUCTIVE CARE

He observes that the application of such ruling should not be left open and further interpretation of the context and specific situations of families need to be assessed

“Financial responsibility must never be ambiguous. Women also do reproductive care work, which the courts have ruled before that even care work is work, and the earning husbands should compensate their wives at the point of divorce/separation,” says Mr Afifu.

He notes that it is unfair to have both the woman and man take equal financial responsibility.

“Such ruling is retrogressive, burdensome and absurd and needs to be thought further. The boomerang is, we’ll have a chaotic society. What those children will become if not well taken care of? Your guess is as good as mine,” he says.

Eva Komba, a gender and development expert says that as long as unpaid care work remains unquantified, unrecognised and unpaid, the ruling continues to be gender insensitive/blind.

Ms Komba observes that to implement the principle of equity effectively, a gender lens must be used in arriving at decisions.

“Nationally and within the Judiciary, the struggle has been around quantifying and attaching value to care work that is largely contributed by women, and it’s a high time this is sorted out. Otherwise, we will continue to undervalue and overburden women,” she says.

She adds that the court ought to have considered the huge disparity in gender pay gap between men and women.

A recent report on the best 100 companies to work for by Brighter Monday revealed that there were 10 per cent more men in the high salary bracket than women.

The World Economic Forum revealed, in 2015, that a woman will be paid Sh62 for every Sh100 a man earns for the same job in Kenya.

PAY GAP

Early this year, the same organisation indicated the pay gap between men and women will take 202 years to close, because it is so vast and the pace of change so slow.

Maendeleo ya Wanaume Chairman Mr Nderitu Njoka has welcomed Justice Aroni’s ruling terming it long overdue, and one that will finally end exploitation of divorced men by their ex-wives.

Mr Njoka says men have been oppressed by their ex-wives when it comes to financial matters touching on the upkeep of their children for long.

He claims many divorced or separated men, who meet full financial responsibility on their children, have had it difficult time seeing their children.

“From our research, it is evident many men do not normally spend time with their child/children once denied the chance. In fact, some end up committing suicide after being denied the chance to see their children even after paying for their upkeep,” he says.

He says women have always had an upper hand, accusing them of not disclosing everything concerning the children to their former spouses.

“Findings from our research shows that only three out of ten men, supporting their children financially, know which schools they attend,” he says.

He notes that it is impossible to naturally have equal responsibility as there are roles that squarely fall on women like breastfeeding.

CHILDREN'S ACT

For this reason, he says it is paramount to appreciate women’s role in children’s upbringing, adding that many are the times men don’t take responsibility.

Prior to the ruling, the law had not apportioned how much each parent would contribute, leaving it upon the court to determine.

Article 53 (1) (e) of the Constitution, however,  provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child whether married to each other or not.

Section 90(a) of the Children’s Act also says where the parents of a child were married to each other at the time of the birth of the child and are both are alive, the duty to maintain a child shall be their joint responsibility

Martha Wangui, a hawker in Kiambu town, says the ruling is oppressive to women since many of them earn less than their husbands or ex-husbands.

“Men ought to contribute more since they earn more in most cases. Saying that they contribute equally to cater to the children will be more oppressive to the women,” she says.

The mother of two who separated from her husband in December last year, says women do a lot of unpaid care work.

“The women look for firewood, cook, wash clothes, dishes, clean the house, wash the children among other duties that she never receives payment for. That work should be counted as part of her contribution,” she says.

Simon Mungai an electrician says the ruling is godsend for men.

“Just as women have been fighting for gender equality, the ruling is welcome since it makes both parents equal. There should be a level playing field,” he says.