My estranged husband ignores our child upkeep agreement; what do I do?
A father has ignored the child maintenance agreement he signed with his estranged wife.
What you need to know:
- The Children’s Act emphasises that both parents share equal responsibility for the welfare of their children.
- When a parental responsibility agreement is made at the children’s office, it is recommended to file it in court for adoption.
Dear Vivian,
Last year, you wrote on child maintenance and advised that someone can go to the children's office for mediation before going to court. I took the father of my children to the children's office and we wrote down our agreement. It has been three months and he has ignored the terms of the agreement. What can I do?
Mercy Mueni,
Kangundo Road
Dear Mercy,
Under the Constitution, every child has the right to parental care and protection, which includes the equal responsibility of both mother and father to provide. This provision applies whether the parents are married or not.
The Children’s Act further emphasises that both parents share equal responsibility for the welfare of their children, including providing for their basic needs such as education, food, shelter and healthcare.
When a parental responsibility agreement is made at the children’s office, it is recommended to file it in court for adoption. This ensures that the agreement is enforceable as a court order.
Unfortunately, many parents opt to keep the agreement informal without court registration, which limits their options when one party defaults.
To have the agreement registered and adopted by the Children’s Court, you can file an application. Once the court adopts the agreement, it becomes a legally binding court order. This step is crucial because it gives the agreement legal force, meaning any future violations by the father would result in legal consequences, such as contempt of court proceedings.
If the father refuses to comply, even after the agreement has been formalised, you have the option of filing a case in the Children’s Court for child maintenance.
The Children’s Act allows you to seek an order for child maintenance, ensuring that both parents contribute to the child’s upkeep. The court can issue orders regarding the financial responsibilities of both parents, including school fees, food, and other essential needs of the children.
During these proceedings, you can present evidence of the father’s failure to honour the agreement and the impact it has had on the children. If you succeed in having the agreement registered and the father still fails to comply, you can institute contempt of court proceedings.
A contempt of court order may result in fines or even imprisonment for the father. This would enforce compliance with the court order regarding child maintenance.
A Supreme Court decision emphasised the continuous obligation of parents to fulfil their parental responsibilities, even in instances where a parental responsibility agreement exists.
The court also underscored that such agreements remain valid unless revoked or replaced by a court order. This precedent ensures that the agreement you signed remains binding and enforceable if filed in court and the court will always prioritise the child’s best interests in its decision.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
