Who is a child?
“child” means a person who has not attained the age of eighteen years but the age limit doesn’t put a restriction to the level of maintenance.
What is child maintenance?
- A legal duty to support a child is based on the children Act Laws of Kenya, the relationship to the child, the need to be supported and the ability to support.
- Child maintenance is an amount of money that a father or mother has to pay towards the up keep of a child based on a legal duty to support that child.
For example, a father or mother of a child has a legal duty to support his child, if the child needs to be supported and he is able to support the child.
How does child maintenance arise?
- Children born out of wedlock i.e. a child whose parents were not married to each other at the time of the child’s conception or at any time after the birth of the child;
- Separation by parents or divorce;
- All children are entitled to receive maintenance from their parents, irrespective of whether the child is born during a marriage or out of wedlock.
- Spouses are allowed to receive maintenance from each other during the marriage or after marriage in terms of a divorce order.
Where can an application for maintenance be made?
An application for maintenance can be made against a defendant (person who must pay maintenance) at any Children Court (“court”) in Kenya.
An application for maintenance is made if the person required by law to provide for the child has failed or ignored to take responsibility of the child
Who can apply for maintenance on behalf of a child?
The father, mother or guardian of the child applies for maintenance on behalf of the child, on whose behalf maintenance is claimed.
What expenses can be claimed for in respect of a child?
- When considering the amount of maintenance to be claimed, the following should be taken into account:
- expenses for food, clothing, accommodation, medical care and education; and
- provision for electricity, water, linen, cutlery and the washing of clothes.
- The standard of living and financial means of the parent (mother or father) should also be considered when calculating the amount of maintenance.
What should a person take to court when applying for child maintenance?
- If maintenance for a child is claimed, the birth certificate of that child.
- A full list of expenses and any proof of same, such as receipts.
- The complainant’s payslip and proof of any other income.
- As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.
What happens after the application has been made?
- The court will inform the defendant of the application and is required to respond by responding to the application for maintenance.
- The complainant and the defendant (the person sued by complainant) has the option to settle the matter out of court
- The application can continue in court to assist the mother or father (whoever is the complainant) reach a settlement by order of court against the defendant (the person sued by complainant);
- The purpose of the court is to assist the complainant and the defendant (the person sued by complainant) in reaching a settlement.
- If a settlement is reached, an agreement will be entered into between the complainant and the defendant (the person sued by complainant), which will be made an order of court.
- If a settlement cannot be reached out of court, the matter before court for a formal hearing is held.
- The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
- If the defendant (the person sued by complainant) fails to appear at the formal enquiry in court, an order may be given in his/her absence.
- It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being issued.
How can a maintenance order be enforced?
- If the defendant (the person sued by complainant) fails to make a payment of maintenance in accordance to a maintenance order, the following remedies will be available to the complainant:
- Warrant of arrest can be issued against the defendant (the person sued by complainant) for contempt of court
- Warrant of execution – the attachment and selling of the defendant’s property, such as his/her furniture, car and so on.
- Emolument attachment order – the attachment of the defendant’s salary for payment of the monthly maintenance.
- Attachment of debt – the attachment of money owed to the defendant by a third party, other than a salary, for example rent owed by a tenant of the defendant.
- When using one of the above remedies, the complainant must have a copy of the maintenance order available and proof that the defendant failed to pay maintenance.
What is the period of maintaining the child?
A parent’s duty of support does not end when the child reaches a particular age, but when the child becomes self-supporting.
A child will generally be considered to be self-supporting when s/he starts to work, but there are instances where continued support is necessary in accordance with the child’s and the parent’s standard of living.
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