A woman can sue an estranged spouse to compel him to take care of his non-biological child or children.
Case study
In a case in June 2022, a judge ordered a man to continue raising two minors his former wife got from a different relationship.
The couple had three children but only the second born was the man’s biological child.
The woman had come into the marriage while she was five months pregnant from a previous relationship and the man accepted to raise this child as his own. For the third child, the man complained his ex-wife hid from him that she was carrying the pregnancy of another man but the court found that he had assumed parental responsibility and given the last born his own name.
Expert opinion
Lawyer Danstan Omari explains parental responsibility is a preserve of someone who can be a father. He states that there are four ways one can be a father.
“The first one is a biological father, that one has no dispute. The person whose genetics form that child can be compelled by the court to provide for that child,” Omari said.
“The others are legal fathers for example; an adoptive father, a guardian, a father by acquisition of parental responsibility or through a parental responsibility agreement,” he added.
There is not much dispute with adoptive fathers. This is a father who has adopted a child through the rightful process in a high court. The father can be compelled to maintain a child's needs.
A guardian, for example, can be a legal father when he asks the court to be appointed as a guardian when he marries a woman who already had a child or children in a previous relationship.
“The child is not biologically his, but he can get a guardianship order and the court can compel him to pay school fees and take care of this child,” said Omari.
The third legal father is one who acquires parental responsibility. This is a man who has taken care of a child for more than 12 months.
“If you are in a relationship with a woman who already had a child from a previous union and you take care of the child,the court will argue that you have become a father by acquisition of parental responsibility. If you differ with the mother and decide to stop providing for the child, the court can compel you to continue providing for the child until he or she is 18 years of age,” Omari said.
Lastly, Omari says if one enters a parental responsibility agreement, they will always be required to take care of a child.
What the law says
Article 53 of the Constitution guarantees children parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. It continues to state that a child’s best interests are of paramount importance in every matter concerning the child.
