Co-parenting after separation: Why your ex will not pay your upkeep

Separating from a partner is rarely easy, especially when children are involved.

Beyond the emotional toll, questions about money often become a source of conflict, with many parents unsure where their legal responsibilities begin and end.

One of the most common misconceptions is that having a child together means one parent is legally required to continue providing for the other after the relationship ends, especially if they are financially stable.

According to family lawyer and child rights advocate Ivy Kathugu, the law works differently.

"Just because you have someone's child does not mean that, in the event of a separation, they are obligated to take care of you and your needs. Their primary legal obligation is to provide for the child," she says.

Kathugu explains that child maintenance and personal upkeep are two different things.

While both parents have a legal duty to provide for their child's needs, that obligation does not automatically extend to financial support for a former partner. Instead, the court's focus remains on the welfare and best interests of the child.

"The court will look at the needs of the child, the capacity of each parent, as well as their other obligations," she says.

Ivy Kathungu: Just because you have someone's child does not mean that, in the event of a separation, they are obligated to take care of you and your needs. Their primary legal obligation is to provide for the child.

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According to Kathugu, decisions on child maintenance are not based solely on who earns more money.

Instead, courts consider each parent's financial circumstances alongside their broader responsibilities to ensure the child's needs are adequately met. The same principles, she says, also guide courts when determining custody.

"Just because women are childbearers and nurturers does not automatically give them custody of children in the event of a separation. Custody is awarded to the parent who best serves the interests of the child," she says.

Among the factors courts consider are each parent's financial, emotional and psychological capacity, as well as the age of the child.

According to Kathugu, while the tender years principle generally favours mothers of children below the age of 10, it is not absolute.

"There are cases where children below ten years are given to their fathers," she says, adding that courts will, in most cases, seek to minimise disruption in a child's life during separation.

"If the children have grown up in a certain lifestyle, the court would mitigate the effects of the transition," she says, noting that in some cases, a court may allow one parent time to stabilise before transferring custody.

Where one parent has been absent from a child's life but later wants to reconnect, Kathugu says the law still recognises that both parents have rights and responsibilities.

Such a parent may be granted access to the child, although the court will determine the nature of that access based on what is in the child's best interests.

In situations where a child is reluctant to see an absentee parent, Kathugu says rebuilding the relationship takes time. She urges separated parents to seek professional support where possible.

"When co-parenting, if you are in a position to get a child counsellor, they can be incredibly helpful. You as a parent are in a vulnerable emotional position and you might not see things objectively," she says.

The lawyer also notes that if one parent deliberately fails to meet their financial obligations, the other parent can seek legal enforcement, as child maintenance orders are legally binding.

"In a case where someone frustrates the co-parenting process by neglecting their financial obligations, and there is a court order in place, one partner can report the other to court. The court can then issue a warrant of arrest to help address the situation," she says.