Introduction
A marriage by cohabitation simply means an arrangement where a couple lives together in a romantic relationship without legal recognition. “Come we stay” unions are not recognized as a type of marriage under the Marriage Act,2014. The five kinds of marriages that are recognized by law are Christian, Civil, Customary, Hindu and Islamic marriages as provided for in Section 6 of the Marriage Act,2014.
The Marriage Act,2014 provides a definition of “to cohabit’ in Section 2 as a situation where an unmarried couple lives together in a long-term relationship that resembles a marriage. It is important to know the place of marriage by cohabitation in Kenya so as to determine the fate and rights of parties in case of succession and property ownership disputes in the eventuality of death of one party or breakdown of the union.
As family lawyers in Kenya, we often advise clients who are in ‘come we stay’ unions about their rights, especially where issues of succession, matrimonial property division, or child custody arise. Understanding the law on presumption of marriage is crucial for anyone in such a relationship.
Analysis of Marriage by Cohabitation in Kenya
Kenyan courts have also defined marriage by cohabitation and emphasized that it is not equivalent to a legally recognized marriage. The High Court of Kenya in CWN v DK (2021) eKLR held that, regardless of the length of the relationship and the intention of the couple, a cohabiting couple still remains unmarried according to the law. Therefore, cohabitation relationships do not have the same status as that of recognized marriages in Kenya.
Kenyan courts have noted the fact that “come we stay” unions have become prevalent in Kenya. While citing great expenses and time as some of the reasons why couples postpone formal ceremonies, Koome J in Re Estate of Patrick Kibunja Kamau (2008) eKLR pointed out that courts often grapple with these unions when disputes arise. Other reasons include: prior experiences or the desire to never marry.
Couples living in long-term cohabitation often seek legal advisory from family lawyers in Kenya to know whether they can claim rights to matrimonial property, inheritance, or maintenance in case of separation.
Cohabitation marriages go hand in hand with presumption of marriage which is a common law doctrine. The doctrine states that, long cohabitation of a man and woman with a general reputation as husband and wife raises a rebuttable presumption that the parties have contracted marriage. Consequently, the doctrine of presumption of marriage has been used over time to infer the existence of a marriage where a couple has not legally formalized their union. In Kenyan law, presumption of marriage is provided in Section 119 of the Evidence Act, Cap 80. It provides that, the court may presume the existence of any fact which it thinks likely to have happened based on inter alia; human conduct and natural events. This has been restated in several cases such as Hortensia Wanjiku Yawe v. The Public Trustee Nairobi (1976) eKLR and in Mary Njoki v John Kinyanjui Mutheru & 3 Others [1985] eKLR. It is also important to note that the Married Women’s Property Act,1882 (repealed) which was inherited as a statute of general application pursuant to the Judicature Act, applied to all women, whether in marriages recognized or unrecognized in law. This is in contrast with the application of the Matrimonial Property Act,2013.
Many clients in succession disputes and matrimonial property cases rely on presumption of marriage arguments. Skilled matrimonial property lawyers in Kenya can assist in proving or rebutting such claims, depending on the circumstances.
The Legal Test for Presumption of Marriage in Kenya
Kenyan courts have recently stated that long cohabitation and repute does not always raise a presumption of marriage. The Supreme Court of Kenya in MNK v POM (2023) eKLR laid out strict parameters that must be met by parties who want the court to find that a presumption of marriage exists. They are as follows: –
- Long cohabitation;
- Capacity to marry;
- Intention to marry;
- Consent by both parties;
- Repute;
- The onus of proving the presumption is on the party who alleges it;
- The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive; and
- The standard of proof is on a balance of probabilities.
The Supreme Court went on to say that, due to the changes in matrimonial laws in Kenya, the doctrine of presumption of marriage is on its deathbed and should thus be used sparingly. Furthermore, that it is the exception rather than the rule. In summary, marriage by cohabitation is not legally recognized in Kenya. However, where the parameters outlined above are met, courts will find that there is a marriage.
For individuals in ‘come we stay’ unions, seeking early advice from a family lawyer in Kenya helps to clarify their rights before disputes over property or succession reach the courts.
The Interplay Among Cohabitation, Succession & Property Rights in a Marriage
As mentioned earlier, matters such as inheritance and property ownership are involved when the disputes arising from “come we stay’ unions are brought before courts. In matters pertaining to succession, cohabitants do not have equivalent rights to legally married couples unless a cohabitee had a will or a cohabiting couple meets the strict parameters which were outlined in the case of MNK v POM (2023) eKLR. The High Court of Kenya in re Estate of MMJ (Deceased) (2023) eKLR stated that, the application of a presumption, whether of law or fact, cannot be done by ignoring clear and express provisions of the law. For instance, under Section 3 of the Law of Succession Act (Cap 160), a spouse is defined as a husband or a wife or wives recognised under the Marriage Act, 2014. Additionally, cohabitees are not named as dependants under Section 29 of the Law of Succession Act (Cap 160). Under the same Act, cohabitees are not envisioned in the category of persons a Court will consider when granting letters of Administration in Section 66.
In matters pertaining division of property upon breakdown of cohabitation unions, the parties do not have equivalent rights to legally married couples thus the Matrimonial Property Act, 2013 is not applicable to them. In order for properties to be declared by a court to be matrimonial properties, it must be shown that they were acquired during the subsistence of a marriage. In order for a presumption of marriage to arise, the cohabitation should not be mere friendship, neither should the woman be a mere concubine but that the long cohabitation should have crystallized into a marriage as stated by the Court of Appeal in Phylis Njoki Karanja& 2 others v Rosemary Mueni Karanja and Another (2009) eKLR. To put it simply, properties cannot be distributed between a couple as per the provisions of the Matrimonial Property Act,2013 if there is no evidence of the existence of any form of a valid marriage as held in BKR v PWG (2024) eKLR.
Owing to the fact that cohabitants have no automatic rights to division of matrimonial property, courts have resorted to applying the doctrine of trusts; particularly constructive and resulting trusts, to come up with decisions. In JKG v MGM (2024) eKLR, there was a dispute between cohabitees regarding division of property. The High Court of Kenya held that there was a resulting trust in favour of the appellant in respect of the suit property because the respondent failed to provide sufficient evidence to prove ownership of the suit property. Resulting trusts is an equitable remedy that works in scenarios where someone registers his or her property in another person’s name without intending to pass beneficial interest to that person. The resulting trust will therefore arise in the favour of the one whose money was used to purchase the property.
On the other hand, constructive trusts is an equitable remedy that is used to prevent unjust enrichment or rather prevent people from unjustly retaining property which they should not rightfully retain. It arises where a party has conducted himself or herself in an unjust manner thus preventing another party from having a beneficial interest in the property in question as stated in Shah and 7 others v Mombasa Bricks and Tiles Limited and 5 others (2023) eKLR.For a constructive trust to be applied, the court has to establish either of two elements. Firstly, that the parties involved had an express agreement regarding sharing of the property and that the claimant acted to his or her detriment with the belief that he or she was acquiring a beneficial interest. Secondly, that both parties have a common intention for existence of a beneficial interest for both of them. This is demonstrated via the conduct of both parties.
Lastly, in matters concerning child custody in marriage by cohabitation, the best interest of the child is of uttermost importance. Therefore, the marital status of the parties does not affect the decision of the court in determining what constitutes the best interests of the child.
Conclusion
In summation, it is evident that parties in ‘Come we stay’ marriages largely remain unprotected by the law in Kenya. As earlier on discussed, cohabitees do not enjoy the same automatic rights accorded to legally married couples unless there are exceptional factors including: – Long cohabitation; Capacity to marry; Intention to marry; Consent by both parties and; Repute. Owing to the fact that the doctrine of Presumption of Marriage is no longer liberally applied by Courts, cohabitees have often found themselves caught between a rock and a hard place upon death of a partner or breakdown of the union.
For couples in such unions, seeking legal guidance from family lawyers in Kenya is critical when dealing with presumption of marriage, division of matrimonial property, or succession disputes. We provide advisory and representation to ensure your rights and interests are protected.