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Cohabitation is not marriage, apex court rules

Supreme Court judges Philomena Mwilu, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko have ruled that the doctrine of presumption of marriage is on its waterloo, following changes to the matrimonial laws in Kenya.

The Supreme court of Kenya has ruled that cohabitation is not marriage, no matter how long a woman lives with a man under one roof.

The decision was arrived at by the apex court judges Smokin Wanjala, William Ouko, Njoki Ndung’u, Philomena Mwilu and Isaac Lenaola. The justices noted that the doctrine of presumption of marriage doesn’t apply in Kenya, and therefore cohabitation is not marriage even in circumstances where there are tens of children, gotten in a span of tens of years. “It is becoming increasingly common for two consenting adults to live together for long durations – where these two adults have neither the desire, wish nor intended to be within the confines of matrimony,” they said.

The justices went on to say that, “Where such a situation is evident and there is no intention whatsoever of contracting a marriage, the presumption of marriage must never be made where this intention does not exist. It must always be remembered that marriage is a voluntary union. As such, courts should shy away from imposing ‘marriage’ on unwilling persons.”

The decision arrived on by the Supreme Court justices that cohabitation is not marriage was informed by a case where a couple lived together from 1986 to 2011. During that time, they had spent a lot of money in buying their property. However, the parcel of land – which they had bought – wasn’t registered under the man’s name – since the seller refused to sell the land to the man due to the fact that the seller and the man were from different ethnic backgrounds. Now that the land was registered under the woman’s name, it reached a point where they couldn’t stay together, and they decided to part ways. The woman claimed the land to be hers, whereas the man claimed his contribution in buying the parcel.

During all that time, there was never anything that the two had presented to indicate that they were married: neither before the government (civil law), nor under customary law. The woman therefore said that the man isn’t her husband, but the man – on the other hand – claimed to be the husband to the woman. Even though under the old law there was presumption of marriage where two adults would stay together for a considerable number of months, such law, the Supreme Court ordered, doesn’t exist under the prevailing constitutional dispensation.

The decision that cohabitation is not marriage, arrived at by the apex court, is what drove the last nail on the coffin of the man who had stayed with the woman for 25 years.

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